Preview
FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---------------------------------------------------------------------X
Nationstar Mortgage LLC, Index No.: 703628/2023
Plaintiff,
-against- ANSWER AND DEFENSES
Michael Ruiz; Rameshwar Ramkissoon; City of New York
Environmental Control Board: City of New York Parking
Violations Bureau; City of New York Transit Adjudication
Bureau; Jennifer Martinez; Ceila “Doe”; Joe Calderon,
Defendants.
---------------------------------------------------------------------X
PLEASE TAKE NOTICE that Defendant Michael Ruiz hereby appears in this proceeding
by way of his attorney and that the undersigned has been retained as attorney for Defendant
Michael Ruiz and demands that you serve all papers upon the undersigned at the address stated
below.
PLEASE TAKE FURTHER NOTICE that Defendant Michael Ruiz hereby interposes the
following answer to the Complaint herein.
1. The Defendant Michael Ruiz (hereafter “Mr. Ruiz”) denies each and every
allegation contained in paragraphs “2”, “4”, “5”, “6”, “8”, “10”, “11”,”14” “18”, “19”.
2. The Defendant Mr. Ruiz lacks knowledge or information sufficient to form a belief
with respect to the allegations contained in paragraphs “1”, “3”, “7”, “9”, “10”, “12”, “13”, “15”,
“16”, “17”, “20”.
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AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE:
Fraud and Detrimental Reliance on Ineffective Counsel
3. Mr. Ruiz was the victim of fraud and therefore unable to defend himself in the
proceeding. Mr. Ruiz retained Henry M. Graham, Esquire for representation in the foreclosure
proceeding. Mr. Graham sent his agent to Mr. Ruiz’ home in Florida in June of 2023, and
deceived him to not only sign a letter of engagement listing Mr. Graham as his foreclosure defense
attorney, but for a contract of sale selling the underlying premises for which this proceeding is
based to Brooklyn Sharks Avenue L Holding Group, Corp for de minimis consideration for which
this proceeding is based. Mr. Ruiz detrimentally relied on the false promises made by Mr. Graham
to appear in court on his behalf and defend the foreclosure.
SECOND AFFIRMATIVE DEFENSE
Lack of Personal Jurisdiction
4. This Court lacks personal jurisdiction over Mr. Ruiz. Plaintiff failed to serve Mr.
Ruiz with the Summons and Complaint of this proceeding. Mr. Ruiz is a resident of Florida,
swears he was not personally served and did not receive anything in male, and therefore had no
knowledge of his scheduled court appearances. The sworn statement of the process server from
Florida states he served Mr. Ruiz directly, yet he incorrectly describes Mr. Ruiz as someone almost
half a foot shorter and weighing fifty (50) pounds less. Those are not mere oversights, but
complete fabrications. As well, the swore statement from the second process server who allegedly
mailed copies to Mr. Ruiz did not submit any receipt for the postage, or any other evidence which
this Court can reasonably rely on for the affidavit’s validity. Therefore, this Court lacks personal
jurisdiction over Mr. Ruiz.
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THIRD AFFIRMATIVE DEFENSE
Noncompliance with RPAPL §1303
5. Plaintiff failed to serve Mr. Ruiz with the RPAPL §1303 notice. This notice is a
condition precedent to commencing the foreclosure action and should have been served on Mr.
Ruiz with the summons and complaint.
FOURTH AFFIRMATIVE DEFENSE
Noncompliance with RPAPL §1304
6. Plaintiff was under the obligation of properly serving the RPAPL §1304 notice on
the borrower as a condition precedent to the commencement of the residential foreclosure action.
Plaintiff failed to meet this obligation.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff Lack of Standing
7. To maintain a foreclosure action under New York state law, the plaintiff must own
both the mortgage and the note. Because Plaintiff does not own the note or the mortgage, Plaintiff
lacks legal standing to bring this foreclosure action.
SIXTH AFFIRMATIVE DEFENSE
Mortgage Payments Made
8. The defendants made payments to plaintiff which plaintiff failed to properly credit.
9. Plaintiff has wrongfully declared a default against the answering defendants.
10. By reason of the foregoing, this action and complaint must be dismissed.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff’s Lack of Good Faith
11. The plaintiff has not acted in good faith in negotiating a settlement with Defendant.
12. Plaintiff never reached out, in any capacity, to Mr. Ruiz to negotiate a settlement or
to inform him of issues with the mortgage.
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13. Plaintiff brought this foreclosure action against Mr. Ruiz without due cause.
14. Defendants credit has been harmed because of Plaintiff’s actions.
15. As a result of Plaintiff’s actions, interest has been accruing.
16. The interest should be tolled from the date of alleged default.
EIGHTH AFFIRMATIVE DEFENSE
17. Upon information and belief, at the time of the subject transaction, plaintiff and/or
its predecessors in interest acted as a creditor regularly engaged in the making of mortgage loans,
payable by agreement in more than for installments or for which payment of finance charge is or
may be required, whether in connection with loans, sales of property or services, or otherwise.
18. Plaintiff and/or its predecessors in interest are subject to the Truth in Lending Act
(“TILA”), 15 USC 1601 et. Seq., and its implementing regulations, Federal Reserve Board
Regulations Z, 12 CFR sec 226.
19. As a result of the subject transaction, plaintiff and/or predecessors in interest
acquired an interest in plaintiff’s home that secures the payment or performance of an obligation.
20. Upon information and belief, in the course of the subject transaction, plaintiff and
or its predecessors in interest violated the disclosure requirements of the TILA and Regulation Z
by failing to make required disclosures and/or failing to make required disclosures in a timely
manner.
21. Upon information and belief Plaintiff and/or its predecessors failed to disclose
properly and accurately the amount financed, in violation of 15 USC sec 1638(a)(2) and 12 CFR
sec. 226.18(b).
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22. Upon information and belief Plaintiff and/or its predecessors failed to disclose
properly and accurately the finance charge fees payable to third parties that were not bona fide or
reasonable in amount, as required by of 15 USC sec 1638(a)(3) and 12 CFR sec. 226.4 and sec
226.18(d).
23. Upon information and belief Plaintiff and/or its predecessors failed to disclose
properly and accurately the annual percentage rate in violation of 15 USC sec 1638(a)(4) and 12
sec 226.18(e).
24. Upon information and belief Plaintiff and/or its predecessors failed to disclose
properly and accurately the “total payments” violation of 15 USC sec 1638(a)(5) and 12 sec
226.18(h).
25. Upon information and belief Plaintiff and/or its predecessors failed to disclose
properly and accurately the number, amount and due dates or period of payments scheduled to
repay the obligation in violation of 15 USC sec 1638(a)(6) and 12 sec 226.18(g).
NINTH AFFIRMATIVE DEFENSE
26. Upon information and belief, Defendants did not borrow money from the Plaintiff
as alleged in the complaint.
27. Defendant is unaware of any assignment (or other lawful transfer) of any note
obligating the repayment of anything to the Plaintiff.
28. Upon information and belief, Plaintiff was not properly assigned the note nor did
it take delivery, physical, actual or otherwise, of the note purportedly giving rise to this action
from the original lender.
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29. Upon information and belief, this action was commenced by an entity that is
without due authority from the holder-in-due course or original lender.
30. Plaintiff has no standing to bring this action.
TENTH AFFIRMATIVE DEFENSE
31. Plaintiff’s claims are barred in whole or in part by their own misconduct.
ELEVENTH AFFIRMATIVE DEFENSE
32. Plaintiff’s claims are barred in whole or in part because they failed to perform
their contractual obligations in good faith as agreed.
TWELTH AFFIRMATIVE DEFENSE
33. Plaintiff’s claims are subject to setoff, offset and/or recoupment.
THIRTEENTH AFFIRMATIVE DEFENSE
33. Plaintiff’s breached the implied covenant of good faith and fair dealing contained
in all contracts.
FOURTEENTH AFFIRMATIVE DEFENSE
34. Plaintiff’s claims are barred because they failed to satisfy conditions precedent
under the parties agreement.
FIFTEENTH AFFIRMATIVE DEFENSE
35. Plaintiff’s claims are barred by the doctrine of unclean hands.
SIXTEENTH AFFIRMATIVE DEFENSE
36. Plaintiff’s claims are barred by their own misconduct, negligence, fraud, and
gross negligence
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SEVENTEENTH AFFIRMATIVE DEFENSE
37. Plaintiff’s claims are barred by the doctrine of laches.
EIGHTEENTH AFFIRMATIVE DEFENSE
38. Upon information and belief, the alleged original lender, whether in existence or
not, did not authorize the transfer at the time of purported transfer to the alleged successors in
interest.
39. Upon information and belief, the assignor of the obligations alleged to be due and
owing against defendants was without proper authority to execute such documents.
NINETEETH AFFIRMATIVE DEFENSE
40. Plaintiff is not the true owner of the claim sued upon, is not the real party in
interest and is not shown to be authorized to bring this foreclosure action.
TWENTIETH AFFIRMATIVE DEFENSE
41. Plaintiff intentionally failed to act in good faith or to deal fairly with Defendants
by failing to follow the applicable standards of residential single family mortgage servicing as
described in these Affirmative Defenses thereby denying Defendants access to the residential
mortgage servicing protocols applicable to the subject note and mortgage.
TWENTY FIRST AFFIRMATIVE DEFENSE
42. The promissory note was made payable to a party other than the plaintiff. The
allonge accompanying the promissory note is improper and plaintiff’s chain of title cannot be
established.
TWENTY SECOND AFFIRMATIVE DEFENSE
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43. The plaintiff failed to comply with NY Real Property Actions and Proceedings
Law 1301, 1302, 1303, 1304 and 1306.
TWENTY THIRD AFFIRMATIVE DEFENSE
44. The Complaint does not allege that a valid duly acknowledged trust agreement
was made to any other person, authorizing the sale and/or transfer of the mortgage and note.
45. Absent such authorization, the purported assignment is invalid, and the Plaintiff
lacks the authority to maintain this action.
TWENTY EIGHTH AFFIRMATIVE DEFENSE
46. The Complaint fails to state a cause of action.
TWENTY NINTH AFFIRMATIVE DEFENSE
47. Defendants reserve the right to amend this answer and to assert additional defenses
or to supplement, alter or change this answer and assert additional cross-claims or counterclaims
upon ascertaining more definite facts upon completion of discovery and investigation.
THIRTIETH AFFIRMATIVE DEFENSE
48. Plaintiffs, at all relevant times, failed to take reasonable action to mitigate the
injuries and damages alleged in the complaint.
WHEREFORE, Defendants respectfully requests that this court
1) dismiss the complaint in its entirety;
2) enjoin the Plaintiff from enforcing the mortgage and note;
3) award attorney's fees to defendant's; and
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4) awards such other and further relief as this Court deems just and proper.
Dated: June 7, 2024
Queens, New York
____________________________
Hiram Angel Vidal, Esquire
Hiram Vidal Enterprises, LLC
Vidal Legal
85-21 160th Street
Jamaica, New York 11432
hiram@vidallegal.us
VERIFICATION
STATE OF FLORIDA )
) ss.:
COUNTY OF OSCEOLA )
Michael Ruiz, being duly sworn, says that he is a Defendant in the above-captioned
proceeding and hereby swears under penalty of perjury that the foregoing Answer is true to the
best of his knowledge, except as to those matters which are alleged upon information and belief,
and as to such matters he believes them to be true.
Dated: June 2024
7 ,
PRAVNISHPATEL
Notary
Public-State of
Commission # HH Flor
Michael Ruiz My Commission 4951
Expir
March 02, 2028
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[1]
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Legal Standard for Approval of Minors Compromise
Court approval
is required
for all settlements of a minors claim.
(Prob. Code §§ 3500, 3600,
et seq
.; CCP § 372.) [W]ithout trial court approval of the proposed compromise of the wards claim, the settlement cannot be valid.
[Citation.] [¶] Nor is the settlement binding [on the minor] until it is endorsed by the trial court.
(
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(Code Civ. Proc. § 372(a)(1).)
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Regarding the substance of the Petition, to obtain court approval of the settlement of a minors claims, the petitioner must file a
complete
and verified petition for approval of the settlement and must disclose all information that has any bearing upon the reasonableness of the compromise. [Citations.]
(
Barnes v. Western Heritage Ins. Co.
(2013) 217 Cal.App.4th 249, 256; Cal. Rules of Court, rule 7.950.)
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[1]
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9:00 a.m. Review Hearings
******************************************************************************
Ruling
JGR MAR VISTA, LLC VS OUIZMAN, LLC, ET AL.
Jul 15, 2024 |
23SMCV04355
Case Number:
23SMCV04355
Hearing Date:
July 15, 2024
Dept:
205
HEARING DATE:
July
15
, 2024
JUDGE/DEPT:
Moreton
/
Beverly Hills, 205
CASE NAME:
JGR Mar Vista v.
Tropez
Marcel
Aubour
, et al.
CASE NUMBER:
2
3
SMCV0
4355
COMP. FILED:
September 18
, 2023
PROCEEDINGS:
REQUEST FOR ENTRY OF DEFAULT JUDGMENT
MOVING
PARTY:
JGR Mar Vista
RESP
ONDING
PARTY:
Tropez Marcel Aubour dba Atmosphere Café
and
Ouizman
LLC
BACKGROUND
This
case
a
rises from a breach of a contract for commercial space
located
at 12034 Venice Blvd, Los Angeles, California (the Premises)
.
Plaintiff JGR Mar Vistas predecessor in interest entered into a written
commercial lease agreement
(Lease)
with Defendants Aubour Tropez Marcel and
Ouizman
, LLC
.
Plaintiff
acquired
the Premises
and
was assigned all rights and interest in the Lease under an Assignment and Assumption of Lease
.
Defendants
failed to
pay rent
.
Plaintiff caused Defendants to be served with a 3 Day Notice to Pay or Quit
.
Defendants
failed to
comply with
the Notice
,
and
Plaintiff filed
an unlawful detainer action
.
That action resulted in a judgment for possession only
.
After regaining possession, Plaintiff was able to re-
lease
the Premises to a new tenant
.
However, the
new tenants rent is less than Defendants rent
.
There is a shortfall of $1,533.02 per month
.
On September 18, 2023, Plaintiff filed the instant action, alleging a single claim for breach of
Lease
.
The Complaint seeks
$149,817.00 in damages, interest at the rate of 10% per annum, and costs of suit
.
Plaintiff filed a proof of service showing
Ouizman
was served by
substitute service
on
September 26, 2023, and Tropez was served by publication on April 12, 2024
.
Defendants were
obligated
to respond
.
They
did not do so
.
Plaintiff successfully requested the entry of
Defendants
default, which was entered by the Clerks Office on
June 12,
2024
and June 13, 2024
.
Plaintiff
requested a default judgment on
July 1, 2024
.
Plaintiff served
Defendants
by mail with both the Request for Entry of Default and Request for Default Judgment
.
Defendants have
not appeared.
RELIEF REQUESTED
Default judgment against
Defendants
for a total of
$
130,853.96
, which is
comprised
of: (1) $
130,
044.55
, for damages,
and
(2) $
809.41
, for costs.
ANALYSIS
Code Civ
.
Proc
.
§
585 sets forth the two options for obtaining a default judgment. First, where the plaintiff
s complaint¿seeks compensatory damages only, in a sum certain which is readily ascertainable from the allegations of the complaint or statement of
damages, the clerk may enter the default judgment for that amount. However, if the relief requested in the complaint is more complicated, consisting of either nonmonetary relief, or monetary relief in amounts which require either an accounting,
additional
evidence, or the exercise of judgment to
ascertain
, the plaintiff must request entry of judgment by the court. In such cases, the plaintiff must affirmatively
establish
his entitlement to the specific judgment
requested
.¿ (
Kim v.
Westmoore
Partners, Inc.
(2011) 201 Cal.App.4th 267, 287.)
Section 585 also allows for interest
,
costs
and attorney fees, where otherwise allowed by law. (Code Civ. Proc.
§
585(a).)
Multiple specific documents are required, such as
: (1) form CIV 100, (2) a brief summary of the case; (3) declarations or other admissible evidence in support of the judgment requested; (4) interest computations as necessary; (5) a memorandum of costs and disbursements; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under C
ode
C
iv.
P
roc.
§ 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys fees if allowed by statute or by the agreement of the parties. (CRC Rule 3.1800.)
Here, Plaintiff has properly
complied with
all the substantive and procedural requirements for a default judgment
.
Substantively, Plaintiff declares via declaration that there have been damages
in the amount of
$
1
30,853.96
, which includes
(1)
back rent due of $111,648.31
and
(2) the
difference in
Defendants
rent
and the new tenants rent of $18,396.24
.
A memorandum of
costs
in the amount of
$
80
9.41
is
set forth in
Item
7
of the CIV-10
0
form
.
The evidence (including the
accounting
statement) is authenticated by declaration
.
Procedurally, Plaintiff properly served Defendant
s
more than 30 days prior to requesting entry of default and default judgment, correctly completed JC Form CIV-10
0
in a manner that would not void or put at issue the entry of default,
provided a declaration of non-military status,
requested dismissal of the fictitious defendants,
requested damages in amounts supported by
the filings
and not in excess of the amount stated in the Complaint
,
and filed a proposed judgment (JUD-100).
As default has already been entered and there has been no appearance or filing whatsoever from Defendant
s
,
default judgment is
appropriate here
.
CONCLUSION AND ORDER
For the foregoing reasons, Plaintiff
JGR Mar Vistas
Request for Default Judgment is
GRANTED
as to Defendant
s
Tropez Marcel Aubour dba Atmosphere Café
and
Ouizman
LLC
.
Default judgment
in the amount of
$
130,853.96
is awarded in favor of Plaintiff.
Ruling
P.J. McAuliffe Family Partnership, L.P. vs. The Testate or Intestate Successors of Nora McAuliffe, et al.
Jul 11, 2024 |
23CV-0202994
MCAULIFFE, ET AL.
Case Number: 23CV-0202994
Tentative Ruling on Review of Proposed Order: This is an action to quiet title to dormant
mineral rights. Plaintiff P.J. McAuliffe Family Partnership, LP brought a Motion for Terminating
Sanctions against Defendant John P. “Jack” McAuliffe pursuant to CCP 2023.030(d)(4), or in the
alternative, for issue sanctions designating certain facts as established pursuant to CCP
2023.030(b), (d), and (e). On June 17, 2024, this Court heard Plaintiff’s Motion. After oral
argument, the Court granted the Motion and ordered Plaintiff to prepare an alternative proposed
order consistent with the Court’s ruling. Today’s hearing is simply to confirm an appropriate
proposed order has been filed. Proper proof of service is on file. The Court finds that the proposed
order received June 18, 2024, comports with the Court’s ruling. The Court will execute the order.
Today’s hearing is VACATED. No appearance is necessary on today’s calendar.
******************************************************************************
9:00 a.m. Review Hearings
******************************************************************************
Ruling
GEOFFREY LYNCH VS. WELLS FARGO BANK, N.A. ET AL
Jul 09, 2024 |
CGC24613682
Real Property/Housing Court Law and Motion Calendar for July 9, 2024 line 1. DEFENDANT JUSTIN LUU, XIAO WU DEMURRER TO 1ST AMENDED COMPLAINT is SUSTAINED with leave to amend to allege facts in support of each element of each cause of action as to the moving defendants. Plaintiff must also allege tender or facts supporting an exception from the tender rule. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
SMBD INVESENTS, LP, A LIMITED PARTNERSHIP VS COCO'S RESTAURANTS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 10, 2024 |
23TRCV01708
Case Number:
23TRCV01708
Hearing Date:
July 10, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
SMBD INVESTMENTS, LP,
Plaintiff,
Case No.:
23TRCV01708
vs.
[Tentative] RULING
COCOS RESTAURANTS, LLC, et al.,
Defendants.
Hearing Date:
July 10, 2024
Moving Parties:
Attorney Phillip Allan Trajan Perez and Benjamin P. Tarczy at Miller Nash LP, attorney for defendants
Responding Party:
None
Motions to Be Relieved as Counsel
The Court considered the moving papers.
RULING
The motions are GRANTED.
The Court orders that the attorney is relieved as counsel of record for defendants, effective upon the filing of the proof of service of the signed Order Granting Attorneys Motion to Be Relieved as Counsel Civil (Judicial Council form MC-053) upon the clients.
BACKGROUND
On May 30, 2023, plaintiff SMBD Investments, LP filed a complaint against Cocos Restaurants, LLC, Sharis Management Corporation, and Fri-M, LLC for breach of lease and account stated.
On August 7, 2023, defendants filed an answer.
LEGAL STANDARD
The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice.
See
Ramirez v. Sturdevant
(1994) 21 Cal. App. 4th 904, 915;
People v. Prince
(1968) 268 Cal. App. 2d 398.
CRC Rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as CounselCivil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as CounselCivil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as CounselCivil form (MC-053)).
DISCUSSION
Defendants attorneys, Phillip Allan Trajan Perez and Benjamin P. Tarczy at Miller Nash LP seek to be relieved as counsel.
Counsel Tarczy states in his declaration that defendants have not complied with their engagement agreement with Miller Nash LP by failing to pay outstanding attorneys fees and costs it has incurred.
Starting in August 2023, counsel has made several requests that defendants become current on their outstanding fees and costs.
Counsel also states that defendants have consented to Miller Nash LPs withdrawal as counsel but have not found new counsel.
The Court finds that the attorney submitted a declaration establishing that the service requirements of California Rules of Court, Rule 3.1362, have been satisfied.
The Court also finds that the attorney has shown sufficient reason why the motion to be relieved as counsel should be granted.
The motion is GRANTED.
ORDER
The motion is GRANTED.
The Court orders that the attorney is relieved as counsel of record for defendants, effective upon the filing of the proof of service of the signed Order Granting Attorneys Motion to Be Relieved as Counsel Civil (Judicial Council form MC-053) upon the clients.
Moving counsel is ordered to give notice of this ruling.
Document
Bsi Financial Services v. Varsha Bissember, Kemal Rahman, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, John Doe #1 Through John Doe #10, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person Or Parties Intended Being The Persons Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The Complaint
Jul 09, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
714137/2024
Document
U.S. Bank, National Association, Successor Trustee To Bank Of America, N.A. As Successor To Lasalle Bank, N.A. As Trustee For The Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-2 v. Bhisham Singh, Soobadra Lall, Philijari Persaud, Discover Bank, Noah Realty Llc, City Of New York Environmental Control Board, New York City Parking Violations Bureau, Pulpi Persaud, Savitri Singh, Ludi Persaud
Sep 21, 2018 |
Ulysses B. Leverett
|
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
714499/2018
Document
Flagstar Bank, N.A., Successor In Interest To New York Community Bank v. 56 Catalpa Associates, Llc, Arash Noghreh, Fabio Garcia d/b/a Allstar Barbers, Jonathan Andres Velasques d/b/a Allstar Barbers, Yerlin Nunez d/b/a Allstar Barbers, Jatinder Singh d/b/a Threading Reflection, Anita'S E Nails Inc., Vilma Calle, Jorge Angamarca, D' Nena Salon 2 Corp., Maria Elena Valdez Baez a/k/a Maria Eualdez, New York City Environmental Control Board, New York City Department Of Finance, New York State Department Of Taxation And Finance, And John Doe No. 1 Through John Doe No. 12 Inclusive, 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 Being Foreclosed Herein,
Jul 09, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
714107/2024
Document
Hsbc Bank Usa, N.A., As Indenture Trustee For The Registered Holders Of The Renaissance Home Equity Loan Asset-Backed Certificates, Series 2005- 1 v. Marva Rochester, City Of New York Environmental Control Board, City Of New York Parking Violations Bureau, City Of New York Transit Adjudication Bureau, John Doe #1 Through John Doe #12, 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 Subject Property described in the Complaint
Jul 08, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
714013/2024
Document
Cathay Bank v. Shangri-La Astoria Inc., Xuan Cheng, Bin Lin, 32 Street Cm Llc A/K/A 32st Cm Llc A/K/A S32st Cm Llc, The City Of New York, New York City Environmental Control Board, New York City Department Of Finance, New York State Department Of Taxation And Finance, John Does #1-50, The Last Fifty Names Being Fictitious And Unknown To Plaintiff
Feb 04, 2020 |
Frederick D R. Sampson
|
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
703084/2024
Preview
FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------------------X Nationstar Mortgage LLC, Index No.: 703628/2023 Plaintiff, -against- ANSWER AND DEFENSES Michael Ruiz; Rameshwar Ramkissoon; City of New York Environmental Control Board: City of New York Parking Violations Bureau; City of New York Transit Adjudication Bureau; Jennifer Martinez; Ceila “Doe”; Joe Calderon, Defendants. ---------------------------------------------------------------------X PLEASE TAKE NOTICE that Defendant Michael Ruiz hereby appears in this proceeding by way of his attorney and that the undersigned has been retained as attorney for Defendant Michael Ruiz and demands that you serve all papers upon the undersigned at the address stated below. PLEASE TAKE FURTHER NOTICE that Defendant Michael Ruiz hereby interposes the following answer to the Complaint herein. 1. The Defendant Michael Ruiz (hereafter “Mr. Ruiz”) denies each and every allegation contained in paragraphs “2”, “4”, “5”, “6”, “8”, “10”, “11”,”14” “18”, “19”. 2. The Defendant Mr. Ruiz lacks knowledge or information sufficient to form a belief with respect to the allegations contained in paragraphs “1”, “3”, “7”, “9”, “10”, “12”, “13”, “15”, “16”, “17”, “20”. 1 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE: Fraud and Detrimental Reliance on Ineffective Counsel 3. Mr. Ruiz was the victim of fraud and therefore unable to defend himself in the proceeding. Mr. Ruiz retained Henry M. Graham, Esquire for representation in the foreclosure proceeding. Mr. Graham sent his agent to Mr. Ruiz’ home in Florida in June of 2023, and deceived him to not only sign a letter of engagement listing Mr. Graham as his foreclosure defense attorney, but for a contract of sale selling the underlying premises for which this proceeding is based to Brooklyn Sharks Avenue L Holding Group, Corp for de minimis consideration for which this proceeding is based. Mr. Ruiz detrimentally relied on the false promises made by Mr. Graham to appear in court on his behalf and defend the foreclosure. SECOND AFFIRMATIVE DEFENSE Lack of Personal Jurisdiction 4. This Court lacks personal jurisdiction over Mr. Ruiz. Plaintiff failed to serve Mr. Ruiz with the Summons and Complaint of this proceeding. Mr. Ruiz is a resident of Florida, swears he was not personally served and did not receive anything in male, and therefore had no knowledge of his scheduled court appearances. The sworn statement of the process server from Florida states he served Mr. Ruiz directly, yet he incorrectly describes Mr. Ruiz as someone almost half a foot shorter and weighing fifty (50) pounds less. Those are not mere oversights, but complete fabrications. As well, the swore statement from the second process server who allegedly mailed copies to Mr. Ruiz did not submit any receipt for the postage, or any other evidence which this Court can reasonably rely on for the affidavit’s validity. Therefore, this Court lacks personal jurisdiction over Mr. Ruiz. 2 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 THIRD AFFIRMATIVE DEFENSE Noncompliance with RPAPL §1303 5. Plaintiff failed to serve Mr. Ruiz with the RPAPL §1303 notice. This notice is a condition precedent to commencing the foreclosure action and should have been served on Mr. Ruiz with the summons and complaint. FOURTH AFFIRMATIVE DEFENSE Noncompliance with RPAPL §1304 6. Plaintiff was under the obligation of properly serving the RPAPL §1304 notice on the borrower as a condition precedent to the commencement of the residential foreclosure action. Plaintiff failed to meet this obligation. FIFTH AFFIRMATIVE DEFENSE Plaintiff Lack of Standing 7. To maintain a foreclosure action under New York state law, the plaintiff must own both the mortgage and the note. Because Plaintiff does not own the note or the mortgage, Plaintiff lacks legal standing to bring this foreclosure action. SIXTH AFFIRMATIVE DEFENSE Mortgage Payments Made 8. The defendants made payments to plaintiff which plaintiff failed to properly credit. 9. Plaintiff has wrongfully declared a default against the answering defendants. 10. By reason of the foregoing, this action and complaint must be dismissed. SEVENTH AFFIRMATIVE DEFENSE Plaintiff’s Lack of Good Faith 11. The plaintiff has not acted in good faith in negotiating a settlement with Defendant. 12. Plaintiff never reached out, in any capacity, to Mr. Ruiz to negotiate a settlement or to inform him of issues with the mortgage. 3 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 13. Plaintiff brought this foreclosure action against Mr. Ruiz without due cause. 14. Defendants credit has been harmed because of Plaintiff’s actions. 15. As a result of Plaintiff’s actions, interest has been accruing. 16. The interest should be tolled from the date of alleged default. EIGHTH AFFIRMATIVE DEFENSE 17. Upon information and belief, at the time of the subject transaction, plaintiff and/or its predecessors in interest acted as a creditor regularly engaged in the making of mortgage loans, payable by agreement in more than for installments or for which payment of finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise. 18. Plaintiff and/or its predecessors in interest are subject to the Truth in Lending Act (“TILA”), 15 USC 1601 et. Seq., and its implementing regulations, Federal Reserve Board Regulations Z, 12 CFR sec 226. 19. As a result of the subject transaction, plaintiff and/or predecessors in interest acquired an interest in plaintiff’s home that secures the payment or performance of an obligation. 20. Upon information and belief, in the course of the subject transaction, plaintiff and or its predecessors in interest violated the disclosure requirements of the TILA and Regulation Z by failing to make required disclosures and/or failing to make required disclosures in a timely manner. 21. Upon information and belief Plaintiff and/or its predecessors failed to disclose properly and accurately the amount financed, in violation of 15 USC sec 1638(a)(2) and 12 CFR sec. 226.18(b). 4 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 22. Upon information and belief Plaintiff and/or its predecessors failed to disclose properly and accurately the finance charge fees payable to third parties that were not bona fide or reasonable in amount, as required by of 15 USC sec 1638(a)(3) and 12 CFR sec. 226.4 and sec 226.18(d). 23. Upon information and belief Plaintiff and/or its predecessors failed to disclose properly and accurately the annual percentage rate in violation of 15 USC sec 1638(a)(4) and 12 sec 226.18(e). 24. Upon information and belief Plaintiff and/or its predecessors failed to disclose properly and accurately the “total payments” violation of 15 USC sec 1638(a)(5) and 12 sec 226.18(h). 25. Upon information and belief Plaintiff and/or its predecessors failed to disclose properly and accurately the number, amount and due dates or period of payments scheduled to repay the obligation in violation of 15 USC sec 1638(a)(6) and 12 sec 226.18(g). NINTH AFFIRMATIVE DEFENSE 26. Upon information and belief, Defendants did not borrow money from the Plaintiff as alleged in the complaint. 27. Defendant is unaware of any assignment (or other lawful transfer) of any note obligating the repayment of anything to the Plaintiff. 28. Upon information and belief, Plaintiff was not properly assigned the note nor did it take delivery, physical, actual or otherwise, of the note purportedly giving rise to this action from the original lender. 5 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 29. Upon information and belief, this action was commenced by an entity that is without due authority from the holder-in-due course or original lender. 30. Plaintiff has no standing to bring this action. TENTH AFFIRMATIVE DEFENSE 31. Plaintiff’s claims are barred in whole or in part by their own misconduct. ELEVENTH AFFIRMATIVE DEFENSE 32. Plaintiff’s claims are barred in whole or in part because they failed to perform their contractual obligations in good faith as agreed. TWELTH AFFIRMATIVE DEFENSE 33. Plaintiff’s claims are subject to setoff, offset and/or recoupment. THIRTEENTH AFFIRMATIVE DEFENSE 33. Plaintiff’s breached the implied covenant of good faith and fair dealing contained in all contracts. FOURTEENTH AFFIRMATIVE DEFENSE 34. Plaintiff’s claims are barred because they failed to satisfy conditions precedent under the parties agreement. FIFTEENTH AFFIRMATIVE DEFENSE 35. Plaintiff’s claims are barred by the doctrine of unclean hands. SIXTEENTH AFFIRMATIVE DEFENSE 36. Plaintiff’s claims are barred by their own misconduct, negligence, fraud, and gross negligence 6 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 SEVENTEENTH AFFIRMATIVE DEFENSE 37. Plaintiff’s claims are barred by the doctrine of laches. EIGHTEENTH AFFIRMATIVE DEFENSE 38. Upon information and belief, the alleged original lender, whether in existence or not, did not authorize the transfer at the time of purported transfer to the alleged successors in interest. 39. Upon information and belief, the assignor of the obligations alleged to be due and owing against defendants was without proper authority to execute such documents. NINETEETH AFFIRMATIVE DEFENSE 40. Plaintiff is not the true owner of the claim sued upon, is not the real party in interest and is not shown to be authorized to bring this foreclosure action. TWENTIETH AFFIRMATIVE DEFENSE 41. Plaintiff intentionally failed to act in good faith or to deal fairly with Defendants by failing to follow the applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying Defendants access to the residential mortgage servicing protocols applicable to the subject note and mortgage. TWENTY FIRST AFFIRMATIVE DEFENSE 42. The promissory note was made payable to a party other than the plaintiff. The allonge accompanying the promissory note is improper and plaintiff’s chain of title cannot be established. TWENTY SECOND AFFIRMATIVE DEFENSE 7 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 43. The plaintiff failed to comply with NY Real Property Actions and Proceedings Law 1301, 1302, 1303, 1304 and 1306. TWENTY THIRD AFFIRMATIVE DEFENSE 44. The Complaint does not allege that a valid duly acknowledged trust agreement was made to any other person, authorizing the sale and/or transfer of the mortgage and note. 45. Absent such authorization, the purported assignment is invalid, and the Plaintiff lacks the authority to maintain this action. TWENTY EIGHTH AFFIRMATIVE DEFENSE 46. The Complaint fails to state a cause of action. TWENTY NINTH AFFIRMATIVE DEFENSE 47. Defendants reserve the right to amend this answer and to assert additional defenses or to supplement, alter or change this answer and assert additional cross-claims or counterclaims upon ascertaining more definite facts upon completion of discovery and investigation. THIRTIETH AFFIRMATIVE DEFENSE 48. Plaintiffs, at all relevant times, failed to take reasonable action to mitigate the injuries and damages alleged in the complaint. WHEREFORE, Defendants respectfully requests that this court 1) dismiss the complaint in its entirety; 2) enjoin the Plaintiff from enforcing the mortgage and note; 3) award attorney's fees to defendant's; and 8 of 9 FILED: QUEENS COUNTY CLERK 06/14/2024 12:30 PM INDEX NO. 703628/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/14/2024 4) awards such other and further relief as this Court deems just and proper. Dated: June 7, 2024 Queens, New York ____________________________ Hiram Angel Vidal, Esquire Hiram Vidal Enterprises, LLC Vidal Legal 85-21 160th Street Jamaica, New York 11432 hiram@vidallegal.us VERIFICATION STATE OF FLORIDA ) ) ss.: COUNTY OF OSCEOLA ) Michael Ruiz, being duly sworn, says that he is a Defendant in the above-captioned proceeding and hereby swears under penalty of perjury that the foregoing Answer is true to the best of his knowledge, except as to those matters which are alleged upon information and belief, and as to such matters he believes them to be true. Dated: June 2024 7 , PRAVNISHPATEL Notary Public-State of Commission # HH Flor Michael Ruiz My Commission 4951 Expir March 02, 2028 9 of 9