Preview
INDEX NO. 506788/2015
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/17/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
WELLS FARGO BANK, N.A.,
Index No.: 506788/2015
Plaintiff,
Mortgaged Premises:
-against- 451 74TH STREET
BROOKLYN, NY 11209-2601
RODNEY SAPINI; STACEY SARNICOLA; NEW YORK CITY
TRANSIT ADJUDICATION BUREAU; NEW YORK CITY SBL #:
ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY Block: 5919
PARKING VIOLATIONS BUREAU; “JOHN DOES” and Lot: 57
“JANE DOES”, said names being fictitious, parties intended
being possible tenants or occupants of premises and corporations, VERIFIED REPLY
other entities or persons who have, claim, or may claim, a lien TO VERIFIED
against, or other interest in, the premises, AMENDED ANSWER
AND COUNTERCLAIMS
Defendant(s).
Plaintiff and counterclaim-defendant Wells Fargo Bank, N.A. (“Plaintiff”), by its counsel,
as and for its reply to the “Verified Amended Answer and Counterclaims” filed by defendants
Rodney Sapini and Stacey Sarnicola (referred to herein collectively as “Defendants”) with the
Court on July 27, 2015 (the “Answer,” on file in this matter as NYSCEF Doc. No. 33), states as
follows:
FOR A RESPONSE TO DEFENDANTS’ FIRST
THROUGH TWENTIETH AFFIRMATIVE DEFENSES!
1 The allegations contained in Paragraphs 23 through 88 of the Answer and in the
“wherefore” paragraph immediately following Paragraph 88 of the Answer contain only
affirmative defenses to which no response is required; to the extent a response is required,
1
Paragraphs | through 22 of the Answer constitute Defendants’ answer to Plaintiff's complaint (the
“Complaint”), filed with the Court in this action on June 2, 2015 as NYSCEF Doc. No. 1, to which no response is
necessary.
Plaintiff denies the allegations contained in Paragraphs 23 through 88 of the Answer and in the
“wherefore” paragraph immediately following Paragraph 88 of the Answer.
FOR A RESPONSE TO THE “COUNTERCLAIMS”
2. Because Paragraph 89 of the Answer does not contain allegations of fact directed
toward Plaintiff and/or states legal conclusions, no response is required.
FOR A RESPONSE TO THE “STATEMENT OF FACTS”
3 To the extent Paragraph 90 of the Answer states legal conclusions, no response is
required; to the extent a response is required, Plaintiff denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in Paragraph 90 of the
Answer.
4 In response to Paragraph 91 of the Answer, Plaintiff avers that Defendants
executed a note dated August 28, 2006, in the amount of $600,000.00 in favor of IndyMac Bank,
F.S.B. (the “Note”) and executed a mortgage dated August 28, 2006, pledging as security
property located at 451 74th Street, Brooklyn, NY 11209-2601 in favor of IndyMac Bank,
F.S.B. and listing MERS as the nominee for IndyMac Bank, F.S.B. (the “Mortgage”), and
respectfully refers the Court to the Note and Mortgage for a complete and accurate statement of
their contents, and otherwise denies the allegations contained in Paragraph 91 of the Answer.
5 Plaintiff denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraph 92 of the Answer.
6. In response to Paragraph 93 of the Answer, to the extent Paragraph 93 of the
Answer states legal conclusions, no response is required; to the extent a response is required,
Plaintiff denies. knowledge or information sufficient to form a belief as to the truth of the
allegations contained in Paragraph 93 of the Answer.
7
In response to Paragraphs 94 and 95 of the Answer, to the extent Paragraphs 94
and 95 of the Answer state legal conclusions and/or do not contain allegations of fact directed
toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained in
Paragraphs 94 and 95 of the Answer
8 In response to Paragraph 96 of the Answer, Plaintiff avers that Defendants
executed a note dated January 11, 2010 in the amount of $162,738.43 in favor of Wells Fargo
Bank, N.A. and executed a mortgage dated January 11, 2010, pledging as security property
located at 451 74th Street, Brooklyn, NY 11209-2601 in favor of Wells Fargo Bank N.A. and
respectfully refers the Court to the note and mortgage for a complete and accurate statement of
their contents, and otherwise denies the allegations contained in Paragraph 96 of the Answer
9. In response to Paragraph 97 of the Answer, Plaintiff avers that Defendants
executed a Consolidation, Extension, and Modification Agreement dated January 11, 2010 (the
“CEMA”), and respectfully refers the Court to the CEMA for a complete and accurate statement
of its contents, and otherwise denies the allegations contained in Paragraph 97 of the Answer.
10. In response to Paragraph 98 of the Answer, Plaintiff avers that Defendants
executed the CEMA, and respectfully refers the Court to the CEMA for a complete and accurate
statement of its contents, and otherwise denies the allegations contained in Paragraph 98 of the
Answer.
ll. To the extent Paragraph 99 states legal conclusions, no response is required; to the
extent a response is required, Plaintiff denies knowledge and information sufficient to form a
belief as to the truth of the allegations contained in Paragraph 99 of the Answer.
12. Plaintiff denies the allegations contained in Paragraphs 100, 101, and 102 of the
Answer.
13. In response to Paragraph 103 of the Answer, Plaintiff avers that an assignment of
mortgage was recorded with the Office of the City Registrar on May 11, 2010 as CRFN
2010000158008 (the “Assignment of Mortgage”), and respectfully refers the Court to the
Assignment of Mortgage for a complete and accurate statement of its contents, and otherwise
denies the allegations contained in Paragraph 103 of the Answer.
14. In response to Paragraph 104 of the Answer, Plaintiff avers that a corrective
assignment of mortgage was recorded with the Office of the City Registrar on May 19, 2015 as
CRFN 2015000167354 (the “Corrective Assignment of Mortgage”), and respectfully refers the
Court to the Corrective Assignment of Mortgage for a complete and accurate statement of its
contents, and otherwise denies the allegations contained in Paragraph 104 of the Answer.
15. To the extent Paragraph 105 states legal conclusions, no response is required; to
the extent a response is required, Plaintiff denies the allegations contained in Paragraph 105 of
the Answer.
16. Plaintiff denies the allegations contained in Paragraphs 106 through 112 of the
Answer.
17. To the extent that Paragraphs 113 and 114 of the Answer do not contain
allegations of fact directed toward Plaintiff, no response is required; to the extent a response is
required, Plaintiff denies the allegations contained in Paragraphs 113 and 114 of the Answer.
FOR A RESPONSE TO FIRST COUNTERCLAIM FOR FRAUD
18. In response to Paragraph 115 of the Answer, Plaintiff restates and realleges its
responses to Paragraphs 1 through 114 of the Answer, as if fully set forth herein.
19. Plaintiff denies the allegations contained in Paragraphs 116 through 119 of the
Answer.
20. To the extent Paragraph 120 states legal conclusions, no response is required; to
the extent a response is required, Plaintiff denies the allegations contained in Paragraph 120 of
the Answer.
21. Plaintiff denies the allegations contained in Paragraphs 121 through 128 of the
Answer.
FOR A RESPONSE TO THE SECOND COUNTERCLAIM
FOR UNJUST ENRICHMENT
22. In response to Paragraph 129 of the Answer, Plaintiff restates and realleges its
responses to Paragraphs | through 128 of the Answer, as if fully set forth herein.
23. Plaintiff denies the allegations contained in Paragraphs 130 through 133 of the
Answer.
24. Plaintiff denies the allegations contained in Paragraph 134 of the Answer, and
further denies that Defendant is entitled to the relief asserted in Paragraph 134 of the Answer.
FOR A RESPONSE TO THE THIRD COUNTERCLAIM
FOR FORGERY ON THE NOTE
25. In response to Paragraph 135 of the Answer, Plaintiff restates and realleges its
responses to Paragraphs | through 134 of the Answer, as if fully set forth herein.
26. In response to Paragraph 136 of the Answer, Plaintiff states that Paragraph 136 is
comprised of legal conclusions, and that, therefore, no response is required.
27. Plaintiff denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraph 137 of the Answer.
28. Plaintiff denies the allegations contained in Paragraph 138 of the Answer.
29, To the extent that Paragraphs 139 and 140 of the Answer do not contain
allegations of fact directed toward Plaintiff, no response is required; to the extent a response is
required, Plaintiff denies the allegations contained in Paragraphs 139 and 140 of the Answer.
30. To the extent that Paragraph 141 of the Answer states legal conclusions and/or
does not contain allegations of fact directed toward Plaintiff, no response is required; to the
extent a response is required, Plaintiff denies the allegations contained in Paragraph 141 of the
Answer.
31. Plaintiff denies the allegations contained in Paragraphs 142 and 143 of the
Answer.
FOR A RESPONSE TO THE FOURTH COUNTERCLAIM
FOR UNFAIR AND UNLAWFUL DECEPTIVE PRACTICES
32. In response to Paragraph 144 of the Answer, Plaintiff restates and realleges its
responses to Paragraphs | through 143 of the Answer, as if fully set forth herein.
33. Plaintiff denies the allegations contained in Paragraph 145 of the Answer.
34, To the extent that Paragraphs 146 and 147 of the Answer state legal conclusions
and/or do not contain allegations of fact directed toward Plaintiff, no response is required; to the
extent a response is required, Plaintiff denies the allegations contained in Paragraphs 146 and
147 of the Answer.
35. Plaintiff denies the allegations contained in Paragraphs 148 through 151 of the
Answer.
36. To the extent that Paragraphs 152 and 153 of the Answer state legal conclusions,
no response is required; to the extent a response is required, Plaintiff denies the allegations
contained in Paragraphs 152 and 153 of the Answer.
37. Plaintiff denies the allegations contained in Paragraph 154 of the Answer.
FOR A RESPONSE TO THE FIFTH COUNTERCLAIM
FOR CANCELLATION OF INSTRUMENTS
38. In response to Paragraph 155 of the Answer, Plaintiff restates and realleges its
responses to Paragraphs | through 154 of the Answer, as if fully set forth herein.
39, Plaintiff denies the allegations contained in Paragraph 156 of the Answer.
40. To the extent that Paragraph 157 of the Answer does not contain allegations of
fact directed toward Plaintiff, no response is required; to the extent a response is required,
Plaintiff denies the allegations contained in Paragraph 157 of the Answer.
41. Plaintiff denies the allegations contained in Paragraph 158 of the Answer.
42. To the extent that Paragraph 159 of the Answer states legal conclusions, no
response is required; to the extent a response is required, Plaintiff denies the allegations
contained in Paragraph 159 of the Answer, and further denies that Defendants are entitled to any
of the relief sought therein.
FOR A RESPONSE TO THE RESERVATION OF RIGHT TO AMEND
43. To the extent that Paragraph 160 of the Answer states legal conclusions and/or
does not contain allegations of fact directed toward Plaintiff, no response is required; to the
extent a response is required, Plaintiff denies the allegations contained in Paragraph 160 of the
Answer,
FOR A RESPONSE TO THE “RELIEF” PARAGRAPH
44, Plaintiff denies that Defendants are entitled to any of the relief requested by
Defendants, including in the “WHEREFORE” clauses following Paragraph 160 of the Answer,
including all subparts.
GENERAL DEN!
45. Plaintiff denies any and all allegations not specified above.
7
AFFIRMATIVE DEFENSES
46. Plaintiff states the following affirmative defenses without assuming the burden of
proof of such defenses that would otherwise rest on Defendants:
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
47. The Answer fails to state any legally cognizable claims or causes of action upon
which relief can be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
48. Defendants’ claims and causes of action are barred, in whole or in part, by the
applicable statute of limitations.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
49, Defendants’ claims are barred, in whole or in part, by the terms and conditions of
the governing loan documents.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
50. Plaintiff possesses a defense founded upon documentary evidence.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
Sl. Defendants’ claims and causes of action are barred, in whole or in part, by the
doctrines of laches, estoppel, and/or waiver.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
52. Defendants have not alleged or sustained any damages that were caused by
Plaintiff, or for which the Plaintiff is, or could be, legally responsible.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
53. Defendants failed to mitigate any damages that they may have incurred.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
54, Defendants’ claims and causes of action are barred, in whole or in part, by the
statute of frauds.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
55. Defendants’ claims and causes of action are barred, in whole or in part, by the
parol evidence rule.
AS AND FOR AN TENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
56. Defendants’ claims and causes of action are barred, in whole or in part, by the
doctrine of unclean hands.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
357. Defendants’ claims and causes of action are barred, in whole or in part, by the
doctrine of ratification.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
58. To the extent punitive damages are sought against Plaintiff, such claims are not
recoverable because the allegations against Plaintiff in the Answer are legally insufficient to
support a claim for punitive damages.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
59. Defendants have failed to state with sufficient particularity the circumstances
purportedly giving rise to the claim against Plaintiff.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE,
PLAINTIFF ALLEGES AS FOLLOWS:
60. Plaintiff hereby gives notice that it intends to rely upon any other and additional
defenses that are now or may become available during or as a result of the discovery proceedings
in this action, and hereby reserves its right to amend this Reply to assert such defenses.
10
WHEREFORE, in addition to the relief requested in Plaintiff's Complaint, Plaintiff
respectfully requests that Defendants’ Answer and each and every cause of action and defense
alleged therein be dismissed against Plaintiff, together with such other and further relief as the
Court may deem just and proper.
WHEREFORE, Plaintiff requests that the Answer be dismissed in its entirety.
Dated: New York, New York
August 17, 2015
Respectfully submitted,
By:
Elizabeth Butler
Hogan Lovells US LLP
875 Third Avenue
New York, New York 10022
(212) 918-3000
Attorneys for Plaintiff
Wells Fargo Bank, N.A.
TO:
Farrel R. Donald, Esq.
The Law Offices of Farrel R. Donald
1169 Nostrand Avenue
Brooklyn, NY 11225
Attorney for Defendants
Rodney Sapini & Stacey Sarnicola
Rosicki, Rosicki & Associates, P.C.
Main Office 51 E Bethpage Road
Plainview, NY 11803
Co-Counsel for Plaintiff
11
VERIFICATION
Elizabeth Butler, Esq., pursuant to Rule 2106 of the New York Civil Practice Law
and Rules and under the penalties of perjury, affirms as follows:
1 I am an attorney admitted to practice law before the Courts of the State of
New York and an attomey with Hogan Lovells US LLP, attorneys for plaintiff and
counterclaim-defendant Wells Fargo Bank (“Plaintiff”).
2. I have read the foregoing Verified Reply to Verified Amended Answer and
Counterclaims of Rodney Sapini and Stacey Sarnicola (the “Reply”) and know the
contents thereof. The Reply is true to my own knowledge, except as to any matters therein
stated to be on information and belief, and, as to those matters, I believe it to be true. The
grounds of my belief as to all matters not stated upon my knowledge are correspondence
and other writings furnished to me by the Plaintiff and communications with officers
and/or employees of Plaintiff. The reason this verification is not made by Plaintiff is
because Plaintiff is not located within New York County, which is where I have my office.
Dated: New York, New York
August 17, 2015
Biche), to
Elizabeth Butler
12
Preview
INDEX NO. 506788/2015 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/17/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS WELLS FARGO BANK, N.A., Index No.: 506788/2015 Plaintiff, Mortgaged Premises: -against- 451 74TH STREET BROOKLYN, NY 11209-2601 RODNEY SAPINI; STACEY SARNICOLA; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; NEW YORK CITY SBL #: ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY Block: 5919 PARKING VIOLATIONS BUREAU; “JOHN DOES” and Lot: 57 “JANE DOES”, said names being fictitious, parties intended being possible tenants or occupants of premises and corporations, VERIFIED REPLY other entities or persons who have, claim, or may claim, a lien TO VERIFIED against, or other interest in, the premises, AMENDED ANSWER AND COUNTERCLAIMS Defendant(s). Plaintiff and counterclaim-defendant Wells Fargo Bank, N.A. (“Plaintiff”), by its counsel, as and for its reply to the “Verified Amended Answer and Counterclaims” filed by defendants Rodney Sapini and Stacey Sarnicola (referred to herein collectively as “Defendants”) with the Court on July 27, 2015 (the “Answer,” on file in this matter as NYSCEF Doc. No. 33), states as follows: FOR A RESPONSE TO DEFENDANTS’ FIRST THROUGH TWENTIETH AFFIRMATIVE DEFENSES! 1 The allegations contained in Paragraphs 23 through 88 of the Answer and in the “wherefore” paragraph immediately following Paragraph 88 of the Answer contain only affirmative defenses to which no response is required; to the extent a response is required, 1 Paragraphs | through 22 of the Answer constitute Defendants’ answer to Plaintiff's complaint (the “Complaint”), filed with the Court in this action on June 2, 2015 as NYSCEF Doc. No. 1, to which no response is necessary. Plaintiff denies the allegations contained in Paragraphs 23 through 88 of the Answer and in the “wherefore” paragraph immediately following Paragraph 88 of the Answer. FOR A RESPONSE TO THE “COUNTERCLAIMS” 2. Because Paragraph 89 of the Answer does not contain allegations of fact directed toward Plaintiff and/or states legal conclusions, no response is required. FOR A RESPONSE TO THE “STATEMENT OF FACTS” 3 To the extent Paragraph 90 of the Answer states legal conclusions, no response is required; to the extent a response is required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 90 of the Answer. 4 In response to Paragraph 91 of the Answer, Plaintiff avers that Defendants executed a note dated August 28, 2006, in the amount of $600,000.00 in favor of IndyMac Bank, F.S.B. (the “Note”) and executed a mortgage dated August 28, 2006, pledging as security property located at 451 74th Street, Brooklyn, NY 11209-2601 in favor of IndyMac Bank, F.S.B. and listing MERS as the nominee for IndyMac Bank, F.S.B. (the “Mortgage”), and respectfully refers the Court to the Note and Mortgage for a complete and accurate statement of their contents, and otherwise denies the allegations contained in Paragraph 91 of the Answer. 5 Plaintiff denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 92 of the Answer. 6. In response to Paragraph 93 of the Answer, to the extent Paragraph 93 of the Answer states legal conclusions, no response is required; to the extent a response is required, Plaintiff denies. knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 93 of the Answer. 7 In response to Paragraphs 94 and 95 of the Answer, to the extent Paragraphs 94 and 95 of the Answer state legal conclusions and/or do not contain allegations of fact directed toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 94 and 95 of the Answer 8 In response to Paragraph 96 of the Answer, Plaintiff avers that Defendants executed a note dated January 11, 2010 in the amount of $162,738.43 in favor of Wells Fargo Bank, N.A. and executed a mortgage dated January 11, 2010, pledging as security property located at 451 74th Street, Brooklyn, NY 11209-2601 in favor of Wells Fargo Bank N.A. and respectfully refers the Court to the note and mortgage for a complete and accurate statement of their contents, and otherwise denies the allegations contained in Paragraph 96 of the Answer 9. In response to Paragraph 97 of the Answer, Plaintiff avers that Defendants executed a Consolidation, Extension, and Modification Agreement dated January 11, 2010 (the “CEMA”), and respectfully refers the Court to the CEMA for a complete and accurate statement of its contents, and otherwise denies the allegations contained in Paragraph 97 of the Answer. 10. In response to Paragraph 98 of the Answer, Plaintiff avers that Defendants executed the CEMA, and respectfully refers the Court to the CEMA for a complete and accurate statement of its contents, and otherwise denies the allegations contained in Paragraph 98 of the Answer. ll. To the extent Paragraph 99 states legal conclusions, no response is required; to the extent a response is required, Plaintiff denies knowledge and information sufficient to form a belief as to the truth of the allegations contained in Paragraph 99 of the Answer. 12. Plaintiff denies the allegations contained in Paragraphs 100, 101, and 102 of the Answer. 13. In response to Paragraph 103 of the Answer, Plaintiff avers that an assignment of mortgage was recorded with the Office of the City Registrar on May 11, 2010 as CRFN 2010000158008 (the “Assignment of Mortgage”), and respectfully refers the Court to the Assignment of Mortgage for a complete and accurate statement of its contents, and otherwise denies the allegations contained in Paragraph 103 of the Answer. 14. In response to Paragraph 104 of the Answer, Plaintiff avers that a corrective assignment of mortgage was recorded with the Office of the City Registrar on May 19, 2015 as CRFN 2015000167354 (the “Corrective Assignment of Mortgage”), and respectfully refers the Court to the Corrective Assignment of Mortgage for a complete and accurate statement of its contents, and otherwise denies the allegations contained in Paragraph 104 of the Answer. 15. To the extent Paragraph 105 states legal conclusions, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraph 105 of the Answer. 16. Plaintiff denies the allegations contained in Paragraphs 106 through 112 of the Answer. 17. To the extent that Paragraphs 113 and 114 of the Answer do not contain allegations of fact directed toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraphs 113 and 114 of the Answer. FOR A RESPONSE TO FIRST COUNTERCLAIM FOR FRAUD 18. In response to Paragraph 115 of the Answer, Plaintiff restates and realleges its responses to Paragraphs 1 through 114 of the Answer, as if fully set forth herein. 19. Plaintiff denies the allegations contained in Paragraphs 116 through 119 of the Answer. 20. To the extent Paragraph 120 states legal conclusions, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraph 120 of the Answer. 21. Plaintiff denies the allegations contained in Paragraphs 121 through 128 of the Answer. FOR A RESPONSE TO THE SECOND COUNTERCLAIM FOR UNJUST ENRICHMENT 22. In response to Paragraph 129 of the Answer, Plaintiff restates and realleges its responses to Paragraphs | through 128 of the Answer, as if fully set forth herein. 23. Plaintiff denies the allegations contained in Paragraphs 130 through 133 of the Answer. 24. Plaintiff denies the allegations contained in Paragraph 134 of the Answer, and further denies that Defendant is entitled to the relief asserted in Paragraph 134 of the Answer. FOR A RESPONSE TO THE THIRD COUNTERCLAIM FOR FORGERY ON THE NOTE 25. In response to Paragraph 135 of the Answer, Plaintiff restates and realleges its responses to Paragraphs | through 134 of the Answer, as if fully set forth herein. 26. In response to Paragraph 136 of the Answer, Plaintiff states that Paragraph 136 is comprised of legal conclusions, and that, therefore, no response is required. 27. Plaintiff denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 137 of the Answer. 28. Plaintiff denies the allegations contained in Paragraph 138 of the Answer. 29, To the extent that Paragraphs 139 and 140 of the Answer do not contain allegations of fact directed toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraphs 139 and 140 of the Answer. 30. To the extent that Paragraph 141 of the Answer states legal conclusions and/or does not contain allegations of fact directed toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraph 141 of the Answer. 31. Plaintiff denies the allegations contained in Paragraphs 142 and 143 of the Answer. FOR A RESPONSE TO THE FOURTH COUNTERCLAIM FOR UNFAIR AND UNLAWFUL DECEPTIVE PRACTICES 32. In response to Paragraph 144 of the Answer, Plaintiff restates and realleges its responses to Paragraphs | through 143 of the Answer, as if fully set forth herein. 33. Plaintiff denies the allegations contained in Paragraph 145 of the Answer. 34, To the extent that Paragraphs 146 and 147 of the Answer state legal conclusions and/or do not contain allegations of fact directed toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraphs 146 and 147 of the Answer. 35. Plaintiff denies the allegations contained in Paragraphs 148 through 151 of the Answer. 36. To the extent that Paragraphs 152 and 153 of the Answer state legal conclusions, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraphs 152 and 153 of the Answer. 37. Plaintiff denies the allegations contained in Paragraph 154 of the Answer. FOR A RESPONSE TO THE FIFTH COUNTERCLAIM FOR CANCELLATION OF INSTRUMENTS 38. In response to Paragraph 155 of the Answer, Plaintiff restates and realleges its responses to Paragraphs | through 154 of the Answer, as if fully set forth herein. 39, Plaintiff denies the allegations contained in Paragraph 156 of the Answer. 40. To the extent that Paragraph 157 of the Answer does not contain allegations of fact directed toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraph 157 of the Answer. 41. Plaintiff denies the allegations contained in Paragraph 158 of the Answer. 42. To the extent that Paragraph 159 of the Answer states legal conclusions, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraph 159 of the Answer, and further denies that Defendants are entitled to any of the relief sought therein. FOR A RESPONSE TO THE RESERVATION OF RIGHT TO AMEND 43. To the extent that Paragraph 160 of the Answer states legal conclusions and/or does not contain allegations of fact directed toward Plaintiff, no response is required; to the extent a response is required, Plaintiff denies the allegations contained in Paragraph 160 of the Answer, FOR A RESPONSE TO THE “RELIEF” PARAGRAPH 44, Plaintiff denies that Defendants are entitled to any of the relief requested by Defendants, including in the “WHEREFORE” clauses following Paragraph 160 of the Answer, including all subparts. GENERAL DEN! 45. Plaintiff denies any and all allegations not specified above. 7 AFFIRMATIVE DEFENSES 46. Plaintiff states the following affirmative defenses without assuming the burden of proof of such defenses that would otherwise rest on Defendants: AS AND FOR A FIRST AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 47. The Answer fails to state any legally cognizable claims or causes of action upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 48. Defendants’ claims and causes of action are barred, in whole or in part, by the applicable statute of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 49, Defendants’ claims are barred, in whole or in part, by the terms and conditions of the governing loan documents. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 50. Plaintiff possesses a defense founded upon documentary evidence. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: Sl. Defendants’ claims and causes of action are barred, in whole or in part, by the doctrines of laches, estoppel, and/or waiver. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 52. Defendants have not alleged or sustained any damages that were caused by Plaintiff, or for which the Plaintiff is, or could be, legally responsible. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 53. Defendants failed to mitigate any damages that they may have incurred. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 54, Defendants’ claims and causes of action are barred, in whole or in part, by the statute of frauds. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 55. Defendants’ claims and causes of action are barred, in whole or in part, by the parol evidence rule. AS AND FOR AN TENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 56. Defendants’ claims and causes of action are barred, in whole or in part, by the doctrine of unclean hands. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 357. Defendants’ claims and causes of action are barred, in whole or in part, by the doctrine of ratification. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 58. To the extent punitive damages are sought against Plaintiff, such claims are not recoverable because the allegations against Plaintiff in the Answer are legally insufficient to support a claim for punitive damages. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 59. Defendants have failed to state with sufficient particularity the circumstances purportedly giving rise to the claim against Plaintiff. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, PLAINTIFF ALLEGES AS FOLLOWS: 60. Plaintiff hereby gives notice that it intends to rely upon any other and additional defenses that are now or may become available during or as a result of the discovery proceedings in this action, and hereby reserves its right to amend this Reply to assert such defenses. 10 WHEREFORE, in addition to the relief requested in Plaintiff's Complaint, Plaintiff respectfully requests that Defendants’ Answer and each and every cause of action and defense alleged therein be dismissed against Plaintiff, together with such other and further relief as the Court may deem just and proper. WHEREFORE, Plaintiff requests that the Answer be dismissed in its entirety. Dated: New York, New York August 17, 2015 Respectfully submitted, By: Elizabeth Butler Hogan Lovells US LLP 875 Third Avenue New York, New York 10022 (212) 918-3000 Attorneys for Plaintiff Wells Fargo Bank, N.A. TO: Farrel R. Donald, Esq. The Law Offices of Farrel R. Donald 1169 Nostrand Avenue Brooklyn, NY 11225 Attorney for Defendants Rodney Sapini & Stacey Sarnicola Rosicki, Rosicki & Associates, P.C. Main Office 51 E Bethpage Road Plainview, NY 11803 Co-Counsel for Plaintiff 11 VERIFICATION Elizabeth Butler, Esq., pursuant to Rule 2106 of the New York Civil Practice Law and Rules and under the penalties of perjury, affirms as follows: 1 I am an attorney admitted to practice law before the Courts of the State of New York and an attomey with Hogan Lovells US LLP, attorneys for plaintiff and counterclaim-defendant Wells Fargo Bank (“Plaintiff”). 2. I have read the foregoing Verified Reply to Verified Amended Answer and Counterclaims of Rodney Sapini and Stacey Sarnicola (the “Reply”) and know the contents thereof. The Reply is true to my own knowledge, except as to any matters therein stated to be on information and belief, and, as to those matters, I believe it to be true. The grounds of my belief as to all matters not stated upon my knowledge are correspondence and other writings furnished to me by the Plaintiff and communications with officers and/or employees of Plaintiff. The reason this verification is not made by Plaintiff is because Plaintiff is not located within New York County, which is where I have my office. Dated: New York, New York August 17, 2015 Biche), to Elizabeth Butler 12