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

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CITY OF NEW YORK SRP , LLC, v. Plaintiff, Index No.: /2015 LAURENE T. FIGARO A/K/A LAURENE FIGARO, MARJORIE SONGUI, THE BOARD OF MANAGES OF CANARSIE ESTATES CONDOMINIUM and JOHN DOE No. 1 through JOHN DOE No. 99, said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises, [PROPOSED] AMENDED ANSWER, DEFENSES, and COUNTERCLAIM of DEFENDANT MARJORIE SONGUI JURY TRIAL DEMANDED Defendants. PLEASE TAKE NOTICE that the defendant MARJORIE SONGUI hereby appears and interposes the following verified amended answer, counterclaims, and affirmative defenses to the complaint herein. 1. Defendant Marjorie Songui lacks knowledge or information sufficient to form a belief with respect to the allegations contained in paragraph Defendant Marjorie Songui admits the allegations contained in paragraph Defendant Marjorie Songui admits the allegations contained in paragraph Paragraph 4 consists of legal conclusions as to which no response is required. 5. Paragraph 5 consists of legal conclusions as to which no response is required. 6. Defendant Marjorie Songui restates and realleges all of the preceding paragraphs.

2 7. Defendant Marjorie Songui denies the allegations contained in paragraph 7, except she admits Ms. Figaro executed a note dated May 2, Defendant Marjorie Songui denies the allegations contained in paragraph 8, except she admits that she admits that she and Ms. Figaro executed a mortgage on May 2, Ms. Songui respectfully refers the court to the document itself for the content and import thereof. Ms. Songui states that she lacks knowledge or information sufficient to form a belief with respect to whether mortgage tax was paid. Ms. Songui admits that records of the City of New York, Department of Finance, Office of the City Register reflect that the mortgage was recorded on May 15, 2006 at CRFN: Defendant Marjorie Songui admits the allegations contained in paragraph 9, except that she lacks knowledge or information sufficient to form a belief with respect to whether mortgage tax was paid. Ms. Songui admits that records of the City of New York, Department of Finance, Office of the City Register reflect that the mortgage modification was recorded on June 28, 2011 at CRFN: Defendant Marjorie Songui lacks knowledge or information sufficient to form a belief with respect to the allegation in paragraph 10. Ms. Songui respectfully refers the court to the document referred to in paragraph 10 for the content and import thereof. 11. Defendant Marjorie Songui lacks knowledge or information sufficient to form a belief with respect to the allegation in paragraph 11. Ms. Songui respectfully refers the court to the document referred to in paragraph 11 for the content and import thereof. 12. Defendant Marjorie Songui denies the allegations contained in paragraph 12, except that she admits that she signed a mortgage on May 2, Ms. Songui incorporates by reference her response in paragraphs 7 and 8 above. -2-

3 13. Defendant Marjorie Songui denies the allegations contained in paragraph 13, except that Ms. Songui admits that she is behind on her mortgage. 14. Defendant Marjorie Songui denies the allegations contained in paragraph 14, except that she admits that she signed a mortgage on May 2, Ms. Songui incorporates by reference her response in paragraphs 7 and 8 above. 15. Paragraph 15 consists of legal conclusions as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 16. Defendant Marjorie Songui denies the allegation contained in paragraph Paragraph 17 consists of legal conclusions and a prayer for relief as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 18. Paragraph 18 consists of legal conclusions and a prayer for relief as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 19. Paragraph 19 consists of legal conclusions and a prayer for relief as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 20. Paragraph 20 consists of legal conclusions as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 21. Defendant Marjorie Songui denies the allegations contained in paragraph

4 22. Paragraph 22 consists of legal conclusions and a prayer for relief as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 23. Paragraph 23 consists of legal conclusions as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 24. Defendant Marjorie Songui lacks knowledge or information sufficient to form a belief with respect to the statements in the Paragraph Paragraph 25, subparts a through h, consists of legal conclusions and a prayer for relief as to which no response is required. To the extent that a response is required, Defendant Marjorie Songui denies the allegations contained in this paragraph. 26. Defendant Marjorie Songui denies each and every allegation contained in paragraph 26, including all allegations contained in subparts a through e. STATEMENT OF FACTS 27. Marjorie Songui and her sister Laurene Figaro purchased the home at 1035 East 86 th Street, Apartment 2, Brooklyn, NY, on December 31, They have resided in the home since that time, and put down roots in the Carnarsie, Brooklyn community. 28. In 2006, Ms. Figaro and Ms. Songui refinanced their mortgage on the property. 29. The lender on the 2006 refinance was Accredited Home Lenders, Inc. 30. Plaintiff SRP , LLC is a limited liability company organized under the laws of the State of Delaware. -4-

5 31. Upon information and belief, SRP , LLC is and was at the time of commencement of this action, doing business in the State of New York without a Certificate of Authorization. forth herein. FIRST DEFENSE LACK OF CAPACITY TO SUE 32. Marjorie Songui repeats and realleges paragraphs 1 through 31 as though fully set 33. Under New York Limited Liability Company Law, Section 808, a foreign limited liability company doing business in the State of New York without a Certificate of Authority from the New York Department of State may not maintain an action in any court in the State of New York. 34. The Plaintiff in this action is SRP , LLC, a limited liability company organized under the laws of Delaware. 35. The records of the Department of State do not reflect that SRP , LLC is a New York limited liability company or has obtained a Certificate of Authority to do business in the State of New York as a foreign limited liability company. 36. Upon information and belief, SRP , LLC is and was at the time of commencement of this action, doing business in the State of New York. New York. 37. Accordingly, SRP , LLC lacks capacity to sue in the courts of the State of 38. Because SRP , LLC lacks capacity to sue, the complaint should be dismissed in its entirety. SECOND DEFENSE LACK OF STANDING TO SUE -5-

6 forth herein. 39. Marjorie Songui repeats and realleges paragraphs 1 through 38 as though fully set 40. To maintain a foreclosure action under New York State law, the plaintiff must be both the holder or assignee of the subject mortgage, and the holder or assignee of the underlying note prior to commencement of the action with the filing of the complaint. 41. Under New York State law, an assignment of mortgage without an assignment of the underlying note is a nullity. 42. Under UCC 3-202(2), [a]n indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof. 43. The purported indorsement of the Note is in blank. 44. The purported indorsement of the Note is on a separate allonge, which is not so firmly affixed to the Note as to become a part thereof, and hence is insufficient to make the Note a negotiable instrument. 45. Upon information and belief, Plaintiff did not have possession of the Note and hence was not a holder of the Note and Mortgage prior to commencing this action on December 17, Because Plaintiff SRP , LLC was not a holder or assignee of the subject mortgage and note at the time it commenced this action, it lacked standing to bring this lawsuit, and the complaint should therefore be dismissed in its entirety. THIRD DEFENSE FAILURE TO COMPLY WITH RPAPL Defendant Marjorie Songui reasserts and realleges paragraphs 1 through 46 as though fully set forth herein. -6-

7 48. RPAPL 1304 requires a lender to serve a pre-foreclosure notice upon the borrower of a home loan at least 90 days before commencing an action to foreclose. 49. The RPAPL 1304 Notice must state the number of days the borrower is in default on payment and the amount of money needed to cure the default, provide contact information for five housing counseling agencies in the borrower s area as well as contact information for the lender or loan servicer, and list contact information for the New York State banking regulator. 50. The provision of the RPAPL 1304 Notice to the mortgagor is a condition precedent which mandates dismissal of the foreclosure action in the event of noncompliance by the foreclosing plaintiff. 51. The mortgage that is the subject of this action relates to an owner-occupied oneto-four family dwelling and thus is governed by the notice requirements of RPAPL Plaintiff did not send any copies of the RPAPL 1304 Notice to Defendant Marjorie Songui before commencing this action. 53. Accordingly, Plaintiff has failed to meet a condition precedent to maintaining a foreclosure action and this action must be dismissed. FOURTH DEFENSE FAILURE TO COMPLY WITH CONTRACTUAL CONDITIONS PRECEDENT 54. Defendant Marjorie Songui reasserts and realleges paragraphs 1 through 53 as though fully set forth herein. 55. Paragraph 22 of the May 2, 2006 mortgage sets for conditions that must be met before the lender may bring a foreclosure action. -7-

8 56. Plaintiff failed to provide the notice required by subsection (B) of paragraph 22 of the May 2, 2006 mortgage. 57. Accordingly, Plaintiff has failed to meet conditions precedent to maintaining this foreclosure action and this action must be dismissed. COUNTERCLAIM NEW YORK STATE REAL PROPERTY LAW Defendant Marjorie Songui reasserts and realleges paragraphs 1 through 57 as though fully set forth herein. 59. Section 282 of the New York State Real Property Law provides that a mortgagor who successfully defends a foreclosure action can recover reasonable attorney s fees and/or expenses incurred in the successful defense of such action if the contract provides for the recovery of such attorneys fees and/or expenses by the mortgagee. 60. Paragraph of 22 of the May 2, 2006 mortgage includes an attorney s fees provision that, by virtue of New York Real Property Law 282, is rendered reciprocal. 61. Accordingly, Defendant Marjorie Songui is entitled to recover her reasonable attorney s fees and/or expenses incurred in connection with the defense of this action. WHEREFORE, Marjorie Songui respectfully request that this Court: a. Dismiss the Complaint with prejudice; b. Enjoin enforcement of the mortgage; c. Grant costs, disbursements and attorneys fees pursuant to New York Real Property Law 282; and, d. Order all other relief deemed just and equitable by the Court. DATED: March 3, 2017 Brooklyn, New York -8-

9 Rachel Geballe, Esq. SOUTH BROOKLYN LEGAL SERVICES 105 Court Street, 4th Floor Brooklyn, New York (718) Attorneys for Marjorie Songui TO: Daniel H. Richland, Esq. Law Office of Daniel H. Richland, PLLC 152 West Hoffman Ave, Suite 11 Lindenhurst, New York Attorneys for Plaintiff -9-

Defendants. of appearance, on the plaintiffs attorneys within 20 days after the service of this summons,

Defendants. of appearance, on the plaintiffs attorneys within 20 days after the service of this summons, FILED: QUEENS COUNTY CLERK 06/28/2016 07:15 PM INDEX NO. 707625/2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS TCG LGA HOLDINGS LLC, Plaintiff,