Preview
(FILED: KINGS COUNTY CLERK 1072372015 02:58 PM INDEX NO. 511785/2015
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/23/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
wnceenenennennnncnnneneenennesannennancceeennnnnenenennnnennnnnnnneK,
DEUTSCHE BANK NATIONALTRUST COMPANY AS INDEX NO. 511785/2015
TRUSTEE FOR HIS ASSET SECURITIZATION
CORPORATION TRUST 2007-OPT1, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-OPT1
Plaintiff(s),
-against- VERIFIED ANSWER TO
FORECLOSURE COMPLAINT
RAYMONDE KERNIZAN et.al
Mortgaged Premise Address:
714 E. 85™ Street
Brooklyn, NY 11236
Defendant(s)
Defendants, Raymonde Kernizan, by her attorneys, Edwin Ares Attorney Firm, answering
plaintiff's complaint herein, states upon information and belief the following:
FIRST: Defendants lacks sufficient knowledge or information at this time to
either admit or deny the allegations contained in paragraphs(s) designated #5,#6, #7, #8, #9,
#10,#11,#12, #13, #14, #15,16,#17 of the complaint.
SECOND: _ Defendants admits none the allegations contained in the complaint.
THIRD: Defendants denies the allegations contained in paragraph(s)
designated #1 ,#2,#3, #4,#18,#19 of the complaint.
1 PLEAD THE FOLLOWING DEFENSES AND AFFIRMATIVE DEFENSES:
1. The Court has not jurisdiction of the person (s) of the defendant(s) because of improper
service of the summons and complaint.
2. Lack of “Standing” to sue. Plaintiff does not have “Standing” to sue because it was not the
legal owner of the Note and/or Mortgage at the time it commenced this foreclosure lawsuit.il.
12.
13.
The Plaintiff has failed to properly verify the complaint.
Plaintiff lacks Standing- there is no affidavit by Plaintiff attached in the summons and
complaint swearing that the Promissory Note, the Mortgage Documents and Assignment of
the Mortgage included in the Summons and Complaint are “true and accurate” copies of the
originals and that the Original Note, signed in actual wet ink, is in the possession of the
Plaintiff.
Plaintiff's Lack of “Standing”- First endorsement is not payable to Plaintiff or its successors
in interest and is not a blank endorsement payable to bearer.
Plaintiff lack Standing to sue because they fail to provide evidence to establish that they are
the “holder” of the note pursuant to the UCC.
Plaintiff Lacks “Standing”- copy of the promissory note, attached to complaint, is endorsed
in blank on a separate allonge not attached to the note and the original note has sufficient
space for an endorsement on the note. Furthermore there is no proof of sale of the bearer
paper by written delivery and transfer receipts and proof of payouts.
Plaintiff lacks Standing to sue because said Plaintiff is a securitized trust and the plaintiff has
failed to prove the assignment of mortgage and transfer of note from Originator to Seller to
depositor to trust all before the “closing date” as required by the Pooling and Servicing
Agreement, NYS Estate Powers and Trust law and UCC Section 9 and 3.
The Plaintiff is in violation of the Truth in Lending Act.
). The Plaintiff is in violation of the Real Estate Settlement Procedures Act.
Plaintiff has failed to mail to the homeowner the “90 Pre- Foreclosure Notice” or plead
mailing in the complaint. Furthermore, A 90 Day Pre-Foreclosure Notice has never been
received by any of the Defendants.
Plaintiff failed to attach an affidavit of mailing of the 90 day notice.
Plaintiff failed to attach or allege proof of filing of the 90 day notice with the Banking Dept.14,
15.
16.
17.
18.
19.
20.
21.
22.
We did not receive “Help for Homeowners in Foreclosure” notice that was supposed to be
served with the Foreclosure Summons and Complaint .
Defendant has no contractual obligation with the Plaintiff and did not borrow any money
from Plaintiff.
Defendant asserts violations of, but not limited to, Unfair and Deceptive Trade Practice Act,
TILA, RESPA, GFE (State and Federal Regulation and Disclosures), High Cost Loan and
Predatory Lending as well, in this loan.
Failure to comply with CPLR 3012b notice- notice is incomplete.
Plaintiff violated HAMP regulations in that this action was commenced while the borrowers/
defendant’s HAMP application was pending.
Plaintiff's action is time- barred by the Statute of Limitation and must be dismissed.
Defendant failed to provide the requisite acceleration notice as a condition precedent to
foreclose as provided in the mortgage contract. Notice is herein given of such defect pursuant
to C.P.L.R 3022.
Failure to state a cause of action; Plaintiff failed to allege in the foreclosure complaint that is
the legal owner and holder of the Note and/or Mortgage (in due course) or had the authority
to foreclose.
The loan was substantively unconscionable because the monthly mortgage payments of
principal, interest and taxes were in excess of the defendant’s fixed monthly income. The
plaintiff knew or should have known at the time that the loan agreement was made that the
defendant income was insufficient to cover the monthly payments due under the note; and the
plaintiff failed to verify or to even inquire into the defendant income which is fixed and
easily verifiable, and disregarded income determining the loan terms to extend to her. The
loan was procedurally unconscionable due to unequal bargaining power and imbalance of the
knowledge and understanding of the parties.23. The plaintiff engaged in unfair and deceptive practices in the extension of said loan in
violation of General Business Law § 349. The conduct of the plaintiff to extending the
subject loan to the defendant without demanding her ability to repay when a reasonable
person would expect such an established bank as the plaintiff to offer a loan that he or she
could afford.
24. Plaintiff failed to elect its remedies in conformity with RPAPL 1301.
25. Plaintiff is foreign corporation not authorized to do business in New York or otherwise not
authorized to do business in New York.
26. The documents in the complaint that were allegedly signed and/or notarized outside of the
state do not contain a certificate of conformity required by CPLR 2309 (c) and RPL sec.299-
a.
27. The plaintiff has failed to demonstrate through the submission of proof from someone with
person knowledge that the subject loan is either a high-cost home loan as defined in Banking
Law § 6-1 or a subprime home loan as defined in Banking Law § 6-m and RPAPL § 1304
(5)(c) and that the plaintiff has complied with all of the provision of Banking Law § 595-a,
and any rules and regulations promulgated thereunder, as well as Banking Law § 6-1 or § 6-
m and RPAPL §1304, as alleged in the complaint.
WHEREFORE, the Defendants request that the Complaint be dismissed; the relief requested
by the Defendants be granted in it’s entirely; the cost associated with this defense; and any
other relief allowed by law and considered to be just by this court.Yours, etc.
DATED: 10/23/2015 BY:
Edwin Arnes,Esq
Edwin Armes Attorney Firm P.C.
46-12 Queens Blvd., Suite 201
Sunnyside, NY 11104
Tel: 718-205-3600VERIFICATION
o
\, Ray mode Ke mm Ping duly sworn, that the within Answer is
true to the best of my knowledge, except as to those matters alleged upon
information and belief, which | believe to be true.
ae a Kecnizan
Defendént (Print Name)
Sworn to and subscribed before me on
Ockvbmu 33 2015
Defendant (Signature)
Notary Public
EDWIN ARNES
blic-State of New York
Notary No O2ARGI 78672.
Qualified in Queens
Commission Expires ‘anon,CERTIFICATION
Pursuant to 22 NYCRR 130- 1.1a, the undersigned, an attorney admitted to practice in
the courts of New York States, certifies that, to the best of his knowledge, information and belief,
formed after an inquiry reasonable under the circumstance, the presentation of the paper and the
contentions herein are not frivolous as defined in 22 NYCRR 130-1.1(c).
lwin ArnesSUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
SS SK
DEUTSCHE BANK NATIONALTRUST COMPANY AS Index No.511785/2015
TRUSTEE FOR HIS ASSET SECURITIZATION
CORPORATION TRUST 2007-OPT1, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-OPT1
Plaintiff,
-against- AFFIDAVIT OF SERIVCE
MAIL
RAYMONDE KERNIZAN et.al
Defendants
X
I, Rosalyn Caraballo, swear under penalty of perjury that:
I am not a party to the action; I reside at 46-12 Queens Blvd., Sunnyside, NY 11104, and
Tam over 18 years of age.
Thereby declare that on the 23" day of October, 2015 I served a copy of the Verified
Answer by:
a) Depositing a true copy thereof, enclosed in a post-paid wrapper, by regular mail, in an
official depository under the exclusive care and custody of the United States Postal
Service within New York State and also a copy by fax, addressed to the following at the
last known address set forth below:
Leopold & Associates, PPLC
80Business Park Drive
Suite 110
Armonk, NY 10504
Date: October 23, 2015 baal lnhe he
SIGNN
Rosalyn Caraballo
PRINT NAME
Notary Public :
EDWIN ARNE!
blic-State of New York
Notary No 02AR6178672
Qualified in Queens Count
Commission Expires 42/1Index NO. 511785/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
DEUTSCHE BANK NATIONALTRUST COMPANY AS
TRUSTEE FOR HIS ASSET SECURITIZATION
CORPORATION TRUST 2007-OPT1, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-OPT1
Plaintiff/Petitioner
-against-
RAYMONDE KERNIZAN et.al
Defendant/Respondent
VERIFIED ANSWER
EDWIN ARNES, ESQ.
Attorney(s) for
Office and Post Office Address, Telephone
Edwin Arnes Attorney Firm P.C.
46-12 Queens Blvd., Suite 201
Sunnyside, NY, 11104
Tel:718-205-3600
Faxi#: 718-205-3634
To
Attorney(s) for
Service of a copy of the within is hereby admitted.
Dated,
Attorney(s) for
Sir: Please take notice
NOTICE OF ENTRY
that the within is a (certified) true copy ofa
duly entered in the office of the clerk of the within named court on 2004
——_ NOTICE OF SETTLEMENT
that an order of which the within is a true copy will be presented for
settlement to the HON. one of the judges
of the within named Court, at
on the day of 2004 at M.
Dated.