Answer: Jose Melara v. Kdc Development Corp., Top 2 Assets Inc.

On September 12, 2019 a Answer was filed involving a dispute between Jose Melara, and Kdc Development Corp., Top 2 Assets Inc., for Other Matters - Contract - Other in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 11/05/2019 05:07 PM INDEX NO. 612574/2019
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/05/2019

SUPREME COURT OF THE STATE OF NEW
COUNTY OF NASSAU
------------------------------------------------------------------------X Index No. 612574/2019
JOSE MELARA Plaintiff,

VERIFIED ANSWER WITH COUNTER-CLAIM
-against-

KDC DEVELOPMENT CORP.
TOP 2 ASSETS INC Defendants
--------------------------------------------------------------------------X
PLEASE TAKE NOTICE that the defendant TOP 2 ASSETS INC. by and through his

attorney, JOSEPH N. OBIORA, ESQ. hereby appears in this action and answers and alleges as

follows:

IN ANSWERING THE COMPLAINT
1. Defendant lacks the knowledge or information necessary to form a belief as to the truth or

veracity of the allegations set forth in Paragraph 1 of the complaint.

2. Defendant lacks the knowledge or information necessary to form a belief as to the truth or

veracity of the allegations set forth in paragraph 2 of the complaint.

3. Defendant admits the allegations set forth in paragraph 3 of the complaint.

4. In response to paragraph 4 of the complaint the defendant states that as far as the paragraph

refers to a specific public document, the document speaks for itself.

5. Defendant lacks the knowledge or information necessary to form a belief as to the truth or

veracity of the allegations set forth in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,

18, and 19 of the complaint. Further, in so far as any allegation refers to the answering

defendant Top 2 Assets Inc. the defendant denies each and every such allegeations.

6. Defendant denies the allegations set forth in paragraphs 20 and 21 of the complaint and

adds that as far as the paragraphs refer to specific public document, the documents speak

for themselves.

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7. Defendant lacks knowledge or information necessary to form a belief as to the truth or

veracity of the allegations set forth in Paragraph 22 of the complaint.

8. Defendant denies the allegations set forth in paragraph 23 of the complaint.

AS AND FOR THE FIRST CAUSE OF ACTION
9. Defendant denies the allegations set forth in paragraphs 24, 23, 24, 25, 26 & 27 of the first

cause of action.

10. In further response the defendant denies all and any allegation of fraud. Plaintiff’s

complaint has failed to give specific details of any such fraud to warrant a response.

AS AND FOR THE SECOND CAUSE OF ACTION
11. Defendant denies the allegations set forth in paragraphs 28, 29, 30 & 31 of the second

cause of action.

12. In further response the defendant denies all and any allegation of fraud. Plaintiff’s

complaint has failed to give specific details of any such fraud to warrant a response.

AS AND FOR A THIRD CAUSE OF ACTION
13. Defendant denies the allegations set forth in paragraphs 32, 33, 34 & 35 of the second cause

of action.

14. In further response the defendant denies all and any allegation of fraud. Plaintiff’s

complaint has failed to give specific details of any such fraud to warrant a response.

15. Defendant denies that the plaintiff is entitled to a declaratory relief or to any relief as the

complaint has failed to make a prima facie case of entitlement to any relief under the law.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE
16. Defendant disputes the plaintiff’s claim in its entirety.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE
17. Plaintiff’s claims are barred as a matter of documentary evidence.

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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
18. Defendant invokes the doctrine of unclean hands as the defendant alleges that the plaintiff

acted in a dishonest or fraudulent manner with respect to the transaction at issue in this case

as alleged in the defendant’s counterclaim asserted herein.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
19. Plaintiff’s damages, if any, are the result of acts or omissions committed by plaintiff,

plaintiff’s agents, and/or non-parties to this action over whom the defendant has no

responsibility or control.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
20. Plaintiff’s claims are barred by the doctrine of equitable estoppel and equitable waiver.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
21. The court lacks jurisdiction over the person of the defendant and/or this action has not been

properly commenced for, among other reasons, plaintiff’s failure to properly serve

defendant and its failure to comply with CPLR §§ 305, 306-a and/or 306-b.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
22. The causes of action alleged in the complaint are barred by the applicable statute of

limitations.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
23. Plaintiff’s claims must be dismissed under the statute of frauds.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE
24. Plaintiff’s claims must be dismissed for failure to comply with all conditions precedent.

AS AND FOR AN TENTH AFFIRMATIVE DEFENSE
25. Plaintiff’s claims must be dismissed due to the blatant factual misrepresentations contained

in the pleadings of the plaintiff regarding the underlying transactions leading to the present

suit. Plaintiff failed to or deliberately refused to conduct a necessary investigation into the

sequence of events regarding the substance of the instant action prior to initiating this

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claim. The burden shifts to the plaintiff to prove that the allegations in this complaint are

correct and sustainable.

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
26. Plaintiff’s claims are barred under the doctrines of Accord and Satisfaction.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
27. Defendant alleges that the granting of the plaintiff's demand in the complaint would result

in unjust enrichment, as the plaintiff would receive more money than plaintiff is otherwise

entitled to receive, if any.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
28. Plaintiff has had and continues to have the ability to mitigate its damages. Plaintiff never

genuinely availed itself of the opportunity to resolve this matter prior to the institution of

this action, and as a result, its alleged demand is artificially inflated.

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
29. Plaintiff failed to state a claim upon which relief can be granted. Answering defendant is an

innocent purchaser for value and therefore is not liable to the plaintiff under any know

cause of action.

AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
30. Plaintiff’s complaint and each cause of action therein fails to state facts sufficient to

constitute a cause of action against the answering defendant for which relief can be granted.

AS AND FOR SIXTEENTH AFFIRMATIVE DEFENSE
31. Defendant reserves the right to assert additional affirmative defenses and to supplement,

alter or change this Answer upon receipt of information and more definitive facts and upon

undertaking further discovery.

AS AND FOR A FIRST COUNTERCLAIM—DISMISSAL OF COMPLAINT
AGAINST THE DEFENDANT

32. Upon information and belief, plaintiff knowingly commenced the instant action after

voluntarily selling his premises in a short sale transaction while having attorney

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representation, and after receiving a relocation allowance of $10,000 from his lender as a

relocation allowance.

33. The plaintiff had on his own initiative reached out to his lender or servicer and applied for a

short sale of the premises as an alternative to a foreclosure of the premises for lack of

mortgage payments with regard to plaintiff’s then primary residence located at 89 Windsor

Parkway Hempstead NY 11550.

34. Plaintiff and or his agents negotiated with his lender for an approval of the short sale and

submitted all the necessary documents, requesting that the defendant KDC Development

Corp be approved as the purchaser of the premises.

35. By an approval letter dated December 12, 2017 the plaintiff’s lender approved a short sale

of the plaintiff’s premises under specified conditions. A copy of the short sale approval

signed by the plaintiff is herein attached as Exhibit “1”

36. In response to a request by the plaintiff’s lender for an updated contract of sale/offer

agreement, the plaintiff and the defendant KDC Development Corp. resubmitted a fully

executed purchase agreement for the sum of $230,000.

37. Plaintiff also executed a Rider to the contract containing a Notice Required by New York

Law for persons selling their premises under short sale informing him of his right to cancel

the contract with the requisite notice annexed therein. A copy of the fully executed

Purchase Agreement and Rider are herein attached as Exhibit “2”

38. Plaintiff was fully represented by his attorney Akhilesh Krishna Esq. whose names appear

in all relevant portions of the transaction documents, including in the copy of the updated

purchase agreement and Rider already attached herein as exhibit “2”

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39. Plaintiff’s attorney and the defendant KDC Development Corp attorney consulted with their

clients and scheduled a closing for December 29, 2017. Plaintiff was physically present at

the scheduled closing, provided his photo identity and executed the deed transferring title to

the defendant KDC Development Corp. A copy of the photo identity provided by the

plaintiff and the deed signed by the plaintiff at the closing are attached as Exhibit “3”

40. Plaintiff’s lender approved the sum of $10,000 as “short sale incentive to Seller” to help

plaintiff in relocation and the approval was reflected in the approved HUD-1 closing

statement. At the closing, plaintiff signed the approved HUD-1 and received the $10,000

short sale incentive for relocation incentive. A copy is herein attached as Exhibit “4”

41. At the closing the plaintiff voluntarily executed all necessary documents for a smooth

transfer of the title to the defendant KDC Development Corp. One of such documents is

Form TP-584—Combined Real Estate Transfer Tax Return, herein attached as Exhibit “5”.

42. The instant action must be dismissed as a baseless action.

AS AND FOR A SECOND COUNTERCLAIM—UNJUST ENRICHMENT

43. The plaintiff who had received a $10,000 incentive to relocate from the premises under the

short sale arrangement was expected to vacate the premises at the closing on the short sale.

44. In fact, the plaintiff came to the closing and handed over the keys to the premises to

defendant KDC Development Corp after representing that he had vacated the premises.

45. At the time the defendant Top 2 Assets Inc purchased the premises from the defendant

KDC Development Corp it was represented to Top 2 Assets Inc that the plaintiff had

vacated the premises.

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46. Unfortunately, it turned out that the plaintiff broke into the premises by force at a point

subsequent to the closing and continued in occupancy without paying any rents or receiving

any authorization from any person.

47. In consequence the defendant Top 2 Assets Inc commenced a holdover eviction proceeding

against the plaintiff with a return date of 08/03/2018.

48. On that day the plaintiff retained an attorney named Mr. Jorge A. Vasquez for the landlord

tenant eviction proceeding. His attorney appeared and had the matter adjourned to

08/24/2018. A copy of the business card of the plaintiff’s attorney given to defendant’s

attorney is herein attached as Exhibit “6”

49. On the next adjourned date, neither the plaintiff nor his attorney appeared. Defendant Top 2

Assets Inc was awarded judgment of possession. The defendant processed the judgment and

obtained a warrant of eviction, resulting in the eviction of the plaintiff from the court.

Copies of the warrant and judgment are herein attached as Exhibit “7”

50. Answering defendant has been damaged by plaintiff’s occupation of the premises after

having sold it. Defendant has lost use and occupancy rental incomes, lost opportunity to

benefit from possession of the premises, among others.

51. Plaintiff has engaged in fraud and unjust enrichment. The underlying facts of the fraud

committed by the plaintiff include, but not limited to:

a) Repossessing a premises after selling the same under short sale.

b) Attempting to assert a claim to ownership of property after being paid a relocation

incentive in duly negotiated short sale transaction.

c) Fraudulently staying on in the premises and negatively affecting the rights of the

defendant, an innocent purchaser, resulting in eviction proceedings.

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d) Using manipulated documents to present a case of an alleged sale of his premises

without his consent or attorney representation.

e) Deliberately presenting deceptive facts and documents to the court to lay claim on a

property he is not entitled to.

WHEREFORE defendant TOP 2 ASSETS INC respectfully requests an Order of this Court

dismissing the Complaint in all respects and awarding the defendant judgment on their

counterclaim:

a. for actual damages in an amount up to $30,000

b. for punitive damages,

c. for reasonable attorney’s fees,

d. costs, interests, and disbursements of this action; AND

e. such other and different relief as the Court finds proper.

DATED: Jamaica NY
November 5, 2019

Joseph N. Obiora
Joseph N. Obiora, Esq.
Law Office of Joseph N. Obiora LLC
(Attorneys for defendant Top 2 Assets Inc)
146-08 Hillside Ave., 2nd. Floor,
Jamaica, Queens, NY 11435
(718) 297 3705

To:

Lavina A. Acaru, Esq.
THE YITZHAK LAW GROUP
Attorneys for plaintiff
17 Barstow Road, Suite 406
Great Neck, NY 11021
P: (516) 466-7144

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VERIFICATION

STATE OF NEW YORK)
)ss:
COUNTY OF QUEENS)

UBANI UBANI, being duly sworn, says:

That I am an Officer in the Defendant company TOP 2 ASSETS INC that commenced the within

action and have read the annexed

VERIFIED ANSWER AND COUNTER CLAIM

And know the content thereof. That the same are true to my knowledge, except those matters

therein which are stated to be alleged upon information and belief, and /or information oriented

and attributed to other legal sources, and to those matters I believe them to be true. That my

belief as to those matters not stated upon knowledge, is based upon facts, records and other

pertinent information contained in the file of the plaintiff company.

Dated: Queens, New York
November 5, 2019

UBANI UBANI
Sworn to before me this
November 5, 2019

NOTAR P)UBLIC

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ATTORNEY'S AFFIRMATION

STATE OF NEW YORK, COUNTY OF QUEENS:

I, the undersigned, an attorney admitted to practice in the Courts of New
York State, certify, that I am the attorney for the Plaintiff, in the within action; I
have read the foregoing VERIFIED ANSWER AND COUNTER CLAIM in the
within action and know the contents thereof; the same is true to my own
knowledge, except as to the matters therein stated to be alleged 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 own
knowledge are as follows: Investigations, correspondence, contents of files and
records maintained in deponent's office and client's records.

I affirm that the foregoing statements are true under the penalties of
perjury.

Dated: Queens, New York
November 5, 2019

Joseph N. Obiora
JOSEPH N. OBIORA, ESQ.

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EXHIBIT “1”

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as 7600983212*LM204 N1|1

www.eushme-ewcom

December 12, 2017

Jose R Melara
89 Windsor Pkwy
Hempstead, NY 11550 0000
*

Loan No.: 7600983212
Property Address: 89 Windsor Pkwy
Hempstead NY 11550

Dear Jose R Melara :

You have requested that Rushmore Loan Management Services LLC
("Rushmore") accept an amount less than the total debt you owe
Rushmore pursuant to the terms of the Note and Security Instrument
which is described within our above referenced loan number. It is
our understanding that this settlement offer is being requested due
to unforeseen financial difficulties you have encountered.

After a complete review of the information and documentation you have
provided to Rushmore, the owner of your loan is in agreement to
accept $200930.00 as a final payoff settlement on your loan.

This approval is subject to our office being in receipt of the
above amount by 12/29/2017. If this amount is not received by
this date, this Settlpment Agreement will be considered null and
void. If this occurs, you and/or your closing agent will be
required to negotiate a new settlement closing date with Rushmore.

In consideration for any delays in our not receiving the payoff by
the date specified above Rushmore will add an additional Per Diem Rate
of $0.00 to the above settlement amount. After a new settlement
date is negotiated with we will issue a new Settlement Agree-
Rushmore,
ment to your closing agent.

Only Certified Funds, Title Company Trust Account Checks or Bank
Wires will be accepted as payment. All funds must be remitted in the
equivalent amount of currency of the United States of America.

It is further understood that any of the following monies that are in
our possession and/or that may become inour possession, will be
retained by Rushmore as additional consideration and that under no
circumstances will they be refunded to you.

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wwwfushmoreim.com

* funds held in our restricted escrow which were
Any being account,
received from a property casualty claim wherein Rushmore was named
Mortgagee and/or any funds that may be due under any pending claim
wherein Rushmore is the named Mortgagee or any premium refunds that may
be due us as reimbursement foradvances that Rushmore previously paid.

* refunds in Rushmore possession and/or refunds that be remitted
Any may
to us from a taxing authority for the purpose of reimbursing us for
advances that Rushmore previously paid.

* In into this Settlement the owner of your loan
entering Agreement,
agrees to waive any further claims, deficiency judgments or other
actions that it has in connection with the Mortgaged Property.

* The completion of a short sale have tax or credit
may reporting
implications. You are strongly encouraged to consult with your legal
and/or tax advisor(s) prior to accepting this offer.

If there are any guestions that you may have regarding the contents
herein above, please contact our office Monday thru Friday Toll Free
1-888-504-7300 Monday through Thursday between the hours of 6:00 a.m.
to 7:00 p.m., Friday 6:00 a.m. to 6:00 p.m. Pacific Time.

Sincerely,

Rushmore Loan Management Services is a debt Collector, who is

attempting to collect a debt. Any information obtained will be used for
that purpose. However, if you are in Bankruptcy or received a Bankruptcy ..
Discharge of this debt, this letter is being sent for informational
purposes only, is not an attempt to collect a debt and does not constitute
a notice of personal liability with respect to the debt.

LM204 044 WHO

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STATE SPECIFIC NOTICES

The following notice applies to California residents only:

The state Rosenthal Fair Debt Collection Practices Act and the federal Fair Debt Collection Practices Act
require that, except under unusual c!mumstances, cuiieciors may not contact you before 8:00 a.m. or after 9:00 p.m.
They may not harass you by using threats of violence or arrest or by using Gbscsñé language. Collectors may not use
false or mis!eading statém6ñts or call you at work if they know or have reason to know that you may not receive
personal calls at work. For the most part, collectors may not tell another person, other than your attorney or spouse,
about your debt. Collectors may contact another person to confirm your location or enforce a judgment. For more
information about debt collection activities, you may contact the Federal Trade Cammission at 1-877-FTC-HELP
(382-4357) or www.ftc.gov.

The foliewing notice applies to Colorado residents only:

Please note: A consumer has the right to request in writing that a debt collector or collection agency
cease further communication with the consumer. A written request to cease communication will not prohibit the
debt collector or collection agency from taking any other action authorized by law to collect the debt.
FOR INFORMATION ABOUT THE COLORADO FAIR DEBT COLLECTION PRACTICES ACT, SEE
www.coaq.qov/car. Please be advised that you can reach the Colorado Foreclosure Hotline at 1877-601-HOPE
(601-4673).

Local Rushmore Loan Management Services LLC Agent for Colorado Residents:

Irvin Borenstein
13111 E. Briarwood Ave. Ste #340
Centennial, CO 80112

The following notice applies to Massachusetts residents only:

Notice of IMPORTANT RIGHTS: You have the right to make a written or oral request that telephone calis
regarding your debt not be made to you at your place of employment. Any such oral request will be valid for only ten
(10) days unless you provide written conñrmatiüñ of the request postmarked or delivered within seven (7) days of
such request. You may terminate this request by writing to the creditor.

ADDITIONAL NOTICES

Rushmore Loan Manâgeméñt Services LLC is a Debt Collector, who is PMempting to collect a debt. Any iriformatics
obtained will be used for that purpose. However, if you are in Bankruptcy or received a Bankruptcy Discharge of this
debt, this letter is being sent for infGrmaticña: purposes only, is not an attempt to collect a debt and does not
constitute a notice of personal liability with respect to the debt.

If you have any other mortgage loans secured by the same property not serviced by Rushmore, please contact your
other servicer directly to discuss any possible loss m;t;ÿéthe options that may be available to you.

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EXHIBIT “2”

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RESIDENTIAL CONTRACT OF SALE

Jointly prepared by the Real Property Section of the New York State Bar Association, the New
York State Land Title Association, the Committee on Real Property Law of the Association of
the Bar of the City of New York and the Committee on Real Property Law of the New York.
Lawyers'
County Association

Warning: NO REPRESENTATION IS MADE THAT THIS FORM OF CONTRACT FOR
THE SALE AND PURCHASE OF REAL ESTATE COMPLIES WITH SECTION S-702 OF T.HE
GENERAL OBLIGATIONS LAW ("PLAIN LANGUAGE")

CONSULT YOUR LAWYER BEFORE SIGNING THIS AGREEMENT

NOTE: FIRE AND CASUALTY LOSSES AND CONDEMNATION

This contact form does not provide for what happens in the event of fire, or other casualty loss or
condemnation before the title closing. Unless different provision is made in this contact, section
5-131 1 of the General Obligations law will apply. One part of that makes a purchwar responsible
for fire and casualty loss upon taking possession of the premises before the title closing.

Contract of Sale made as of December 2017

BETWEEN: JOSE R MELARA
Address: 89 Windsor Parkway, Hempstead, New York 11550
Telephone Number:
Fax Number:
"Seller"
Social Security Number/Fed LD No, (s): hereinafter called and

KDC Development Corp
Address: 127-21 Liberty A.venue, Richmond Hill, New York 11419
Telephone Number:
Fax Number
"Purchaser"
Social Security Number/Fed LD, No. (s) Hereinafter called

The parties hereby agree as follows:
1) Premises. Seller shall sell and convey and purchaser shall purchase the property, together
with all buildings and improvements thereon (collectively the "Premises"), more fully
described on a separap page marked "Schedule A", annexed hereto and made a part hereof
and also known as:

Street Address: 89 Windsor Parkway, Hempstead, New York 11550
Tax Map Designation: Block: Lot:

Together with seller's ownership and rights, if any, to land lying in the bed of any street or
highway, opened or proposed, adjoining the premises to the center line thereof, including any
right of Seller to any unpaid award by reason of any taking by condemnation and/or for any
damage to the premises by reason of change of grade of any street of highway. Seller shall
deliver at no additional cost to purchaser, at closing (as hereinafter defined), or thereafter, on
demand, any documents that Pun:haser may reasonably require for the conveyance of such title
and the assignment and collection of such award or damages.

2) Personal Property. This sale also includes all fixtures and articles of-personal property
now attached or appurtenant to the premises, unless specifically excluded below. Seller
represents and warrant that at closing they will be paid for and owned by Seller, free and
clear of all liens and cooking fixtures, chandeliers, bathroom and k.itchen cabinets and
counters, mantels, door mirrors, switch plates and door had waæ, Venetian blinds, window
treatments, shades, screens awnings stonn windows, storm doors, window boxes, mail box,
TV aerials, weather vane, flagpole, pumps, shrubbery, fencing outdoor statuary, range,
refrigerator (strike out inapplicable items). AS EXIST

Excluded from this sale are furniture:md household furnishing

"OFFER IS CONTINGENT UPON INVESTOR/OR LENDER APPROVAL OF
COMPROMISE SALE AGREEMENT"

"In the event that Seller fails to obtain such approval within six (6) months hereof, then
deposit."
purchaser may cancel the contract and get refund of the contract

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3) Purchase Price. The purchase price is

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Document Filed Date

November 05, 2019

Case Filing Date

September 12, 2019

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Answer: Jose Melara v. Kdc Development Corp., Top 2 Assets Inc.

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