FILED: NEW YORK COUNTY CLERK 01/31/ :54 PM INDEX NO /2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/31/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSFB MORTGAGE-BACKED PASS-THROUGH, SERIES , Index No /2015 -against- Plaintiff, ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS DAWN P. ROBERTSON, A/K/A DAWN P. ROBERTSON; NATIONAL CITY BANK; BOARD OF MANAGERS OF 395 BROADWAY CONDOMINIUM HOMEOWNERS ASSOCIATION; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; CITY OF NEW YORK PARKING VIOLATIONS BUREAU; CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU, ET AL, Defendants. Defendant Dawn P. Robertson, by and through her undersigned attorneys, for her Answer, Affirmative Defenses and Counterclaims to the Complaint (the Complaint ) of U.S. Bank, National Association, as Trustee for CSFB Mortgage-Backed Pass-Through Series ( US Bank ), states the following: 1. Defendant lacks information sufficient to form a belief as to the allegations set forth in this paragraph. 2. Except for the address of Defendant, which is admitted, Defendant lacks information sufficient to form a belief as to the allegations set forth in this paragraph. 3. This paragraph consists of legal conclusions to which no response is required. In any case, Defendant lacks information sufficient to form a belief as to the allegations set forth in this paragraph. 4. Admitted that Defendant entered into a Note, dated September 13, 2005 (the 1 of 17

2 Note ), in the amount of $984,000, payable to America s Wholesale Lender. Otherwise denied. 5. Admitted that on September 13, 2005, Defendant executed a mortgage encumbering the Property, in the amount of $984,000 (the Mortgage ), in favor of Mortgage Electronic Registration Systems, Inc. ( MERS ), and not America s Wholesale Lender. Because the Note and Mortgage were not held by the same entity, from inception the Mortgage was invalid and unenforceable ab initio. Defendant lacks information sufficient to form a belief as to the remaining allegations set forth in this paragraph. 6. Denied that Plaintiff currently is the valid holder of either the Note or Mortgage. Plaintiff has not alleged the existence of, or supplied, an allonge or similar document evidencing chain of title, demonstrating its ownership of the Note at the time of the commencement of this proceeding. 7. Defendant lacks information sufficient to form a belief as to the allegations set forth in this paragraph. 8. Denied. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. 9. Defendant lacks information sufficient to form a belief as to the allegations set forth in this paragraph. 10. Defendant lacks information sufficient to form a belief as to the allegations set forth in this paragraph. 11. Admitted that Defendant has an interest in the Property senior to that of Plaintiff. Otherwise denied. 12. Defendant lacks information sufficient to form a belief as to the allegations set 2 2 of 17

3 forth in this paragraph. 13. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. 14. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. 15. Defendant refers to the Mortgage which speaks for itself. 16. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. 17. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. 18. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. 19. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. 20. This paragraph consists of self-serving arguments and legal conclusions to which no response is required. FIRST AFFIRMATIVE DEFENSE 21. Plaintiff s Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE 22. Plaintiff s claims are barred in whole or in part by laches. THIRD AFFIRMATIVE DEFENSE 23. Plaintiff's claims are barred in whole or in part by the doctrine of estoppel. FOURTH AFFIRMATIVE DEFENSE 24. Plaintiff s claims are barred in whole or in part by the doctrine of unclean hands. 3 3 of 17

4 FIFTH AFFIRMATIVE DEFENSE 25. Plaintiff lacks standing to assert claims against Defendant. SIXTH AFFIRMATIVE DEFENSE 26. To the extent plaintiffs have suffered damages, such damages have been caused by Plaintiff s own actions, conduct, negligence or inabilities. SEVENTH AFFIRMATIVE DEFENSE 27. Plaintiff s claims are barred, in whole or in part, by its bad faith. EIGHTH AFFIRMATIVE DEFENSE 28. Plaintiff lacks legal capacity to sue. NINTH AFFIRMATIVE DEFENSE 29. Plaintiff waived its claims against Defendant. TENTH AFFIRMATIVE DEFENSE 30. Plaintiff has failed to mitigate its damages, if any. ELEVENTH AFFIRMATIVE DEFENSE 31. Plaintiff is barred from collecting interest, legal fees and expenses in connection with this foreclosure proceeding because it unjustifiably delayed and failed to negotiate in good faith, within the meaning of CPLR 3408(f). TWELFTH AFFIRMATIVE DEFENSE 32. Prior to filing the Second Action, Plaintiff failed to provide Ms. Robertson with due notice pursuant to N.Y. Real Prop. Acts. Law 1304 (McKinney), at least ninety days before commencing this action. THIRTEENTH AFFIRMATIVE DEFENSE 33. This action is barred by the statute of limitations, because Plaintiff alleges Ms. Robertson defaulted on the Note as of August 1, 2009, and the present action was filed over six 4 4 of 17

5 years later, on September 17, STATEMENT OF FACTS IN SUPPORT OF COUNTERCLAIMS 1. Ms. Robertson is a principal of Cypress Recruiting Group, a legal recruiting business which specializes in the placement of attorneys in Asia. 2. In the fall of 2008, Cypress s revenues suffered severely as a consequence of the financial crisis. Ms. Robertson s personal income plummeted from $195,880 and $320,727, in 2007 and 2008, respectively, to $45,615 and $55,856, in 2009 and At the same time, Ms. Robertson was the sole medical caretaker of her ailing father. Ms. Robertson s father lived in Virginia, which required her to travel frequently. Ms. Robertson s efforts to care for her father seriously impacted her work, as did the subsequent death of her father. The Mortgage and Note 4. On September 13, 2005, in connection with the purchase of condominium unit located at 395 Broadway, Unit 11D, New York, NY (the Property ), Ms. Robertson executed a Note in the amount of $984,000 (the Note ), in favor of America s Wholesale Lender ( AWL ). 5. Also, on September 13, 2005, Ms. Robertson granted a first mortgage on the Property, in the amount of $984,000 (the Mortgage ), to Mortgage Electronic Registration Systems, Inc. ( MERS ), and not to AWL. Because the Note and Mortgage were not held by the same entity, from inception the Mortgage was invalid and unenforceable. 6. On August 16, 2010, Teresa Skinner, a fraudulent robo-signer, who executed hundreds of such documents a day without any personal knowledge of the documents or transaction, purportedly executed an Assignment of Mortgage (the Robo Assignment ) from 5 5 of 17

6 MERS to BAC Home Loans Servicing, L.P. ( BAC ). 7. Although the Robo Assignment purported to convey both the Note and Mortgage, MERS was never the Noteholder, and thus could not convey the Note. There has never been an assignment of the Note by AWL, the noteholder, to any other entity. 8. Consistent with the foregoing, Plaintiff has not produced an allonge, or similar document evidencing chain of title, demonstrating transfer of the Note from AWL, the noteholder, to any other entity. 9. In addition, because the Note and Mortgage were held by separate entities, the Mortgage was invalid and unassignable. Ms. Robertson Seeks a Modification of Her Loan 10. In an effort to mitigate her financial concerns during the financial crisis Ms. Robertson sought a modification of her loan from Bank of America. 11. In or about 2008, a Bank of America employee advised her that she might be eligible for a modification if she went into default for several months. In reliance upon this representation, Ms. Robertson allowed her loan to go into default and then applied for a loan modification. Prior to receiving the advice to default on her loan, from a Bank of America employee, Ms. Robertson was current on her loan. 12. Despite calling every month for over a year and a half, Ms. Robertson received no information and no response from Bank of America regarding a loan modification. By design, Bank of America s system made it impossible for a mortgagor to obtain a knowledgeable person on the phone let alone an individual authorized to negotiate a loan modification. 13. Ms. Robertson also visited three different Bank of America mortgage loan 6 6 of 17

7 centers, and each time the employees repeated the advice to not pay until the mortgage went into default. The Foreclosure Action, QWR, and Mediation 14. On or about August 25, 2010, BAC filed a Summons and Verified Complaint in the first mortgage foreclosure action ( First Action ) against Ms. Robertson. 15. Upon receiving the First Action, Ms. Robertson contacted Bank of America and learned that her loan modification had been declined several months before. Nevertheless, Bank of America failed to give her notice of this fact either in writing or in one of her many calls for the status of her loan modification. 16. On September 29, 2010, Ms. Robertson s counsel duly sent counsel to BAC a qualified written request ( QWR ) under the Federal Servicer Act, 12 U.S.C. 2605(e). In the QWR, Ms. Robertson demanded, among other things, (1) the name, address and telephone number of the current holder of the original note, (2) full information concerning the relationship between the owner, mortgage holder, and loan servicer, (3) complete documentation concerning the entire transaction history of the loan, (4) a statement of all charges and costs assessed against Ms. Robertson in connection with the loan, along with documentation of all authority for the imposition of such charges, and (5) a statement of the current amount due and owing under the loan. 17. Pursuant to 12 U.S.C. 2605(e)(1)(A) and (e)(2), BAC was required to acknowledge receipt of the QWR within five business days, and to provide a complete written response within thirty business days. BAC did neither, and thus defaulted upon both obligations. 18. On September 20, 2011, the First Action was referred to a mandatory foreclosure 7 7 of 17

8 settlement conference, pursuant to CPLR Between September 20, 2011 and July 16, 2014, the parties nominally participated in foreclosure settlement proceedings. However, rather than engage in any meaningful discussion, BAC communicated entirely through paralegals with no settlement authority and repeatedly failed to respond to modification proposals submitted by Ms. Robertson. 19. As a result, Ms. Robertson was forced to incur substantial attorneys fees and costs in defending an action she tried to avoid by seeking to modify the loan. Bank of America Purports to Assign the Mortgage to US Bank 20. On or about April 17, 2014, Bank of America purported to assign the Mortgage (the Second Assignment ) to Plaintiff US Bank. Neither Bank of America, nor US Bank, nor either of their loan servicers, provided notice of the purported assignment to Ms. Robertson. 21. Because BAC never held the Mortgage, and never properly transferred the Mortgage to Bank of America, the Second Assignment was invalid. In any case, the Mortgage already was unenforceable, because it was separated from the Note. 22. Because the Robo Assignment did not effectively transfer the Note to BAC, BAC never held the Note. 23. Because BAC never held the Note, it could not transfer or assign the Note to US Bank, and did not. 24. Consistent with the foregoing, Plaintiff has not produced an allonge, or similar document evidencing chain of title, demonstrating transfer of the Note from BAC to any other entity. 25. In any case, Bank of America did not transfer or assign the Note to US Bank but only purported to transfer the Mortgage. Thus, US Bank is not the holder of the Note. 8 8 of 17

9 26. Indeed, to the extent that the Mortgage was enforceable prior to the Second Assignment, which it was not, it became unenforceable as a result of the Second Assignment, because the Mortgage purportedly was assigned to US Bank without the Note. US Bank s Repeated Failure to Appear at Mandatory Foreclosure Settlement Proceedings 27. Following the Second Assignment, US Bank pursued a new and different strategy from BAC. US Bank contumaciously ceased appearing at mandatory foreclosure conference sessions, including two sessions on May 21, 2014 and July 16, At the May 21, 2014 mandatory foreclosure conference, the court attorney advised Ms. Robertson, through counsel, that the court would put BAC on notice that if it failed to attend the next conference, the First Action would be administratively dismissed. 29. At the July 16, 2014 mandatory foreclosure conference, the court attorney advised Ms. Robertson, through counsel, that the action was administratively dismissed. 30. By order dated July 22, 2014, Justice Tanya Kennedy directed that the First Action be dismissed upon motion by Ms. Robertson, to be filed within 60 days of the date of the Order (the Dismissal Order ). 31. Within sixty days of receiving notice and a copy of the Dismissal Order, Ms. Robertson brought a timely motion to dismiss. US Bank Moves to Discontinue the First Action 32. Pursuant to a strategy known and understood only by its counsel, US Bank then moved to discontinue the First Action. Ms. Robertson opposed the motion and cross-moved for an order dismissing the First Action with prejudice. 33. As a result of US Bank s motion, Ms. Robertson was required to incur substantial attorneys fees and costs. 9 9 of 17

10 34. By order dated February 25, 2015, after nearly five years of litigation, the Court granted US Bank s motion to voluntarily discontinue the First Action and cancel the lis pendens. US Bank Brings a New Foreclosure Action 35. On September 17, 2015, US Bank initiated this Second Action. Thus, US Bank recommenced a five-year-old case from square one. 36. Prior to filing the Second Action, Plaintiff failed to provide Ms. Robertson with due notice pursuant to N.Y. Real Prop. Acts. Law 1304 (McKinney). 37. The Second Action is barred by the statute of limitations, because Plaintiff alleges Ms. Robertson defaulted on the Note as of August 1, 2009, and the present action was filed over six years later, on September 17, Substantively, the Second Action has no more merit than the First Action. In fact, it relies on precisely the same defective documents as the First Action. 39. Since commencing the Second Action, US Bank has refused to negotiate the resolution of the parties dispute in good faith, including refusing to engage in discussions concerning a potential settlement of the Note and Mortgage. AS AND FOR A FIRST COUNTERCLAIM (Declaratory Judgment) 40. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein. 41. From inception, the Note and Mortgage became separated, with the Note in possession of AWL and the Mortgage in the possession of MERS. 42. Thus, the Mortgage became a nullity, as a matter of law. 43. Accordingly, Ms. Robertson seeks a declaration that no valid and enforceable security interest exists encumbering Ms. Robertson s home. Likewise, Ms. Robertson seeks a of 17

11 declaration that the lis pendens filed against her home is invalid and must be stricken. Mortgage. to BAC. AS AND FOR A SECOND COUNTERCLAIM (Declaratory Judgment) 44. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein. 45. The flawed Robo Assignment by MERS purported to convey both the Note and 46. However, MERS was never the Noteholder, and thus could not convey the Note 47. Thus, the Robo Assignment was ineffective. 48. Accordingly, Ms. Robertson seeks a declaration that no valid and enforceable security interest exists encumbering Ms. Robertson s home. Likewise, Ms. Robertson seeks a declaration that the lis pendens filed against her home is invalid and must be stricken. AS AND FOR A THIRD COUNTERCLAIM (Declaratory Judgment) 49. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein. 50. Because AWL never effectively assigned the Note to BAC, BAC never held the Note, and the Second Assignment was invalid. 51. Because BAC never held the Mortgage, and never properly transferred the Mortgage to US Bank, the Second Assignment was invalid. 52. Additionally, to the extent that the Mortgage was enforceable prior to the Second Assignment, which it was not, it became unenforceable as a result of the Second Assignment, because the Mortgage purportedly was assigned to US Bank without the Note. 53. US Bank is not the holder of the Note of 17

12 54. Accordingly, Ms. Robertson seeks a declaration that no valid and enforceable security interest exists encumbering Ms. Robertson s home. Likewise, Ms. Robertson seeks a declaration that the lis pendens filed against her home is invalid and must be stricken. AS AND FOR A FOURTH COUNTERCLAIM (Breach of Implied Covenant of Good Faith and Fair Dealing) 55. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein. 56. Implicit in every contract, including the Note and Mortgage, is an implied covenant of good faith and fair dealing. 57. The implied covenant of good faith and fair dealing required that Plaintiff, or its processor, exercise its discretion under the agreements in good faith and in such a way as not to frustrate Ms. Robertson s contractual rights. 58. After a change in her economic circumstances, as a result of the financial crisis, Ms. Robertson repeatedly sought to obtain a modification of the Note. 59. Employees or agents of Plaintiff, or its purported predecessors, advised Ms. Robertson that if she wished to obtain a modification, she should default on the Note. 60. Ms. Robertson at all times was ready, willing and able to negotiate a modification to the terms of the Note. 61. Nevertheless, Plaintiff, or its predecessors, purported to exercise discretion granted to it under the contract to refuse to negotiate an appropriate modification of the Note or Mortgage. proven at trial. 62. Ms. Robertson has been damaged by the actions of Plaintiff in an amount to be of 17

13 AS AND FOR A FIFTH COUNTERCLAIM (Negligent Misrepresentation) 63. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein. 64. Defendant owed Ms. Robertson a duty not to make reckless, grossly negligent or negligently misleading statements of fact. 65. After a change in her economic circumstances, as a result of the financial crisis, Ms. Robertson repeatedly sought to obtain a modification of the Note. 66. In or about 2008, employees or agents of Plaintiff, or its purported predecessors, negligently advised Ms. Robertson that if she wished to obtain a modification, she should default on the Note. 67. Prior to receiving the advice of a Bank of America employee to default on the loan, Ms. Robertson was current on her loan. 68. In reasonable reliance upon the representation of Plaintiff or its predecessors, Ms. Robertson allowed her loan to go into default and then applied for a loan modification. 69. In fact, as the employees of Plaintiff or its predecessors knew or should have known, Ms. Robertson s default would lead, not to a modification of the Mortgage, but to the initiation of foreclosure proceedings. 70. As a result of Plaintiff s negligent representations, Ms. Robertson has been damaged in an amount to be proven at trial. AS AND FOR A SIXTH COUNTERCLAIM (Liability Under RESPA, 12 U.S.C. 2605(f)) 71. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein U.S.C. 2605(e)(1)(A) provides that If any servicer of a federally related of 17

14 mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 5 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period U.S.C. 2605(e)(2) provides that Not later than 30 days (excluding legal public holidays, Saturdays, and Sundays) after the receipt from any borrower of any qualified written request under paragraph (1) and, if applicable, before taking any action with respect to the inquiry of the borrower, the servicer shall respond to the borrower s request. 74. On September 29, 2010, Ms. Robertson s counsel duly issued a QWR on her behalf. 75. BAC failed either to acknowledge the QWR within five days, or to respond substantively to the QWR within thirty days. Instead, BAC wholly ignored the QWR. 76. As a result, Ms. Robertson lacked timely information, concerning the loan and the position of her lender, which would enable her to negotiate an appropriate modification. 77. Accordingly, Ms. Robertson is entitled to an award of two units of statutory damages in the amount of $4,000, pursuant to 12 U.S.C. 2605(f)(1)(B). 78. In addition, Ms. Robertson is entitled to an award of her actual damages in an amount to be proven at trial, pursuant to 12 U.S.C. 2605(f)(1)(A). 79. In addition, Ms. Robertson is entitled to an award of her costs and attorneys fees, pursuant to 12 U.S.C. 2605(f)(3) of 17

15 AS AND FOR A SEVENTH COUNTERCLAIM (Liability Under RESPA, 12 U.S.C. 2605(f)) 80. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein U.S.C. 2605(b)(1) provides that Each servicer of any federally related mortgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any other person. Such notice shall be made to the borrower not less than 15 days before the effective date of transfer of the servicing of the mortgage loan. 12 U.S.C. 2605(b)(2)(A). 82. Although it purported to transfer its duties as servicer to NationStar Mortgage LLC ( NationStar ), BAC did not provide notice of the purported transfer to Ms. Robertson pursuant to 12 U.S.C. 2605(b)(2)(A). 83. Accordingly, Ms. Robertson is entitled to an award of statutory damages in the amount of $2,000, pursuant to 12 U.S.C. 2605(f)(1)(B). 84. In addition, Ms. Robertson is entitled to an award of her actual damages in an amount to be proven at trial, pursuant to 12 U.S.C. 2605(f)(1)(A). 85. In addition, Ms. Robertson is entitled to an award of her costs and attorneys fees, pursuant to 12 U.S.C. 2605(f)(3). AS AND FOR A SEVENTH COUNTERCLAIM (Liability Under RESPA, 12 U.S.C. 2605(f)) 86. Ms. Robertson incorporates the foregoing paragraphs as if fully set forth herein U.S.C. 2605(c)(1) provides that Each transferee servicer to whom the servicing of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such assignment, sale, or transfer. Such notice shall be made to the borrower of 17

16 not less than 15 days before the effective date of transfer of the servicing of the mortgage loan. 12 U.S.C. 2605(c)(2)(A). 88. Although BAC purported to transfer its duties as servicer to NationStar, NationStar did not provide notice of the purported transfer to Ms. Robertson pursuant to 12 U.S.C. 2605(b)(2)(A). Accordingly, Ms. Robertson is entitled to an award of statutory damages in the amount of $2,000, pursuant to 12 U.S.C. 2605(f)(1)(B). 89. Accordingly, Ms. Robertson is entitled to an award of statutory damages in the amount of $2,000, pursuant to 12 U.S.C. 2605(f)(1)(B). 90. In addition, Ms. Robertson is entitled to an award of her actual damages in an amount to be proven at trial, pursuant to 12 U.S.C. 2605(f)(1)(A). 91. In addition, Ms. Robertson is entitled to an award of her costs and attorneys fees, pursuant to 12 U.S.C. 2605(f)(3) of 17

17 PRAYER FOR RELIEF WHEREFORE, Defendant-Counterclaim Plaintiff Ms. Robertson prays for relief as follows: A. For an order declaring the Mortgage to be invalid and unenforceable and canceling the lis pendens; B. For an order declaring the Note to be unenforceable; C. For an award of all of her actual and consequential damages, in an amount to be proven at trial, plus prejudgment interest and costs; D. For an award of all of her statutory damages under 12 U.S.C. 2605(f)(1)(B), in an amount no less than $8,000, plus prejudgment interest and costs; E. For an award of appropriate punitive damages; F. For an award of their reasonable attorneys fees and costs incurred in connection with this action, pursuant to 12 U.S.C. 2605(f)(3); G. For an order awarding such other and further relief as this Court may deem just and proper. Dated: January 31, 2017 New York, New York PRESS LAW FIRM PLLC 825 Third Avenue, Second Floor New York, New York Telephone (212) Facsimile (347) By: Matthew J. Press Counsel to Defendant and Counterclaim Plaintiff of 17