FILED: WESTCHESTER COUNTY CLERK 10/07/ /24/ :55 10:55 PM AM INDEX NO /2015 NYSCEF DOC. NO RECEIVED NYSCEF: 10/07/2015

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1 FILED: WESTCHESTER COUNTY CLERK 10/07/ /24/ :55 10:55 PM AM INDEX NO /2015 NYSCEF DOC. NO RECEIVED NYSCEF: 10/07/ /24/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER UNITED JOINT VENTURE, A LIMITED PARTNERSHIP Index No.: 63344/2015 Plaintiff, -against- JOHNNY RABADI, RACHEL SHUMUNNEJAD, MIDLAND FUNDING NCC, ANDREW ROMANO, WELLS FARGO BANK, N.A., JOHN DOE AND JANE DOE #1 THROUGH #10, et al. Defendants. UVERIFIED ANSWER UProperty Address: 23 Riverview Place, Yonkers, New York PLEASE TAKE NOTICE that Defendant, JOHNNY RABADI, by her attorneys, The Law Firm of Barry N. Frank & Associates, P.C., appears in this proceeding, demands that you serve all papers upon the undersigned at the address stated below, and, without waiving any defense which may exist and to which he may be entitled to, hereby interposes the following answer to the Complaint and state as follows: UANSWER 1. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 1 of Plaintiff s complaint. Those allegations 2. The allegations contained in 2 are denied.

2 3. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 3 of Plaintiff s complaint. Those allegations 4. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 4 of Plaintiff s complaint. Those allegations 5. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 5 of Plaintiff s complaint. Those allegations 6. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 6 of Plaintiff s complaint. Those allegations 7. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 7 of Plaintiff s complaint. Those allegations 8. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 8 of Plaintiff s complaint. Those allegations 9. The allegations contained in 9 are denied. 10. The allegations contained in 10 are denied. 11. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 11 of Plaintiff s complaint. Those allegations 12. The allegations contained in 12 are denied.

3 13. The allegations contained in 13 are denied. 14. The allegations contained in 14 are denied. 15. The allegations contained in 15 are denied. 16. The allegations contained in 16 are denied. 17. The allegations contained in 17 are denied. 18. The allegations contained in 18 are denied. 19. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 19 of Plaintiff s complaint. Those allegations 20. The allegations contained in 20 are denied. 21. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 21 of Plaintiff s complaint. Those allegations 22. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in 22 of Plaintiff s complaint. Those allegations 23. The allegations contained in 23 are denied. 24. The allegations contained in 24 are denied. UCLARIFICATION OF RESPONSIBLE PARTY 1. UNITED JOINT VENTURE, A LIMITED PARTNERSHIP (hereinafter, Plaintiff ), the Plaintiff in this action, did not originate the disputed mortgage, and claims authority to bring this action as the owner or holder of the note and mortgage or because has been delegated the authority to institute a mortgage foreclosure action by

4 the owner and holder of the note and mortgage. However, in accordance to the statute, Plaintiff fails to identify the delegating party to the security instrument. Plaintiff has not appended to the Complaint a certified copy of the alleged note or alleged assignment from original lender to Plaintiff. Accordingly, because Plaintiff fails to state who the originating entity is, it has failed to state a claim upon which relief can be granted, and this action should be dismissed. UIMPROPER PARTY 2. Plaintiff alleges authority to bring this action as the owner or holder of the note and mortgage or because it has been assigned or delegated the authority to institute a mortgage foreclosure action by the owner and holder of the note and mortgage. However, pursuant to the statute, Plaintiff fails to state the authority under which the alleged note was assigned or delegated. Accordingly, Plaintiff lacks subject matter jurisdiction and is not a proper party to this action, and this action should be dismissed. 3. Defendant disputes that Plaintiff is the Note holder, otherwise the proper creditor, and further disputes that Plaintiff is the Servicer. 4. Defendant requests an evidentiary hearing since Plaintiff has the burden of proof of claiming being the holder of the original note, mortgage, and assignment(s) of mortgage. UREQUEST UNDER CPLR 3408 UFORECLOSURE SETTLEMENT CONFERENCE 5. As set forth in CPLR 3408, the Defendant/homeowner in foreclosure matters must be provided with a mandatory foreclosure settlement conference held by the court

5 within sixty days after the date of proof of service of the foreclosure is filed with the county clerk, or an adjourned date agreed to by the parties. Specifically, the November 16, 2009 amendment provides, for any foreclosure action on a home loan that is not a subprime home loan or a high-cost home loan, in which the foreclosure action was initiated prior to the date that such foreclosure action became subject to the provisions of Rule 3408 of the Civil Practice Law and Rules but where the final order of judgment has not been issued, the court shall notify the Defendant who is a borrower under the home loan that if he or she is a resident of such property, he or she may request a settlement conference. Accordingly, upon Plaintiff proving standing and entitlement to a foreclosure action, the Defendant requests that this matter be adjourned and referred to the Foreclosure Settlement Conference Part to schedule a conference. Notwithstanding this request, the Defendant s response to the Plaintiff s Complaint is further set forth below. UFIRST AFFIRMATIVE DEFENSE: UPLAINTIFF LACKS SUBJECT MATTER JURISDICTION 6. Due to Plaintiff s failure to provide proof of a valid assignment or a valid successive assignment, Plaintiff fails to establish an interest and/or controversy in the instant action. Accordingly, this case shall be dismissed under CPLR 3211 for lack of Subject Matter Jurisdiction. 7. In accordance with CPLR 3211, a party may move for judgment dismissing a cause of action asserted against him on the ground that the court lacks subject matter jurisdiction. A lack of interest and controversy is protected within the parameters of subject matter jurisdiction. 8. In the instant action, Plaintiff claims rights as owner and holder of the Note and Mortgage of the Defendant, however, no supporting evidence, as required under the law

6 in order to establish a prima facie case has been presented, showing proof of a valid assignment or delegation, or that Plaintiff was the owner of the Note at the commencement of the action for foreclosure. Thus, Plaintiff s failure to establish subject matter jurisdiction shall result in a dismissal of such foreclosure action under CPLR USECOND AFFIRMATIVE DEFENSE: UPLAINTIFF LACKS PERSONAL JURISDICTION 9. The Defendant repeats and realleges the response set forth above as if set forth in their entirety herein. 10. The Plaintiff failed to comply with the notice provision requirements pursuant to CPLR 308 and with the ancillary notice provisions of the subject mortgage. As such, personal service is lacking. 11. The Defendant was not properly served with the Summons and Complaint. 12. Thus, there is a failure to establish personal jurisdiction over and in this matter or at a minimum, the time restriction for responding to the Complaint should not be deemed to have lapsed. UTHIRD AFFIRMATIVE DEFENSE: UNON COMPLIANCE WITH RPAPL 1303 NOTICE 13. The Defendant repeats and realleges all of the responses set above as if set forth in their entirety herein. 14. That upon information and belief, the Plaintiff failed to comply with section 1303 of the Real Property Actions and Proceedings Law ( RPAPL ), which requires that the foreclosing party in a mortgage foreclosure action provide proper notice to the mortgagors in

7 accordance with the provisions of such section with regard to information and assistance about the foreclosure process. UFOURTH AFFIRMATIVE DEFENSE: UPLAINTIFF LACKS STANDING 15. The Defendant repeats and realleges the response set forth above as if set forth in their entirety herein. 16. That the Plaintiff has failed to properly and adequately set forth the means and time by which the Plaintiff allegedly acquired proper corporative possessive rights in and to the mortgage and note herein. Accordingly, based on the information set forth in Plaintiff s complaint, Plaintiff does not have the legal capacity to sue under CPLR Thus, Plaintiff lacks standing to bring the instant action. UFIFTH AFFIRMATIVE DEFENSE: UVIOLATION OF FEDERAL AND STATE BANKING LAW 17. The Defendant repeats and realleges all of the responses set forth above as if 18. That upon information and belief, the alleged loan is secured by the Defendant s principle residence. 19. That upon information and belief, the Plaintiff has failed to provide the Defendant with clear and meaningful disclosures of credit terms as required under the Truth in Lending Act ( TILA ) before the closing in order to protect the mortgagor against inaccurate and unfair billing practices. Under TILA, the purpose of the federal statute is to promote the informed use of consumer credit. Accordingly, a lay person, one not well versed in banking laws and practices, and particularly one who may not be fluent in the English

8 language, may be deemed to lack understanding of the instrument s material terms and so any such disclosure, if made, should be deemed ineffective. 20. Therefore, as the Plaintiff is in violation of pertinent Federal and State banking laws and requirements, this action should be dismissed. USIXTH AFFIRMATIVE DEFENSE: UVIOLATION OF DECEPTIVE PRACTICES ACT 21. The Defendant repeats and realleges all of the responses set forth above as if 22. That upon information and belief, the Plaintiff, and/or its agents which originated loans on behalf of the Plaintiff, violated the Deceptive Practices Act (NY Gen. Bus. 349) by extending credit to the Defendant with knowledge that the Defendant could not afford to make the scheduled repayments of the loan, thus causing the indebtedness not to be payable by the Defendant. 23. That upon information and belief, Plaintiff and its agents would routinely act in concert to make loans to borrowers, such as the Defendant, who could not afford to make the payments as the loan would be sold on the secondary market and therefore securitized, thus shifting the risk of loss from default to someone other than the originator of the loan. This would permit the originating bank to generate upfront fees without concern as to the future default by a borrower. 24. That upon information and belief, Plaintiff's alleged successor in interest colluded with the appraiser, the appraisal company, to inflate the value of the subject property, thereby inflating the amount of the mortgage. 25. Thus, in violation of the Deceptive Practices Act (NY Gen. Bus. Sec. 349), the Plaintiff extended credit to the Defendant with knowledge that the Defendant would not make

9 the scheduled repayments of the loan, for the purpose of foreclosing on the Defendant s home. USEVENTH AFFIRMATIVE DEFENSE: UVIOLATION OF REAL ESTATE SETTLEMENT PROCEDURES ACT 26. The Defendant repeats and realleges all of the responses set above as if set forth in their entirety herein. 27. That upon information and belief, Plaintiff has not complied with the Real Estate Settlement Procedures Act (RESPA), which requires lenders to provide a good faith estimate of all costs of a particular home loan. dismissed. 28. Therefore, as Plaintiff is in violation of RESPA, this action should be UEIGHTH AFFIRMATIVE DEFENSE, UAND FIRST COUNTERCLAIM; PREDATORY LENDING 29. The Defendant repeats and realleges all of the responses set forth above as if 30. That upon information and belief, the Plaintiff has violated the Home Ownership and Equity Protection Act ( HOEPA ) as well as other state laws against predatory lending, including but not limited to, in the following manner: a. By making a residential mortgage loan to the Defendant without making a reasonable and good faith determination that the Defendant had a reasonable ability to repay such loan(s); b. By making such a mortgage loan without establishing that such loan will provide a net benefit to borrower;

10 c. By making a mortgage loan to the Defendant, and requiring the Defendant to personally guaranty same with the knowledge that they would be unable to repay same, solely for the purpose of foreclosing upon the subject residential property and acquiring such foreclosed property that they considered valuable; d. By encouraging the Defendant to enter into the subject mortgage loan without ensuring that they received pre-loan counseling; and e. By thus encouraging the Defendant to default on the stated mortgage. 31. The Defendants are entitled to a rescission of the contract as a result of the Plaintiff s actions, inactions, and/or failure to perform the contract as promised. UNINTH AFFIRMATIVE DEFENSE, UAND SECOND COUNTERCLAIM; FRAUDULENT INDUCEMENT 32. The Defendant repeats and realleges all of the responses set forth above as if 33. Upon information and belief, the Plaintiff fraudulently induced the Defendant to enter into the purported subject Mortgage and Note by warranting and promising the Defendant that if they agreed to the terms of the Mortgage/Note, the Plaintiff would never exercise any rights pursuant to the purported note mortgage and never take the home of the Defendant in foreclosure. 34. In an action for fraud, the moving party must prove a misrepresentation or material omission of fact which was false and known to be false by the non-moving party, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.

11 35. The Plaintiff failed to act in accord with the above-stated inducements by commencing this foreclosure action on the Defendant s principle residence and/or enforcing its rights pursuant to any executed guaranties. 36. The Defendant has been seriously damaged by the fraud of the Plaintiff in an amount to be determined at trial. UTENTH AFFIRMATIVE DEFENSE, UTHIRD COUNTERCLAIM, AND FIRST SET-OFF: NON-DISCLOSED PAYMENTS TO PLAINTIFF AND/OR PLAINTIFF S AGENTS 37. The Defendant repeats and realleges all of the responses set forth above as if 38. That upon information and belief, the Plaintiff collected additional but unaccounted payments made by Defendant. 39. The Defendant is entitled to a set-off of payments in the amount of to be determined at trial. UELEVENTH AFFIRMATIVE DEFENSE, FOURTH COUNTERCLAIM, AND SECOND SET-OFF: STATUTORY DAMAGES 40. The Defendant repeats and realleges all of the responses set forth above as if 41. That upon information and belief, the Plaintiff failed to give the aforementioned disclosures as stated above. 42. Plaintiff s failure to furnish required disclosures pursuant to TILA gives the Defendant rights under U15 U.S.C. 1635U and U 1640U of the statute to rescind the mortgage agreement and to set-off the Plaintiff s claim by the amount of their actual and statutory damages.

12 UTWELFTH AFFIRMATIVE DEFENSE, UFIFTH COUNTERCLAIM AND THIRD SET-OFF: OVERCHARGES 43. The Defendant repeats and realleges all of the responses set forth above as if 44. That upon information and belief, the Plaintiff has overstated and thereby overcharged the alleged monthly mortgage and finance charges. 45. The Defendant is entitled to a set-off of all overstated payments at an amount to be determined at trial. UTHIRTEENTH AFFIRMATIVE DEFENSE AND USIXTH COUNTERCLAIM: BREACH OF CONTRACT 46. The Defendant repeats and realleges all of the responses set forth above as if 47. That upon information and belief, the Plaintiff breached its implied duty of good faith and fair dealing in that the Plaintiff provided the Defendant\ with a dangerous subprime/high-cost mortgage that it knew would leave the Defendant with an unsustainable amount of debt service. 48. That upon information and belief, the Plaintiff, through its mortgage broker agent, promised Defendant that it would refinance said loan following one year from the date of the initial note/mortgage, yet could not provide such refinance as promised. 49. That upon information and belief, the Plaintiff s conduct, as described and set forth herein above, was unconscionable and in breach of the Plaintiff s implied duty of good faith and fair dealing in that the Plaintiff provided the Defendant with illusory promises.

13 50. The Defendant is entitled to a rescission of the contract as a result of the Plaintiff s actions, inactions, and/or failure to perform the contract as promised. UFOURTEENTH AFFIRMATIVE DEFENSE UAND SEVENTH COUNTERCLAIM; NEGLIGENCE 51. The Defendant repeats and realleges all of the responses set forth above as if 52. That upon information and belief, the Defendant was owed duties from the Plaintiff, including, but not limited to, the following: a. The statutory duty to deliver the disclosure required under TILA before the closing; and b. The common law duty of good faith and fair dealing; and c. The statutory duty of good faith and fair dealing as mandated under the Deceptive Practices Act (NY Gen. Bus. 349); and d. The contractual duty to refinance the loan created under the theory of promissory estoppel when the Defendant reasonably relied to his detriment upon the promise made by the Plaintiff. 53. That upon information and belief, the Plaintiff breached said duties. 54. That but for the breach of said duties by the Plaintiff, the Defendant would not be facing an unconscionably high interest rate that has resulted in this foreclosure action taken against his residence. 55. That the breach of said duties by the Plaintiff is the proximate cause Defendant now faces an unconscionably high interest rate that has resulted in this foreclosure action taken against him.

14 56. That the Defendant is entitled to damages and relief including, but not limited to, the following: a. Any and all damages relating to the failure of the Plaintiff to make proper disclosure under TILA; and b. Unjust Enrichment due to the failure of the Plaintiff to honor its promise to refinance the Defendant s loan thus causing the Defendant to pay the Plaintiff excessive and unforeseen interest; and c. Unjust enrichment due to the Plaintiff breaching its common law and statutorily created duties of good faith and fair dealing; and d. Any and all actual or statutory damages subject to the Court s determination. UFIFTEENTH AFFIRMATIVE DEFENSE AND EIGHTH COUNTERCLAIM: NEGLIGENCE INVOLVING MORTGAGE PRACTICES 57. The Defendant repeats and realleges all of the responses set forth above as if 58. The Plaintiff, upon information and belief, would pay mortgage brokers to originate loans for them. 59. The Plaintiff, upon information and belief, would make more money from, and therefore would pay greater commissions to, mortgage brokers that generated subprime/high-cost mortgages from unsophisticated borrowers. 60. The Plaintiff owed the Defendant borrower a duty of reasonable and ordinary care in promoting and making the loan, a duty to warn of the downside and financial perils associated with a subprime/high-cost mortgage, and a duty to comply with Federal and State banking and consumer protection laws.

15 61. The Plaintiff had a common law duty and/or a duty imposed by statute, rule or regulation to properly warn and/or notify the Defendant of the potential increased payments and other financial hazards associated with a subprime/high-cost mortgage. 62. The Plaintiff negligently and/or knowingly failed to warn the Defendant of the financial hazards involved in obtaining a subprime/high-cost mortgage. 63. The Plaintiff failed to properly supervise the deceptive mortgage origination practices of the mortgage broker which it relied upon to originate the subject loan. 64. Thus, the Plaintiff breached its duty to the Defendant and therefore caused great harm to the Defendant in an amount to be determined at trial. USIXTEENTH AFFIRMATIVE DEFENSE AND NINTH COUNTERCLAIM: NEGLIGENT MORTGAGE REASSIGNMENT PRACTICE 65. The Defendant repeats and realleges all of the responses set forth above as if 66. During the housing and mortgage boom, upon information and belief, Plaintiff directly and/or through its agent mortgage brokers, routinely preyed upon unsophisticated immigrant borrowers. 67. During the housing and mortgage boom, upon information and belief, Plaintiffs routinely sold their loans to the secondary market and therefore would not suffer the loss if the loan eventually went into default. 68. During the housing and mortgage boom, upon information and belief, the mortgage brokers with whom the Plaintiff routinely worked and relied on for originations would almost universally fill out the stated loan applications on behalf of unsophisticated immigrant borrowers and would insert misrepresentations on those applications to make borrower appears to be stronger candidates than they really were.

16 69. The financially unsophisticated Defendant was financially ruined and otherwise injured as a result of the Plaintiff s negligence, carelessness, recklessness, and willful disregard of their common law duty and the negligent and/or knowing violations of the applicable Federal and State Banking, Mortgage and Consumer Protection Laws. 70. The Plaintiff is liable to the Defendant for all damages, costs and expenses, attorney s fees and penalties provided by the Federal and State statute(s), rule(s) and regulation(s). USEVENTEENTH AFFIRMATIVE DEFENSE AND TENTH COUNTER-CLAIM: PLAINTIFF S ACTION IS BARRED BY THE STATUTE OF LIMITATION 71. The mortgage in question is a New York State Mortgage, existing under and governed by the laws of New York State, and as such, Plaintiff s claims are time barred under CPLR The Statute of Limitation for a mortgage foreclosure action is six (6) years from the date the cause of action accrues. 73. The date of the first default and the subsequent acceleration(s), according to Plaintiff s complaint(s) and relative acceleration letters, arose past the statutory deadline. 74. Plaintiff s foreclosure action is filed out of time and consequently barred by the statute of limitation. 75. Plaintiff is liable to the Defendants for all damages, costs and expenses, attorney s fees and penalties provided by the State and Federal statute(s), rule(s) and regulation(s).

17 UEIGHTTEENTH AFFIRMATIVE DEFENSE AND ELEVENTH COUNTER-CLAIM: PLAINTIFF S ACTION IS BARRED BY VIOLATING THE FALSE CLAIMS ACT 76. Plaintiff mortgage in question is a New York State Mortgage insured by the Federal Housing Administration (FHA) existing under and governed by Federal Laws and the laws of New York State, and according to Plaintiff s complaint and annexed exhibits, the FHA mortgage did not meet applicable requirements and as such, Plaintiff s claims are barred under violations of The False Claims Act. 77. Plaintiff has failed to provide Defendant with any face to face required interview upon any alleged default. 78. Upon information and belief, Plaintiff s violation was willful in misusing government program that is designed to maintain and expand homeownership. 79. Plaintiff has intentionally inflicted harm on Defendant. 80. Plaintiff is liable to the Defendants for all damages, costs and expenses, attorney s fees and penalties provided by the State and Federal statute(s), rule(s) and regulation(s). Wherefore, Defendant demands judgment against the Plaintiff dismissing the complaint herein; rescission of the subject mortgage and loan; a return of all of the Defendant s payments made pursuant to such fraudulently induced mortgage/note, including statutory interest thereupon; a judgment in the amount to be determined at trial as and for each of the Defendant s Set-Offs and Counterclaims, and reasonable attorney s fees; and for such other, further and additional relief as this Court may seem just and equitable, including punitive damages for the fraudulent deeds of the Plaintiff, together with the costs and disbursements of this action.

18 P Fl. Dated: October 5, 2015 Whitestone, NY To: VLOCK & ASSOCIATES, P.C. Attorneys for Plaintiff th 630 Third Avenue, 18P NewYork, NY Tel.: (212) Barry N. Frank, Esq., The Law Firm of Barry N. Frank & Associates, P.C. Attorneys for Defendant Johnny Rabadi Whitestone Expressway, Suite 101 Whitestone, NY Tel.: (347) Fax: (914) (Not for Service)

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