Preview
FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM INDEX NO. E2021000215
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2658187
Book Page CIVIL
Return To: No. Pages: 9
Douglas Paul Schofield Mr
110 Milburn Street Instrument: AFFIRMATION IN OPPOSITION
110 Milburn Street
rochester, NY 14607 Control #: 202103170453
Index #: E2021000215
Date: 03/17/2021
Schofield, Douglas Paul Mr Time: 11:14:56 AM
Schofield, Coleen Meagher
Planet Home Lending LLC
Buck, Sue
Brooks-Harris, Rosalind
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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202103170453 Index
INDEX #:E2021000215
NO. E2021000215
FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
Douglas Schofield;
Coleen Schofield; I Index No. E2021000215
Plaintiff(s),
-against- Plaintiffs
Response To Defendant Planet Home
Lending To Dismiss Complaint
Planet Home Lending LLC;
Sue Buck;
Rosiland Brooks-Harris;
Defendant(sk
Opposing papers by: Plaintiffs
ReliefRequested: A Dismiss Defendant's Motion
B Such other and further relief
as thisCourt shallfind good and proper.
Dated: 03/08/2021
D as Sch ^el -
10 Milburn Street
Rochester, New York 14607
Land line:(585) 271-7280
Cellline:(585) 219-7588
Pro se
Stateof NewYcvk)
)ss:
Countyof hw)
Onthis,the dayof . 20 ¾ beforernea n ubtle,
theunderstgnedofAcar,personallyappeared
nu ,. .5c to
Ine(or antlefactorfly
preven)to bethe personwhose6arhela subscribedto
thewithininstrument,andacknowledged
thatheexecutedthe ammefor
thepurposesthereincontained.
Inwitneas aroof,I hereuntoael rnyhandandofItclalseal.
NotaryPubllo
Jonathan C. Borowy
NotaryPublic,Stateof New York
Reg. #01B06404834
Qualifiedin MonroeCounty
Commission Expires 03/02/20h
2 of 9
202103170453 IndexNO.
INDEX #: E2021000215
E2021000215
FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021
ARGUMENTS
1 Plaintiffs Doug and Coleen Schofield submit the following arguements in opposition to Dismiss
Plaintiffs’ complaint. For the reasons set forth below, Plaintiffs request that this Court deny Defendant Planet
Home Lending’s Motion to Dismiss in its entirety.
2 The defendant, Planet Home Lending (hereinafter referred to as defendant lender), in their
motion to dismiss ¶ 2 writes “Defendant was not the proximate cause of Plaintiffs’ alleged injury,” defendant
“breached no duty owed directly to Plaintiffs which endangered their physical safety,” and had “no contractual
relationship which gives rise to tort liability,” and failure “to state a cause of action.” Plaintiffs will show that all of
these statements are false.
3 The defendant lender was the servicer of Plaintiffs’ mortgage from approximately 01/15/2016 to
01/01/2018 (see exhibit 6) and kept on behalf of the Plaintiffs, an escrow account on behalf of Plaintiffs whose
function was to pay Monroe County and City of Rochester taxes.
4 The “Code of Federal Regulation” (CFR), §1024.17 Escrow accounts, states that an “Escrow
account means any account that a servicer establishes or controls on behalf of a borrower to pay taxes, insurance
premiums (including flood insurance), or other charges with respect to a federally related mortgage loan, including
charges that the borrower and servicer have voluntarily agreed that the servicer should collect and pay. … An
‘escrow account’ includes any arrangement where the servicer adds a portion of the borrower's payments to
principal and subsequently deducts from principal the disbursements for escrow account items.“ (See exhibit pdf
CFR_pg28_Escrow_Definition or CFR).
5 Defendant lender had a duty to make timely tax payments. The CFR §1024.34 states that “Timely
escrow payments and treatment of escrow account balances. (a) Timely escrow disbursements required. If the
terms of a mortgage loan require the borrower to make payments to the servicer of the mortgage loan for deposit
into an escrow account to pay taxes, insurance premiums, and other charges for the mortgaged property, the
servicer shall make payments from the escrow account in a timely manner, that is, on or before the deadline to
avoid a penalty, as governed by the requirements in §1024.17(k).” (see exhibit pdfs
CFR_pg47_Timely_Payments.PDF or CFR).
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6 Plaintiff’s 2017 Monroe County property taxes were due on 03/01/2017 (see exhibit pdf
PropertyTaxDueDate). But Defendant lender’s checks are dated 10/10/2017 (see exhibits 32 and 33) which is 223
days past the deadline. In fact, defendant lender’s checks were so late, Monroe County had sold the taxes to the
debt collector Tower before Monroe County processed their checks. This is the first breach of duty.
7 Additionally, the defendant lender also had a duty to pay Plaintiffs’ 2017 Monroe County
property taxes, period. But defendant lender never paid the Plaintiff’s 2017 Monroe County taxes. Instead,
Plaintiffs had to pay them themselves in order to save their home from foreclosure (see exhibits 1, 2, 8, pdfs
TowerCertificateOfDischarge, Complaint ¶ 36 and 37). This is the second breach of duty.
8 The first proximate cause of Plaintiffs’ injuries is the defendant lender’s failure to make a timely
2017 Monroe County property tax payment. Had defendant lender paid in a timely manner as they were required
to by law (see ¶ 5), then Plaintiffs would not have been injured.
9 Defendant lender would have known that making late property tax payments could lead to
property taxes being sold, foreclosure and injury. CFR §1024.17 and CFR §1024.34 are part of the “Real Estate
Settlement Procedures Act” (RESPA), which require timely escrow disbursements, has been established law since
1974 (see exhibit pdf WikipediaRESPA).
10 The second proximate cause of Plaintiffs’ injuries is defendant lender’s failure to pay Plaintiffs’
2017 Monroe County property taxes even though they knew the taxes had not been paid. Had defendant lender
paid the 2017 Monroe County taxes like were required to (see ¶ 4), then Plaintiffs would not have been injured.
11 Prior to the injury the Plaintiffs suffered, the Plaintiffs had made numerous phone calls to
defendant lender, discussing in detail the missing 2017 Monroe County property taxes with them (see complaint ¶
18, 19, 25, 26).
12 On 12/early/2019, Plaintiff Doug informed defendant lender that 2017 Monroe county taxes had
been misapplied and the 2017 Monroe County taxes had not been paid. Upon learning this defendant lender
expedited additional cancelled checks to the Plaintiff per Plaintiff’s request (see complaint ¶ 26). But defendant
lender did not act to pay Plaintiffs’ 2017 Monroe County taxes.
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13 Approximately a month after 12/early/2019, Tower started the foreclosure process for unpaid
2017 Monroe County taxes (see complaint ¶ 27), which resulted in Plaintiffs’ injury on 01/17/2020 (see complaint
¶ 31).
14 In defendant lender’s motion ¶ 7, defendant alleges Plaintiffs’ “failure to state a cause of action.”
The previous text clearly shows two distinct duties, breaches of duties, cause in facts, and proximate causes (see ¶
3 thru 13).
15 In defendant lender’s motion ¶ 9, defendant writes “Plaintiffs must show that the defendant's
negligence was a substantial cause of the events which produced the injury.” From previous text, it is clear that
defendant lender’s late payment and/or failure to pay 2017 Monroe County taxes were substantial causes of the
events which produced Plaintiffs’ injuries (see ¶ 3 thru 13 and Complaint ¶ 27 and 31).
16 In defendant lender’s motion ¶ 10, on recovering damages for negligent infliction of emotional
distress, defendant lender writes that emotional distress “must be premised upon the breach of a duty owed to
plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or
her own safety.”
17 But Plaintiffs did fear for their safety. Plaintiffs had done everything right. They paid their
mortgage every month for more than 20 years like they were supposed to. And when the three defendants
created the problem of unpaid taxes, Plaintiffs worked diligently with all three defendants to try to fix the problem
that the three defendants created. But in spite of all that, the Plaintiffs were served, telling them that their home
was going to be foreclosed on and eventually put up for auction (see complaint ¶ 31). So if doing everything right
could not save their home, what would? Turning to the three defendants who created this problem? That didn't
save the Plaintiffs’ home either! There was no one left to turn to for help! The future looked bleak. The Plaintiffs
were served on 01/17/2020 (see complaint ¶ 31) and it was the dead of winter and temperatures were below
freezing. Where would Plaintiffs live? How could they survive? How could their pets survive? Plaintiffs are not
wealthy. Plaintiffs lived paycheck to paycheck for more than 20 years to pay for their home, the only home they
have. Plaintiffs were scared. Losing one’s home is a trauma and a fear that most people can identify with.
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18 Additionally it’s worth noting In complaint ¶ 32, where Plaintiffs write “There were only two
times in plaintiff Doug’s 21 year marriage that he saw his wife, plaintiff Coleen cry. The first was when plaintiff
Coleen’s mother died, and then a second time when she learned that they could lose their home.” This was a
traumatic experience for both Plaintiffs and it was because of the defendant lender’s breached duty.
19 Defendant lender’s motion ¶ 11 writes “Defendant breached no duty to Plaintiffs which
endangered Plaintiffs’ physical safety or caused Plaintiffs to fear for their physical safety.” This is not true.
Defendant lender breached two duties (see ¶ 3 thru 13) which both led Plaintiffs to fear for their physical safety
(see ¶ 17).
20 Defendant lender’s motion ¶ 12 Is a mischaracterization of defendant lender and Plaintiff’s
relationship. As proof, Plaintiffs went to defendant lender’s homepage https://planethomelending.com/ and in the
bottom right corner is a customer support bot named Stella. Plaintiffs entered the question “are you a bank” into
Stella’s textbox and pressed enter (see exhibit pdf PlanetHomeLendingWebpage01). Stella replied with a few
options. Plaintiffs clicked on the option that read “Do you only do mortgages and home loans” and pressed enter.
Stella replied with a message that reads “Planet Home Lending is the smart choice for your mortgage needs. Unlike
a bank, mortgages are all we do.” (see exhibit pdf PlanetHomeLendingWebpage02).
21 Additionally, defendant lender’s “about us” webpage https://planethomelending.com/about-us/
(see exhibit pdf PlanetHomeLendingWebpage03) says “Planet Home Lending is the smart choice for your mortgage
needs. Unlike a bank mortgages are all we do.”
22 From the aforementioned (see¶ 20 and 21), Defendant lender is not a bank but a mortgage
servicer.
23 Defendant lender’s motion ¶ 13 Is false. Defendant lender’s conclusion is based on Defendant
lender being a bank, which they are not (see ¶ 20, 21, 22).
24 Defendant lender’s motion ¶ 15 says that Plaintiffs’ injuries are not a direct result of defendant
lender’s actions but instead blames Monroe County. It is true that Monroe County failed to correctly apply
defendant lender’s checks and that Monroe County should have returned the checks instead. But on
12/early/2019, defendant lender knew that 2017 Monroe County taxes had been misapplied and that 2017
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Monroe County taxes had not been paid (see complaint ¶ 26). And paying Plaintiffs’ 2017 Monroe County taxes
was still defendant lender’s duty (see ¶ 4 and 7). The Defendant lender should have paid 2017 Monroe County
taxes like they are legally obligated to do and then worked with Monroe County and/or Tower to fix the problem
of the misapplied checks. But instead, the Defendant lender breached their duty which directly led to Plaintiff’s
injury (see ¶ 7 10, 11, 12, 13 and Complaint ¶ 31).
25 Defendant lender’s motion ¶ 16 and 17 states “It is only where the intervening act is a normal or
foreseeable consequence of a defendant’s negligence that liability may be imposed.“ Plaintiffs acknowledge that
there were some unforeseeable events and consequences in this case. But not paying the 2017 Monroe County
taxes is not one of them. On 12/early/2019, it is foreseeable that the Plaintiffs could be injured for unpaid taxes.
The reason defendant lender expidited the copies of the checks is because they knew the taxes were misapplied
(see Complaint 26).
26 Defendant lender’s motion ¶ 18 says that Plaintiffs’ claim lacks “guarantee of genuineness”
because the guarantee of genuineness “generally requires that the breach of the duty owed directly to the injured
party must have at least endangered the plaintiffs’ physical safety or caused the plaintiff to fear for his or her own
physical safety.”
27 As Plaintiffs previously state, the Plaintiffs were in fear for their physical safety (see ¶ 17 and
Complaint 32).
28 Defendant lender’s motion ¶ 20 is completely false (see ¶ 3 thru 13, 17 as well as Complaint ¶
26, 31 and 32).
29 In Defendant lender’s motion ¶ 21, defendant lender writes Plaintiffs may not recover damages
for emotional harm because “absent a duty upon which liability can be based, there is no right of recovery for
mental distress resulting from the breach of a contract-related duty.” The previous text (see ¶ 3 thru 13) clearly
proves that defendant lender owed duty and breached that duty two distinct times. Defendant lender continues
and writes “Here, the parties’ relationship was a contractual one between a borrower and a bank”. This was
proven false (see ¶ 20, 21, 22).
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30 Defendant lender’s motion ¶ 22 states “plaintiff cannot prevail on a breach of contract theory
unless he sustained actual damages as a natural and probable consequence of such breach.” There are financial
and emotional injuries (see ¶ 9, 17 18 and Complaint 31, 32 and Relief) directly related to defendant lender
breaching their duty to pay 2017 Monroe County taxes (see 3 thru 13).
31 Defendant lender’s motion ¶ 23 is based on the premise that defendant lender is a bank and not
mortgage company, and this has been proven false (see ¶ 20, 21, 22).
CONCLUSION
For all the reasons set forth above, Plaintiffs respectfully request that this Court deny Defendant Planet Home
Lending’s Motion to Dismiss the Complaint in its entirety.
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202103170453 Index
INDEX #:
NO.E2021000215
E2021000215
FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021
Dated: 03/08/2021
u as Sch field
110 Milburn e
Rochester, New York 14607
Land line:(585) 271-7280
Cellline:(585) 219-7588
Pro se forPlaintiffs
Stateof NgWYork)
Countyof /hew)
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the undersignedofncer,personallyappeared 0 ,scribedto
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NotaryPubtle
Jonathan C. Borowy
Stateof New York
NotaryPublic,
Reg. #01B06404834
Qualifiedin MonroeCounty
Commission Expires03/02/2022
9 of 9
Preview
FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM INDEX NO. E2021000215 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2658187 Book Page CIVIL Return To: No. Pages: 9 Douglas Paul Schofield Mr 110 Milburn Street Instrument: AFFIRMATION IN OPPOSITION 110 Milburn Street rochester, NY 14607 Control #: 202103170453 Index #: E2021000215 Date: 03/17/2021 Schofield, Douglas Paul Mr Time: 11:14:56 AM Schofield, Coleen Meagher Planet Home Lending LLC Buck, Sue Brooks-Harris, Rosalind Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 9 202103170453 Index INDEX #:E2021000215 NO. E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE Douglas Schofield; Coleen Schofield; I Index No. E2021000215 Plaintiff(s), -against- Plaintiffs Response To Defendant Planet Home Lending To Dismiss Complaint Planet Home Lending LLC; Sue Buck; Rosiland Brooks-Harris; Defendant(sk Opposing papers by: Plaintiffs ReliefRequested: A Dismiss Defendant's Motion B Such other and further relief as thisCourt shallfind good and proper. Dated: 03/08/2021 D as Sch ^el - 10 Milburn Street Rochester, New York 14607 Land line:(585) 271-7280 Cellline:(585) 219-7588 Pro se Stateof NewYcvk) )ss: Countyof hw) Onthis,the dayof . 20 ¾ beforernea n ubtle, theunderstgnedofAcar,personallyappeared nu ,. .5c to Ine(or antlefactorfly preven)to bethe personwhose6arhela subscribedto thewithininstrument,andacknowledged thatheexecutedthe ammefor thepurposesthereincontained. Inwitneas aroof,I hereuntoael rnyhandandofItclalseal. NotaryPubllo Jonathan C. Borowy NotaryPublic,Stateof New York Reg. #01B06404834 Qualifiedin MonroeCounty Commission Expires 03/02/20h 2 of 9 202103170453 IndexNO. INDEX #: E2021000215 E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 ARGUMENTS 1 Plaintiffs Doug and Coleen Schofield submit the following arguements in opposition to Dismiss Plaintiffs’ complaint. For the reasons set forth below, Plaintiffs request that this Court deny Defendant Planet Home Lending’s Motion to Dismiss in its entirety. 2 The defendant, Planet Home Lending (hereinafter referred to as defendant lender), in their motion to dismiss ¶ 2 writes “Defendant was not the proximate cause of Plaintiffs’ alleged injury,” defendant “breached no duty owed directly to Plaintiffs which endangered their physical safety,” and had “no contractual relationship which gives rise to tort liability,” and failure “to state a cause of action.” Plaintiffs will show that all of these statements are false. 3 The defendant lender was the servicer of Plaintiffs’ mortgage from approximately 01/15/2016 to 01/01/2018 (see exhibit 6) and kept on behalf of the Plaintiffs, an escrow account on behalf of Plaintiffs whose function was to pay Monroe County and City of Rochester taxes. 4 The “Code of Federal Regulation” (CFR), §1024.17 Escrow accounts, states that an “Escrow account means any account that a servicer establishes or controls on behalf of a borrower to pay taxes, insurance premiums (including flood insurance), or other charges with respect to a federally related mortgage loan, including charges that the borrower and servicer have voluntarily agreed that the servicer should collect and pay. … An ‘escrow account’ includes any arrangement where the servicer adds a portion of the borrower's payments to principal and subsequently deducts from principal the disbursements for escrow account items.“ (See exhibit pdf CFR_pg28_Escrow_Definition or CFR). 5 Defendant lender had a duty to make timely tax payments. The CFR §1024.34 states that “Timely escrow payments and treatment of escrow account balances. (a) Timely escrow disbursements required. If the terms of a mortgage loan require the borrower to make payments to the servicer of the mortgage loan for deposit into an escrow account to pay taxes, insurance premiums, and other charges for the mortgaged property, the servicer shall make payments from the escrow account in a timely manner, that is, on or before the deadline to avoid a penalty, as governed by the requirements in §1024.17(k).” (see exhibit pdfs CFR_pg47_Timely_Payments.PDF or CFR). 3 of 9 202103170453 IndexNO. INDEX #: E2021000215 E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 6 Plaintiff’s 2017 Monroe County property taxes were due on 03/01/2017 (see exhibit pdf PropertyTaxDueDate). But Defendant lender’s checks are dated 10/10/2017 (see exhibits 32 and 33) which is 223 days past the deadline. In fact, defendant lender’s checks were so late, Monroe County had sold the taxes to the debt collector Tower before Monroe County processed their checks. This is the first breach of duty. 7 Additionally, the defendant lender also had a duty to pay Plaintiffs’ 2017 Monroe County property taxes, period. But defendant lender never paid the Plaintiff’s 2017 Monroe County taxes. Instead, Plaintiffs had to pay them themselves in order to save their home from foreclosure (see exhibits 1, 2, 8, pdfs TowerCertificateOfDischarge, Complaint ¶ 36 and 37). This is the second breach of duty. 8 The first proximate cause of Plaintiffs’ injuries is the defendant lender’s failure to make a timely 2017 Monroe County property tax payment. Had defendant lender paid in a timely manner as they were required to by law (see ¶ 5), then Plaintiffs would not have been injured. 9 Defendant lender would have known that making late property tax payments could lead to property taxes being sold, foreclosure and injury. CFR §1024.17 and CFR §1024.34 are part of the “Real Estate Settlement Procedures Act” (RESPA), which require timely escrow disbursements, has been established law since 1974 (see exhibit pdf WikipediaRESPA). 10 The second proximate cause of Plaintiffs’ injuries is defendant lender’s failure to pay Plaintiffs’ 2017 Monroe County property taxes even though they knew the taxes had not been paid. Had defendant lender paid the 2017 Monroe County taxes like were required to (see ¶ 4), then Plaintiffs would not have been injured. 11 Prior to the injury the Plaintiffs suffered, the Plaintiffs had made numerous phone calls to defendant lender, discussing in detail the missing 2017 Monroe County property taxes with them (see complaint ¶ 18, 19, 25, 26). 12 On 12/early/2019, Plaintiff Doug informed defendant lender that 2017 Monroe county taxes had been misapplied and the 2017 Monroe County taxes had not been paid. Upon learning this defendant lender expedited additional cancelled checks to the Plaintiff per Plaintiff’s request (see complaint ¶ 26). But defendant lender did not act to pay Plaintiffs’ 2017 Monroe County taxes. 4 of 9 202103170453 IndexNO. INDEX #: E2021000215 E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 13 Approximately a month after 12/early/2019, Tower started the foreclosure process for unpaid 2017 Monroe County taxes (see complaint ¶ 27), which resulted in Plaintiffs’ injury on 01/17/2020 (see complaint ¶ 31). 14 In defendant lender’s motion ¶ 7, defendant alleges Plaintiffs’ “failure to state a cause of action.” The previous text clearly shows two distinct duties, breaches of duties, cause in facts, and proximate causes (see ¶ 3 thru 13). 15 In defendant lender’s motion ¶ 9, defendant writes “Plaintiffs must show that the defendant's negligence was a substantial cause of the events which produced the injury.” From previous text, it is clear that defendant lender’s late payment and/or failure to pay 2017 Monroe County taxes were substantial causes of the events which produced Plaintiffs’ injuries (see ¶ 3 thru 13 and Complaint ¶ 27 and 31). 16 In defendant lender’s motion ¶ 10, on recovering damages for negligent infliction of emotional distress, defendant lender writes that emotional distress “must be premised upon the breach of a duty owed to plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety.” 17 But Plaintiffs did fear for their safety. Plaintiffs had done everything right. They paid their mortgage every month for more than 20 years like they were supposed to. And when the three defendants created the problem of unpaid taxes, Plaintiffs worked diligently with all three defendants to try to fix the problem that the three defendants created. But in spite of all that, the Plaintiffs were served, telling them that their home was going to be foreclosed on and eventually put up for auction (see complaint ¶ 31). So if doing everything right could not save their home, what would? Turning to the three defendants who created this problem? That didn't save the Plaintiffs’ home either! There was no one left to turn to for help! The future looked bleak. The Plaintiffs were served on 01/17/2020 (see complaint ¶ 31) and it was the dead of winter and temperatures were below freezing. Where would Plaintiffs live? How could they survive? How could their pets survive? Plaintiffs are not wealthy. Plaintiffs lived paycheck to paycheck for more than 20 years to pay for their home, the only home they have. Plaintiffs were scared. Losing one’s home is a trauma and a fear that most people can identify with. 5 of 9 202103170453 IndexNO. INDEX #: E2021000215 E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 18 Additionally it’s worth noting In complaint ¶ 32, where Plaintiffs write “There were only two times in plaintiff Doug’s 21 year marriage that he saw his wife, plaintiff Coleen cry. The first was when plaintiff Coleen’s mother died, and then a second time when she learned that they could lose their home.” This was a traumatic experience for both Plaintiffs and it was because of the defendant lender’s breached duty. 19 Defendant lender’s motion ¶ 11 writes “Defendant breached no duty to Plaintiffs which endangered Plaintiffs’ physical safety or caused Plaintiffs to fear for their physical safety.” This is not true. Defendant lender breached two duties (see ¶ 3 thru 13) which both led Plaintiffs to fear for their physical safety (see ¶ 17). 20 Defendant lender’s motion ¶ 12 Is a mischaracterization of defendant lender and Plaintiff’s relationship. As proof, Plaintiffs went to defendant lender’s homepage https://planethomelending.com/ and in the bottom right corner is a customer support bot named Stella. Plaintiffs entered the question “are you a bank” into Stella’s textbox and pressed enter (see exhibit pdf PlanetHomeLendingWebpage01). Stella replied with a few options. Plaintiffs clicked on the option that read “Do you only do mortgages and home loans” and pressed enter. Stella replied with a message that reads “Planet Home Lending is the smart choice for your mortgage needs. Unlike a bank, mortgages are all we do.” (see exhibit pdf PlanetHomeLendingWebpage02). 21 Additionally, defendant lender’s “about us” webpage https://planethomelending.com/about-us/ (see exhibit pdf PlanetHomeLendingWebpage03) says “Planet Home Lending is the smart choice for your mortgage needs. Unlike a bank mortgages are all we do.” 22 From the aforementioned (see¶ 20 and 21), Defendant lender is not a bank but a mortgage servicer. 23 Defendant lender’s motion ¶ 13 Is false. Defendant lender’s conclusion is based on Defendant lender being a bank, which they are not (see ¶ 20, 21, 22). 24 Defendant lender’s motion ¶ 15 says that Plaintiffs’ injuries are not a direct result of defendant lender’s actions but instead blames Monroe County. It is true that Monroe County failed to correctly apply defendant lender’s checks and that Monroe County should have returned the checks instead. But on 12/early/2019, defendant lender knew that 2017 Monroe County taxes had been misapplied and that 2017 6 of 9 202103170453 IndexNO. INDEX #: E2021000215 E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 Monroe County taxes had not been paid (see complaint ¶ 26). And paying Plaintiffs’ 2017 Monroe County taxes was still defendant lender’s duty (see ¶ 4 and 7). The Defendant lender should have paid 2017 Monroe County taxes like they are legally obligated to do and then worked with Monroe County and/or Tower to fix the problem of the misapplied checks. But instead, the Defendant lender breached their duty which directly led to Plaintiff’s injury (see ¶ 7 10, 11, 12, 13 and Complaint ¶ 31). 25 Defendant lender’s motion ¶ 16 and 17 states “It is only where the intervening act is a normal or foreseeable consequence of a defendant’s negligence that liability may be imposed.“ Plaintiffs acknowledge that there were some unforeseeable events and consequences in this case. But not paying the 2017 Monroe County taxes is not one of them. On 12/early/2019, it is foreseeable that the Plaintiffs could be injured for unpaid taxes. The reason defendant lender expidited the copies of the checks is because they knew the taxes were misapplied (see Complaint 26). 26 Defendant lender’s motion ¶ 18 says that Plaintiffs’ claim lacks “guarantee of genuineness” because the guarantee of genuineness “generally requires that the breach of the duty owed directly to the injured party must have at least endangered the plaintiffs’ physical safety or caused the plaintiff to fear for his or her own physical safety.” 27 As Plaintiffs previously state, the Plaintiffs were in fear for their physical safety (see ¶ 17 and Complaint 32). 28 Defendant lender’s motion ¶ 20 is completely false (see ¶ 3 thru 13, 17 as well as Complaint ¶ 26, 31 and 32). 29 In Defendant lender’s motion ¶ 21, defendant lender writes Plaintiffs may not recover damages for emotional harm because “absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.” The previous text (see ¶ 3 thru 13) clearly proves that defendant lender owed duty and breached that duty two distinct times. Defendant lender continues and writes “Here, the parties’ relationship was a contractual one between a borrower and a bank”. This was proven false (see ¶ 20, 21, 22). 7 of 9 202103170453 IndexNO. INDEX #: E2021000215 E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 30 Defendant lender’s motion ¶ 22 states “plaintiff cannot prevail on a breach of contract theory unless he sustained actual damages as a natural and probable consequence of such breach.” There are financial and emotional injuries (see ¶ 9, 17 18 and Complaint 31, 32 and Relief) directly related to defendant lender breaching their duty to pay 2017 Monroe County taxes (see 3 thru 13). 31 Defendant lender’s motion ¶ 23 is based on the premise that defendant lender is a bank and not mortgage company, and this has been proven false (see ¶ 20, 21, 22). CONCLUSION For all the reasons set forth above, Plaintiffs respectfully request that this Court deny Defendant Planet Home Lending’s Motion to Dismiss the Complaint in its entirety. 8 of 9 202103170453 Index INDEX #: NO.E2021000215 E2021000215 FILED: MONROE COUNTY CLERK 03/09/2021 02:11 PM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/09/2021 Dated: 03/08/2021 u as Sch field 110 Milburn e Rochester, New York 14607 Land line:(585) 271-7280 Cellline:(585) 219-7588 Pro se forPlaintiffs Stateof NgWYork) Countyof /hew) Onthla,the day of Ó VL L . 201 beforemea n ubile, e. the undersignedofncer,personallyappeared 0 ,scribedto p to roven)bethe namela personwhead me(orsatisfactortly for executedtN#asme thewithinInstrument,andacknowledgedthathe thepurpose6thereincontained. ofacialseat. Inwitnesshernet,I hereuntoset my handand NotaryPubtle Jonathan C. Borowy Stateof New York NotaryPublic, Reg. #01B06404834 Qualifiedin MonroeCounty Commission Expires03/02/2022 9 of 9