Preview
FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021
SUPREME COURT OF THE STATE OF NEW YORK rw4419
COUNTY OF SULLIVAN
---------------------------------------------------------------------X Index No. 927-17
THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF
NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, Premises:
N.A. AS TRUSTEE FOR ASSET BACKED FUNDING 112 Blackberry Lake
CORPORATION, ASSET-BACKED CERTIFICATES, SERIES Callicoon, NY 12748
2005-HE1,
VERIFIED ANSWER
Plaintiff, WITH
vs. COUNTERCLAIMS
MONIQUE DEFOUR JONES, JUSERENE, LLC
#1" #12,"
"JOHN DOE through "JOHN DOE the last twelve names
being fictitious and unknown to plaintiff, the persons or parties
intended being the tenants, occupants, persons or corporations, if
any, having or claiming an interest in or lien upon the premises,
described in the complaint,
Defendants.
-------
------------------------------------------------------X
MONIQUE DEFOUR JONES, JUSERENE, LLC (the "Defendants"), the above
referenced Defendants, by attorney, the Law Office of Ronald D. answers the
Weiss, P.C.,
complaint (the "Complaint") of the Plaintiff, THE BANK OF NEW YORK MELLON, F/K/A
THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS
TRUSTEE FOR ASSET BACKED FUNDING CORPORATION, ASSET-BACKED
CERTIFICATES, SERIES 2005-HE1 (the "Plaintiff") as follows:
1. The Defendants denies the allegations in paragraphs 8, 12, 13, 14, 15, 16, 17, 18,
19, 20, 22, 23 and a), b), c), d), e,) f), g), h) and i) of the Complaint.
2. The Defendants does not possess sufficient information to either admit or deny the
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allegations in paragraphs 1, 3, 6, 21 and 24 of the Complaint.
3. The Defendants respectfully refers to the documents referenced in paragraphs 2, 4,
5, 7, 9,10 and 11 of the Complaint, but otherwise denies the allegations in such paragraphs.
FIRST AFFIRMATIVE DEFENSE- FAILURE TO ASSERT CAUSE OF ACTION
4. Plaintiff's complaint fails to establish the following: that the Plaintiff has standing,
or that the Plaintiff gave proper pre-foreclosure notices to the Defendants and other necessary
parties, that the Plaintiff has captioned and served all necessary Defendants and that the loan was
not a predatory loan based on the Defendant's income in 2004.
5. The Complaint fails to explain or give information about the terms of the mortgage,
the full amount of the monthly payments (including escrows), the amount of the arrears, the payoff
amount owed, the status of attempts at non-foreclosure alternatives, and virtually any other
important facts to give the Defendants adequate notice of the allegations and claims of the Plaintiff.
6. The mortgage loan documents attached to the Complaint are reduced in size, and
appear blurry and illegible, which undermines the Plaintiff's assertion that it is in possession of
the original loan documents and is the proper owner of the loan or otherwise can assert this cause
of action.
7. Given the omissions in the Complaint, the allegations and the deficiencies with the
attached documents, the Plaintiff has failed to assert a cause of action.
SECOND AFFIRMATIVE DEFENSE - PLAINTIFF LACKS STANDING BECAUSE IT
CANNOT PRODUCE THE ORIGINAL NOTE AND MORTGAGE
8. Upon information and belief, the mortgage originally obtained by the Defendants
was assigned and/or transferred so that currently the Plaintiff lacks actual possession of the original
note and mortgage.
9. Current case law holds that in order to have standing, the Plaintiff needs to be in
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possession of the original note and mortgage.
10. The mortgage loan dated December 14, 2004 in the amount of $293,000.00 was
initially given to the Defendants, Monique Defour Jones by H&R Block Mortgage Corporation, a
Massachusetts Corporation ("H&R Block Mortgage Corporation") on or about December 14, 2004
(recorded on January 12, 2005).
11. The Mortgage was allegedly assigned as follows: a) a first assignment from H&R
Block Mortgage Corporation, a Massachusetts Corporation to Option One Mortgage Corporation
on August 22, 2005 (recorded on September 9, 2005) (the "First Assignmeñt"); b) a second
assigñmcñt from Sand Canyon Corporation F/K/A Option One Mortgage Corporation, c/o Ocwen
Loan Servicing, LLC to THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW
YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR ASSET
BACKED FUNDING ASSET-BACKED SERIES 2005-
CORPORATION, CERTIFICATES,
HEl on October 23, 2014 (recorded on January 14, 2015) (the "Second Assignment").
12. The Note which is dated December 14, 2004 given to the Defendants Monique
Defour Jones (the "Note"), was endorsed in a different maññer with the Note showing a) first Note
Allonge dated December 14, 2004 showing endorsement from H&R Block Mortgage Corporation,
a Massachusetts Corporation to Option One Mortgage Corporation ("First Note Allonge") and b)
a second Note Allonge, also dated December 14, 2004 with an endorsement from Option One
Mortgage Corporation to a blank endorsement. ("Second Note Allonge")
13. Upon information and belief, the Plaintiff lacks possession of the original Note and
Mortgage and therefore, is not entitled to commence this action. Such information and belief is
based on:
a. Transfers of the loan, with the Second Mortgage Assigñment and the Second
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Note Allonge endorsements, not corresponding.
b. The chain of assignment and endorsements of the loan have contradictions as
to whom the loan was transferred.
c. Plaintiff is lacking Power of Attorney, proof of filing with the banking
department and comptroller of the currency as to entity name change, Pooling
and Servicing agreement, documents showing Trust for asset backed certificate.
d. There are indication of robosigning with the Second Assignment initially
showing as being prepared by Ocwen Loan Servicing, LLC, with a strike
through, then showing "Record and Return To: Nationwide Court Services,
located in New York although the assignor and Assignee were both located in
Florida.
e. Lack of documentation showing Ocwen Loan Servicing, LLC authority or
relevance.
f. The copies of the loan documents attached to the Summons and Complaint
appear to be copied from non-originals given that they are blurry, reduced in
size, illegible and have stray markings.
g. The Summons and Complaint fails to state that the Plaintiff actually holds the
original loan documents, including the original mortgage and note documents,
and /or the Summons and Complaint fails to state the actual physical location
of the original loan documents and their availability for inspection.
14. The Defendants in accompanying discovery papers has demanded that the Plaintiff
produce the original loan documents. However, the Defendants anticipates that the Plaintiff will
fail to produce the original mortgage documents as it is required to do pursuant to discovery rules.
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Such failure would be that amount to an admission that the Plaintiff lacks the original mortgage
document.
15. Wherefore, this foreclosure action should be dismissed based upon the lack of
standing of the Plaintiff due to its inability to produce the original note and mortgage.
THIRD AFFIRMATIVE DEFENSE - PLAINTIFF LACKS STANDING BECAUSE OF
DEFECTIVERECORDING AND NOTICE OF THE ASSIGNMENT
16. Upon information and belief, the Plaintiff lacks standing due to improper
assignment of the mortgage and improper endorsement of the note allonge.
17. Upon information and belief the Plaintiff did not properly record the assigñmeñt of
the mortgage or receive a proper endorsement for the note.
18. Upon information and belief, the Plaintiff did not properly notice the assigñmeñt of
the mortgage.
19. The Plaintiff is lacking in any verification that the endorsements took place at the
same time as the assignments as the alleged second endorsement of the Note allonge vary
substantially from the Second Mortgage Assignment.
20. The Defendants asks in their discovery demañds and interrogatories for proof of
the proper assignment of the mortgage and proper endorsement of the note. It is expected that the
Plaintiff will not provide adequate proof of the proper notice and recording of the assignment. The
lack of proof of such matters is the amount to an admission that the recording and notice of
assignment was flawed.
21. Because of the failure to properly notice and record such assignment, this action
should be dismissed.
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FOURTH AFFIRMATIVE DEFENSE - LATE ASSIGNMENT
22. The Trust that is the Plaintiff, THE BANK OF NEW YORK MELLON, F/K/A
THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS
TRUSTEE FOR ASSET BACKED FUNDING CORPORATION, ASSET-BACKED
CERTIFICATES, SERIES 2005-HE1 is dated 2005 which upon information and belief, was the
year of its formation and the year, that under the Trust's Pooling and Servicing Agreemeñt that the
Trust closed itself to new funds, several months after its opening.
23. The Assigñmêñt to the Plaintiff was not executed until December 14, 2014 and
therefore such Assignment was made to the Trust after it had already closed.
24. The Assignment to the Trust after it was already closed is a defective late
Assigñmeñt ("Late Assignment") and violates the Trust's the Pooling and Servicing Agreement,
the Trust's by Laws, as well as, mortgage and securities laws by making an alleged transfer to a
closed Trust which could no longer accept new loans.
25. Based on such Late Assignmeñt, after the Trust had already closed, the Assignment
to the Plaintiff was invalid, the Plaintiff lacks standing
FIFTH AFFIRMATIVE DEFENSE - LACK OF NOTICE OF ASSIGNMENT
26. The plaintiff and its predecessors had a duty which they did not fulfill to give formal
notice of assignments of the mortgage, endorsements of the note and of the transferring of the
servicing rights for the loan.
27. The Defendants did not know with whom they were supposed to negotiate with or
send payments to and/or to when they were to send papers as to their modification proposal.
Because the mortgage was not being dealt with by one (1) entity, the Defendants were severely
disadvantaged in this matter and it should be dismissed.
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.
.
28. The Second Assignment is showing Ocwen Loan Servicing, LLC which upon
information and belief, a loan servicer and should not reflect as being the Assignor.
29. Upon information and belief, the Plaintiff and assignors did not properly notify the
Defendants of such assignments.
30. Upon information and belief the Plaintiff's did not properly notice the Assignment
of the mortgage.
31. Based on plaintiff's lack of notice of assignment, the transfer of the loan documents
or servicing rights were defective.
SIXTH AFFIRMATIVE DEFENSE - DESPITE CLEAR HARDSHIP BY DEFENDANTS,
HE F HAS MADE LITTLE OR NO EFFORT TO MODIFY
32. The Defendant's qualify for the Plaintiff's internal modification program, however
Plaintiff failed to take steps to assist them with a modification.
33. Based on such hardships and reduced property values, the Defêñdañts has asked the
Plaintiff to reduce its monthly payments by way of lowering the interest rate, enlarging the term
of the loan and reducing the principle of the loan. However, the Plaintiff has not substantively
responded to the efforts of the Defendants.
34. The Plaintiff has a duty to fairly and reasonably consider such modification efforts
by the Defendants based on the current Federal and New York State policies and based on the
principle that a Plaintiff needs to show efforts to resolve a matter before they seek to litigate.
35. Therefore, this action need to be dismissed based upon failure of the Plaintiff to
meet its duty to adequately review the Defendant's situation as to whether it can potentially give
the Defendants a mortgage modification.
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SEVENTH AFFIRMATIVE DEFENSE- RESPA AND TILA VIOLATIONS
FEES SHOULD VOID LOAN
36. Under Jesinoski v. Countrvwide Home Loans, et al. (No. 13-684), the U.S. Supreme
Court has eased the process by which a borrower may seek to walk away from his home mortgages,
holding that the borrower, in order to avail himself of the more limited three year right of rescission
provided under the Truth in Lending Act, 15 U.S.C. § I601-1677 ("TILA"), need only provide his
lender with written notification of an intent to rescind his home mortgage loan in order to initiate
that rescission process.
37. In addition to the unconditional three day right of rescission given to a borrower
post-loan closing, TILA also provides that borrower with an additional post-closing period of three
years to rescind the loan if the lender failed to provide all TILA-mandated disclosures at closing
38. The Real Estate Settlement Procedures Act (RESPA) requires that consumers
receive clear and understandable disclosure throughout the mortgage application and closing
process, including good faith estimate and HID-1 settlement statement that clearly discloses the
key loan terms and closing costs. The Plaintiff failed to abide by such RESPA laws.
39. The Defendants was never given the Good Faith Estimate prior to the closing.
40. The Truth in Lending Act (TILA) requires disclosure to the consumer about credit
given to the consumer as to its term and costs. The regulations that are part of such (TILA) give
consumers the right to cancel credit transactions in violation of such statute.
41. The Defendants never reviewed the Truth in Lending Statement at the closing with
anyone who could explain to the Defendants the nature and amount of their future payments.
42. Upon information and belief disclosures given by the Plaintiff were inadequate
disclosure in terms of giving necessary disclosure in accordance with applicable statutes and
regulations.
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43. The Defendants was informed not to bring an attorney to the closing since the
Defendants was told by the Plaintiff or its predecessor that it was "umiecessary".
44. The loan contained had high and excessive closing costs, including costs for some
of or any of the following: an appraisal, a title search, bank fees, and other miscellaneous charges.
45. The Defendants have no knowledge prior to the closing of such high amounts and
was unaware of such fees at the closing due to the Defendant's reliance on the Plaintiff's
explanation and/or representation.
46. In addition, the Plaintiff may have violated additional applicable statutes including
the Home Mortgage Disclosure Act (HMDA), the Fair Housing Act (FHA), and the Equal Credit
Opportunity Act (ECOA).
47. Therefore, the Complaint should be dismissed and the loan voided based on
violations of RESPA, TILA and other applicable statutes.
EIGHTH AFFIRMATIVE DEFENSE -DEFECTIVE SERVICE
48. The Plaintiff failed to show proper service upon JUSERENE, LLC through New
York Secretary of State as no receipt issued by the New York Secretary of State was provided.
49. The second Defendants named JUSERENE, LLC is a business and therefore,
should have been served through the New York Secretary of State.
50. New York Secretary of State as agent of a corporation or other business entity
should have been served on behalf of JUSERENE, LLC.
51. In addition to the other methods prescribed by law, the New York Secretary of State
acts as the statutory agent for service of process for domestic and foreign business corporations;
not-for-profit corporations that have been formed or amended their Certificate of Incorporation
after September 14, 1981; limited liability companies; limited partnerships; and limited liability
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partnerships.
"process"
52. Only may be served on the New York Secretary of State as agent.
"Process"
is defined as judicial process and all orders, demands, notices, or other papers required
or permitted to be personally served on a domestic or foreign entity, for the purpose of acquiring
jurisdiction of such entity in any action or proceeding, civil or criminal, whether judicial,
adñ1inistrative, arbitrative, or otherwise, in this state or in the federal courts sitting in, or for, this
state. (See §102(a)(11) of the Business Corporation Law, §102(a)(12) of the Not-for-Profit
Corporation Law, §102(x) of the Limited Liability Company Law, §121-101(o) of the Partnership
Law.)
53. Here, Plain
Preview
FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 SUPREME COURT OF THE STATE OF NEW YORK rw4419 COUNTY OF SULLIVAN ---------------------------------------------------------------------X Index No. 927-17 THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, Premises: N.A. AS TRUSTEE FOR ASSET BACKED FUNDING 112 Blackberry Lake CORPORATION, ASSET-BACKED CERTIFICATES, SERIES Callicoon, NY 12748 2005-HE1, VERIFIED ANSWER Plaintiff, WITH vs. COUNTERCLAIMS MONIQUE DEFOUR JONES, JUSERENE, LLC #1" #12," "JOHN DOE through "JOHN DOE the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants. ------- ------------------------------------------------------X MONIQUE DEFOUR JONES, JUSERENE, LLC (the "Defendants"), the above referenced Defendants, by attorney, the Law Office of Ronald D. answers the Weiss, P.C., complaint (the "Complaint") of the Plaintiff, THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR ASSET BACKED FUNDING CORPORATION, ASSET-BACKED CERTIFICATES, SERIES 2005-HE1 (the "Plaintiff") as follows: 1. The Defendants denies the allegations in paragraphs 8, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23 and a), b), c), d), e,) f), g), h) and i) of the Complaint. 2. The Defendants does not possess sufficient information to either admit or deny the ED IN SULLIVAN COUNTY CLERKS OFFICE 1 of7/11/2017 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 allegations in paragraphs 1, 3, 6, 21 and 24 of the Complaint. 3. The Defendants respectfully refers to the documents referenced in paragraphs 2, 4, 5, 7, 9,10 and 11 of the Complaint, but otherwise denies the allegations in such paragraphs. FIRST AFFIRMATIVE DEFENSE- FAILURE TO ASSERT CAUSE OF ACTION 4. Plaintiff's complaint fails to establish the following: that the Plaintiff has standing, or that the Plaintiff gave proper pre-foreclosure notices to the Defendants and other necessary parties, that the Plaintiff has captioned and served all necessary Defendants and that the loan was not a predatory loan based on the Defendant's income in 2004. 5. The Complaint fails to explain or give information about the terms of the mortgage, the full amount of the monthly payments (including escrows), the amount of the arrears, the payoff amount owed, the status of attempts at non-foreclosure alternatives, and virtually any other important facts to give the Defendants adequate notice of the allegations and claims of the Plaintiff. 6. The mortgage loan documents attached to the Complaint are reduced in size, and appear blurry and illegible, which undermines the Plaintiff's assertion that it is in possession of the original loan documents and is the proper owner of the loan or otherwise can assert this cause of action. 7. Given the omissions in the Complaint, the allegations and the deficiencies with the attached documents, the Plaintiff has failed to assert a cause of action. SECOND AFFIRMATIVE DEFENSE - PLAINTIFF LACKS STANDING BECAUSE IT CANNOT PRODUCE THE ORIGINAL NOTE AND MORTGAGE 8. Upon information and belief, the mortgage originally obtained by the Defendants was assigned and/or transferred so that currently the Plaintiff lacks actual possession of the original note and mortgage. 9. Current case law holds that in order to have standing, the Plaintiff needs to be in 2 2 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 possession of the original note and mortgage. 10. The mortgage loan dated December 14, 2004 in the amount of $293,000.00 was initially given to the Defendants, Monique Defour Jones by H&R Block Mortgage Corporation, a Massachusetts Corporation ("H&R Block Mortgage Corporation") on or about December 14, 2004 (recorded on January 12, 2005). 11. The Mortgage was allegedly assigned as follows: a) a first assignment from H&R Block Mortgage Corporation, a Massachusetts Corporation to Option One Mortgage Corporation on August 22, 2005 (recorded on September 9, 2005) (the "First Assignmeñt"); b) a second assigñmcñt from Sand Canyon Corporation F/K/A Option One Mortgage Corporation, c/o Ocwen Loan Servicing, LLC to THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR ASSET BACKED FUNDING ASSET-BACKED SERIES 2005- CORPORATION, CERTIFICATES, HEl on October 23, 2014 (recorded on January 14, 2015) (the "Second Assignment"). 12. The Note which is dated December 14, 2004 given to the Defendants Monique Defour Jones (the "Note"), was endorsed in a different maññer with the Note showing a) first Note Allonge dated December 14, 2004 showing endorsement from H&R Block Mortgage Corporation, a Massachusetts Corporation to Option One Mortgage Corporation ("First Note Allonge") and b) a second Note Allonge, also dated December 14, 2004 with an endorsement from Option One Mortgage Corporation to a blank endorsement. ("Second Note Allonge") 13. Upon information and belief, the Plaintiff lacks possession of the original Note and Mortgage and therefore, is not entitled to commence this action. Such information and belief is based on: a. Transfers of the loan, with the Second Mortgage Assigñment and the Second 3 3 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 Note Allonge endorsements, not corresponding. b. The chain of assignment and endorsements of the loan have contradictions as to whom the loan was transferred. c. Plaintiff is lacking Power of Attorney, proof of filing with the banking department and comptroller of the currency as to entity name change, Pooling and Servicing agreement, documents showing Trust for asset backed certificate. d. There are indication of robosigning with the Second Assignment initially showing as being prepared by Ocwen Loan Servicing, LLC, with a strike through, then showing "Record and Return To: Nationwide Court Services, located in New York although the assignor and Assignee were both located in Florida. e. Lack of documentation showing Ocwen Loan Servicing, LLC authority or relevance. f. The copies of the loan documents attached to the Summons and Complaint appear to be copied from non-originals given that they are blurry, reduced in size, illegible and have stray markings. g. The Summons and Complaint fails to state that the Plaintiff actually holds the original loan documents, including the original mortgage and note documents, and /or the Summons and Complaint fails to state the actual physical location of the original loan documents and their availability for inspection. 14. The Defendants in accompanying discovery papers has demanded that the Plaintiff produce the original loan documents. However, the Defendants anticipates that the Plaintiff will fail to produce the original mortgage documents as it is required to do pursuant to discovery rules. 4 4 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 Such failure would be that amount to an admission that the Plaintiff lacks the original mortgage document. 15. Wherefore, this foreclosure action should be dismissed based upon the lack of standing of the Plaintiff due to its inability to produce the original note and mortgage. THIRD AFFIRMATIVE DEFENSE - PLAINTIFF LACKS STANDING BECAUSE OF DEFECTIVERECORDING AND NOTICE OF THE ASSIGNMENT 16. Upon information and belief, the Plaintiff lacks standing due to improper assignment of the mortgage and improper endorsement of the note allonge. 17. Upon information and belief the Plaintiff did not properly record the assigñmeñt of the mortgage or receive a proper endorsement for the note. 18. Upon information and belief, the Plaintiff did not properly notice the assigñmeñt of the mortgage. 19. The Plaintiff is lacking in any verification that the endorsements took place at the same time as the assignments as the alleged second endorsement of the Note allonge vary substantially from the Second Mortgage Assignment. 20. The Defendants asks in their discovery demañds and interrogatories for proof of the proper assignment of the mortgage and proper endorsement of the note. It is expected that the Plaintiff will not provide adequate proof of the proper notice and recording of the assignment. The lack of proof of such matters is the amount to an admission that the recording and notice of assignment was flawed. 21. Because of the failure to properly notice and record such assignment, this action should be dismissed. 5 5 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 FOURTH AFFIRMATIVE DEFENSE - LATE ASSIGNMENT 22. The Trust that is the Plaintiff, THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR ASSET BACKED FUNDING CORPORATION, ASSET-BACKED CERTIFICATES, SERIES 2005-HE1 is dated 2005 which upon information and belief, was the year of its formation and the year, that under the Trust's Pooling and Servicing Agreemeñt that the Trust closed itself to new funds, several months after its opening. 23. The Assigñmêñt to the Plaintiff was not executed until December 14, 2014 and therefore such Assignment was made to the Trust after it had already closed. 24. The Assignment to the Trust after it was already closed is a defective late Assigñmeñt ("Late Assignment") and violates the Trust's the Pooling and Servicing Agreement, the Trust's by Laws, as well as, mortgage and securities laws by making an alleged transfer to a closed Trust which could no longer accept new loans. 25. Based on such Late Assignmeñt, after the Trust had already closed, the Assignment to the Plaintiff was invalid, the Plaintiff lacks standing FIFTH AFFIRMATIVE DEFENSE - LACK OF NOTICE OF ASSIGNMENT 26. The plaintiff and its predecessors had a duty which they did not fulfill to give formal notice of assignments of the mortgage, endorsements of the note and of the transferring of the servicing rights for the loan. 27. The Defendants did not know with whom they were supposed to negotiate with or send payments to and/or to when they were to send papers as to their modification proposal. Because the mortgage was not being dealt with by one (1) entity, the Defendants were severely disadvantaged in this matter and it should be dismissed. 6 6 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 . . 28. The Second Assignment is showing Ocwen Loan Servicing, LLC which upon information and belief, a loan servicer and should not reflect as being the Assignor. 29. Upon information and belief, the Plaintiff and assignors did not properly notify the Defendants of such assignments. 30. Upon information and belief the Plaintiff's did not properly notice the Assignment of the mortgage. 31. Based on plaintiff's lack of notice of assignment, the transfer of the loan documents or servicing rights were defective. SIXTH AFFIRMATIVE DEFENSE - DESPITE CLEAR HARDSHIP BY DEFENDANTS, HE F HAS MADE LITTLE OR NO EFFORT TO MODIFY 32. The Defendant's qualify for the Plaintiff's internal modification program, however Plaintiff failed to take steps to assist them with a modification. 33. Based on such hardships and reduced property values, the Defêñdañts has asked the Plaintiff to reduce its monthly payments by way of lowering the interest rate, enlarging the term of the loan and reducing the principle of the loan. However, the Plaintiff has not substantively responded to the efforts of the Defendants. 34. The Plaintiff has a duty to fairly and reasonably consider such modification efforts by the Defendants based on the current Federal and New York State policies and based on the principle that a Plaintiff needs to show efforts to resolve a matter before they seek to litigate. 35. Therefore, this action need to be dismissed based upon failure of the Plaintiff to meet its duty to adequately review the Defendant's situation as to whether it can potentially give the Defendants a mortgage modification. 7 7 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 SEVENTH AFFIRMATIVE DEFENSE- RESPA AND TILA VIOLATIONS FEES SHOULD VOID LOAN 36. Under Jesinoski v. Countrvwide Home Loans, et al. (No. 13-684), the U.S. Supreme Court has eased the process by which a borrower may seek to walk away from his home mortgages, holding that the borrower, in order to avail himself of the more limited three year right of rescission provided under the Truth in Lending Act, 15 U.S.C. § I601-1677 ("TILA"), need only provide his lender with written notification of an intent to rescind his home mortgage loan in order to initiate that rescission process. 37. In addition to the unconditional three day right of rescission given to a borrower post-loan closing, TILA also provides that borrower with an additional post-closing period of three years to rescind the loan if the lender failed to provide all TILA-mandated disclosures at closing 38. The Real Estate Settlement Procedures Act (RESPA) requires that consumers receive clear and understandable disclosure throughout the mortgage application and closing process, including good faith estimate and HID-1 settlement statement that clearly discloses the key loan terms and closing costs. The Plaintiff failed to abide by such RESPA laws. 39. The Defendants was never given the Good Faith Estimate prior to the closing. 40. The Truth in Lending Act (TILA) requires disclosure to the consumer about credit given to the consumer as to its term and costs. The regulations that are part of such (TILA) give consumers the right to cancel credit transactions in violation of such statute. 41. The Defendants never reviewed the Truth in Lending Statement at the closing with anyone who could explain to the Defendants the nature and amount of their future payments. 42. Upon information and belief disclosures given by the Plaintiff were inadequate disclosure in terms of giving necessary disclosure in accordance with applicable statutes and regulations. 8 8 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 43. The Defendants was informed not to bring an attorney to the closing since the Defendants was told by the Plaintiff or its predecessor that it was "umiecessary". 44. The loan contained had high and excessive closing costs, including costs for some of or any of the following: an appraisal, a title search, bank fees, and other miscellaneous charges. 45. The Defendants have no knowledge prior to the closing of such high amounts and was unaware of such fees at the closing due to the Defendant's reliance on the Plaintiff's explanation and/or representation. 46. In addition, the Plaintiff may have violated additional applicable statutes including the Home Mortgage Disclosure Act (HMDA), the Fair Housing Act (FHA), and the Equal Credit Opportunity Act (ECOA). 47. Therefore, the Complaint should be dismissed and the loan voided based on violations of RESPA, TILA and other applicable statutes. EIGHTH AFFIRMATIVE DEFENSE -DEFECTIVE SERVICE 48. The Plaintiff failed to show proper service upon JUSERENE, LLC through New York Secretary of State as no receipt issued by the New York Secretary of State was provided. 49. The second Defendants named JUSERENE, LLC is a business and therefore, should have been served through the New York Secretary of State. 50. New York Secretary of State as agent of a corporation or other business entity should have been served on behalf of JUSERENE, LLC. 51. In addition to the other methods prescribed by law, the New York Secretary of State acts as the statutory agent for service of process for domestic and foreign business corporations; not-for-profit corporations that have been formed or amended their Certificate of Incorporation after September 14, 1981; limited liability companies; limited partnerships; and limited liability 9 9 of 21 FILED: SULLIVAN COUNTY CLERK 07/11/2017 11:15 AM INDEX NO. E2017-927 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/02/2021 partnerships. "process" 52. Only may be served on the New York Secretary of State as agent. "Process" is defined as judicial process and all orders, demands, notices, or other papers required or permitted to be personally served on a domestic or foreign entity, for the purpose of acquiring jurisdiction of such entity in any action or proceeding, civil or criminal, whether judicial, adñ1inistrative, arbitrative, or otherwise, in this state or in the federal courts sitting in, or for, this state. (See §102(a)(11) of the Business Corporation Law, §102(a)(12) of the Not-for-Profit Corporation Law, §102(x) of the Limited Liability Company Law, §121-101(o) of the Partnership Law.) 53. Here, Plain