On August 13, 2018 a
Exhibit,Appendix
was filed
involving a dispute between
Deutsche Bank National Trust Company As Trustee For Long Beach Mortgage Loan Trust 2004-3, Asset-Backed Certificates, Series 2004-3,
and
Capital One Auto Finance, Inc.,
Erin Capital Management, Llc,
Hoa T. Ngo,
Iva Lewis,
Omni Credit Services Of Florida, Inc.,
The Bank Of New York As Trustee Under The Pooling And Servicing Agreement Dated As Of November 1, 1996 For Metropolitan Asset Funding, Inc., Mortgage Pass-Through Certificates, Series 1996-A,
William Lewis,
for Real Property - Mortgage Foreclosure - Residential
in the District Court of Orange County.
Preview
FILED: ORANGE COUNTY CLERK 07/01/2019 03:48 PM INDEX NO. EF008505-2018
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/01/2019
EXHIBIT O
FILED:
FILED : ORANGE
ORANGE COUNTY
COUNTY CLERK
CLERK 07/01/2019
09/05/2 018 03:48
02 :5 6 PM
PM|
INDEX
INDEX NO.
NO. EF008505-2018
EF008505-2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 51
18 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/01/2019
09/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
DEUTCHE BANK NATIONAL TRUST
COMPANY AS TRUSTEE FOR LONG BEACH
MORTGAGE LOAN TRUST 2004-3,
ASSET-BACKED CERTIFICATES, SERIES 2004-3,
Plaintiff, Index No. EF008505-2018
v.
VERIFIED ANSWER TO
FORECLOSURE COMPLAINT
WILLIAM LEWIS, ET AL.
Defendant(s).
Defendant WILLIAM LEW_IS answers as follows:
I generally deny each allegation of the Complaint, including that Plaintiff is the owner of the
note and mortgage.
I plead the fellowing Defenses and Counterclaims:
Lack of Standing: Plaintiff, upon information and belief, does not own the note and
mortgage. Plaintiff therefore does not have standing to sue because itwas not the legal
owner of the note and/or mortgage at the time itcommenced this foreclosure lawsuit.
X FaredGsüre
and mortgage.
Cause of
Because
Action: Plaintiff,
ownership of the
upon
note
information
and mortgage
and
is
belief,
an
does
element
not
of a
own the note
foreclosure
cause of action, Plaintiff has no right to foreclose.
o Statute of Limitations (NY Civil Practice Law and Rules § 213(4)): Upon information and
belief, Plaintiff may not sue on all or part of the mortgage debt because Plaintiff commenced
this action more than six years after the debt bœ=ne due.
o Additionally, the entire foreclosure action is time-barred by the statute of limitations
because Plaintiff commenced this action more than six years after itaccelerated the
mortgage debt. Defendant requests that the mortgage be cancelled and discharged
pursuant to NY Real Property Actions and Proceedings Law § 1501(4).
o Service of Process (NY Civil Practice Law and Rules § 308): I was not properly served with
process in this action for the following reason(s):
1 of 6
FILED:
FILED : ORANGE
ORANGE COUNTY
COUNTY CLERK
CLERK 07/01/2019
09/05/2018 03:48
02:56 PM
PM|
INDEX
INDEX NO.
NO. EF008505-2018
EF008505-2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 51
18 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/01/2019
09/05/2018
o Notice of Default: Plaintiff failed to comply with the requirements for the notice of default in
my mortgage loan agreement, a condition precedent to this foreclosure action.
o Reverse Mortgage--Notice Requiremcats: Plaintiff failed to comply with the notice
requirements under New York and/or federal law or failed to comply with contractual
requirements of the reverse mortgage, which are conditions precedent to this foreclosure
action.
o Reverse Mortgagc-Failure to Specify Alleged Default: The complaint is vague and does
not specify the alleged default and/or the amount(s) plaintiff claims in this action.
o Reverse Mortgage-Foreclosure on a Reverse Mortgage for Property Charge Defaults
is Against Public Policy: The purpose of reverse mortgage loans under the Home Equity
Conversion Mortgage ("HECM") program is to assist senior citizens to stay in their homes,
and reverse mortgage lenders have other remedies in the event of alleged failure to pay
property charges. Plaintiff, accordingly, as a matter of equity and public policy, should not be
pennitted to foreclose.
o 90-Day Notice Requirement (NY Real Property Actions and Proceedings Law § 1304):
Plaintiff failed to comply with the requirements of NY Real Property Actions and
Proceedings Law § 1304, a condition precedent to this foreclosure action.
90-Day Notice Filing Requirement (NY Real Property and Proceedings Law § 1306):
Plaintiff failed to comply with the requirements of NY Real Property and Proceedings Law §
1306, a condition precedent to this foreclosure action.
Help for Homeowners in Foreclumre Notice Requirement (NY Real Property Actions
and Proceedings Law § 1303): Plaintiff failed to comply with the requirements of NY Real
Property and Proceedings Law § 1303, a condition precedent to this foreclosure action.
o Pending Foreclosure Action (NY Real Property Actions and Proceedings Law § 1301):
Plaintiff impermissibly commenced this action because there is a prior pending action to
recover all or part of the mortgage debt.
o Real Estate Settlemcat Procedures Act Early Intervention Requirement (12 C.F.R. §
1024.39): Upon information and belief, Plaintiff violated the early intervention requirements
of the Real Estate Settlement Procedures Act because (check one or both ifapplicable):
o Within 36 days of my delinquency, the loan servicer did not attempt to establish live
contact with me to inform me about the availability of loss mitigation options.
o Within 45 days of my delinquency, the loan servicer did not send me a written notice
that included contact infonnation for the servicer, a description of loss mitigation
options available from the servicer, infonnation about applying for loss mitigation,
and a website listing housing counselors.
2
2 of 6
FILED:
FILED : ORANGE
ORANGE COUNTY
COUNTY CLERK
CLERK 07/01/2019
09/05/2 018 03:48
02 :5 6 PM
PM|
INDEX
INDEX NO.
NO. EF008505-2018
EF008505-2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 51
18 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/01/2019
09/05/2018
o Real Estate Settlement Procedures Act Pre-Foreclosure Review Requirement (12 C.F.R.
§ 1024.41): Plaintiff impermissibly filed this forsk-are during the pre-foreclosure review
period because (check one or both V applicable):
o Plaintiff commenced this action before my loan was more than 120 days delinquent.
o I submitted a complete loss mitigation application to loan servicer but Pl aintiff
my
commenced this action (1) before the loan servicer made a decision on that
application, (2) before the time period to appeal the loan servicer's decision lapsed, or
(3) before the loan servicer made a decision on an appeal I submitted in connection
with the loss mitigation application.
FHA Pre-Foreclosure Requirements: My loan is insured by the Federal Housing
Administration. Upon information and belief, the loan servicer/mortgagee has not compliM
with regulations of the Department of Housing and Urban Development because the loan
servicer/mortgagee did not do one or more of the following (check all that are applicable):
o Send me a notice of default before the end of the second month of my delinquency
(24 C.F.R. § 203.602).
Attempt to arrange a face-to-face interview with me before three fullmonthly
installments due under the mortgage were unpaid (24 C.F.R. § 203.604).
Evaluate me for loss mitigation before four fullmonthly installments due under the
mortgage were unpaid (24 C.F.R. § 203.605).
o Wait until three full monthly installments due under the mortgage were unpaid before
commencing this foreclosure action (24 C.F.R. § 203.606)
Certificate of Merit Requirement (NY Civil Practice Law and Rules § 3012-b): Upon
information and belief, Plaintiff failed to comply with the Certificate of Merit requirements of
NY Civil Practice Law and Rules § 3012-b.
Request for Judicial Intervention (NY Rules and Regulations Title 202.12-
Codes, 22, §
a(b)): Upon information and belief, Plaintiff did not file a Request for Judicial Intervention.
Attorney's Fees (NY Real Property Law § 282): If Iretain counsel, I am entitled to recover
my attorney's fees in defending this action pursuant to New York Real Property Law § 282.
o Excessive Interest and Fees (NY Civil Practice Law and Rules § 3408(f)): In a prior
foreclosure action, Plaintiff failed to negotiate in good faith pursuant to CPLR 3408(f). This
failure to negotiate in good faith has caused excessive interest and fees to accrue which
Plaintiff, as a matter of equity and by operation of the CPLR, is not entitled to recover.
o Excessive Interest (NY Civil Practice Law and Rules § 5001(a)): Plaintiff has unreasonably
delayed filing this action, failed to file the Request for Judicial Intervention or engaged in
other dilatory conduct causing excessive interest to accrue which the Court may reduce or
toll,as a matter of equity and by operation of the CPLR.
3
3 of 6
FILED:
FILED : ORANGE
ORANGE COUNTY
COUNTY CLERK
CLERK 07/01/2019
09/05/2018 03:48
02:56 PM
PM|
INDEX
INDEX NO.
NO. EF008505-2018
EF008505-2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 51
18 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/01/2019
09/05/2018
o Action Commenced Against a Deceased Party: This action is a nullity because itwas
commenced against after that party was already deceased and before a
personal representative was appointedand itsh Id thereforebedismissed.
o Payment or Partial Payment: I have paid, in whole or in part, the amounts claimed by
Plaintiff.
o Other Defenses or CGüñterclaims(attach additional pages ifneeded):
4
4 of 6
FILED::
[FILED ORANGE
ORANGE COUNTY
COUNTY CLERK
CLERK 07/01/2019
09/05/2018 03:48
02: 5 6 PM
PM INDEX
INDEX NO.
NO. EF008505-2018
EF008505-2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 51
18 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/01/2019
09/05/2018
Wherefore, Defendant requests that the Complaint be dismissed; that the relief requested
attorneys'
Defendant be granted in its entirety; that Defendant be granted costs and fees ifhe
by
or she retains counsel; and any other relief allowed by law deemed just and proper by this Court
in the exercise of itsequity jurisdiction in this foreclosure action.
Dated: Sentember 4. 2018
Newburgh, New York
Å t AT AA AA R Aa , Defendant Pro Se
(Defdnd nt's Signafurl
W lliam Lewis
(Defendant's Name)
73 Caroenter Road
(Defendant's Address)
New Hampton. NY 10958
(Defendant's Address)
(Defendant's Telephone Number)
Prepared with the assistance of counsel admitted in New York.
5
5 of 6
FILED:
FILED : ORANGE
ORANGE COUNTY
COUNTY CLERK
CLERK 07/01/2019
09/05/2018 03:48
02:56 PM
PM|
INDEX
INDEX NO.
NO. EF008505-2018
EFO08505-2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 51
18 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/01/2019
09/05/2018
VERIFICATION
I,William Lewis, being duly sworn, state that the within Answer is true to the best of my
knowledge, except as to those matters alleged upon infonnation and belief, which I believe to be
true.
(Def n$fiP1(Signature)
William Lewis
(Defendant's Name)
Sw to and bscribed before me this
day of , 20
t 6 YVETTE M. 8ANDS
Notary Publ¾ 8tateof New York
Now018MOM897
Cormn lonExpl NW Îb
ary Public
6
6 of 6
Preview
FILED: ORANGE COUNTY CLERK 07/01/2019 03:48 PM INDEX NO. EF008505-2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/01/2019 EXHIBIT O FILED: FILED : ORANGE ORANGE COUNTY COUNTY CLERK CLERK 07/01/2019 09/05/2 018 03:48 02 :5 6 PM PM| INDEX INDEX NO. NO. EF008505-2018 EF008505-2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 51 18 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/01/2019 09/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE DEUTCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN TRUST 2004-3, ASSET-BACKED CERTIFICATES, SERIES 2004-3, Plaintiff, Index No. EF008505-2018 v. VERIFIED ANSWER TO FORECLOSURE COMPLAINT WILLIAM LEWIS, ET AL. Defendant(s). Defendant WILLIAM LEW_IS answers as follows: I generally deny each allegation of the Complaint, including that Plaintiff is the owner of the note and mortgage. I plead the fellowing Defenses and Counterclaims: Lack of Standing: Plaintiff, upon information and belief, does not own the note and mortgage. Plaintiff therefore does not have standing to sue because itwas not the legal owner of the note and/or mortgage at the time itcommenced this foreclosure lawsuit. X FaredGsüre and mortgage. Cause of Because Action: Plaintiff, ownership of the upon note information and mortgage and is belief, an does element not of a own the note foreclosure cause of action, Plaintiff has no right to foreclose. o Statute of Limitations (NY Civil Practice Law and Rules § 213(4)): Upon information and belief, Plaintiff may not sue on all or part of the mortgage debt because Plaintiff commenced this action more than six years after the debt bœ=ne due. o Additionally, the entire foreclosure action is time-barred by the statute of limitations because Plaintiff commenced this action more than six years after itaccelerated the mortgage debt. Defendant requests that the mortgage be cancelled and discharged pursuant to NY Real Property Actions and Proceedings Law § 1501(4). o Service of Process (NY Civil Practice Law and Rules § 308): I was not properly served with process in this action for the following reason(s): 1 of 6 FILED: FILED : ORANGE ORANGE COUNTY COUNTY CLERK CLERK 07/01/2019 09/05/2018 03:48 02:56 PM PM| INDEX INDEX NO. NO. EF008505-2018 EF008505-2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 51 18 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/01/2019 09/05/2018 o Notice of Default: Plaintiff failed to comply with the requirements for the notice of default in my mortgage loan agreement, a condition precedent to this foreclosure action. o Reverse Mortgage--Notice Requiremcats: Plaintiff failed to comply with the notice requirements under New York and/or federal law or failed to comply with contractual requirements of the reverse mortgage, which are conditions precedent to this foreclosure action. o Reverse Mortgagc-Failure to Specify Alleged Default: The complaint is vague and does not specify the alleged default and/or the amount(s) plaintiff claims in this action. o Reverse Mortgage-Foreclosure on a Reverse Mortgage for Property Charge Defaults is Against Public Policy: The purpose of reverse mortgage loans under the Home Equity Conversion Mortgage ("HECM") program is to assist senior citizens to stay in their homes, and reverse mortgage lenders have other remedies in the event of alleged failure to pay property charges. Plaintiff, accordingly, as a matter of equity and public policy, should not be pennitted to foreclose. o 90-Day Notice Requirement (NY Real Property Actions and Proceedings Law § 1304): Plaintiff failed to comply with the requirements of NY Real Property Actions and Proceedings Law § 1304, a condition precedent to this foreclosure action. 90-Day Notice Filing Requirement (NY Real Property and Proceedings Law § 1306): Plaintiff failed to comply with the requirements of NY Real Property and Proceedings Law § 1306, a condition precedent to this foreclosure action. Help for Homeowners in Foreclumre Notice Requirement (NY Real Property Actions and Proceedings Law § 1303): Plaintiff failed to comply with the requirements of NY Real Property and Proceedings Law § 1303, a condition precedent to this foreclosure action. o Pending Foreclosure Action (NY Real Property Actions and Proceedings Law § 1301): Plaintiff impermissibly commenced this action because there is a prior pending action to recover all or part of the mortgage debt. o Real Estate Settlemcat Procedures Act Early Intervention Requirement (12 C.F.R. § 1024.39): Upon information and belief, Plaintiff violated the early intervention requirements of the Real Estate Settlement Procedures Act because (check one or both ifapplicable): o Within 36 days of my delinquency, the loan servicer did not attempt to establish live contact with me to inform me about the availability of loss mitigation options. o Within 45 days of my delinquency, the loan servicer did not send me a written notice that included contact infonnation for the servicer, a description of loss mitigation options available from the servicer, infonnation about applying for loss mitigation, and a website listing housing counselors. 2 2 of 6 FILED: FILED : ORANGE ORANGE COUNTY COUNTY CLERK CLERK 07/01/2019 09/05/2 018 03:48 02 :5 6 PM PM| INDEX INDEX NO. NO. EF008505-2018 EF008505-2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 51 18 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/01/2019 09/05/2018 o Real Estate Settlement Procedures Act Pre-Foreclosure Review Requirement (12 C.F.R. § 1024.41): Plaintiff impermissibly filed this forsk-are during the pre-foreclosure review period because (check one or both V applicable): o Plaintiff commenced this action before my loan was more than 120 days delinquent. o I submitted a complete loss mitigation application to loan servicer but Pl aintiff my commenced this action (1) before the loan servicer made a decision on that application, (2) before the time period to appeal the loan servicer's decision lapsed, or (3) before the loan servicer made a decision on an appeal I submitted in connection with the loss mitigation application. FHA Pre-Foreclosure Requirements: My loan is insured by the Federal Housing Administration. Upon information and belief, the loan servicer/mortgagee has not compliM with regulations of the Department of Housing and Urban Development because the loan servicer/mortgagee did not do one or more of the following (check all that are applicable): o Send me a notice of default before the end of the second month of my delinquency (24 C.F.R. § 203.602). Attempt to arrange a face-to-face interview with me before three fullmonthly installments due under the mortgage were unpaid (24 C.F.R. § 203.604). Evaluate me for loss mitigation before four fullmonthly installments due under the mortgage were unpaid (24 C.F.R. § 203.605). o Wait until three full monthly installments due under the mortgage were unpaid before commencing this foreclosure action (24 C.F.R. § 203.606) Certificate of Merit Requirement (NY Civil Practice Law and Rules § 3012-b): Upon information and belief, Plaintiff failed to comply with the Certificate of Merit requirements of NY Civil Practice Law and Rules § 3012-b. Request for Judicial Intervention (NY Rules and Regulations Title 202.12- Codes, 22, § a(b)): Upon information and belief, Plaintiff did not file a Request for Judicial Intervention. Attorney's Fees (NY Real Property Law § 282): If Iretain counsel, I am entitled to recover my attorney's fees in defending this action pursuant to New York Real Property Law § 282. o Excessive Interest and Fees (NY Civil Practice Law and Rules § 3408(f)): In a prior foreclosure action, Plaintiff failed to negotiate in good faith pursuant to CPLR 3408(f). This failure to negotiate in good faith has caused excessive interest and fees to accrue which Plaintiff, as a matter of equity and by operation of the CPLR, is not entitled to recover. o Excessive Interest (NY Civil Practice Law and Rules § 5001(a)): Plaintiff has unreasonably delayed filing this action, failed to file the Request for Judicial Intervention or engaged in other dilatory conduct causing excessive interest to accrue which the Court may reduce or toll,as a matter of equity and by operation of the CPLR. 3 3 of 6 FILED: FILED : ORANGE ORANGE COUNTY COUNTY CLERK CLERK 07/01/2019 09/05/2018 03:48 02:56 PM PM| INDEX INDEX NO. NO. EF008505-2018 EF008505-2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 51 18 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/01/2019 09/05/2018 o Action Commenced Against a Deceased Party: This action is a nullity because itwas commenced against after that party was already deceased and before a personal representative was appointedand itsh Id thereforebedismissed. o Payment or Partial Payment: I have paid, in whole or in part, the amounts claimed by Plaintiff. o Other Defenses or CGüñterclaims(attach additional pages ifneeded): 4 4 of 6 FILED:: [FILED ORANGE ORANGE COUNTY COUNTY CLERK CLERK 07/01/2019 09/05/2018 03:48 02: 5 6 PM PM INDEX INDEX NO. NO. EF008505-2018 EF008505-2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 51 18 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/01/2019 09/05/2018 Wherefore, Defendant requests that the Complaint be dismissed; that the relief requested attorneys' Defendant be granted in its entirety; that Defendant be granted costs and fees ifhe by or she retains counsel; and any other relief allowed by law deemed just and proper by this Court in the exercise of itsequity jurisdiction in this foreclosure action. Dated: Sentember 4. 2018 Newburgh, New York Å t AT AA AA R Aa , Defendant Pro Se (Defdnd nt's Signafurl W lliam Lewis (Defendant's Name) 73 Caroenter Road (Defendant's Address) New Hampton. NY 10958 (Defendant's Address) (Defendant's Telephone Number) Prepared with the assistance of counsel admitted in New York. 5 5 of 6 FILED: FILED : ORANGE ORANGE COUNTY COUNTY CLERK CLERK 07/01/2019 09/05/2018 03:48 02:56 PM PM| INDEX INDEX NO. NO. EF008505-2018 EFO08505-2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 51 18 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/01/2019 09/05/2018 VERIFICATION I,William Lewis, being duly sworn, state that the within Answer is true to the best of my knowledge, except as to those matters alleged upon infonnation and belief, which I believe to be true. (Def n$fiP1(Signature) William Lewis (Defendant's Name) Sw to and bscribed before me this day of , 20 t 6 YVETTE M. 8ANDS Notary Publ¾ 8tateof New York Now018MOM897 Cormn lonExpl NW Îb ary Public 6 6 of 6