FILED: KINGS COUNTY CLERK 02/04/2014 INDEX NO /2013 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2014

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1 FILED: KINGS COUNTY CLERK 02/04/2014 INDEX NO /2013 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X NATIONSTAR MORTGAGE LLC Index No.: /13 Plaintiff, - against - AMENDED VERIFIED ANSWER CALVIN HARRIOT ET AL Defendants X Defendant, Harriot, by and through his attorneys, The Law Offices of Erica T. Yitzhak, answers the complaint against Defendant, Harriot et al: 1. Agreed and accepted 2. Denied 3. Denied 4. Agreed and accepted 5. Agreed and accepted 6. Agreed and accepted AS AND FOR A FIRST CAUSE OF ACTION 7. Unknown by Defendant Harriot as a direct result of the use of MERS. However, by Plaintiff s own admissions, the note and mortgage were separated as they were executed in favor of different parties and as such the mortgage is void. 8. Denied 9. Denied

2 10. Unknown by Defendant Harriot. Defendant have not received any monthly mortgage statements from Plaintiff since shortly after the alleged default began, in direct violation of RESPA guidelines. 11. Agreed and accepted 12. Unknown by Defendant, Harriot 13. Denied. 14. Unknown by Defendant Harriot 15. Unknown by Defendant Harriot 16. Agreed and accepted 17. Denied Plaintiff does not have legal standing to make this waiver 18. Defendant re-states and re-alleges paragraphs one through seventeen above 19. Denied. This was the sole and careless mistake of Plaintiff and was in no way the fault or responsibility of Defendant Harriot. As a result of Plaintiff s own admission, the mortgage is defective as it does not contain a description of the premises to be mortgage and as such the mortgage is void and unenforceable. 20. Denied. Plaintiff had an obligation to perform its due diligence with the execution and recording of the mortgage documents and by failing to do so compromised its own adequate remedy at law. Defendant has no legal obligation nor does Plaintiff have any right to have the court correct its egregious error. Plaintiff had adequate time prior to the commencement of this action to remedy this situation. This blatant error may have been only one of many. 2

3 AFFIRMATIVE DEFENSES 21. Defendant re-alleges and restates 1-20 above 22. Plaintiff failed to comply with RPAPL Section 1304, which requires ninety (90) days notice of intent to foreclose from the lender, servicer or counsel prior to commencing a foreclosure action. Defendant, Harriot never received a letter of intent to foreclose on instrument number the mortgage at issue. 23. Defendant Harriot, are interested in obtaining a loan modification from Plaintiff, as the servicer for Plaintiff and under the Federal Housing and Economic Recovery Act of 2008, all servicers are required to modify mortgages where the property would bring less money at auction than what is currently owed on the property by the borrower. Defendant Harriot has been attempting to work with prior loan servicer Aurora as well as Nationstar to obtain a loan modification, to no avail as a result of the bad faith actions of Aurora and Nationstar. 24. Defendant was unfairly prejudiced by the use of MERS as a nominee for the mortgage holder as was not privy to the identity of his debt holder at all times. 25. Plaintiff lacks standing to bring this action as per Plaintiff s own admission in paragraph seven of it s complaint, the note and mortgage were separated when the mortgage was assigned to MERS as nominee, nullifying the mortgage instrument as it is invalid if it does not remain with the note at all times. Plaintiff admits to the separation of the note and mortgage in paragraph seven of its complaint. 3

4 26. Under New York State Banking Law Section 6-1 (l)(i), Defendant was required to receive information regarding the availability of financial counseling, in writing at least ten days prior to closing. Defendant Harriot never received said notice. 27. The note at issue is in violation of New York State Banking Law Section 6-1 (k), as a review of Defendant Harriot s income during the relevant period demonstrates that the lender Plaintiff acquired the note and mortgage from, could not have reasonably believed Defendant Harriot would have been able to repay the loan. 28. The loan made pursuant to the note and mortgage at issue are in violation of New York General Business Law Section 349 (a) wherein deceptive acts or practices of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful. 29. In order for the mortgage to be legally enforceable it must remain with the note at all times. Through Plaintiff s own admission in paragraph 7 of the complaint, the mortgage was assigned to Plaintiff by MERS, not by the original mortgagor and note holder. This separation of the note and mortgage, nullifies the mortgage instrument and renders it unenforceable. 30. Plaintiff, as the assignee of the mortgage from MERS, lacks standing to commence or prosecute an action to foreclose on the subject mortgage. 31. Plaintiff has presented no proof of ownership of the note on the date of commencement of this foreclosure action. 4

5 32. Plaintiff failed to notify Defendant Harriot or disclose to Defendant Harriot that this was a transaction covered under the Home Ownership and Equity Prevention Act ( HOEPA ) of This mortgage is covered by HOEPA, as this loan is secured by a mortgage on the borrower s principal dwelling. 33. Plaintiff s mortgage, through it s own admission in paragraph nineteen of its complaint, is void and unenforceable as it does not contain a legal description of the property. WHEREFORE, Defendant prays for the following relief: (a) (b) (c) (d) (e) (f) Canceling the note and the mortgage Damages for violating the disclosure provision of RESPA Damages for violating HOEPA Actual and punitive damages for violating New York State Banking Law Granting attorney s fees and costs, together with appropriate sanctions In the alternative, modifying Defendant s note and mortgage waiving all interest, penalties and late fees incurred from the date of default. (g) Granting such other relief as this Court may deem just and proper. Dated: Great Neck, New York February 4, 2014 Erica T. Yitzhak Esq. P.C. Attorneys for Defendant, Harriot 5

6 //s// Erica T. Yitzhak 17 Barstow Road, Suite 406 Great Neck, New York Telephone: (516)

FILED: KINGS COUNTY CLERK 03/03/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 03/03/2017

FILED: KINGS COUNTY CLERK 03/03/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 03/03/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CITY OF NEW YORK SRP 2014-18, LLC, v. Plaintiff, Index No.: 515253/2015 LAURENE T. FIGARO A/K/A LAURENE FIGARO, MARJORIE SONGUI, THE BOARD OF MANAGES