Preview
FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
_________________-----___-___________..-----_______________Ç
FRC VTX ASSETS, LLC INDEX NO.
Plaintiff, 716902/2023
-against-
AFFIDAVIT
2018 LI-LIN REALTY, LLC, RE LI, CK REAL ESTATE,
L.L.C., NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD, NEW YORK
CITY DEPARTMENT OF FINANCE, CITY OF NEW
YORK,
#1" #100,"
"JOHN DOE through "JOHN DOE the last one
hundred 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
STATE OF NEW YORK )
) SS.:
COUNTY OF NASSAU )
JOSEPH CAVAGNARO, being duly sworn deposes and says:
1. I am an Authorized Representative of FRC VTX Assets, LLC, ("Plaintiff"). As
the signatory of this Affidavit, I have reviewed the statements set forth herein against the
records kept by Plaintiff and have duly executed this Affidavit based upon that review and upon
my personal knowledge of the stated facts and circumstances and books and records maintained
by Plaintiff, in my possession.
2. In my capacity as Chief Financial Officer I am responsible for managing the
loans made to 2018 Li Lin Realty, LLC (the "Defendant"), which are the subject of this action.
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FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023
I have access to the business records ofPlaintiff, including the business records for, and relating
to the loan. I make this Affidavit based upon my review of those records relating to the loan,
and from my own personal knowledge of how they were made, kept and maintained. The
records for the loan, including computerized records indicating the sums loaned to and
payments made by the Defendants, are made and maintained by and Plaintiff in the course of
its regularly conducted business activities and are made at or near the time of the occurrence of
the events which they reflect, by or from information transmitted by a person with knowledge.
FRC VTX Assets, LLC relies on the records in the ordinary course to conduct its business (the
"Business Records") FRC VTX Assets, LLC's Business records also include the business
records of any predecessor servicer and/or holder of the subject loan which is incorporated in
FRC VTX Assets, LLC's records. It is a regular practice of Plaintiff to make and keep such
records in the ordinary course of a regularly conducted business activity.
3. I make this Affidavit in opposition to the motion by the defendants 2018 Li-Lin
Realty, LLC and Jie Li.
PLAINTIFF'S INTEREST IN THE MORTGAGE
4. That at all times hereinafter mentioned, Plaintiff was and still is a duly
authorized limited liability corporation, authorized to do business in, and organized under the
laws of the State of New York.
5. Plaintiff was assigned the Notes and Mortgages described in the Complaint
[NYSCEF Document Nos.: 1-15] on May 10, 2023, ($500,000.00 Note) and June 13, 2023
($1,300,000.00 line of credit) prior to the commencement of this action, as reflected in the relevant
allonges. [NYSCEF Document Nos.: 2, 7]
6. At the time that the Plaintiff became holder of the Notes and Mortgages by transfer
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FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023
and assignment from Flatiron Realty Capital LL, an authorized representative for the Plaintiff,
Joseph Cavagnaro personally reviewed the subject Notes on June 13, 2023, prior to the
commencement of this action, and attested to the fact that the Allonges into the named Plaintiff
were firmly affixed by staple to Note 1 and Note 2. See NYSCEF Document No. 19.
7. Flatiron Realty Capital LLC retained certain loan servicing duties after the
assignment of the Notes and Mortgages at issue in this action to the Plaintiff herein. These duties
include providing payoff statements, managing certain escrow funds and other duties typical of
loan servicers. Irrespective of those duties, Flatiron Realty Capital LLC does not retain an
ownership interest in the loans at issue herein, which were sold, transferred and assigned to the
Plaintiff prior to the commencement of this action.
8. Furthermore, the payoff statement provided by the moving defendants reflects that
the Plaintiff does not seek to recover the portions of the credit line mortgage in the amount of
$1,300,000.00 which were not lent to the defendant.
DEFENDANTS'
THE DEFAULT
9. The moving defendants contend that the above captioned action is frivolous, as the
monthly payments on the loan have been made, however a review of the complaint reveals that
defendants'
the default was not a default for lack of payment, but rather a default under the other
terms of the Notes and Mortgages at issue in this action.
10. Specifically, the numerous New York City Department of Buildings violations
[NYSCEF Document No.: 13], as well as the Notice of Pendency filed under Queens County
"3(b)"
Supreme Court Index No.: 728373/2021 encumber the premises in violation of paragraphs
"3(f)"
and of the $500,000.00 Note [NYSCEF Document No.: 2]; paragraphs "1.03", "1.06",
"1.07" "11"
of the $500,000.00 Mortgage [NYSCEF Document No.: 3]; and paragraphs "10", and
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FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023
of the $1,300,000.00 Credit Line Mortgage [NYSCEF Document No.: 8], all of which are the
result of the aforementioned violations and encumbrances.
11. These are substantial defaults in the terms of the aforementioned loan documents,
which put the plaintiff's loan at risk, and are the basis of the default set forth in the Complaint.
[NYSCEF Document No.: 1]
defendants'
WHEREFORE, I request that the moving motion to dismiss be denied in
its entirety, together with such other and further relief in favor of plaintiff as this Court may
deem just and proper.
FRC VTX , LLC
Name: Jo p agnaro
Title: A orized Representative
Sworn to before me this {Ò of
day
O{Åowf f , 2023.
.
Notary Publ
DEXTERRIE C. RAMlREZ
STATE OF NEW YORK
NOTARY PUBLIC,
02RA6432633
Re gistration No.
Qualified in Kings County
20
Commission Ex tres May 2,
4 of 4
Preview
FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS _________________-----___-___________..-----_______________Ç FRC VTX ASSETS, LLC INDEX NO. Plaintiff, 716902/2023 -against- AFFIDAVIT 2018 LI-LIN REALTY, LLC, RE LI, CK REAL ESTATE, L.L.C., NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, CITY OF NEW YORK, #1" #100," "JOHN DOE through "JOHN DOE the last one hundred 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 STATE OF NEW YORK ) ) SS.: COUNTY OF NASSAU ) JOSEPH CAVAGNARO, being duly sworn deposes and says: 1. I am an Authorized Representative of FRC VTX Assets, LLC, ("Plaintiff"). As the signatory of this Affidavit, I have reviewed the statements set forth herein against the records kept by Plaintiff and have duly executed this Affidavit based upon that review and upon my personal knowledge of the stated facts and circumstances and books and records maintained by Plaintiff, in my possession. 2. In my capacity as Chief Financial Officer I am responsible for managing the loans made to 2018 Li Lin Realty, LLC (the "Defendant"), which are the subject of this action. 1 of 4 FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023 I have access to the business records ofPlaintiff, including the business records for, and relating to the loan. I make this Affidavit based upon my review of those records relating to the loan, and from my own personal knowledge of how they were made, kept and maintained. The records for the loan, including computerized records indicating the sums loaned to and payments made by the Defendants, are made and maintained by and Plaintiff in the course of its regularly conducted business activities and are made at or near the time of the occurrence of the events which they reflect, by or from information transmitted by a person with knowledge. FRC VTX Assets, LLC relies on the records in the ordinary course to conduct its business (the "Business Records") FRC VTX Assets, LLC's Business records also include the business records of any predecessor servicer and/or holder of the subject loan which is incorporated in FRC VTX Assets, LLC's records. It is a regular practice of Plaintiff to make and keep such records in the ordinary course of a regularly conducted business activity. 3. I make this Affidavit in opposition to the motion by the defendants 2018 Li-Lin Realty, LLC and Jie Li. PLAINTIFF'S INTEREST IN THE MORTGAGE 4. That at all times hereinafter mentioned, Plaintiff was and still is a duly authorized limited liability corporation, authorized to do business in, and organized under the laws of the State of New York. 5. Plaintiff was assigned the Notes and Mortgages described in the Complaint [NYSCEF Document Nos.: 1-15] on May 10, 2023, ($500,000.00 Note) and June 13, 2023 ($1,300,000.00 line of credit) prior to the commencement of this action, as reflected in the relevant allonges. [NYSCEF Document Nos.: 2, 7] 6. At the time that the Plaintiff became holder of the Notes and Mortgages by transfer 2 of 4 FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023 and assignment from Flatiron Realty Capital LL, an authorized representative for the Plaintiff, Joseph Cavagnaro personally reviewed the subject Notes on June 13, 2023, prior to the commencement of this action, and attested to the fact that the Allonges into the named Plaintiff were firmly affixed by staple to Note 1 and Note 2. See NYSCEF Document No. 19. 7. Flatiron Realty Capital LLC retained certain loan servicing duties after the assignment of the Notes and Mortgages at issue in this action to the Plaintiff herein. These duties include providing payoff statements, managing certain escrow funds and other duties typical of loan servicers. Irrespective of those duties, Flatiron Realty Capital LLC does not retain an ownership interest in the loans at issue herein, which were sold, transferred and assigned to the Plaintiff prior to the commencement of this action. 8. Furthermore, the payoff statement provided by the moving defendants reflects that the Plaintiff does not seek to recover the portions of the credit line mortgage in the amount of $1,300,000.00 which were not lent to the defendant. DEFENDANTS' THE DEFAULT 9. The moving defendants contend that the above captioned action is frivolous, as the monthly payments on the loan have been made, however a review of the complaint reveals that defendants' the default was not a default for lack of payment, but rather a default under the other terms of the Notes and Mortgages at issue in this action. 10. Specifically, the numerous New York City Department of Buildings violations [NYSCEF Document No.: 13], as well as the Notice of Pendency filed under Queens County "3(b)" Supreme Court Index No.: 728373/2021 encumber the premises in violation of paragraphs "3(f)" and of the $500,000.00 Note [NYSCEF Document No.: 2]; paragraphs "1.03", "1.06", "1.07" "11" of the $500,000.00 Mortgage [NYSCEF Document No.: 3]; and paragraphs "10", and 3 of 4 FILED: QUEENS COUNTY CLERK 11/28/2023 01:58 PM INDEX NO. 716902/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/28/2023 of the $1,300,000.00 Credit Line Mortgage [NYSCEF Document No.: 8], all of which are the result of the aforementioned violations and encumbrances. 11. These are substantial defaults in the terms of the aforementioned loan documents, which put the plaintiff's loan at risk, and are the basis of the default set forth in the Complaint. [NYSCEF Document No.: 1] defendants' WHEREFORE, I request that the moving motion to dismiss be denied in its entirety, together with such other and further relief in favor of plaintiff as this Court may deem just and proper. FRC VTX , LLC Name: Jo p agnaro Title: A orized Representative Sworn to before me this {Ò of day O{Åowf f , 2023. . Notary Publ DEXTERRIE C. RAMlREZ STATE OF NEW YORK NOTARY PUBLIC, 02RA6432633 Re gistration No. Qualified in Kings County 20 Commission Ex tres May 2, 4 of 4