Preview
FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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Gulf Harbour Investments Corporation,
Index No. 135020/2021
Plaintiff,
XXXXXXXXX
[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.
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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.
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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.”
99. By the same token, if he prevails and the complaint is dismissed, Mr. Foox is
entitled to recover costs and expenses, including attorneys’ fees, under the implied covenant
established by Real Property Law § 282.
PRAYER FOR RELIEF
WHEREFORE, in light of the foregoing, Defendant respectfully requests that this
Court:
a. Dismiss the complaint with prejudice;
b. Cancel the notice of pendency filed by Plaintiff;
c. Order the cancellation and discharge of the subject mortgage;
d. Award reasonable costs of this action;
e. Award compensatory damages;
f. Award treble damages;
g. Award recoupment;
h. Award reasonable attorney’s fees and costs to Defendant; and
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i. Award such other and further relief as this Court deems just and proper.
DATED: Staten Island, New York
September 6, 2022
STATEN ISLAND LEGAL SERVICES
By: Sara Manaugh, Esq.
36 Richmond Terrace, Suite 205
Staten Island, New York 10301
Phone: (718) 233-6480
smanaugh@lsnyc.org
Attorneys for Defendant Avi Foox
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FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------------------------------------------------------------------x Gulf Harbour Investments Corporation, Index No. 135020/2021 Plaintiff, XXXXXXXXX [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 1 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 2 2 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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, 3 3 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 4 4 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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). 5 5 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 6 6 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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. 7 7 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 8 8 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 9 9 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 10 10 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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. 11 11 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 12 12 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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 13 13 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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. 14 14 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 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.” 99. By the same token, if he prevails and the complaint is dismissed, Mr. Foox is entitled to recover costs and expenses, including attorneys’ fees, under the implied covenant established by Real Property Law § 282. PRAYER FOR RELIEF WHEREFORE, in light of the foregoing, Defendant respectfully requests that this Court: a. Dismiss the complaint with prejudice; b. Cancel the notice of pendency filed by Plaintiff; c. Order the cancellation and discharge of the subject mortgage; d. Award reasonable costs of this action; e. Award compensatory damages; f. Award treble damages; g. Award recoupment; h. Award reasonable attorney’s fees and costs to Defendant; and 15 15 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 i. Award such other and further relief as this Court deems just and proper. DATED: Staten Island, New York September 6, 2022 STATEN ISLAND LEGAL SERVICES By: Sara Manaugh, Esq. 36 Richmond Terrace, Suite 205 Staten Island, New York 10301 Phone: (718) 233-6480 smanaugh@lsnyc.org Attorneys for Defendant Avi Foox 16 16 of 17 FILED: RICHMOND COUNTY CLERK 02/03/2023 07:09 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/03/2023 17 of 17