Preview
FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017
NYSCEF \
DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018
I
SUPREME COURT OF THE STATE OF NEW YORK FILED
COUNTY OF (Î)tuuu
JAN 2 2 2018
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. VERIFIED ANSWER TO
FORECLOSURE COMPLAINT
Defendant(s).
i/
Defendant / /
c'
/ ye 4 ~ pv
answers as follows: + Me-t M
I generally deny each allegation of the Complaint, including that Plaintiff is the owner of the
note and mortgage.
I plead the following.Defenses and Counterclaims:
dack
aV of Standing: Plaintiff, upon information and belief, does not own the note and
mortgage. Plaintiff therefore does not have standing to sue because itwas not the legal
owner of the note and/or mortgage at the time itcommenced this foreclosure lawsuit.
Óreclosure
Foreclosure Cause of Action: Plaintiff, upon information·and belief, does not own the note
and mortgage. Because ownership of the note and mortgage is an element of a foreclosure
cause of action, Plaintiff has no right to foreclose.
o Statute of Limitations (NY·Civil Practice Law and Rules § 213(4)): Upon information and
belief, Plaintiff may not sue on all or part of the mortgage debt because Plaintiff commenced
this action more than six years after the debt became due.
. .
O Additionally, the entire foreclosure action is time-barred the statute of limitations
by
because Plaintiff commenced this action more than six years after itaccelerated the
mortgage debt. Defendant requests that the mortgage be cancelled and discharged
pursuant to NY Real Property Actions and Proceedings Law § 1501(4).
o Service of Process (NY Civil Practice Law and Rules § 308): I was not properly served with
process in this action for the following reason(s):
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018
Notice of Default: Plaintiff failed to comply with the requirements for the notice of defaultin
my mortgage loan agreement, a condition precedent to this foreclosure action.
o Reverse —
Mortgage-Notice Requirements: Plaintiff failed to with the notice
comply
requirements under New York and/or federal law or failed to comply with contractual
requirements of the reverse mortgage, which are conditions precedent to this foreclosure
action.
o Reverse —
Mortgage-Failure to Alleged Default: The complaint isvague.and does
Specify
not specify the alleged default and/or the amount(s) plaintiff claims in this action.
a Reverse —
Mortgage-Foreclosure on a Reverse Mortgage for Charge Defaults
Property
isAgainst Public Policy: The purpose of reverse mortgage loans under the Home Equity .
Conversion Mortgage ("HECM") program is toassist senior citizens to stay in theirhomes,
and reverse mortgage lenders have other remedies in the event of alleged failure to pay
property charges. Plaintiff, accordingly, as a matter of equity and public policy, should not be
permitted to foreclose.
OpÝ0-Day Notice Requirement (NY Real Property Actions and Proceedings Law § 1304):
Plaintiff failed to comply with the requirements of NY Real Property Actions and
Proceedings Law § 1304, a condition precedent to thisforeclosure action.
o 90-Day Notice Filing Requirement (NY Real Property and Proceedings Law § 1306):
Plaintiff failed to comply with the requirements of NY Real Property and Proceedings Law §
1306, a condition precedent to this foreclosure action.
o Help for Homeowners in Foreclosure Notice Requirement (NY Real Property Actions
and Proceedings Law 5 1303): Plaintiff failed to comply with the requirements of NY Real
Property and Proceedings Law § 1303, a condition precedent to this foreclosure action.
a Pending Foreclosure Action (NY Real Property Actions and Proceedings Law 5 1301):
Plaintiff impermissibly commenced this action because there is a prior pending action to
recover all or part of the mortgage debt.
o Real Estate Settlement Procedures Act Early Intervention Requirement (12 C.F.R. §
1024.39): Upon information and belief, Plaintiff violated the early intervention requirements
of the Real Estate Settlement Procedures Act because (check one or both ifapplicable):
o Within 36 days of my delinquency, the loan servicer did not attempt to establish live
contact with me to inform me about the availability of loss mitigation options.
.
a Within 45 days of the loan servicer did not send me a written notice
my delinquency,
that included contact information for the servicer, a description of loss mitigation
options available from the servicer, information about applying for loss mitigation,
and a website listing housing counselors.
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018
s
I
.
o ·Real Estate Settlement Procedures Act Pre-Foreclosure Review Requirement (12 C.F.R.
§ 1024.41): Plaintiff impermissibly filed this foreclosure during the pre-foreclosure review
period because (check one or both applicable):
if
o Plaintiff commenced this action before my loan was more than 120 days delinquent.
. .
o I submitted a complete loss mitigation application to loan servicer but Plaintiff
my
commenced this action (1) before the loan servicer made a decision on that
application, (2) before the time period to appeal the loan servicer's decision.lapsed, or
(3) before the loan servicer made a decision on an appeal I submitted in connection
with the loss mitigation application.
o FHA Pre-Foreclosure Requirements: My loan is insured by the Federal Housing
Administration. Upon information and belief, the loan servicer/mortgagee has not complied
with regulations of the Department of Housing and Urban Development because the loan
servicer/mortgagee did not do one or more of the following (check all that are applicable):
o Send me a notice of default before the end of the second month of my delinquency
(24 C.F.R. 5 203.602).
o Attempt to arrange a face-to-face interview with me before three full monthly
installments due under the mortgage were unpaid (24 C.F.R. § 203.604).
o Evaluate me for loss mitigation before four fullmonthly installments due under the
mortgage were unpaid (24 C.F.R. § 203.605).
o Wait until three full monthly installments due under the mortgage were unpaid before
this foreclosure action (24 C.F.R. -
commencing § 203.606)
a Certificate of Merit Requirement (NY Civil Practice Law and Rules § 3012-b): Upon
information and belief, Plaintiff failed to comply with the Certificate of Merit requirements of
NY Civil Practice Law and Rules § 3012-b.
o Request for Judicial Intervention (NY Rules and Regulations Title 22, 202.12-
Codes, §
a(b)): Upon information and belief, Plaintiff did not filea Request for Judicial Intervention.
Attorney's Fees (NY Real Property Law § 282): If Iretain counsel, ·I am entitled to recover
my attorney's fees in defending this action pursuant to New York Real Property Law § 282.
a Excessive Interest and Fees (NY Civil Practice Law and Rules § 3408(f)): In a prior
foreclosure action, Plaintiff failed to negotiate in good faithpursuant to CPLR 3408(f). This
failure to negotiate in good faith has caused excessive interest and fees to accrue which
Plaintiff, as a matter of equity and by operation of the CPLR, is notentitled to recover.
Ócessive
Excessive Interest (NY Civil Practice Law and Rules § 5001(a)): Plaintiff has unreasonably
delayed filing this action, failed to file the Request for Judicial.Intervention or engaged in
3
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018
other dilatory conduct causing excessive interest to accrue which the Court reduce or
may
toll,as a matter of equity and by operation of the CPLR.
a Action Commenced Against a Deceased Party: This action is a because itwas
nullity
commenced against Defendant after that party was already
deceased and before a personal representative was appointed and itshould therefore be
dismissed.
o Payment or Partial Payment: I have paid, in whole or in part, the amounts claimed by
Plaintiff.
Other Defenses or Counterclaims (attach additionalpages ifneeded):
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Wherefore, Defendant requests that the Complaint be dismissed; that the relief requested
attorneys'
by Defendant be granted in itsentirety; that Defendant be granted costs and fees ifhe
. 4
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018
or she retains counsel; and other relief allowed law deemed just and proper by this Court
any by
in the exercise of itsequity jurisdiction in this foreclosure action.
S-
Dated: To ...:..- / '/ , 20 / T
7 , New York
, Defendant Pro Se
(Defen t s igna r
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(Defendant's Name)
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(Defendant's Address)
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(Defendant's Address)
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(Defendant's Telephone Number)
Prepared with the assistance of counsel admitted in New York.
5
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018
t
VERIFICATION
I, A/rntcrdo 0 /2 q‰A , being duly sworn, state thatthe within
Answer is true to the best of my knowledge, except as to those matters alleged upon information
and belief, which I believe to be true
>~~ — u'o
(Defendant's Name)
n
.
'(Defen ant s i
Sworn to and subscribed before me this
/<+
day of T ,20 /r
y W
ANNE STEPHENSON
Public,State ofNew York
Notary
No. 02ST6287353
Qualified inRings County
Commission Expires August 5, 2021
6
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FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017
NYSCEF I ' DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018
~ ~I
If'
AFFIDAVIT OF SERVICE
I. Bibi R. Rahaman served
,served the within VERIFIED ANSW'ER TO FORECLOSURE
COMPLAINT on Plaintiff's as follows (attorney's name and address):
attorney
Jessica K. Gruber, Esq.
tsKUb b rULUW 1, LLU
1775 Wehrle Drive
5uite 100
Williamsville, NY 14221
I served the VERIFIED ANSWER TO FORECLOSURE COMPLAINT
by the following method (check all that apply):
'
a first
J I ~8 4 class
'Vi%44@mail
~I l%lI I
a certified mail .
n certified mail, return receipt requested
o overnight delivery service
o facsimile
a personal delivery.
nd
22 January 18
on the day of , 20
I am eighteen years or older and I am not a Defendant in this lawsuit.
Signature: ~c~
e<~
Print Name: Bibi R. aha n
Swor to and subscribed before me this
22"
22 dayof 18 .
January , 20
Notary Public
.
STACEY WOODS
NOTARY
PUBLIC-STATE OF NEW YORK
No.02WO6112776
QualifiedinOueensCounty
ounlY
ounty
MyCommissionExpires07-12-2020 -2020
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Preview
FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017 NYSCEF \ DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018 I SUPREME COURT OF THE STATE OF NEW YORK FILED COUNTY OF (Î)tuuu JAN 2 2 2018 ~. 8. ~~ b re~ gd~<, +ol45TY <,"L455 quEENS COUNTY W Phe Q je At /¼ of Admp { / / uc· 7>umze cs $g s ,&¡ r¼ty 'd ~ Ajc~ Wild c--C M vfy - < a ff, ndex No. 3 / (fl Y 3¿/J et 7 /ding - pJ Cg . VERIFIED ANSWER TO FORECLOSURE COMPLAINT Defendant(s). i/ Defendant / / c' / ye 4 ~ pv answers as follows: + Me-t M I generally deny each allegation of the Complaint, including that Plaintiff is the owner of the note and mortgage. I plead the following.Defenses and Counterclaims: dack aV of Standing: Plaintiff, upon information and belief, does not own the note and mortgage. Plaintiff therefore does not have standing to sue because itwas not the legal owner of the note and/or mortgage at the time itcommenced this foreclosure lawsuit. Óreclosure Foreclosure Cause of Action: Plaintiff, upon information·and belief, does not own the note and mortgage. Because ownership of the note and mortgage is an element of a foreclosure cause of action, Plaintiff has no right to foreclose. o Statute of Limitations (NY·Civil Practice Law and Rules § 213(4)): Upon information and belief, Plaintiff may not sue on all or part of the mortgage debt because Plaintiff commenced this action more than six years after the debt became due. . . O Additionally, the entire foreclosure action is time-barred the statute of limitations by because Plaintiff commenced this action more than six years after itaccelerated the mortgage debt. Defendant requests that the mortgage be cancelled and discharged pursuant to NY Real Property Actions and Proceedings Law § 1501(4). o Service of Process (NY Civil Practice Law and Rules § 308): I was not properly served with process in this action for the following reason(s): 1 of 7 FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017 \ NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018 Notice of Default: Plaintiff failed to comply with the requirements for the notice of defaultin my mortgage loan agreement, a condition precedent to this foreclosure action. o Reverse — Mortgage-Notice Requirements: Plaintiff failed to with the notice comply requirements under New York and/or federal law or failed to comply with contractual requirements of the reverse mortgage, which are conditions precedent to this foreclosure action. o Reverse — Mortgage-Failure to Alleged Default: The complaint isvague.and does Specify not specify the alleged default and/or the amount(s) plaintiff claims in this action. a Reverse — Mortgage-Foreclosure on a Reverse Mortgage for Charge Defaults Property isAgainst Public Policy: The purpose of reverse mortgage loans under the Home Equity . Conversion Mortgage ("HECM") program is toassist senior citizens to stay in theirhomes, and reverse mortgage lenders have other remedies in the event of alleged failure to pay property charges. Plaintiff, accordingly, as a matter of equity and public policy, should not be permitted to foreclose. OpÝ0-Day Notice Requirement (NY Real Property Actions and Proceedings Law § 1304): Plaintiff failed to comply with the requirements of NY Real Property Actions and Proceedings Law § 1304, a condition precedent to thisforeclosure action. o 90-Day Notice Filing Requirement (NY Real Property and Proceedings Law § 1306): Plaintiff failed to comply with the requirements of NY Real Property and Proceedings Law § 1306, a condition precedent to this foreclosure action. o Help for Homeowners in Foreclosure Notice Requirement (NY Real Property Actions and Proceedings Law 5 1303): Plaintiff failed to comply with the requirements of NY Real Property and Proceedings Law § 1303, a condition precedent to this foreclosure action. a Pending Foreclosure Action (NY Real Property Actions and Proceedings Law 5 1301): Plaintiff impermissibly commenced this action because there is a prior pending action to recover all or part of the mortgage debt. o Real Estate Settlement Procedures Act Early Intervention Requirement (12 C.F.R. § 1024.39): Upon information and belief, Plaintiff violated the early intervention requirements of the Real Estate Settlement Procedures Act because (check one or both ifapplicable): o Within 36 days of my delinquency, the loan servicer did not attempt to establish live contact with me to inform me about the availability of loss mitigation options. . a Within 45 days of the loan servicer did not send me a written notice my delinquency, that included contact information for the servicer, a description of loss mitigation options available from the servicer, information about applying for loss mitigation, and a website listing housing counselors. 2 2 of 7 FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017 \ NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018 s I . o ·Real Estate Settlement Procedures Act Pre-Foreclosure Review Requirement (12 C.F.R. § 1024.41): Plaintiff impermissibly filed this foreclosure during the pre-foreclosure review period because (check one or both applicable): if o Plaintiff commenced this action before my loan was more than 120 days delinquent. . . o I submitted a complete loss mitigation application to loan servicer but Plaintiff my commenced this action (1) before the loan servicer made a decision on that application, (2) before the time period to appeal the loan servicer's decision.lapsed, or (3) before the loan servicer made a decision on an appeal I submitted in connection with the loss mitigation application. o FHA Pre-Foreclosure Requirements: My loan is insured by the Federal Housing Administration. Upon information and belief, the loan servicer/mortgagee has not complied with regulations of the Department of Housing and Urban Development because the loan servicer/mortgagee did not do one or more of the following (check all that are applicable): o Send me a notice of default before the end of the second month of my delinquency (24 C.F.R. 5 203.602). o Attempt to arrange a face-to-face interview with me before three full monthly installments due under the mortgage were unpaid (24 C.F.R. § 203.604). o Evaluate me for loss mitigation before four fullmonthly installments due under the mortgage were unpaid (24 C.F.R. § 203.605). o Wait until three full monthly installments due under the mortgage were unpaid before this foreclosure action (24 C.F.R. - commencing § 203.606) a Certificate of Merit Requirement (NY Civil Practice Law and Rules § 3012-b): Upon information and belief, Plaintiff failed to comply with the Certificate of Merit requirements of NY Civil Practice Law and Rules § 3012-b. o Request for Judicial Intervention (NY Rules and Regulations Title 22, 202.12- Codes, § a(b)): Upon information and belief, Plaintiff did not filea Request for Judicial Intervention. Attorney's Fees (NY Real Property Law § 282): If Iretain counsel, ·I am entitled to recover my attorney's fees in defending this action pursuant to New York Real Property Law § 282. a Excessive Interest and Fees (NY Civil Practice Law and Rules § 3408(f)): In a prior foreclosure action, Plaintiff failed to negotiate in good faithpursuant to CPLR 3408(f). This failure to negotiate in good faith has caused excessive interest and fees to accrue which Plaintiff, as a matter of equity and by operation of the CPLR, is notentitled to recover. Ócessive Excessive Interest (NY Civil Practice Law and Rules § 5001(a)): Plaintiff has unreasonably delayed filing this action, failed to file the Request for Judicial.Intervention or engaged in 3 3 of 7 FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018 other dilatory conduct causing excessive interest to accrue which the Court reduce or may toll,as a matter of equity and by operation of the CPLR. a Action Commenced Against a Deceased Party: This action is a because itwas nullity commenced against Defendant after that party was already deceased and before a personal representative was appointed and itshould therefore be dismissed. o Payment or Partial Payment: I have paid, in whole or in part, the amounts claimed by Plaintiff. Other Defenses or Counterclaims (attach additionalpages ifneeded): /vriwk r f nma..ary 4 /,n Mc brwrt/ A> A/er/me A4 . .Ùe ~d~Q xent m,.¾ /2/r hewA 7[ ^ r TowrF TrM im # Ay^/-r o f d & o zgPr ~ W v' C' ~' '7 C C A ~n<. A'- El~ A . . . Wherefore, Defendant requests that the Complaint be dismissed; that the relief requested attorneys' by Defendant be granted in itsentirety; that Defendant be granted costs and fees ifhe . 4 4 of 7 FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018 or she retains counsel; and other relief allowed law deemed just and proper by this Court any by in the exercise of itsequity jurisdiction in this foreclosure action. S- Dated: To ...:..- / '/ , 20 / T 7 , New York , Defendant Pro Se (Defen t s igna r ,- (' ~/ 7 ~ / ~/ MCt'/"/,. ~ /I/, /P/ Jw ~~~ 1,( (Defendant's Name) l 71 -> p a.~,~ (Defendant's Address) — /1 i~-~ni7/7 S~~t / 4ib ( 7/ . 7 /7,,/ // y y ~ (Defendant's Address) — ' — 81 7 I 9/r.4 g.~ (Defendant's Telephone Number) Prepared with the assistance of counsel admitted in New York. 5 5 of 7 FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018 t VERIFICATION I, A/rntcrdo 0 /2 q‰A , being duly sworn, state thatthe within Answer is true to the best of my knowledge, except as to those matters alleged upon information and belief, which I believe to be true >~~ — u'o (Defendant's Name) n . '(Defen ant s i Sworn to and subscribed before me this /<+ day of T ,20 /r y W ANNE STEPHENSON Public,State ofNew York Notary No. 02ST6287353 Qualified inRings County Commission Expires August 5, 2021 6 6 of 7 FILED: QUEENS COUNTY CLERK 01/22/2018 03:51 PM INDEX NO. 716943/2017 NYSCEF I ' DOC. NO. 26 RECEIVED NYSCEF: 01/22/2018 ~ ~I If' AFFIDAVIT OF SERVICE I. Bibi R. Rahaman served ,served the within VERIFIED ANSW'ER TO FORECLOSURE COMPLAINT on Plaintiff's as follows (attorney's name and address): attorney Jessica K. Gruber, Esq. tsKUb b rULUW 1, LLU 1775 Wehrle Drive 5uite 100 Williamsville, NY 14221 I served the VERIFIED ANSWER TO FORECLOSURE COMPLAINT by the following method (check all that apply): ' a first J I ~8 4 class 'Vi%44@mail ~I l%lI I a certified mail . n certified mail, return receipt requested o overnight delivery service o facsimile a personal delivery. nd 22 January 18 on the day of , 20 I am eighteen years or older and I am not a Defendant in this lawsuit. Signature: ~c~ e<~ Print Name: Bibi R. aha n Swor to and subscribed before me this 22" 22 dayof 18 . January , 20 Notary Public . STACEY WOODS NOTARY PUBLIC-STATE OF NEW YORK No.02WO6112776 QualifiedinOueensCounty ounlY ounty MyCommissionExpires07-12-2020 -2020 7 of 7