Motion to Amend in Gulf Harbour Investments Corporation v. Avi Foox, Rab Performance Recoveries Llc, American Express Centurion Bank, Unifund Ccr Partners, John Doe #1 Through #6, And Jane Doe #1 Through #6, The Last Twelve Names Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants, Tenants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon the premises being foreclosed herein| Trellis.Law

On May 25, 2021 a Motion-Secondary was filed involving a dispute between Gulf Harbour Investments Corporation, and American Express Centurion Bank, Avi Foox, John Doe #1 Through #6, And Jane Doe #1 Through #6, The Last Twelve Names Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants, Tenants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Premises Being Foreclosed Herein, John Doe #1 Through #6, And Jane Doe #1 Through #6, The Last Twelve Names Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants, Tenants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Premises Being Foreclosed Herein, Rab Performance Recoveries Llc, Unifund Ccr Partners, for Real Property - Mortgage Foreclosure - Residential in the District Court of Richmond County.

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FILED: RICHMOND COUNTY CLERK 09/26/2022 11:09 AM INDEX NO. 135020/2021
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/26/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____________________________________________________________________Ç
Gulf Harbour Investments Corporation,

Index No. 135020/2021
Plaintiff,

-against-
AFFIDAVIT

Avi Foox, RAB Performance Recoveries LLC,
American Express Centurion Bank, Unifund CCR
Partners, John Doe #1 through #6, and Jane Doe #1
through #6, the lasttwelve names being fictitious, it

being the intention of Plaintiff to designate any and all

occupants, tenants, persons or corporations, if any,

having or claiming an interest in or lien upon the
premises being foreclosed herein,

Defendants.
____________________________________________________________________Ç

STATE OF NEW YORK )
) ss.
COUNTY OF RICHMOND )

Avi Foox, being duly sworn, deposes and says:

1. I am a defendant in this foreclosure action. I submit this affidavit in support of

my motion for an order permitting me to file and serve an amended answer, compelling Plaintiff

to accept said amended answer, and granting such other and further relief as the Court may deem

just and proper.

2. A copy of my proposed answer, with counterclaims, is appended to this affidavit

as Exhibit A.

3. The foreclosure summons and complaint were delivered to me by way of

substitute service in or around June 2021. Being sued shocked and confused me, because the

plaintiff was unknown to me, and at first I did not even understand what I was being sued for.

4. Reviewing the foreclosure papers, I realized that the lawsuit concemed a

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mortgage loan that I had taken out in 2005, but about which I had had no communications from

the lender or any servicer for at least twelve years. Because of the long period without any

communications, including statements, I assumed that the loan had been written off.

5. Immediately after being served with foreclosure papers, and realizing that I had a

limited time to answer the complaint, I sought out the help of a lawyer. At my request, my

employer put me in touch with a lawyer with whom he was acquainted.

6. The attorney referred to me by my employer noticed his appearance in this case,

and assisted me in preparing, serving, and filing a timely answer. However, the attorney in

question does not practice in the area of foreclosure, and I later learned that my answer did not

include certain defenses that are standard defenses to raise in answers to foreclosure complaints,

and also did not include certain other defenses and counterclaims that would have been

appropriate to assert given the specific facts and circumstances of my case.

7. In or around January 2022, after I was summoned to court for an initialsettlement

conference, I consulted with an attorney at Staten Island Legal Services, who informed me of the

defenses and counterclaims that were not included in my answer but that could have been.

8. I immediately went to the attorney who had filed my answer, and asked him ifhe

would attend the settlement conference scheduled for February 1, 2022, and seek permission to

amend my answer to add defenses and counterclaims. He told me that he would do so.

9. I later learned that the attorney did not attend the February 1 settlement

conference, but without my knowledge had sent another attorney whom I had never met to cover

the conference for him. From the intake form for the February 1 conference that is available on

the court website, itappears that there was no discussion whatsoever of amending my answer.

(See NYSCEF Doc. No. 21.)

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10. I decided that I did not want to be represented by that attorney anymore. I told

him so, and he agreed to sign a consent to change attorney agreement with Staten Island Legal

Services, whom I retained to represent me in this matter.

11. An attorney from Staten Island Legal Services appeared on my behalf in the

Plaintiff'
settlement conference held on June 9, 2022. At that conference, SILS asked counsel if

its client would accept an amended answer, and the Court gave the Plaintiff until June 21, 2022,

to respond to this request. (See NYSCEF Doc. No. 26.)

12. It ismy understanding that Plaintiff has to date not responded to my attorney's

request, and that ittherefore has become necessary to ask for the Court's permission to amend

my answer.

13. I did not intentionally omit any defenses and counterclaims from my answer; to

the contrary, in promptly seeking legal assistance to answer the foreclosure complaint, I

demonstrably intended to defend myself in this action. When I realized that my answer did not

include defenses and counterclaims that had potential merit, I took steps to try to assert those

defenses and counterclaims.

14. I respectfully request that the Court give me permission to amend my answer, and

compel the Plaintiff to accept service of my amended answer.

AVI FOO

Sworn to and subscribed before me
12d'
this day of mber, 202

SARA LINDA MANAUGH
NOTARY PÚBLIC, STATE OF NEW YORK
No. 02MA6213028
NOTARY P IC QuaMed in Nngs County
CommissiorfExpires October 26, 20 LT

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Pursuant to § 202.8-b(c) of the Uniform Civil Rules for the Supreme Court and County Court, I

hereby certify that the total word count of this affidavit, exclusive of the caption and signature

block, is 980, and that this affidavit complies with the word count limit established under

§ 202.8-b(a).

Sara Manaugh, Esq.
Attorney for Defendant Avi Foox

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EXHIBIT A

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
---------------------------------------------------------------------x
Gulf Harbour Investments Corporation,
Index No. 135020/2021
Plaintiff,
[PROPOSED]
-against-
VERIFIED AMENDED ANSWER
WITH COUNTERCLAIMS
Avi Foox, RAB Performance Recoveries LLC,
American Express Centurion Bank, Unifund CCR
Partners, John Doe #1 through #6, and Jane Doe #1
through #6, the last twelve names being fictitious, it
being the intention of Plaintiff to designate any and all
occupants, tenants, persons or corporations, if any,
having or claiming an interest in or lien upon the
premises being foreclosed herein,

Defendants.
--------------------------------------------------------------------x

Defendant AVI FOOX hereby answers the Complaint as follows:

1. Defendant lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 1 of the Complaint.

2. Defendant denies the allegations contained in Paragraph 2 of the Complaint.

3. Defendant lacks knowledge or information sufficient to form a belief with respect

to the allegations contained in Paragraph 3 of the Complaint, except admits that he signed a note

in or around 2005, and further answers that the document speaks for itself and denies any

allegation that goes beyond the document.

4. Defendant lacks knowledge or information sufficient to form a belief with respect

to the allegations contained in Paragraph 4 of the Complaint, except admits that he signed a

mortgage in or around 2005, and further answers that the document speaks for itself and denies

any allegation that goes beyond the document.

5. Defendant lacks knowledge or information sufficient to form a belief as to the

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truth of the allegations in paragraph 5 of the Complaint, and further answers that the documents

speak for themselves and denies any allegation that goes beyond the documents.

6. Defendant admits that the tax map designation of his home is Block 2086, Lot 29,

and otherwise answers that the document speaks for itself and denies any allegation in Paragraph

6 that goes beyond the document.

7. Defendant denies the allegations contained in Paragraph 7 of the Complaint.

8. Paragraph 8 contains Plaintiff’s request for relief, to which no response is

required; but insofar as a response is required, Defendant denies that Plaintiff is entitled to the

relief it requests in Paragraph 8 or to any relief whatsoever. Any factual allegations contained in

Paragraph 8 are denied.

9. Paragraph 9 contains Plaintiff’s request for relief, to which no response is

required; but insofar as a response is required, Defendant denies that Plaintiff is entitled to the

relief it requests in Paragraph 9 or to any relief whatsoever. Any factual allegations contained in

Paragraph 9 are denied.

10. Paragraph 10 contains Plaintiff’s request for relief, to which no response is

required; but insofar as a response is required, Defendant denies that Plaintiff is entitled to the

relief it requests in Paragraph 10 or to any relief whatsoever. Any factual allegations contained

in Paragraph 10 are denied.

11. Defendant lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 11 of the Complaint.

12. Defendant lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 12 of the Complaint.

13. Defendant lacks knowledge or information sufficient to form a belief as to the

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truth of the allegations in paragraph 13 of the Complaint.

14. Defendant answers that the document speaks for itself and denies each and every

allegation in Paragraph 14 that goes beyond the document.

15. Defendant denies the allegations contained in Paragraph 15 of the Complaint.

16. Paragraph 16 contains Plaintiff’s request for relief, to which no response is

required; but insofar as a response is required, Defendant denies that Plaintiff is entitled to the

relief it requests in Paragraph 16 or to any relief whatsoever. Any factual allegations contained

in Paragraph 16 are denied.

17. Paragraph 17 contains Plaintiff’s request for relief, to which no response is

required; but insofar as a response is required, Defendant denies that Plaintiff is entitled to the

relief it requests in Paragraph 17 or to any relief whatsoever. Any factual allegations contained

in Paragraph 17 are denied.

18. Paragraph 18 contains Plaintiff’s request for relief, to which no response is

required; but insofar as a response is required, Defendant denies that Plaintiff is entitled to the

relief it requests in Paragraph 18 or to any relief whatsoever. Any factual allegations contained

in Paragraph 18 are denied.

19. Paragraph 19 contains Plaintiff’s request that exhibits to its Complaint be

incorporated by reference, to which no response is required.

20. Paragraph 20 contains Plaintiff’s request for relief, to which no response is

required; but insofar as a response is required, Defendant denies that Plaintiff is entitled to the

relief it requests in Paragraph 20 or to any relief whatsoever. Any factual allegations contained

in Paragraph 20 are denied.

21. Plaintiff’s second Paragraphs 1 through 10 contain Plaintiff’s requests for relief,

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to which no response is required; but insofar as a response is required, Defendant denies that

Plaintiff is entitled to the relief it requests in second Paragraphs 1 through 10 or to any relief

whatsoever. Any factual allegations contained in second Paragraphs 1 through 10 are denied.

FACTUAL ALLEGATIONS

22. Mr. Foox purchased the home at 58 Darcey Avenue in the Willowbrook section of

Staten Island, New York, that is the subject of this foreclosure action in August 2000. He lives

in the home with his wife and their two adult children.

23. Mr. Foox took out the $81,000 mortgage loan that is the subject of this action in

September 2005 from E-Loan. It was a second mortgage; Mr. Foox had entered into a

consolidation, extension, and modification agreement mortgage with another lender in April

2005.

24. In or around 2007, periodic statements relating to the subject mortgage ceased to

be delivered to Mr. Foox. From 2007 until around the time this action was commenced, he did

not receive any communications from any entity regarding the subject mortgage.

25. On information and belief, efforts to collect on the subject mortgage ceased, and

for some fourteen years no efforts were made to enforce the subject mortgage or to even

communicate with Mr. Foox about it because—due to the 2007-2008 collapse of the housing

market and the failure of the secondary market in residential mortgage debt driven by risky

investment and mortgage loan underwriting practices, from which the global financial crisis

ensued—Mr. Foox’s home’s value had dropped, and the subject mortgage became wholly or

partially unsecured.

26. For all the years during which the entity or entities that owned the subject

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mortgage loan chose to take no collection or enforcement action—creating and reinforcing the

reasonable impression that the loan had been forgiven and/or discharged—interest and other

charges continued to accrue, unbeknownst to Mr. Foox, who received no notice about the

growing debt.

27. On information and belief, the subject mortgage loan matured on or about

October 1, 2020, per the terms of the mortgage (see Exhibit B to the Complaint, NYSCEF Doc.

No. 1).

28. The terms of the subject mortgage required the lender to send any notices required

under the mortgage to be mailed to Mr. Foox by certified mail. (Id., at ¶ 15.)

29. The terms of the subject mortgage provide that any foreclosure action by the

lender must be preceded by at least thirty days by provision of a notice to the borrower notifying

him of the promise or agreement he failed to keep, of the action he must take to cure the default,

nature of the default, of the date by which he must correct it, that the lender may call the debt

payable in full, and enforce it by commencing and prosecute a lawsuit for foreclosure and sale,

of the right of the borrower to obtain a discontinuance of a foreclosure action if he cures the

default, and of the borrower’s right to raise any defenses he may have to such action. (Id., at

¶ 20.)

30. Mr. Foox did not receive any notice such as the one required under paragraph 20

of the subject mortgage prior to the commencement of this action.

31. Mr. Foox did not receive a “90-Day Notice” as required by section 1304 of New

York’s Real Property Actions and Proceedings Law prior to the commencement of this action.

32. Prior to being served with papers in this action, Mr. Foox had never received any

communication from plaintiff Gulf Harbour Investments Corporation (GHIC).

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33. Upon information and belief, GHIC’s business involves purchasing second

mortgage loans that became partially or wholly unsecured, and thereafter seeking to collect such

debt and enforce such mortgages after the value of the real property collateral increased to the

point that the loans are secured—often many years after previous efforts to collect the debt had

ceased.

34. This course of conduct tended to create the impression, and in Mr. Foox’s case

did create the impression, that the debt had been written off or discharged.

35. Upon information and belief, GHIC, incorporated and with its principal place of

business in the state of Florida, is the assignee of approximately two hundred mortgages in New

York City’s five boroughs alone.

FIRST AFFIRMATIVE DEFENSE
Lack of Standing
36. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 35 as if fully set forth herein.

37. Upon information and belief, Plaintiff, was not the legal owner of the note and

mortgage and did not otherwise have the right to enforce the mortgage at the time it commenced

this action.

38. Plaintiff therefore lacks standing to prosecute this action, and the complaint must

therefore be dismissed.

SECOND AFFIRMATIVE DEFENSE

Failure to State a Cause of Action

39. Defendant realleges and incorporates all of the foregoing facts and allegations

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contained in Paragraphs 1 through 38 as if fully set forth herein.

40. Plaintiff has failed to plead facts entitling it to a judgment of foreclosure, in that it

has failed adequately to plead a default.

41. Because Plaintiff fails to state a cause of action, the complaint must be dismissed

in its entirety.

THIRD AFFIRMATIVE DEFENSE
Statute of Limitations
42. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 41 as if fully set forth herein.

43. The limitations period for a mortgage foreclosure in New York State is six years,

and begins to run at the time a lender elects to accelerate the mortgage loan.

44. On information and belief, this loan was accelerated more than six years before

the commencement of this action.

45. Plaintiff is barred from collecting payments that came due more than six years

before this action was commenced.

46. Because this action was commenced after the expiration of the limitations period,

Plaintiff’s claims and causes of actions are barred in their entirety and/or as to each and every

time-barred payment.

FOURTH AFFIRMATIVE DEFENSE AND FIRST COUNTERCLAIM

Breach of Contract

47. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 42 as if fully set forth herein.

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48. The terms of the subject mortgage require, inter alia, that the lender mail any

notice concerning the mortgage—including, but not limited to, a notice of default and the

opportunity to cure it, by certified mail.

49. No such notice was mailed to Mr. Foox, in violation of the mortgage contract.

50. Had such notice been provided to Mr. Foox, Mr. Foox would have had known of

the existence of the purported debt and GHIC’s intention to enforce the mortgage, and would

have had a reasonable opportunity to resolve the default without the need for judicial

intervention and generation of legal fees and costs and related expenses, not to mention

psychological and emotional distress.

51. For reason of this breach, the complaint should be dismissed, and compensatory

damages awarded to Mr. Foox.

FIFTH AFFIRMATIVE DEFENSE
Failure of Condition Precedent: Notice of Default
52. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 51 as if fully set forth herein.

53. Plaintiff failed to comply with the requirements for the notice of default in

Defendant’s mortgage loan agreement, a condition precedent to this foreclosure action.

54. Because Plaintiff failed to meet a condition precedent, the complaint must be

dismissed in its entirety.

SIXTH AFFIRMATIVE DEFENSE
Failure of Condition Precedent: 90-Day Notice Requirement (R.P.A.P.L. § 1304)
55. Defendant realleges and incorporates all of the foregoing facts and allegations

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contained in Paragraphs 1 through 54 as if fully set forth herein.

56. Plaintiff failed to comply with the requirements of Real Property Actions and

Proceedings Law § 1304, a condition precedent to this foreclosure action.

57. Because Plaintiff failed to meet a condition precedent, the complaint must be

dismissed in its entirety.

SEVENTH AFFIRMATIVE DEFENSE
Failure of Condition Precedent: 90-Day Filing Requirement (R.P.A.P.L. § 1306)
58. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 57 as if fully set forth herein.

59. Plaintiff failed to comply with the requirements of Real Property and Proceedings

Law § 1306, a condition precedent to this foreclosure action.

60. Because Plaintiff failed to meet a condition precedent, the complaint must be

dismissed in its entirety.

EIGHTH AFFIRMATIVE DEFENSE AND SECOND COUNTERCLAIM
Real Estate Settlement Procedures Act Early Intervention Requirement
(12 C.F.R. § 1024.39)
61. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 60 as if fully set forth herein.

62. On January 10, 2014, 12 C.F.R. § 1024.39, a federal rule of the Consumer

Financial Protection Bureau implementing the Real Estate Settlement Procedures Act, took

effect.

63. This rule, which was applicable to Plaintiff’s loan servicer, required the servicer

(1) to attempt to establish live contact with Defendants within 36 days of their delinquency to

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inform Defendants about the availability of loss mitigation options and (2) to send Defendants a

written notice within 45 days of the delinquency that included contact information for the

servicer, a description of loss mitigation options available from the servicer, information about

applying for loss mitigation, and a website listing housing counselors.

64. Upon information and belief, Plaintiff’s loan servicer did not attempt to establish

live contact with Defendants within 36 days of the later of the delinquency and the entry into

force of 12 C.F.R. § 1024.39 to inform Defendants about the availability of loss mitigation

options.

65. Upon information and belief, Plaintiff’s loan servicer did not, within 45 days of

the later of the delinquency and the entry into force of 12 C.F.R. § 1024.39, send Defendants a

written notice that included contact information for the servicer, a description of loss mitigation

options available from the servicer, information about applying for loss mitigation, and a website

listing housing counselors.

66. Had such notice been provided to Mr. Foox by GHIC or by its servicing agent,

Mr. Foox would have had known of the existence of the purported debt and GHIC’s intention to

enforce the mortgage, and would have had a reasonable opportunity to resolve the default

without the need for judicial intervention and generation of legal fees and costs and related

expenses, not to mention psychological and emotional distress.

67. For these reasons, the Real Estate Settlement Procedures Act requires dismissal of

the complaint and an award of compensatory damages to Mr. Foox.

NINTH AFFIRMATIVE DEFENSE
Excessive Interest and Fees (C.P.L.R. § 3408(f))
68. Defendant realleges and incorporates all of the foregoing facts and allegations

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contained in Paragraphs 1 through 67 as if fully set forth herein.

69. During the period of approximately fourteen years during which Plaintiff and/or

its predecessors in interest failed to communicate about the mortgage with Mr. Foox, creating the

impression that the debt had been written off and/or discharged, Mr. Foox was not only deprived

of the opportunity to negotiate a resolution to the purported default, but was also not informed of

the interest and fees that were continuing to accumulate.

70. 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 New York’s Civil Practice Law

and Rules, is not entitled to the extraordinary relief of foreclosure it seeks in this action.

TENTH AFFIRMATIVE DEFENSE
Excessive Interest (C.P.L.R. § 5001(a))
71. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 70 as if fully set forth herein.

72. Plaintiff has unreasonably engaged in dilatory conduct causing excessive interest

to accrue which the Court may reduce or toll, as a matter of equity and pursuant to New York’s

Civil Practice Law and Rules § 5001(a), requiring dismissal of the action.

ELEVENTH AFFIRMATIVE DEFENSE
Laches
73. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 72 as if fully set forth herein.

74. Plaintiff unreasonably neglected to assert a claim for relief against Mr. Foox, and

Mr. Foox was not on notice about the existence of this defense.

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75. It would be prejudicial in the extreme for Plaintiff, after its fourteen years of

neglect, to be awarded relief in the form of foreclosure upon Mr. Foox’s home.

76. Accordingly, the complaint should be dismissed in its entirety.

TWELFTH AFFIRMATIVE DEFENSE AND THIRD COUNTERCLAIM

Truth In Lending Act (15 U.S.C. §§ 1640 & 1601, and 12 C.F.R. § 1026.41)

77. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 76 as if fully set forth herein.

78. Plaintiff, a provider of consumer credit, has failed to provide periodic mortgage

statements, in violation of the Truth in Lending Act, 15 U.S.C. § 1601, and the regulations

promulgated thereunder (“Regulation Z”), 12 C.F.R. § 1026.41.

79. Defendant seeks recoupment pursuant to 15 U.S.C. § 1640, and dismissal of the

complaint.

THIRTEENTH AFFIRMATIVE DEFENSE AND FOURTH COUNTERCLAIM

Fair Debt Collection Practices Act (15 U.S.C. § 1692g)

80. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 79 as if fully set forth herein.

81. Plaintiff, a provider of consumer credit, failed to provide Mr. Foox with a debt

validation notice prior to the commencement of this action, in violation of the Fair Debt

Collection Practices Act, 15 U.S.C. § 1692g.

82. Had such notice been provided to Mr. Foox by GHIC or by its servicing agent,

Mr. Foox would have had known of the existence of the purported debt and GHIC’s intention to

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enforce the mortgage, and would have had a reasonable opportunity to resolve the default

without the need for judicial intervention and generation of legal fees and costs and related

expenses, not to mention psychological and emotional distress.

83. For reason of Plaintiff’s unfair debt collection practices, the complaint should be

dismissed in its entirety, and Mr. Foox is entitled to compensatory damages.

FOURTEENTH AFFIRMATIVE DEFENSE AND FIFTH COUNTERCLAIM

New York State General Business Law § 349
(the “Deceptive Practices Act”)

84. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 83 as if fully set forth herein.

85. New York State General Business Law § 349 states that “deceptive acts or

practices in the conduct of any business, trade or commerce or in the furnishing of any service in

this state are hereby declared unlawful.”

86. Plaintiff “conducted a business” and/or “furnished a service” as those terms are

defined in New York State General Business Law § 349 (the “Deceptive Practices Act”).

Specifically, on information and belief, Plaintiff has acquired by assignment hundreds of

mortgages, including approximately two hundred in the five boroughs of New York City alone.

87. Plaintiff violated the Deceptive Practices Act by engaging in acts and practices

that were misleading in a material way, unfair, deceptive, and contrary to public policy and

generally recognized standards of business.

88. These practices and acts include lulling consumers into believing that their

mortgage debt had been written off and/or discharged, thereby depriving consumers of the

opportunity to negotiate resolutions to any default before the accumulation of excess interest and

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fees made such resolution untenable, and demanding payment that was not owed because time-

barred.

89. As a result of Plaintiff’s actions, a reasonable consumer would have been led to

believe that they owed Plaintiff the stated sum, and Mr. Foox was in fact misled.

90. As a result of Plaintiff’s deceptive acts and practices, Defendant suffered extreme

emotional distress and anxiety.

91. Plaintiff’s practices, as described above, have had and may continue to have a

broad impact on consumers throughout New York State.

92. Plaintiff is therefore liable to Defendant for actual and treble damages, as well as

reasonable attorneys’ fees and costs.

SIXTH COUNTERCLAIM
Quiet Title (R.P.A.P.L. § 1501(4)
93. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 92 as if fully set forth herein.

94. Mr. Foox is in possession of his property, and Plaintiff is not in possession

thereof.

95. On information and belief, the period allowed by the applicable statute of

limitations for the commencement of an action to foreclose Mr. Foox’s mortgage has expired.

96. Pursuant to section 1501(4) of New York’s Real Property Actions and

Proceedings Law, due to the expiration of the time period for commencing an action to foreclose

the subject mortgage, the mortgage should be cancelled and discharged of record, Mr. Foox’s

interest in his home should be adjudged and declared to be free from the mortgage, and Plaintiff

should be required to record a satisfaction of mortgage.

19 of 22
FILED: RICHMOND COUNTY CLERK 09/26/2022 11:09 AM INDEX NO. 135020/2021
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/26/2022

SEVENTH COUNTERCLAIM
Attorneys’ Fees Pursuant to Real Property Law § 282
97. Defendant realleges and incorporates all of the foregoing facts and allegations

contained in Paragraphs 1 through 96 as if fully set forth herein.

98. The subject mortgage provides for the lender to “collect all costs and expenses of

the foreclosure and sale as allowed by law.”

Case Info

Judge

Conference Part Foreclosure Track Judge’s New Case

Case No.

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Document Filed Date

September 26, 2022

Case Filing Date

May 25, 2021

County

Parties

American Express Centurion Bank Defendant
American Express Centurion Bank Defendant
Avi Foox Defendant
Avi Foox Defendant
Gulf Harbour Investments Corporation Plaintiff
Gulf Harbour Investments Corporation Plaintiff
INCORVAIA, CHRISTINA ALICIA Attorney for the Plaintiff
John Doe #1 through #6, and Jane Doe #1 through #6, the last twelve names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein Defendant
John Doe #1 through #6, and Jane Doe #1 through #6, the last twelve names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein Defendant
MANAUGH, SARA LINDA Attorneys for Defendants
MANAUGH, SARA LINDA Attorney for the Defendant
RAB Performance Recoveries LLC Defendant
RAB Performance Recoveries LLC Defendant
Staten Island Legal Services Non Party
TILLONA, THOMAS MATTHEW Attorney for the Defendant
Unifund CCR Partners Defendant
Unifund CCR Partners Defendant
ZEGARELLI, THOMAS MATTHEW Attorney for the Plaintiff
WILLIAM JUNKERMAN Attorney
DAVID GRANTZ Attorneys for Defendants

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