Preview
FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
Glenn May; Index No.:
Plaintiffs,
Date of Filing:
-against-
SUMMONS
PHH Mortgage Services, Inc.,
Premises Address:
Defendants. 33 Shamrock Road
Rocky Point, NY 11778
Parcel ID No./Tax Map ID No.:
0200-056.00-08.00-039.000
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance on the plaintiff’s attorney within 20 days after the service of this summons, exclusive
of the day of service or within 30 days after completion of service where service is made in any
other manner than by personal delivery within the State. In case of your failure to appear or answer,
judgment will be taken against you by default for the relief demanded in the complaint.
NOTICE OF ACTION AND RELIEF SOUGHT
THE OBJECT of the above captioned action is to quiet the title and to otherwise void an
alleged outstanding mortgage in the amount of $63,307.12 as of August 31, 2023, pertaining to a
mortgage recorded in the Suffolk County Clerk’s/City Register’s Office on 1/2/1991 liber
M00016508 page 098.
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The relief sought in the within action is a final Judgment quieting title to the subject
property in connection with the above stated mortgage lien.
Suffolk County is designated as the place of trail on basis of the fact that the real property
affected by the action is located wholly within said County.
Dated: Bohemia, New York GRAUSSO & FOY, LLP
September 21, 2023
___________________________
By: ____________________________
Edmond R. Foy, Esq.
80 Orville Drive, Ste. 100
Bohemia, NY 11716
Tel.: 631-901-4352
Attorneys for Plaintiff
Glenn May
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
Glenn May; Index No.:
Plaintiffs,
Date of Filing:
-against-
COMPLAINT
PHH Mortgage Services, Inc.,
Premises Address:
Defendants. 33 Shamrock Road
Rocky Point, NY 11778
Parcel ID No./Tax Map ID No.:
0200-056.00-08.00-039.000
Glenn May (hereinafter referred to as the "Plaintiff”), by and through his attorney, Grausso
& Foy, LLP, hereby verily allege, upon information and belief, as follows:
NATURE OF ACTION
1. Plaintiff brings the following cause of action for equitable and declaratory relief pursuant to
NY CPLR § 3001 (2022) having the effect of a final judgment as to the rights and other legal
relations of the parties to a justiciable controversy, asserting that the court issue final
judgement in favor of Plaintiff asserting that Plaintiff has paid in full on their contract
obligation to Defendant.
THE PARTIES
2. Plaintiff is the owner of the property located at 33 Shamrock Road, Rocky Point, NY 11778,
County of Suffolk (the "Property").
3. Defendant PHH Mortgage Services, Inc., ("Defendant") is a corporation organized under the
laws of the United States of America. As a corporation, Defendant is neither an infant,
mentally retarded, mentally ill, nor an alcohol abuser. Pursuant to the assignment of mortgage
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(“AOM”) instrument duly executed on a date prior to the filing, Defendant is the current
holder of mortgage lien which has been paid in full and continues to encumber the Property,
recorded in the Suffolk County Clerk’s/City Register’s Office on 1/2/1991 liber M00016508
page 098; (the "Mortgage"). Therefore, Defendant has, or may have, claims, or may claim,
some interest in the Property which may be adverse to that of Plaintiff. Annexed hereto as
Exhibit “A” are true, accurate, and complete copies of the Mortgage.
FACTUAL BACKGROUND
4. Plaintiffs repeats and re-alleges each and every allegation contained in paragraphs 1 through
3 as though fully set forth herein at length.
I. THE SUBJECT PROPERTY:
5. The Property located at 33 Shamrock Road, Rocky Point, NY 11778 has a tax map designation
of District 02.00 Section: 056.00 Block: 08.00 Lot: 039.000. The full legal description of
the Mortgaged Premises is attached hereto as Exhibit “B”.
6. In order to meet certain other and further financial obligations in connection with the property,
Plaintiff’s predecessor-in-interest Nancy Barci entered into a mortgage transaction with
Exchange Mortgage Corp. whose address is 110 Walt Whitman Rd, Huntington Station , NY
11746 (hereinafter “Exchange”). See Exhibit A; Mortgage.
7. Upon information and belief, the Mortgage has been assigned to Defendant by Assignment of
Mortgage and upon information and belief Defendant is now the current holder on the
mortgage note.
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FIRST CAUSE OF ACTION
8. Glenn May (hereinafter “Plaintiff”) has satisfied the loan in full by paying all amounts due.
9. Plaintiff, after taking out a mortgage of $117,294.00 on December 28, 1990 (See Exhibit A),
and after completing the corresponding thirty (30) year term on January 1, 2021, on August
15, 2023, Plaintiff received a payoff statement good through August 31, 2023 for $63,307.12
(See Exhibit C) an amount equal to approximately 54% of the origination amount.
10. The underlying dispute between the parties as to the outstanding amount due, if any, stems
from a forbearance agreement entered into between the Plaintiff and Defendant’s predecessor-
in-interest, HUD, where the parties entered into a thirty-one (31) month forbearance
agreement, although neither party can produce the original forbearance agreement from HUD
(nor can HUD see Exhibit D) said forbearance agreement is referenced several times from
both Defendant as well as Defendant’s predecessor in interest Ocwen Federal Bank FSB (See
Exhibit E).
11. The forbearance agreement required Plaintiff to continue to make payments sufficient to cover
escrow costs which initially amounted to $365 per month and Plaintiff timely made these
payments throughout the thirty-one month period. Taxes on the subject property during the
forbearance period was $3,305.07 in 1995, $3,383.30 in 1996, and $3,593.24 in 1997 (see
Exhibit M).
12. Plaintiff not only completed their term January 1, 2021, but thereafter proceeded to make an
additional thirty-one (31) payments in an attempt to satisfy monies outstanding from the
thirty-one (31) month forbearance. However, after requesting and receiving a payoff-
statement, despite paying the subject mortgage through to the end of its term and thereafter
completing an additional thirty-one (31) payments, Plaintiff received a payoff statement good
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through August 31, 2023 for $63,307.12 (See Exhibit C) an amount equal to approximately
54% of the origination amount.
13. On or around the 75th payment of the subject mortgage debt, on April 24, 1997, Plaintiff
entered into a thirty-one (31) month forbearance agreement with the US Department of
Housing and Urban Development (hereinafter “HUD”) (See Exhibit F) which created a
deferred non-interest bearing balance which was initially communicated to the Plaintiff to
amount to approximately $30,947.89 as of December 15, 1999
(See Exhibits E) and again twelve and a half years later June 04, 2012 (See Exhibit G), but
has recently been communicated to Plaintiff to be approximately $44,974.04 (See Exhibit
C), however in addition to the remaining outstanding principle balance alleged to be owed,
Defendant has asserted that in addition to the deferred balance, the Plaintiff also owes an
additional principle balance of approximately $29,833.74 (See Exhibit F), even though the
Plaintiff has completed their thirty (30) year term as of January 2021.
14. A review of prior Customer Account Activity Statements provided to Plaintiff from Defendant
and Defendant’s predecessor’s in interest, from 2019 through to 2020, Plaintiff’s alleged
principle balance as of December 01, 2019 reads to be $39,044.15 but then unexplainedly
jumps the following month January 01, 2020 to $84,018.19 (See Exhibit H).
15. It should be further noted, that Plaintiff’s current alleged mortgagee does not possess the
original forbearance agreement, cannot account for the first five (5) years of payments on their
payment history, and has presented Plaintiff with a Lost Note affidavit (See Exhibit I).
16. After a review of PHH Mortgage Services’ payment history (hereinafter “PHH”), it has been
discovered that PHH has not been applying Plaintiff’s payments in accordance with the
amortization scale that governs the parties contractual obligations (See Exhibit L).
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17. After the 31-month forbearance concluded, when Plaintiff made their first regular payment
May 1999 (which is acknowledged in the payment history provided by PHH) (See Exhibit
H), Plaintiff’s lender reverted back to the application of principle and interest in the
amortization schedule to where the forbearance began (at the 75th payment) April 24, 1997
(i.e. Plaintiff entered a forbearance agreement with the lender at the 75th payment of the 360
payment note commitment (See Exhibit L). After resolving payments 75 through to 106 in
the form of a non-interest balloon payment, PHH reverted back to the 75th payment application
of principle and interest effectively resulting in a substantially lower application to principle
vs interest in all of the payments from May 1999 through to the end of the term twenty-one
years later and is effectively holding Plaintiff responsible for this debt twice (once in the non-
interest bearing balloon and a second time by resetting the account back to the 75th payment
in the amortization schedule resulting in a lower application of principle vs interest and
making Plaintiff repay the entire thirty-one (31) month period a second time, something
Plaintiff certainly did not agree to nor has PHH presented to Plaintiff or to Plaintiff’s counsel
with any agreement that permits this. Thus, even though Plaintiff and Plaintiff’s lender has
addressed the thirty-one (31) months of payments through a forbearance agreement which
effectively created a non-interest bearing balloon payment, Defendant lender is now
attempting to double-dip and to charge Plaintiff a second time for the forbearance period.
18. It cannot be lost upon the court that Defendant’s position is in direct conflict with Defendant’s
predecessors-in-interest [i.e. HUD (See Exhibit -).& Ocwen (See Exhibit -)].
19. Further, reverting back to the application of principle and interest called for in the 75th
payment would also change the underlying character of the mortgage in ways that is not
traditionally done in forbearance agreements. By resetting back to the 75th payment, the
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mortgage would no longer pay itself off in full at the end of the agreed upon term (i.e. the
mortgage agreement would cease to be fully self amortizing).
20. Prior to commencement of this herein action, Plaintiff retained the counsel of Grausso & Foy,
LLP who caused a Qualified Written Request to be served upon PHH (See Exhibit J),
highlighting Plaintiff’s concerns and placing the alleged debt into dispute. The bank’s
response (See Exhibit K) failed to address Plaintiff’s concerns, and simply made a cursory
statement that:
(See Exhibit K)
21. This statement in no way justifies the debt PHH is alleging that Plaintiff owes, it is instead
simply making a claim as to what PHH believed that they had bought, but unless the lender
can justify the double-charging of the forbearance period threw a written agreement between
Plaintiff and PHH or its predecessors in interest, then PHH was required to recalculate
Plaintiff’s account in accordance with the terms of their contract.
22. Although PHH has presented two (2) forbearance agreements in their response to Plaintiff’s
Qualified Written Request, neither agreement in anyway mentions or otherwise states whether
directly or indirectly that regular payments after the conclusion of the forbearance agreement
will revert back in the amortization schedule to where the forbearance began or that the loan
would no longer be a fully self-amortizing loan.
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23. As Plaintiff did not agree to this treatment of its debt and as it conflicts with Plaintiff’s
bargained for amortization schedule, Plaintiff demanded that PHH recalculate Plaintiff’s debt,
but Defendant refused to do so.
24. Further, Plaintiff also disputes the alleged forbearance balloon obligation. PHH mortgage
alleges that Plaintiff’s forbeared non-interest bearing balloon debt is $44,974.04, however
pursuant to Plaintiff’s note and mortgage (and amortization schedule) Plaintiff’s monthly
payment is only $1,072.94, thus thirty-one (31) missed payments of the mortgage should have
only amounted to 1,072.94 x 31 which equals only $33,261.14 not $44,974.04 a difference of
approximately $11,712.90.
25. Defendant is not servicing Plaintiff’s debt in good faith, has breached their implied covenant
of good faith and fair dealing, is currently engaging in deceptive practices under NY Gen.
Bus. Law § 349 (h) and is in violation of the unclean hands doctrine.
26. After taking out a mortgage of $117,247.38 on February 1, 1991, and after completing the
corresponding thirty (30) year term on January 1, 2021, Defendant was still demanding an
additional $75,515.75 (See Exhibit C) approximately 64.4% of Plaintiff’s original loan
balance. Further, after making thirty-one (31) payments after the conclusion of the loan term
in an attempt to satisfy monies owed in a non-interest bearing account, as a result of the
forbearance period, Defendant was still demanding $63,307.12 approximately 54% of the
original loan amount when in fact that amount owed should be deemed satisfied.
27. It is not logically or mathematically feasible that as a result of a thirty-one (31) month
forbearance, Plaintiff could finish their 30-year mortgage term and still owe an additional 2/3s
of the original mortgage balance and after making all thirty-one (31) payments after expiration
of the loan term that the Plaintiff could still owe more than half of the original loan amount,
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a position that is not shared by either HUD (i.e. the mortgagee who entered into the
forbearance agreement with Plaintiff and Defendant’s predecessor in interest) or Ocwen
(Defendant’s predecessor in interest).
28. PHH’s conduct and complete lack of accountability is actionable. PHH cannot account for the
first five (5) years of Plaintiff’s payment history, PHH has lost Plaintiff’s note, is over-
charging Plaintiff for what should be owed resulting from the thirty-one (31) month
forbearance while attempting to double-dip making Plaintiff pay the thirty-one (31) months
in a non-interest balloon payment, and a second time by reverting Plaintiff’s account back to
the 75th payment on the amortization schedule instead of properly applying Plaintiff’s first
post-forbearance regular payment to the 106th payment on the amortization schedule. This
complaint is of course Plaintiff’s last recourse as Plaintiff has attempted to resolve this issue
privately with Defendant without success.
29. Plaintiff finally asserts that they have no other adequate remedy at law other than to seek the
relief requested herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Glenn May demands:
[i] an Order, for Declaratory Judgment, pursuant to CPLR § 3001, having the effect of a final
judgment as to the rights and other legal relations of the parties to this justiciable controversy;
and
[ii] an Order, for an award of attorney’s fees in favor of Plaintiff; and
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[iii] an Order, for an award of damages in favor of Plaintiff for Defendant’s erroneous reporting
of delinquent credit to the credit bureaus which has prevented Plaintiff from accessing credit
markets; and
[iv] an Order, issuing sanctions against Defendant for failing to service Plaintiff’s debt in good
faith, for breaching their implied covenant of good faith and fair dealing, for engaging in
deceptive practices under NY Gen. Bus. Law § 349 (h) and for violation of the unclean hands
doctrine
[v] an Order, for such other and further relief as this Court may deem just, proper, and appropriate.
Dated: Bohemia, New York
April 3, 2024
GRAUSSO & FOY, LLP
By: ____________________________
Edmond R. Foy, Esq.
80 Orville Drive, Ste. 100
Bohemia, NY 11716
Phone: 631-901-4352
Attorneys for Plaintiff
Glenn May
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
Glenn May; Index No.:
Plaintiffs, Date of Filing:
-against- CERTIFICATION-PURSUANT TO
22 NYCRR 130-1,1a
PHH Mortgage Services, Inc., Premises Address:
113 Ave A
Defendants. Holbrook, NY 11741
Parcel ID No./Tax Map ID No.:
Dist: 02.00 Section: 727.00
Block: 08.00 Lot: 005.001
The undersigned hereby certifies that, to the best of my knowledge, information and belief,
formed after an inquiry reasonable under the circumstances, the presentation of the following
papers: SUMMONS & COMPLAINT are not frivolous as defined in subsection (c) of Section
130-1.1.
Dated: Bohemia, New York
August 18, 2023
GRAUSSO & FOY, LLP
__________________________
By: ____________________________
Edmond R. Foy, Esq.
80 Orville Drive, Ste. 100
Bohemia, NY 11716
Tel.: (631) 901-4352
Attorneys for Plaintiff
Glenn May
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK Index/Docket No.
__________________________________________________________________
Glenn May,
Plaintiff,
- against -
PHH Mortgage Services, Inc.,
Defendants.
__________________________________________________________________
SUMMONS AND COMPLAINT
__________________________________________________________________
GRAUSSO & FOY, LLP
Attorney for Defendant
80 Orville Drive, Ste. 100
Bohemia, NY 11716
Tel.: (631) 901-4352
_____________________________________________________________________________
To: PHH Mortgage Services, Inc.
Service is hereby affirmed
_____________________________________________________________________________
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to
practice in the courts of New York State, certifies that, upon information and
belief and reasonable inquiry, the contentions contained in the annexed
document(s) are not frivolous.
Dated: August 18, 2023
Signature _________________________________
___________________________
EDMOND R. FOY, ESQ.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
Glenn May; Index No.:
Plaintiffs,
Date of Filing:
-against-
PHH Mortgage Services, Inc., Premises Address:
33 Shamrock Road
Defendants. Rocky Point, NY 11778
Parcel ID No./Tax Map ID No.:
0200-056.00-08.00-039.000
NOTICE OF COMMENCMENT OF ACTION
SUBJECT TO MANDATORY ELECTRONIC FILING
PLEASE TAKE NOTICE that the matter captioned above has been commenced as an
electronically filed case in the New York State Courts Electronic Filing System (“NYSCEF”) as
required by CPLR § 2111 and Uniform Rule § 202.5-bb (mandatory electronic filing). This notice
is being served as required by that rule.
NYSCEF is designed for the electronic filing of documents with the County Clerk and the court
and for the electronic service of those documents, court documents, and court notices upon counsel
and unrepresented litigants who have consented to electronic filing.
Electronic filing offers significant benefits for attorneys and litigants, permitting papers to be filed
with the County Clerk and the court and served on other parties simply, conveniently, and quickly.
NYSCEF case documents are filed with the County Clerk and the court by filing on the NYSCEF
Website, which can be done at any time of the day or night on any day of the week. The documents
are served automatically on all consenting e-filers as soon as the document is uploaded to the
website, which sends out an immediate email notification of the filing.
The NYSCEF System charges no fees for filing, serving, or viewing the electronic case record,
nor does it charge any fees to print any filed documents. Normal filing fees must be paid, but this
can be done on-line.
Parties represented by an attorney: An attorney representing a party who is served with this notice
must either: 1) immediately record his or her representation within the e-filed matter on the
NYSCEF site; or 2) file the Notice of Opt-Out form with the clerk of the court where this action
is pending. Exemptions from mandatory e-filing are limited to attorneys who certify in good faith
that they lack the computer hardware and/or scanner and/or internet connection or that they lack
(along with all employees subject to their direction) the operational knowledge to comply with e-
filing requirements. [Section 202.5-bb(e)]
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Parties not represented by an attorney: Unrepresented litigants are exempt from e- filing. They can
serve and file documents in paper form and must be served with documents in paper form.
However, an unrepresented litigant may participate in e-filing.
Page 1 of 2 EFM-1
For information on how to participate in e-filing, unrepresented litigants should contact the
appropriate clerk in the court where the action was filed or visit www.nycourts.gov/efile-
unrepresented. Unrepresented litigants also are encouraged to visit www.nycourthelp.gov or
contact the Help Center in the court where the action was filed. An unrepresented litigant who
consents to e-filing may cease participation at any time. However, the other parties may continue
to e-file their court documents in the case.
For additional information about electronic filing and to create a NYSCEF account, visit the
NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center (phone:
646- 386-3033; e-mail: efile@nycourts.gov).
Dated: April 2, 2024
___________________________
_____________________________ 80 Orville Drive, Ste. 100___________
Signature Address
Edmond R. Foy________________ Bohemia, NY 11716________________
Name
Grausso & Foy, LLP____________ (631) 901-4352____________________
Firm Name Phone
Edmond.Foy@graussofoy.com________
Email
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Preview
FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Glenn May; Index No.: Plaintiffs, Date of Filing: -against- SUMMONS PHH Mortgage Services, Inc., Premises Address: Defendants. 33 Shamrock Road Rocky Point, NY 11778 Parcel ID No./Tax Map ID No.: 0200-056.00-08.00-039.000 TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on the plaintiff’s attorney within 20 days after the service of this summons, exclusive of the day of service or within 30 days after completion of service where service is made in any other manner than by personal delivery within the State. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. NOTICE OF ACTION AND RELIEF SOUGHT THE OBJECT of the above captioned action is to quiet the title and to otherwise void an alleged outstanding mortgage in the amount of $63,307.12 as of August 31, 2023, pertaining to a mortgage recorded in the Suffolk County Clerk’s/City Register’s Office on 1/2/1991 liber M00016508 page 098. 1 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 The relief sought in the within action is a final Judgment quieting title to the subject property in connection with the above stated mortgage lien. Suffolk County is designated as the place of trail on basis of the fact that the real property affected by the action is located wholly within said County. Dated: Bohemia, New York GRAUSSO & FOY, LLP September 21, 2023 ___________________________ By: ____________________________ Edmond R. Foy, Esq. 80 Orville Drive, Ste. 100 Bohemia, NY 11716 Tel.: 631-901-4352 Attorneys for Plaintiff Glenn May 2 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Glenn May; Index No.: Plaintiffs, Date of Filing: -against- COMPLAINT PHH Mortgage Services, Inc., Premises Address: Defendants. 33 Shamrock Road Rocky Point, NY 11778 Parcel ID No./Tax Map ID No.: 0200-056.00-08.00-039.000 Glenn May (hereinafter referred to as the "Plaintiff”), by and through his attorney, Grausso & Foy, LLP, hereby verily allege, upon information and belief, as follows: NATURE OF ACTION 1. Plaintiff brings the following cause of action for equitable and declaratory relief pursuant to NY CPLR § 3001 (2022) having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy, asserting that the court issue final judgement in favor of Plaintiff asserting that Plaintiff has paid in full on their contract obligation to Defendant. THE PARTIES 2. Plaintiff is the owner of the property located at 33 Shamrock Road, Rocky Point, NY 11778, County of Suffolk (the "Property"). 3. Defendant PHH Mortgage Services, Inc., ("Defendant") is a corporation organized under the laws of the United States of America. As a corporation, Defendant is neither an infant, mentally retarded, mentally ill, nor an alcohol abuser. Pursuant to the assignment of mortgage 3 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 (“AOM”) instrument duly executed on a date prior to the filing, Defendant is the current holder of mortgage lien which has been paid in full and continues to encumber the Property, recorded in the Suffolk County Clerk’s/City Register’s Office on 1/2/1991 liber M00016508 page 098; (the "Mortgage"). Therefore, Defendant has, or may have, claims, or may claim, some interest in the Property which may be adverse to that of Plaintiff. Annexed hereto as Exhibit “A” are true, accurate, and complete copies of the Mortgage. FACTUAL BACKGROUND 4. Plaintiffs repeats and re-alleges each and every allegation contained in paragraphs 1 through 3 as though fully set forth herein at length. I. THE SUBJECT PROPERTY: 5. The Property located at 33 Shamrock Road, Rocky Point, NY 11778 has a tax map designation of District 02.00 Section: 056.00 Block: 08.00 Lot: 039.000. The full legal description of the Mortgaged Premises is attached hereto as Exhibit “B”. 6. In order to meet certain other and further financial obligations in connection with the property, Plaintiff’s predecessor-in-interest Nancy Barci entered into a mortgage transaction with Exchange Mortgage Corp. whose address is 110 Walt Whitman Rd, Huntington Station , NY 11746 (hereinafter “Exchange”). See Exhibit A; Mortgage. 7. Upon information and belief, the Mortgage has been assigned to Defendant by Assignment of Mortgage and upon information and belief Defendant is now the current holder on the mortgage note. 4 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 FIRST CAUSE OF ACTION 8. Glenn May (hereinafter “Plaintiff”) has satisfied the loan in full by paying all amounts due. 9. Plaintiff, after taking out a mortgage of $117,294.00 on December 28, 1990 (See Exhibit A), and after completing the corresponding thirty (30) year term on January 1, 2021, on August 15, 2023, Plaintiff received a payoff statement good through August 31, 2023 for $63,307.12 (See Exhibit C) an amount equal to approximately 54% of the origination amount. 10. The underlying dispute between the parties as to the outstanding amount due, if any, stems from a forbearance agreement entered into between the Plaintiff and Defendant’s predecessor- in-interest, HUD, where the parties entered into a thirty-one (31) month forbearance agreement, although neither party can produce the original forbearance agreement from HUD (nor can HUD see Exhibit D) said forbearance agreement is referenced several times from both Defendant as well as Defendant’s predecessor in interest Ocwen Federal Bank FSB (See Exhibit E). 11. The forbearance agreement required Plaintiff to continue to make payments sufficient to cover escrow costs which initially amounted to $365 per month and Plaintiff timely made these payments throughout the thirty-one month period. Taxes on the subject property during the forbearance period was $3,305.07 in 1995, $3,383.30 in 1996, and $3,593.24 in 1997 (see Exhibit M). 12. Plaintiff not only completed their term January 1, 2021, but thereafter proceeded to make an additional thirty-one (31) payments in an attempt to satisfy monies outstanding from the thirty-one (31) month forbearance. However, after requesting and receiving a payoff- statement, despite paying the subject mortgage through to the end of its term and thereafter completing an additional thirty-one (31) payments, Plaintiff received a payoff statement good 5 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 through August 31, 2023 for $63,307.12 (See Exhibit C) an amount equal to approximately 54% of the origination amount. 13. On or around the 75th payment of the subject mortgage debt, on April 24, 1997, Plaintiff entered into a thirty-one (31) month forbearance agreement with the US Department of Housing and Urban Development (hereinafter “HUD”) (See Exhibit F) which created a deferred non-interest bearing balance which was initially communicated to the Plaintiff to amount to approximately $30,947.89 as of December 15, 1999 (See Exhibits E) and again twelve and a half years later June 04, 2012 (See Exhibit G), but has recently been communicated to Plaintiff to be approximately $44,974.04 (See Exhibit C), however in addition to the remaining outstanding principle balance alleged to be owed, Defendant has asserted that in addition to the deferred balance, the Plaintiff also owes an additional principle balance of approximately $29,833.74 (See Exhibit F), even though the Plaintiff has completed their thirty (30) year term as of January 2021. 14. A review of prior Customer Account Activity Statements provided to Plaintiff from Defendant and Defendant’s predecessor’s in interest, from 2019 through to 2020, Plaintiff’s alleged principle balance as of December 01, 2019 reads to be $39,044.15 but then unexplainedly jumps the following month January 01, 2020 to $84,018.19 (See Exhibit H). 15. It should be further noted, that Plaintiff’s current alleged mortgagee does not possess the original forbearance agreement, cannot account for the first five (5) years of payments on their payment history, and has presented Plaintiff with a Lost Note affidavit (See Exhibit I). 16. After a review of PHH Mortgage Services’ payment history (hereinafter “PHH”), it has been discovered that PHH has not been applying Plaintiff’s payments in accordance with the amortization scale that governs the parties contractual obligations (See Exhibit L). 6 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 17. After the 31-month forbearance concluded, when Plaintiff made their first regular payment May 1999 (which is acknowledged in the payment history provided by PHH) (See Exhibit H), Plaintiff’s lender reverted back to the application of principle and interest in the amortization schedule to where the forbearance began (at the 75th payment) April 24, 1997 (i.e. Plaintiff entered a forbearance agreement with the lender at the 75th payment of the 360 payment note commitment (See Exhibit L). After resolving payments 75 through to 106 in the form of a non-interest balloon payment, PHH reverted back to the 75th payment application of principle and interest effectively resulting in a substantially lower application to principle vs interest in all of the payments from May 1999 through to the end of the term twenty-one years later and is effectively holding Plaintiff responsible for this debt twice (once in the non- interest bearing balloon and a second time by resetting the account back to the 75th payment in the amortization schedule resulting in a lower application of principle vs interest and making Plaintiff repay the entire thirty-one (31) month period a second time, something Plaintiff certainly did not agree to nor has PHH presented to Plaintiff or to Plaintiff’s counsel with any agreement that permits this. Thus, even though Plaintiff and Plaintiff’s lender has addressed the thirty-one (31) months of payments through a forbearance agreement which effectively created a non-interest bearing balloon payment, Defendant lender is now attempting to double-dip and to charge Plaintiff a second time for the forbearance period. 18. It cannot be lost upon the court that Defendant’s position is in direct conflict with Defendant’s predecessors-in-interest [i.e. HUD (See Exhibit -).& Ocwen (See Exhibit -)]. 19. Further, reverting back to the application of principle and interest called for in the 75th payment would also change the underlying character of the mortgage in ways that is not traditionally done in forbearance agreements. By resetting back to the 75th payment, the 7 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 mortgage would no longer pay itself off in full at the end of the agreed upon term (i.e. the mortgage agreement would cease to be fully self amortizing). 20. Prior to commencement of this herein action, Plaintiff retained the counsel of Grausso & Foy, LLP who caused a Qualified Written Request to be served upon PHH (See Exhibit J), highlighting Plaintiff’s concerns and placing the alleged debt into dispute. The bank’s response (See Exhibit K) failed to address Plaintiff’s concerns, and simply made a cursory statement that: (See Exhibit K) 21. This statement in no way justifies the debt PHH is alleging that Plaintiff owes, it is instead simply making a claim as to what PHH believed that they had bought, but unless the lender can justify the double-charging of the forbearance period threw a written agreement between Plaintiff and PHH or its predecessors in interest, then PHH was required to recalculate Plaintiff’s account in accordance with the terms of their contract. 22. Although PHH has presented two (2) forbearance agreements in their response to Plaintiff’s Qualified Written Request, neither agreement in anyway mentions or otherwise states whether directly or indirectly that regular payments after the conclusion of the forbearance agreement will revert back in the amortization schedule to where the forbearance began or that the loan would no longer be a fully self-amortizing loan. 8 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 23. As Plaintiff did not agree to this treatment of its debt and as it conflicts with Plaintiff’s bargained for amortization schedule, Plaintiff demanded that PHH recalculate Plaintiff’s debt, but Defendant refused to do so. 24. Further, Plaintiff also disputes the alleged forbearance balloon obligation. PHH mortgage alleges that Plaintiff’s forbeared non-interest bearing balloon debt is $44,974.04, however pursuant to Plaintiff’s note and mortgage (and amortization schedule) Plaintiff’s monthly payment is only $1,072.94, thus thirty-one (31) missed payments of the mortgage should have only amounted to 1,072.94 x 31 which equals only $33,261.14 not $44,974.04 a difference of approximately $11,712.90. 25. Defendant is not servicing Plaintiff’s debt in good faith, has breached their implied covenant of good faith and fair dealing, is currently engaging in deceptive practices under NY Gen. Bus. Law § 349 (h) and is in violation of the unclean hands doctrine. 26. After taking out a mortgage of $117,247.38 on February 1, 1991, and after completing the corresponding thirty (30) year term on January 1, 2021, Defendant was still demanding an additional $75,515.75 (See Exhibit C) approximately 64.4% of Plaintiff’s original loan balance. Further, after making thirty-one (31) payments after the conclusion of the loan term in an attempt to satisfy monies owed in a non-interest bearing account, as a result of the forbearance period, Defendant was still demanding $63,307.12 approximately 54% of the original loan amount when in fact that amount owed should be deemed satisfied. 27. It is not logically or mathematically feasible that as a result of a thirty-one (31) month forbearance, Plaintiff could finish their 30-year mortgage term and still owe an additional 2/3s of the original mortgage balance and after making all thirty-one (31) payments after expiration of the loan term that the Plaintiff could still owe more than half of the original loan amount, 9 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 a position that is not shared by either HUD (i.e. the mortgagee who entered into the forbearance agreement with Plaintiff and Defendant’s predecessor in interest) or Ocwen (Defendant’s predecessor in interest). 28. PHH’s conduct and complete lack of accountability is actionable. PHH cannot account for the first five (5) years of Plaintiff’s payment history, PHH has lost Plaintiff’s note, is over- charging Plaintiff for what should be owed resulting from the thirty-one (31) month forbearance while attempting to double-dip making Plaintiff pay the thirty-one (31) months in a non-interest balloon payment, and a second time by reverting Plaintiff’s account back to the 75th payment on the amortization schedule instead of properly applying Plaintiff’s first post-forbearance regular payment to the 106th payment on the amortization schedule. This complaint is of course Plaintiff’s last recourse as Plaintiff has attempted to resolve this issue privately with Defendant without success. 29. Plaintiff finally asserts that they have no other adequate remedy at law other than to seek the relief requested herein. PRAYER FOR RELIEF WHEREFORE, Plaintiff Glenn May demands: [i] an Order, for Declaratory Judgment, pursuant to CPLR § 3001, having the effect of a final judgment as to the rights and other legal relations of the parties to this justiciable controversy; and [ii] an Order, for an award of attorney’s fees in favor of Plaintiff; and 10 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 [iii] an Order, for an award of damages in favor of Plaintiff for Defendant’s erroneous reporting of delinquent credit to the credit bureaus which has prevented Plaintiff from accessing credit markets; and [iv] an Order, issuing sanctions against Defendant for failing to service Plaintiff’s debt in good faith, for breaching their implied covenant of good faith and fair dealing, for engaging in deceptive practices under NY Gen. Bus. Law § 349 (h) and for violation of the unclean hands doctrine [v] an Order, for such other and further relief as this Court may deem just, proper, and appropriate. Dated: Bohemia, New York April 3, 2024 GRAUSSO & FOY, LLP By: ____________________________ Edmond R. Foy, Esq. 80 Orville Drive, Ste. 100 Bohemia, NY 11716 Phone: 631-901-4352 Attorneys for Plaintiff Glenn May 11 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Glenn May; Index No.: Plaintiffs, Date of Filing: -against- CERTIFICATION-PURSUANT TO 22 NYCRR 130-1,1a PHH Mortgage Services, Inc., Premises Address: 113 Ave A Defendants. Holbrook, NY 11741 Parcel ID No./Tax Map ID No.: Dist: 02.00 Section: 727.00 Block: 08.00 Lot: 005.001 The undersigned hereby certifies that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the following papers: SUMMONS & COMPLAINT are not frivolous as defined in subsection (c) of Section 130-1.1. Dated: Bohemia, New York August 18, 2023 GRAUSSO & FOY, LLP __________________________ By: ____________________________ Edmond R. Foy, Esq. 80 Orville Drive, Ste. 100 Bohemia, NY 11716 Tel.: (631) 901-4352 Attorneys for Plaintiff Glenn May 12 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index/Docket No. __________________________________________________________________ Glenn May, Plaintiff, - against - PHH Mortgage Services, Inc., Defendants. __________________________________________________________________ SUMMONS AND COMPLAINT __________________________________________________________________ GRAUSSO & FOY, LLP Attorney for Defendant 80 Orville Drive, Ste. 100 Bohemia, NY 11716 Tel.: (631) 901-4352 _____________________________________________________________________________ To: PHH Mortgage Services, Inc. Service is hereby affirmed _____________________________________________________________________________ Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document(s) are not frivolous. Dated: August 18, 2023 Signature _________________________________ ___________________________ EDMOND R. FOY, ESQ. 13 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Glenn May; Index No.: Plaintiffs, Date of Filing: -against- PHH Mortgage Services, Inc., Premises Address: 33 Shamrock Road Defendants. Rocky Point, NY 11778 Parcel ID No./Tax Map ID No.: 0200-056.00-08.00-039.000 NOTICE OF COMMENCMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING PLEASE TAKE NOTICE that the matter captioned above has been commenced as an electronically filed case in the New York State Courts Electronic Filing System (“NYSCEF”) as required by CPLR § 2111 and Uniform Rule § 202.5-bb (mandatory electronic filing). This notice is being served as required by that rule. NYSCEF is designed for the electronic filing of documents with the County Clerk and the court and for the electronic service of those documents, court documents, and court notices upon counsel and unrepresented litigants who have consented to electronic filing. Electronic filing offers significant benefits for attorneys and litigants, permitting papers to be filed with the County Clerk and the court and served on other parties simply, conveniently, and quickly. NYSCEF case documents are filed with the County Clerk and the court by filing on the NYSCEF Website, which can be done at any time of the day or night on any day of the week. The documents are served automatically on all consenting e-filers as soon as the document is uploaded to the website, which sends out an immediate email notification of the filing. The NYSCEF System charges no fees for filing, serving, or viewing the electronic case record, nor does it charge any fees to print any filed documents. Normal filing fees must be paid, but this can be done on-line. Parties represented by an attorney: An attorney representing a party who is served with this notice must either: 1) immediately record his or her representation within the e-filed matter on the NYSCEF site; or 2) file the Notice of Opt-Out form with the clerk of the court where this action is pending. Exemptions from mandatory e-filing are limited to attorneys who certify in good faith that they lack the computer hardware and/or scanner and/or internet connection or that they lack (along with all employees subject to their direction) the operational knowledge to comply with e- filing requirements. [Section 202.5-bb(e)] 14 of 15 FILED: SUFFOLK COUNTY CLERK 05/08/2024 04:34 PM INDEX NO. 611577/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/08/2024 Parties not represented by an attorney: Unrepresented litigants are exempt from e- filing. They can serve and file documents in paper form and must be served with documents in paper form. However, an unrepresented litigant may participate in e-filing. Page 1 of 2 EFM-1 For information on how to participate in e-filing, unrepresented litigants should contact the appropriate clerk in the court where the action was filed or visit www.nycourts.gov/efile- unrepresented. Unrepresented litigants also are encouraged to visit www.nycourthelp.gov or contact the Help Center in the court where the action was filed. An unrepresented litigant who consents to e-filing may cease participation at any time. However, the other parties may continue to e-file their court documents in the case. For additional information about electronic filing and to create a NYSCEF account, visit the NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center (phone: 646- 386-3033; e-mail: efile@nycourts.gov). Dated: April 2, 2024 ___________________________ _____________________________ 80 Orville Drive, Ste. 100___________ Signature Address Edmond R. Foy________________ Bohemia, NY 11716________________ Name Grausso & Foy, LLP____________ (631) 901-4352____________________ Firm Name Phone Edmond.Foy@graussofoy.com________ Email 15 of 15