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(FILED: SUFFOLK COUNTY CLERK 0571172016 04:36 PM INDEX NO. 034446/2012
NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 05/11/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
Wells Fargo Bank, N.A., as Trustee for the Holders of
Bear Stearns Asset-Backed Securities I Trust 2007-ACS,
Asset-Backed Certificates, Series 2007-AC5,
AFFIDAVIT IN OPPOSITION
Plaintiffs, TO MOTION FOR
SUMMARY JUDGMENT
- against -
Index No.: 034446/12
Hon, David T, Reilly
Kenneth Abruzzi, Arrow Financial Services, LLC,
Swezey Fuel Co, Inc., 84 Lumbar Company LP, William
Long, Cypress Financial Recoveries LLC and “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,
Defendants.
wee eee eee nenen eK
STATE OF NEW YORK)
SS.
COUNTY OF SUFFOLK )
ISENNETH J. ABRUZZI, being duly sworn, deposes and says:
1 Tam a defendant in this action to foreclose a mortgage on my residence located at
541 Islip Avenue, Islip, New York. I have lived there since 2004, I make and submit this
affidavit in opposition to the motion by the plaintiff, Wells Fargo Bank, N.A., as Trustee for the
Holders of Bear Stearns Asset-Backed Securities 1 Trust 2007-ACS, Assel-Backed Certificates,
Series 2007-AC5 (hereinafter, “Wells Fargo”).
2, This is the second mortgage foreclosure action that has been commenced against
me. The initial foreclosure action (Suffolk County Index No. 006123/2008) was commenced on
February 8, 2008 by the now-defunct law firm of Steven J. Baum, P.C., Amherst, New York, on
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behalf of the then-plaintiff, Bank of America, N.A. Steven J. Baum, P.C. was replaced as the
attorney for Bank of America by Frenkel, Lambert, Weiss, Weisman & Gordon, LLP. A copy of
the complaint in the 2008 mortgage foreclosure action, which was verified on February 7, 2008,
is annexed hereto as Exhibit A.
3 Paragraph “First” of the 2008 complaint (Exhibit A) alleges that “[Bank of
America, N.A.] is a banking corporation duly organized and existing under and by virtue of the
laws of the State of Delaware, and the holder of a note and mortgage being foreclosed
(emphasis added).”
4 On August 12, 2012 the Bank of America moved to voluntarily discontinue the
2008 foreclosure action. A copy of the notice of motion is annexed hereto as Exhibit B. That
motion was granted on November 1, 2012 by Justice C, Randall Hinrichs,
5 Wells Fargo commenced a second mortgage foreclosure action against me on
November 8, 2012 (Suffolk County Index No. 03446/2012), A copy of the 2012 complaint is
annexed hereto as Exhibit C (a complete copy of the 2012 complaint, with exhibits, is annexed as
Exhibit | to the affirmation of Suzanne M. Berger dated February 10, 2016 that has been
submitted on behalf of Wells Fargo in support of its motion for summary judgment).
6 Paragraph “5” of the 2012 complaint (Exhibit C) alleges that “[Wells Fargo] is in
possession of the original note with a proper endorsement and/or allonge and is therefore, the
holder of both the note and mortgage, which passes as incident to the note.”
7. The 2012 complaint (Exhibit C) does not set forth any facts establishing when or
how Wells Fargo came into possession of the original note.
8 Wells Fargo has submitted an affidavit in support of its motion for summary
judgment by Lorena P. Diaz dated February 8, 2016, a copy of which is annexed hereto without
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exhibits as Exhibit D.
9 Paragraph 1 of the Diaz affidavit states that she is “an AVP; Operations Team
Manager at Bank of America, N.A. (“BANA”), servicer for plaintiff Wells Fargo...” She claims
that she “fhas] access to and [is] familiar with the business records maintained by BANA for the
purpose of servicing mortgage loans in the course of its regularly conducted business
activities...”
10. Paragraph 8 of the Diaz affidavit states that “[t]he Note was endorsed in blank by
BANA and was delivered to [Wells Fargo] on June 29, 2007.” Paragraph 10 of the Diaz
affidavit states that “[Wells Fargo] has been in possession of the ‘wet ink’ Note and has been the
owner and holder of the Note and Mortgage since at least June 29, 2007...”
ll. Ms. Diaz does not state that she has any personal knowledge about the alleged
delivery of the Note to Wells Fargo and her affidavit does not attach any business records to
verify her statements. Moreover, the statement that the Note was delivered to Wells Fargo on
June 29, 2007 conflicts with the allegation in paragraph “First” of the 2008 complaint (Exhibit
A) that “[Bank of America, N.A.] is a banking corporation duly organized and existing under and
by virtue of the laws of the State of Delaware, and the holder of a note and mortgage being
foreclosed (emphasis added).” The note could not have been delivered to Wells Fargo on June
29, 2007 if Bank of America was the holder of the note when it commenced the first foreclosure
action on February 8, 2008.
12, Tn sum and substance, the claim by Wells Fargo in its motion for summary
judgment that it is the holder of the note and that it was the holder of the note when the second
mortgage foreclosure action was commended on November 8, 2012 is not supported by any
documents or by the affidavit of a person with knowledge of the facts. The claim that the note
3 of 6
was delivered to Wells Fargo on June 29, 2007 is also controverted by the verified complaint by
the Bank of America verified on February 7, 2008 which alleges that the Bank of America was
the holder of the note as of February 7, 2008.
13, Adding to the confusion over who is the holder of the note and when they were
the holder of the note are the statements in the Diaz affidavit that: (1) the mortgage that secured
the note was not assigned by the Bank of America to Wells Fargo until October 29, 2012, which
was more than five years after the alleged delivery of the note to Wells Fargo on June 29, 2007
and ten days before the commencement of the second foreclosure action on November 8, 2012,
and (2) the assignment of mortgage was not recorded in the Suffolk County Clerk’s office until
February 13, 2013 which was after the second foreclosure action was commenced on November
8,2012. See, Exhibit D, affidavit of Lorena P. Diaz dated February 8, 2016, paragraph 9 and
Exhibit 4.
14. Against this backdrop of confusion over the purported assignment and delivery of
the note are my diligent but, to date, unavailing efforts to avoid foreclosure by obtaining a
modification of the loan from both the Bank of America and Wells Fargo, That process has been
frustrating and futile. On April 25, 2016 I submitted yet another application for a loan
modification to Wells Fargo and I am hoping that it will be reviewed promptly and favorably so
that I can avoid foreclosure and that this action will become moot.
15, T have been attempting to obtain a loan modification to enable me to pay the
mortgage since 2010. In early 2010 the Bank of America approved me for a three-month loan
modification trial period where I would make a monthly mortgage payment of $2,744.53. A
copy of the trial period letter dated February 3, 2010 is annexed hereto as Exhibit E.
16, I made monthly payments in February, March and April of 2010. When the three-
4 of 6
month trial period ended I had a telephone call with a person at the Bank of America and I was
told that my paperwork for approval of a permanent loan modification was still under review and
that I should continue to make monthly mortgage payments in the trial amount of $2,744.53, I
made additional monthly payments in May, June and July of 2010, Sometime in July 2010 the
Bank of America told me that it would not accept any more mortgage payments in the trial
amount. T then started making monthly mortgage payments in regular amount of $3,027.27. I
made those payments in August, September, October, November and December of 2010.
17. In January 2011 the Bank of America told me that it would no longer accept my
mortgage payments. I continued with the loan modification process, J received a letter dated
October 17, 2011 from the Bank of America’s attorney, Steven J, Baum, P.C., asking me to
provide additional documentation (a copy of which is annexed hereto as Exhibit F).
18. The first foreclosure action (Suffolk County Index No, 006123/2008) was
adjourned thirty-two times (a copy of a printout of appearance details is annexed hereto as
Exhibit G). I attended some of the court appearances, The Court made it perfectly clear in my
presence through communications with the Court’s law secretary and counsel that the Court was
not going to allow the bank to foreclose on my house when I was willing and able to make
payments, when I had in fact made payments and those payments were accepted by the bank, and
then the bank unilaterally decided to reject my payments.
19. On April 12, 2013 I was awarded a payment of $2,000.00 as a result of an
agreement between federal banking regulators and Bank of America in connection with an
enforcement action related to deficient mortgage servicing and foreclosure processes. The
payment was to compensate customers, like myself, who were financially injured as a result of
errors, misrepresentations, or other deficiencies made during the foreclosure process. A copy of
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the Independent Foreclosure Review letter is annexed hereto as Exhibit H
20, Tam ready, willing and able to avoid foreclosure and resume paying the morigage
pursuant to a loan modification agreement that contains terms that are just, reasonable and
equitable under all of the circumstances, Accordingly, Wells Fargo’s m, for summary
judgment should be denied.
Kenneth J. Abruzzi
Sworn to before me this
{LO tay of May, 2016
Alay Notary Public
THEODORE D. SKLAR
Notary Public,State of New York
lo,
Qualified in ‘Suet County
Commission Expires May 1, 20
6 of 6
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(FILED: SUFFOLK COUNTY CLERK 0571172016 04:36 PM INDEX NO. 034446/2012 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 05/11/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Wells Fargo Bank, N.A., as Trustee for the Holders of Bear Stearns Asset-Backed Securities I Trust 2007-ACS, Asset-Backed Certificates, Series 2007-AC5, AFFIDAVIT IN OPPOSITION Plaintiffs, TO MOTION FOR SUMMARY JUDGMENT - against - Index No.: 034446/12 Hon, David T, Reilly Kenneth Abruzzi, Arrow Financial Services, LLC, Swezey Fuel Co, Inc., 84 Lumbar Company LP, William Long, Cypress Financial Recoveries LLC and “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, Defendants. wee eee eee nenen eK STATE OF NEW YORK) SS. COUNTY OF SUFFOLK ) ISENNETH J. ABRUZZI, being duly sworn, deposes and says: 1 Tam a defendant in this action to foreclose a mortgage on my residence located at 541 Islip Avenue, Islip, New York. I have lived there since 2004, I make and submit this affidavit in opposition to the motion by the plaintiff, Wells Fargo Bank, N.A., as Trustee for the Holders of Bear Stearns Asset-Backed Securities 1 Trust 2007-ACS, Assel-Backed Certificates, Series 2007-AC5 (hereinafter, “Wells Fargo”). 2, This is the second mortgage foreclosure action that has been commenced against me. The initial foreclosure action (Suffolk County Index No. 006123/2008) was commenced on February 8, 2008 by the now-defunct law firm of Steven J. Baum, P.C., Amherst, New York, on 1 of 6 behalf of the then-plaintiff, Bank of America, N.A. Steven J. Baum, P.C. was replaced as the attorney for Bank of America by Frenkel, Lambert, Weiss, Weisman & Gordon, LLP. A copy of the complaint in the 2008 mortgage foreclosure action, which was verified on February 7, 2008, is annexed hereto as Exhibit A. 3 Paragraph “First” of the 2008 complaint (Exhibit A) alleges that “[Bank of America, N.A.] is a banking corporation duly organized and existing under and by virtue of the laws of the State of Delaware, and the holder of a note and mortgage being foreclosed (emphasis added).” 4 On August 12, 2012 the Bank of America moved to voluntarily discontinue the 2008 foreclosure action. A copy of the notice of motion is annexed hereto as Exhibit B. That motion was granted on November 1, 2012 by Justice C, Randall Hinrichs, 5 Wells Fargo commenced a second mortgage foreclosure action against me on November 8, 2012 (Suffolk County Index No. 03446/2012), A copy of the 2012 complaint is annexed hereto as Exhibit C (a complete copy of the 2012 complaint, with exhibits, is annexed as Exhibit | to the affirmation of Suzanne M. Berger dated February 10, 2016 that has been submitted on behalf of Wells Fargo in support of its motion for summary judgment). 6 Paragraph “5” of the 2012 complaint (Exhibit C) alleges that “[Wells Fargo] is in possession of the original note with a proper endorsement and/or allonge and is therefore, the holder of both the note and mortgage, which passes as incident to the note.” 7. The 2012 complaint (Exhibit C) does not set forth any facts establishing when or how Wells Fargo came into possession of the original note. 8 Wells Fargo has submitted an affidavit in support of its motion for summary judgment by Lorena P. Diaz dated February 8, 2016, a copy of which is annexed hereto without 2 of 6 exhibits as Exhibit D. 9 Paragraph 1 of the Diaz affidavit states that she is “an AVP; Operations Team Manager at Bank of America, N.A. (“BANA”), servicer for plaintiff Wells Fargo...” She claims that she “fhas] access to and [is] familiar with the business records maintained by BANA for the purpose of servicing mortgage loans in the course of its regularly conducted business activities...” 10. Paragraph 8 of the Diaz affidavit states that “[t]he Note was endorsed in blank by BANA and was delivered to [Wells Fargo] on June 29, 2007.” Paragraph 10 of the Diaz affidavit states that “[Wells Fargo] has been in possession of the ‘wet ink’ Note and has been the owner and holder of the Note and Mortgage since at least June 29, 2007...” ll. Ms. Diaz does not state that she has any personal knowledge about the alleged delivery of the Note to Wells Fargo and her affidavit does not attach any business records to verify her statements. Moreover, the statement that the Note was delivered to Wells Fargo on June 29, 2007 conflicts with the allegation in paragraph “First” of the 2008 complaint (Exhibit A) that “[Bank of America, N.A.] is a banking corporation duly organized and existing under and by virtue of the laws of the State of Delaware, and the holder of a note and mortgage being foreclosed (emphasis added).” The note could not have been delivered to Wells Fargo on June 29, 2007 if Bank of America was the holder of the note when it commenced the first foreclosure action on February 8, 2008. 12, Tn sum and substance, the claim by Wells Fargo in its motion for summary judgment that it is the holder of the note and that it was the holder of the note when the second mortgage foreclosure action was commended on November 8, 2012 is not supported by any documents or by the affidavit of a person with knowledge of the facts. The claim that the note 3 of 6 was delivered to Wells Fargo on June 29, 2007 is also controverted by the verified complaint by the Bank of America verified on February 7, 2008 which alleges that the Bank of America was the holder of the note as of February 7, 2008. 13, Adding to the confusion over who is the holder of the note and when they were the holder of the note are the statements in the Diaz affidavit that: (1) the mortgage that secured the note was not assigned by the Bank of America to Wells Fargo until October 29, 2012, which was more than five years after the alleged delivery of the note to Wells Fargo on June 29, 2007 and ten days before the commencement of the second foreclosure action on November 8, 2012, and (2) the assignment of mortgage was not recorded in the Suffolk County Clerk’s office until February 13, 2013 which was after the second foreclosure action was commenced on November 8,2012. See, Exhibit D, affidavit of Lorena P. Diaz dated February 8, 2016, paragraph 9 and Exhibit 4. 14. Against this backdrop of confusion over the purported assignment and delivery of the note are my diligent but, to date, unavailing efforts to avoid foreclosure by obtaining a modification of the loan from both the Bank of America and Wells Fargo, That process has been frustrating and futile. On April 25, 2016 I submitted yet another application for a loan modification to Wells Fargo and I am hoping that it will be reviewed promptly and favorably so that I can avoid foreclosure and that this action will become moot. 15, T have been attempting to obtain a loan modification to enable me to pay the mortgage since 2010. In early 2010 the Bank of America approved me for a three-month loan modification trial period where I would make a monthly mortgage payment of $2,744.53. A copy of the trial period letter dated February 3, 2010 is annexed hereto as Exhibit E. 16, I made monthly payments in February, March and April of 2010. When the three- 4 of 6 month trial period ended I had a telephone call with a person at the Bank of America and I was told that my paperwork for approval of a permanent loan modification was still under review and that I should continue to make monthly mortgage payments in the trial amount of $2,744.53, I made additional monthly payments in May, June and July of 2010, Sometime in July 2010 the Bank of America told me that it would not accept any more mortgage payments in the trial amount. T then started making monthly mortgage payments in regular amount of $3,027.27. I made those payments in August, September, October, November and December of 2010. 17. In January 2011 the Bank of America told me that it would no longer accept my mortgage payments. I continued with the loan modification process, J received a letter dated October 17, 2011 from the Bank of America’s attorney, Steven J, Baum, P.C., asking me to provide additional documentation (a copy of which is annexed hereto as Exhibit F). 18. The first foreclosure action (Suffolk County Index No, 006123/2008) was adjourned thirty-two times (a copy of a printout of appearance details is annexed hereto as Exhibit G). I attended some of the court appearances, The Court made it perfectly clear in my presence through communications with the Court’s law secretary and counsel that the Court was not going to allow the bank to foreclose on my house when I was willing and able to make payments, when I had in fact made payments and those payments were accepted by the bank, and then the bank unilaterally decided to reject my payments. 19. On April 12, 2013 I was awarded a payment of $2,000.00 as a result of an agreement between federal banking regulators and Bank of America in connection with an enforcement action related to deficient mortgage servicing and foreclosure processes. The payment was to compensate customers, like myself, who were financially injured as a result of errors, misrepresentations, or other deficiencies made during the foreclosure process. A copy of 5 of 6 the Independent Foreclosure Review letter is annexed hereto as Exhibit H 20, Tam ready, willing and able to avoid foreclosure and resume paying the morigage pursuant to a loan modification agreement that contains terms that are just, reasonable and equitable under all of the circumstances, Accordingly, Wells Fargo’s m, for summary judgment should be denied. Kenneth J. Abruzzi Sworn to before me this {LO tay of May, 2016 Alay Notary Public THEODORE D. SKLAR Notary Public,State of New York lo, Qualified in ‘Suet County Commission Expires May 1, 20 6 of 6