FILED: NEW YORK COUNTY CLERK 07/09/ :06 PM

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1 EDON FILED: NEW YORK COUNTY CLERK 07/09/ :06 PM INDEX NO /2014 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/09/2015 a Supreme Court of the State of New York County of New York WINSTON CAPITAL, LLC INDEX NO. DATE PURCHASED: Plaintiff \'S. JOSHUA KIRSCHENBAUM, ISAOA ATIMA, MRS. JOSHUA KIRSCHENBAUM, UNITED STATES INTERNAL REVENUE SERVICE, A. ABAD~AMM BVBA, ANDREY YY ABADIJIAN, SETH WINSLOW, LVNV FUNDING APO AMERICAN EXPRESS, LLC, NAMDAR INC., ELI VERSCHLEISER, INDYMAC BANK, FSB PLAINTIFF DESIGNATES NEW YOFX COUNTY AS THE PLACE OF TRIAL. THE BASIS OF VENUE DESIGNATED IS THE LOACATION OF THE REAL PROPERTY SUBJECT TO THE LIEN OF THE MORTGAGE rp" Defendants THE ABOVE NAMED DEFENDANTS AND EACH OF YOU: YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action, and to serve a copy of your answer, or, if the verified complaint is not served with this summons, to serve a Notice of Appearance, on the Plaintiffs attorneys within twenty (20) days after the service of summons, exclusively of the day of service, or within thirty (30) days after completion of service where service is made in any manner than by personal delivery within the State. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded Dated: July 5,201 1 BY: Supreme Court Records OnLine Library - page 1 of 11

2 SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK WINSTON CAPITAL, LLC INDEX NO. vs. Plaintiff VERIFIED COMPLAINT JOSHUA KIRSCHENBAUM, ISAOA ATIMA, MRS. JOSHUA KIRSCHENBAUM, UNITED STATES INTERNAL REVENUE SERVICE, A. ABADIAMM BVBA, ANDREY YY ABADIJIAN, SETH WINSLOW, LVNV FUNDING APO AMERICAN EXPKESS, LLC, NAMDAR INC., ELI VERSCHLEISER, INDYMAC BANK, FSB Defendants Plaintiff, Winston Capital, LLC ( the Bank ), by its attorney David C. Steinmetz, Esq., as and for its Verified Complaint in this action, respectfully alleges, as follows: THE PARTIES 1. Winston Capital, LLC is a limited liability company organized and existing under and by virtue of the laws of the State of New Jersey, with its office at 1415 Queen Anne Road Suite 202, Teaneck, NJ It is duly authorized to do business in the State of New York. Winston Capital is the holder of the Mortgage Note, Mortgage, Assignment of Leases and Rents, Guaranties, Consolidation, Extension and Modification Agreement (all as defined below) which are subject of this action. Supreme Court Records OnLine Library - page 2 of 11

3 2. Upon information and belief, defendant Joshua Kirschenbaum (hereinafter ( Defendant krschenbawntt) is an individual residing at 400 Central Park West, Unit 6J, New York, NY NATURE OF ACTION 3. This is an action brought pursuant to RPAPL et seq to foreclose a certain Mortgage (as defined below), which is a lien on the Mortgage Premises, and to foreclose the right, title and interest of and equity of redemption in the Mortgage Premises of all persons named herein as defendants, as well as of all persons claiming a right, title or interest or equity of redemption in the Mortgaged Premises recorded subsequent to the Notice of Pendency filed herewith and to recover any deficiency due following sale of the Mortgaged Premises. 4. This action seeks foreclosure of investment propertv which was pledged as collateral for a loan and thus, is not a non-traditional or subprime home loan as defined in Section 1304 of the Real Property Actions and Proceedings Law nor is it a high cost home loan as defined in Section 6-1 of the banking law. 5. This action does not seek the foreclosure of a residence and therefore does not meet the criteria for a mandatory settlement conference. THE PREMISES 6, Mortgagor is presently the owner of certain real property located in the County of New York, State of New York, as more specifically described in Exhibit A and identified as Block 1833, Lot 4127, Section 7 and Block 1833, Lot 3369, Section 7 on the Tax Map of the County of New York, New York and known as 400 Central Park West, Unit 6X, New York, NY and 392 Central Park West, Unit 18X, New York, NY 10025, respectively (the Mortgages Premises ) THE MORTGAGE NOTE Supreme Court Records OnLine Library - page 3 of 11

4 7. On May 21, 2007, in consideration of a loan made by Joshua Kirschenbaum, Defendant Kirschenbaum executed a certain note in which Defendant Kirschenbaum promised to pay the sum of TWO HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($275,000,00) to Plaintiff Winston Capital, LLC (the Mortgage Note ). A true copy of the Mortgage Note is annexed hereto as Exhibit B. 8. The Mortgage Note provides, in pertinent part, that Defendant Kirschenbaum promises to pay to Winston Capital or its order the principal sum of TWO HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($275,000.00), together with interest on the outstanding principal balance at the rate of sixteen percent (16%) per annum. 9. Principal and interest thereon was to be paid on the first day of each month commencing July lst, 2007 and on the first day of each and every moth thereafter through and including March 1, On March 3,2008, Defendant Kirschenbaum signed a secondary mortgage loan, interest only, balloon loan, fixed rate Note and Mortgage. Winston Capital, LLC extended the balloonlmaturity date to September 1, 2008 in consideration for numerous modifications in the agreement. With the sole exception of three changes, all of the terms of the original loan agreement, including all loan documents, remained in effect. 11. The original Mortgage Note provides at Paragraph 4, that a default rate on the outstanding balance of the principal sum shall be a rate of twenty four percent (24%) per annum until cured. Moreover, a late payment fee not to exceed an amount equal to five percent (5%) of any periodic payment not receiving within ten days of the date of such payment shall constitute as liquidated damages and shall be payable upon demand. 12. No further extension to the March 3, 2008 extension agreement has been made. 13. The Mortgage Note hrther provides in pertinent part, that Defendant Kirschenbaum shall be in default under the Mortgage Note upon, among other things, the failure of Defendant Kirschenbaum to pay any amount when due and payable thereunder. Supreme Court Records OnLine Library - page 4 of 11

5 14. The mortgage Note further provides at Paragraph 3(a), in pertinent part, that if Winston Capital incurs expenses to collect any amount due under the Mortgage Note to enforce its terms, such expense, including Winston Capital s reasonable attorney fees, may be added to the principal balance due under the Mortgage Note. 15. The Mortgage Note further provides at Paragraph 6, that Defendant Kirschenbaum waives demand, notice of demand, protest and notice of protest, among other things. THE MORTGAGE 16. On May 21, 2007 Defendant Kirschenbaum executed, duly acknowledged and delivered to Plaintiff Winston Capital a Mortgage ( Mortgage ) for the purpose of securing payment of the Mortgage Note in the principal sum of $275, The Mortgage was duly recorded in the Office of the Clerk, County of Manhattan, in CRFN on June 6, 2007 as a lien against the Mortgaged Premises and the mortgage tax and recording fees were duly paid. A true copy of the Mortgage is annexed hereto as Exhibit C. 17. The Mortgage provides that the Mortgagor covenants to pay the indebtedness evidenced by the Mortgage Note at the times and in the manner therein described. 18. The Mortgage further grants to Winston Capital a lien on (i) all buildings and improvements then or thereafter located on the Mortgages Premises; (ii) all fixtures, chattels and articles of personal property, then or thereafter attached or located at the Mortgaged Premises; (iii) all agreements, contracts, certificates, instruments and other documents pertaining to the construction, operation or management of any structure or building now or hereafter erected on the Premises; and (iv) all franchises, permits, licenses and rights therein and thereto respecting the use, occupation or operation of the Mortgaged Premises, among other things. 19. The Mortgage further requires Defendant Kirschenbaum to pay all real and personal property taxes then or thereafter imposed on the Mortgaged Premises and Supreme Court Records OnLine Library - page 5 of 11

6 that if Defendant Kirschenbaum does not timely pay same, Winston Capital may pay same, which amounts shall be added to Defendant Kirschnebaum s indebtedness to Winston Capital. 20. The Mortgage further provides that Defendant Kirschenbaum shall be in default under the Mortgage if the principal sum of the Note shall not be paid at its maturity. 21. The mortgage further provides that in the event of a default, Winston Capital may, without notice, declare the entire unpaid principal, accrued interest and other amounts due under the Mortgage immediately due and payable, commence and action to foreclose the Mortgage and if it so elects, enter upon and operate the Mortgaged Premises and qualify for the appointment of a receiver of the Mortgage Premises. 22. The Mortgage further provides that Winston Capital has the right to cure any default by Defendant Kirschenbaum under the Mortgage and to add the cost thereof, including its reasonable attorney fees, to the indebtedness due. THE DEFAULT 23. As of the Maturity Date, Defendant Kirschenbaum has failed to comply with his obligations under the Mortgage Note, the Mortgage in that Defendant Kirschenbaum has failed and omitted to pay the full amount of principal and interest due and owing on or before the Maturity Date. 24. As of the Maturity Date unpaid principal is still owed (the Default Amount ). The minimum Interest Rate is 16% per annum. 25. Said default Amount continues to accrue interest at the default rate of 24% per annum. 26. Despite numerous demands, Defendant Kirschenbaum has not paid the amount due under the Mortgage Note and has not otherwise cured its default. 27. Accordingly, there is now justly due and owing to Winston Capital principal with interest at the default rate of 24% per annum. 28. Plaintiff seeks to foreclose its Mortgage and to recover the outstanding principal under the Mortgage Note and Mortgage in the amount of $275,000.00, together Supreme Court Records OnLine Library - page 6 of 11

7 with the default interest at the rate of 24% per annum, plus tax and other advances paid by Plaintiff, late fees and all other costs and expense due under the Mortgage Note and Mortgage, in addition to any usual costs and allowances which Plaintiff may be entitled to and awarded under any law or statue applicable to this action. 29. Plaintiff has complied with all the terms and provisions of the Mortgage Note and the Mortgage. 30. Plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of any payment after the commencement of this action, or any or all of the defaults mentioned herein, and such election shall continue and remain effective. 31. In accordance with the terms of the Mortgage Note and Mortgage and without waiving Defendant Kirschenbaum s default, Winston Capital shall credit Defendant Kirschenbaum with any payments it has made or will make following default. 32. Upon information and belief, none of the defendants herein is an absentee, infant, incompetent or in the military service of the United States. COUNT ONE-FORECLOSURE AGAINST ALL DEFENDANTS 33. Plaintiff repeats and realleges its allegations contained in Paragraphs 1 through 32 above as if set forth fully herein. 34. Upon information and belief, each of the above named defendants have or claim to have or may claim to have some interest in or lien upon the Mortgaged Premises or some part thereof, which interest or lien, if any, is subject and subordinate to Plaintiffs Mortgage being foreclosed herein encumbering the Mortgaged Premises. 35, By this action, Plaintiff seeks to foreclose and bar forever all liens and equity of redemption of all defendants and all persons whose equity was recorded after the filing of the Notice on Pendency of this action and upon sale of the Mortgaged Premises to obtain a judgment for any deficiency in the full amount remaining due against defendant borrower, Kirschenbaum and Guarantor. 36. Plaintiff is entitled to a judgment of foreclosure and sale as against all defendants. Supreme Court Records OnLine Library - page 7 of 11

8 37. Plaintiff has no adequate remedy at law. COUNT TWO- APPOINTMENT OF A RECIEVER 38. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 37 above as set forth fully herein. 39. Upon information and belief, following its default, Defendant Kirschenbaum and/or other named Defendant(s) has and will continue to collect rent and income from the Mortgaged Premises, 40. Plaintiff is entitled, if it so elects, under the Mortgage and Assignment to have a receiver appointed to manage and operate the Mortgaged Premises and to collect all rent and income for the benefit of Winston Capital. COUNT FOUR-CONSTRUCTIVE TRUST 41. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 40 above as if set forth fully herein. 42. To the extent Defendant Kirschenbaum and/or any other named Defendant has collected or will collect the rents, income and profits derived from the Mortgaged Premises, such rents, income and profits belong to Plaintiff and Defendant Kirschenbaum will be unjustly enriched thereby. 43, Plaintiff is entitled to the imposition of a constructive trust on all rents, profits and income collected by Defendant Kirschenbaum following the default under the Loan Documents. WHEREFORE, Plaintiff respectfully prays that this Court enter judgment against the defendants and in favor of Plaintiff, adjudging and decreeing, as follows: A. That defendants Defendant Kirschenbaum is liable to Plaintiff for the unpaid principal amount of the Mortgage Note plus all accrued and unpaid interest and late charges thereon, together with default interest at the default interest rate of 24% per annum until the Mortgage Note is paid in Eull and any and all additional fees and expenses, including Winston Capital s reasonable attorney fees, Supreme Court Records OnLine Library - page 8 of 11

9 .. B. C. which are or may become due and payable as provided under the terms of the Loan Documents; and That the defendants, and each of them, and all persons claiming by, through or under all or any of them and every person or entity whose estate, right, title, conveyance or encumbrance is recorded subsequent to the filing of the Notice of Pendency of this action in the offm of the Clerk of the County of Bronx be barred and forever foreclosed of all rights, title, interest, claim, lien and equity of redemption in and to the Mortgaged Premises, in and to any fixtures and articles of personality therein or thereon or used in connection therewith; That the Mortgaged Premises be decreed to be sold as one parcel at the option of Plaintiff, according to law, along with the fixtures and articles of personalty thereon, to raise amounts due to Plaintiff, for principal, interest, and other charges, fees, expenses, costs, allowances and disbursements, together with any monies advanced and paid, and that the monies arising from said sale be brought into court; the amount due plaintiff under the Mortgage Note and secured by the Mortgaged Premises be adjudged, and from the proceeds of the sale of the Mortgaged Premises, Plaintiff be paid the amount so adjudged due plaintiff, with interest thereon at the rates specified therein to the time of such payment, together with the expenses of the sale, the costs allowances and disbursements of this action, Plaintiff s reasonable attorney fees, taxes assessment, water and sewer charges, premiums for insurance, and all other charges due and owing Plaintiff with interest thereon to the date of the payment (the Total Debt ), insofar as the amounts of such monies properly applicable thereto will pay the same; Supreme Court Records OnLine Library - page 9 of 11

10 D. E. F. G. That Plaintiff be awarded judgment as against Defendant Kirschenbaum for any deficiency which may then remain after application of all proceeds of sale to the payment of the Total Debt; That, if Plaintiff so elects, the Cowt appoint a Receiver for the Mortgaged Premises with the power to manage the Mortgaged Premises and to collect the rents and income therefrom for the benefit of the Plaintiff; That a constructive trust be imposed for the benefit of Plaintiff or all rents, income and profits derived fiom the Mortgaged Premises which have been or will be collected by Defendant Kirschenbaum following its default under the Loan Documents; and That the court award Plaintiff such other and further relief as it deems just, proper and equitable under the circumstances herein, Dated: New York, New York June 2011 Supreme Court Records OnLine Library - page 10 of 11

11 STATE OF NEW YORK) COUNTY OF BRONX) ss.: VERIFICATION Alex Kupeman, being sworn deposes and says: I, the undersigned, Principal of Plaintiff Winston Capital, LLC, have read the annexed Verified Complaint, know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters therein not stated upon knowledge, I believe them to be true. The basis of my knowledge, information and belief are the books, records, documents and memoranda in my file. STATE OF fl f 1 COUNTY OF b T f Alex Kupekan, PLncipal Winston Capital, LLC On the,a day of Jdn in the year / before me, - ~ ~ ~ b i M A SI &/ personally known to me or proved to me on the basis of satisfactbry evidence to e;k the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed same in his/her/their capacity(ies) and that by hishedtheir signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual($) acted, executed the instrument, and that s h i ivid 1 made such appearance before the undersigned L,m;v\ #I, s$gj. (Insert the city or other political subdivision and the statgor country or other place the acknowledgment was taken). CERTIFICATE OF CONFORMITY I &-Gn%*, an attorney duly licensed to practice law in the State of New Jersey, affirm under the penalty of perjury and certify that the annexed acknowledgment of conforms with the laws of the State of New Jersey. Benjamin A. SirrgfEsr Attorney At Law State of New Jersey Supreme Court Records OnLine Library - page 11 of 11