FILED: RICHMOND COUNTY CLERK 04/03/ :36 AM INDEX NO /2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/03/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X FEDERAL NATIONAL MORTGAGE ASSOCIATION FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, Index No.: /17 Plaintiff, - Against - PLAINTIFF'S AFFIRMATION JOSEPH MEZZACAPPA; SUSAN MEZZACAPPA; NEW YORK CITY PARKING VIOLATIONS BUREAU, et al. IN OPPOSITION TO DEFENDANT'S ORDER TO SHOW CAUSE Defendant X Amanda Moreno, Esq., an attorney admitted to practice law before the courts in the State of New York, affirms the following to be true under the penalties of perjury: 1. 1 am an attorney at the law firm of RAS Boriskin, LLC, counsel for the Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED Plaintiff" STATES OF AMERICA, Plaintiff") in the above referenced action. I am fully familiar with the facts and circumstances surrounding this case by virtue of the file maintained by this firm and based on conversations with our clients in this matter. 2. The above-entitled action is for a foreclosure of a Mortgage, held by Plaintiff, on the premises known as 10 Joel Place, Staten Island, New York Subject Premises" Premises"). Opposition" 3. This Affirmation Plaintiff's Opposition") is in Opposition to Defendant's Order to Show Cause. In his moving papers, it is not clear as to the relief Defendant is requesting from 1 1 of 5

2 the Court. It seems Defendant is seeking relief from the Court to order the Plaintiff to uphold the Deed-in-Lieu agreement signed by both parties See Defendant's Motion. 4. This Court must deny Defendant's Order to Show Cause because Plaintiff is in the process of finalizing the terms of the agreement. As such, once the terms of the agreement are completed, Defendant will receive the funds in lieu of the deed to the property. FACTUAL AND PROCEDURAL HISTORY Defendants" 5. On or about April 23, 2005, Joseph Mezzacappa and Susan Mezzacappa Defendants") Note" duly executed and delivered a Note Note") whereby Defendants promised to pay the sum of $300, plus interest as set forth in said note. See Exhibit "A". 6. As collateral to secure payment of the sum represented by said note, the Defendants executed and delivered a Mortgage securing the Subject Premises. See Exhibit "B". 7. The mortgage was recorded in the Office of the County Clerk of Richmond County on December 14, 2005 under Land Document Number See Exhibit "B". 8. On August 9, 2007, Defendants duly executed a note whereby they promised to pay the sum of $123, plus interest as set forth in the note. See Exhibit "C". 9. As collateral to secure payment of the sum represented by said note, the Defendants executed and delivered a Mortgage securing the Subject Premises. See Exhibit "D". 10. The mortgage was recorded in the Office of the County Clerk of Richmond County on May 12, 2008 under Land Document Number See Exhibit "D". 11. On August 9, 2007, Defendants duly executed a note whereby they promised to pay the sum of $415, plus interest set forth in the note. See Exhibit "E". 12. That to secure the repayment of the sum represented by said note, Defendants duly executed and delivered a Consolidation, Extension and Modification Agreement which 2 2 of 5

3 consolidated the aforementioned mortgages to form a single lien. Said agreement was recorded in the Office of the County Clerk of Richmond County on May 12, 2008 under Land Document Number See Exhibit "F". 13. Said mortgages, as consolidated, were assigned to Plaintiff by assignment of mortgage duly executed on a date prior to the filing of the complaint in this action. See Exhibit "G". 14. Defendant failed to comply with the terms of the note and mortgage and the by failing to make a payment that became due on May 1, 2011 and each subsequent payment thereafter. 15. By virtue of the aforementioned default, complied with all pre-foreclosure notice requirements in accordance with the terms of the Mortgage. See Exhibit "H". 16. On or about April 24, 2017, the Summons and Complaint and Notice of Pendency were filed in the Office of the Clerk of Richmond County. See Exhibit "I". 17. Service upon all defendants was accomplished in compliance with CPLR 308. See Exhibit "J". 18. None of the Defendants have answered the Complaint or moved with respect thereto and the time to answer or move with respect thereto has expired. 19. On or about July 20, 2017, the Court sent a correspondence to the parties informing them of a mandatory settlement conference set by the court.. See Exhibit "K". 20. Settlement conferences were attended by both parties on November 14, 2017, December 11, 2017, January 10, 2018, and February 15, See Exhibit "L". 21. During said conferences, Plaintiff offered Defendants a Deed-in-Lieu program in which they accepted. 22. On March 23, 2018, Defendant filed the instant Order to Show Cause due to the fact that Defendants had yet received the monetary incentive from Plaintiff (cash for keys) agreed upon 3 3 of 5

4 under the signed agreement. See Defendant's Motion. ARGUMENT I. DEFENDANT'S MOTION IS PREMATURE 23. The Deed-in-Lieu agreement was signed by Defendants on February 19, Unfortunately, Plaintiff's attorneys, RAS Boriskin, LLC, does not have a copy of the agreement because the agreement was sent to Plaintiff by the Defendants. As such, the information contained within this opposition is information based upon Plaintiff's attorneys conversations with Plaintiff regarding this issue. 24. As Defendants stated in their Order to Show Cause, they allegedly moved out of the property as per the agreement by March 15, After Defendants moved out of the premises, Plaintiff need to have an inspection of the premises conducted in order to make sure the property is in "broom swept condition" as per the agreement. In addition, the property is to be free of interior and exterior trash and the yard must be clean and neat. See Exhibit "M". 26. As of today, the inspection of the property has yet to be completed. In addition, Plaintiff is awaiting a Power of Attorney to proceed with the recording of the Deed-in-Lieu. Once the Power of Attorney is received, Plaintiff will be able to finalize the agreement and send Defendants the monetary incentive promised in exchange for the deed to the property. 27. As the Court is fully aware, in that the Court scheduled a status conference on June 20, 2018, the process of Deed-in-Lieu has several moving parts and conditions precedent to the Defendants receiving the monetary incentive promised. Defendants cannot expect the promised funds on the same day they vacate the property or even less than two (2) weeks after the vacatur, 4 4 of 5

5 the date of the Defendant's submission of the instant motion. 28. Once the Plaintiff has completed the required inspection and received the necessary Power of Attorney necessary to file the Deed-in-Lieu, the Defendants will receive the funds promised. Until such time, the Defendants will need to be patient. CONCLUSION WHEREFORE, for the reasons above and the exhibits attached, this Court should deny Defendant's Motion in its entirety. Dated: April 2, 2018 RAS BORISKIN, LLC Westbury, New York Amanda Mo no, Esq. 900 Merchants Concourse, Suite LL5 Westbury, New York Phone: (516) ext of 5