FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`
`----------------------------------------------------------------------x
` Index No.: 537205/2023
`MCLP ASSET COMPANY INC.,
`
`
`
`
`
`
` Plaintiff,
`
`
` ANSWER
`
` -against-
`
`
`ROY DIPAK A/K/A DIPAK K ROY, DISCOVER BANK;
`CENTURY FINANCIAL SERVICES INC., NYS DEPT OF
`TAXATION AND FINANCE, CACH LLC, NYC ENVIRONMENTAL
`CONTROL BOARD ,NEW YORK CITY PARKING
`VIOLATIONS BUREAU, JOHN DOE JANE DOE
`
`
`
` Defendant.
`----------------------------------------------------------------------x
`
`PLEASE TAKE NOTICE that defendants ROY DIPAK; (hereinafter referred to as the
`“Answering Defendant”) hereby appear in this proceeding and that the undersigned has
`been retained as attorney for the Answering Defendants and demands that you serve all
`papers upon the undersigned at the address stated below.
`
`
`
`PLEASE TAKE FURTHER NOTICE that the Answering Defendants hereby
`interpose the following answer to the Complaint herein.
`
`
`1. The Answering Defendant denies knowledge or information sufficient to form a belief
`with respect to the allegations contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
`13, 16, 17, 18, 19, and 16 of the Complaint.
`2. Admit the allegation in paragraphs # 2 of the Complaint.
`3. The Answering Defendants deny each and every allegation contained in paragraphs
` 6, 14, 15, 20 and 21 of the Complaint and affirmatively alleges that each of the
`documents and instruments specified therein is invalid and unenforceable for the
`reasons hereafter alleged.
`
`
`
`4. The Answering Defendants deny each and every allegation contained in the
`WHEREFORE clause of the Complaint and affirmatively realleges that each of the
`documents and instruments specified therein is invalid and unenforceable for the
`reasons hereafter alleged.
`
`
`
`
`
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE, AND FIRST
`COUNTERCLAIM, THE ANSWERING DEFENDANTS ALLEGE:
`
`5. The Answering Defendants reassert and reallege paragraphs 1 through 4 as though fully
`set forth herein.
`
`
`
`6. Because the broker fees charged by its brokers did not reflect services actually
`performed and/or bore no reasonable relationship to the market value of the services
`provided.
`
`
`7. Therefore, the Answering Defendants are entitled to treble damages in an amount to be
`determined at trial.
`
`
`
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE, AND SECOND
`COUNTERCLAIM, ANSWERING DEFENDANTS ALLEGE:
`
`
`8. Answering Defendants reassert and reallege paragraphs 1 through 7 as though fully set
`forth herein.
`
`9. Plaintiff has failed to state a cause of action.
`
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE, ANSWERING
`DEFENDANTS ALLEGE:
`
`10. The mortgage, bond or note are unconscionable and thus voidable.
`
`
`AS AND FOR AN FOURTH AFFIRMATIVE DEFENSE, ANSWERING
`DEFENDANTS ALLEGE:
`
`
`11. Defendants reassert and reallege paragraphs 1 through 10 as though fully set forth
`herein.
`
`
`12. Plaintiff should be estopped from seeking satisfaction of the note and mortgage
`because, upon information and belief, its misrepresentations induced Answering
`Defendants into entering the note and mortgage under their current terms.
`
`
`13. Therefore, equity
`misrepresentation.
`
`
`
`
`
`
`
`should preclude plaintiff
`
`from benefiting
`
`from
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`such
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, ANSWERING
`DEFENDANTS ALLEGE:
`
`
`14. Answering Defendants repeat and reallege paragraphs 1 through 12 as though fully set
`forth herein.
`
`
`15. Answering Defendants are the subject premises and were not served with a mandatory
`pre-foreclosure notice to advise them of the possible solutions to avoid the instant
`foreclosure proceeding, as required by RPAPL Section 1303 & 1304.
`
`
`16. As a result, plaintiff is liable to Answering Defendants for costs, disbursements and
`legal fees, including attorney's fees, in this action.
`
`
`
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, ANSWERING
`DEFENDANTS ALLEGE:
`
`17. Answering Defendants repeat and reallege paragraphs 1 through 15 as though fully set
`forth herein.
`
`
`18. Answering Defendants were not served with a ninety (90) days notice prior to the
`commencement of the instant foreclosure proceeding as required by RPAPL Sections
`1304 and 1302.
`
`
`19. As a result, plaintiff is liable to Answering Defendants for costs, disbursements and
`legal fees, including attorney's fees, in this action.
`
`
`
`
`AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE, ANSWERING
`DEFENDANTS ALLEGE:
`
`
`20. Answering Defendants repeat and reallege paragraphs 1 through 20 as though fully set
`forth herein.
`
`
`21. Upon information and belief, the Plaintiff failed to send a notice of default acceleration
`as required by the mortgage and hence, the Plaintiff is in breach of its contractual
`obligations.
`
`
`22. As a result, plaintiff is liable to Answering Defendants for costs, disbursements and
`legal fees, including attorney's fees, in this action.
`
`
`
`AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE, ANSWERING
`DEFENDANTS ALLEGE:
`
`
`23. Answering Defendants repeats and reallege paragraphs 1 through 23 as though fully
`set forth herein.
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`
`24. Plaintiff’s causes of action are barred by the defenses founded upon documentary
`evidence.
`
`25. As a result, plaintiff is liable to Answering Defendants for costs, disbursements and
`legal fees, including attorney's fees, in this action.
`
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE, ANSWERING
`DEFENDANTS ALLEGE:
`
`
`26. Answering Defendants repeat and reallege paragraphs 1 through 24 as though fully set
`forth herein.
`
`
`27. The Court lacks personal jurisdiction over Plaintiff, because the Plaintiff failed to serve
`the Summons and Complaint in the manner provided by the New York Civil Practice
`Law and Rules (CPLR), in fact Plaintiff served at the incorrect address and the person
`served does not match the description of the Defendant and the first notice of the action
`was of the Notice of Pre-settlement conference from the Court.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE, THE ANSWERING
`DEFENDANTS ALLEGE:
`
`
`28. Plaintiff has no standing to maintain the instant proceeding, because the underlying
`interest rate maybe usurious and unjust making the mortgage defective and invalid.
`
`
`
`AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE, THE ANSWERING
`DEFENDANTS ALLEGE:
`
`
`29. Answering Defendants repeat and reallege paragraphs 1 through 28 as though fully set
`forth herein.
`30. Upon information and belief, plaintiff and/or its predecessor in interest has failed to
`comply with the contractual conditions precedent to commencing a mortgage
`foreclosure action by failing to deliver to defendant any of the notices and COVID-19
`hardship declarations required under the subject mortgage, prior to the commencement
`of this action.
`
`
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THE ANSWERING
`DEFENDANTS ALLEGE:
`31. Answering Defendants repeat and reallege paragraphs 1 through 30 as though fully set
`forth herein.
`
`32. Upon information and belief, plaintiff and/or its predecessor in interest has failed to
`comply with the contractual conditions precedent to commencing a mortgage
`foreclosure action by amongst other things, failing to provide and deliver the notices to
`all tenants and residents of the subject premises along with the hardship declarations as
`required pursuant to RPAPL §§ 1303(b), 1304, and 1306.
`
`
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`
`
`
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, AND SEVENTH
`COUNTERCLAIM, THE ANSWERING DEFENDANTS ALLEGE:
`
`
`34. The Answering Defendant reasserts and realleges paragraphs 1 through 33 as though
`fully set forth herein.
`
`35. Plaintiff lacks standing to being the instant action against ROY DIPAK because
`of N.Y.C. Council Int. No. 1932-A (2020). The law amends NYC administrative code by
`rendering unenforceable provisions in mortgages where the borrower’s business was
`negatively impacted by COVID-19.
`
`
`AS AND FOR AN FOURTEENTH AFFIRMATIVE DEFENSE, THE
`ANSWERING DEFENDANTS ALLEGE:
`
`
`36. Plaintiff lacks standing to prosecute the claims herein since there was no privity
`between Plaintiff and Defendants.
`
`
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, THE
`ANSWERING DEFENDANTS ALLEGE:
`
`37. The relief sought in the Complaint is barred by the principals of res judicata, collateral
`estoppel, accord, release and satisfaction.
`
`
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, THE
`ANSWERING DEFENDANTS ALLEGE:
`
`38. The relief sought in the Complaint is barred by the statue of limitations and the doctrine
`of laches.
`
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, THE
`ANSWERING DEFENDANTS ALLEGE:
`
`39. The Plaintiff failed to join all necessary parties.
`
`
`AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE, THE
`ANSWERING DEFENDANTS ALLEGE:
`
`40. The Complaint does not correctly identify the block and lot of the mortgaged premises.
`
`
`
`AS AND FOR NINTEENTH AFFIRMATIVE DEFENSE, THE
`ANSWERING DEFENDANTS ALLEGE:
`
`
`
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`41. Upon information and belief, the Plaintiffs do not own and/or possess the Mortgage
`
`Note.
`
`AS AND FOR A TWNETIETHAFFIRMATIVE DEFENSE
`
`42. Plaintiff’s claims must fail because Plaintiff failed to file the foreclosure lawsuit within
`
`90 days of service of any pre-foreclosure notice(s).
`
`AS AND FOR A TWENTY FIRST AFFIRMATIVE DEFENSE
`
`43. Plaintiff’s claims must fail because Plaintiff did not provide the notice “Help for
`
`Homeowners in Foreclosure” that was supposed to be served with the Foreclosure
`
`Summons and Complaint, in accordance with RPAPL §1303.
`
`AS AND FOR A TWNETY SECOND AFFIRMATIVE DEFENSE
`
`44.
`
`Plaintiff’s claims must fail because Plaintiff failed to comply with all
`
`statutory requirements including, but not limited to, COVID-19 notices and hardship
`
`declaration.
`
`AS AND FOR A TWENTY THIRD AFFIRMATIVE DEFENSE
`
`45.
`
`Plaintiff’s claims must fail because Defendants made payments which have
`
`not been properly credited and are not reflected in the Complaint.
`
`AS AND FOR A TWENTY FIFTH AFFIRMATIVE DEFENSE
`
`46.
`
`Plaintiff’s claims must fail because Plaintiff failed to, as required by CPLR
`
`3012-b, attach copies of the mortgage, security agreement and note or bond underlying the
`
`mortgage executed by defendant and all instruments of assignment, if any, and any other
`
`instrument of indebtedness including modification, extension, and consolidation to the
`
`complaint or the Certificate of Merit.
`
`AS AND FOR A TWNETY SIXTH AFFIRMATIVE DEFENSE
`
`47.
`
`Plaintiff lacks capacity to maintain the instant action.
`
`
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`AS AND FOR A TWENTY SEVENTH AFFIRMATIVE DEFENSE
`
`48.
`
`Plaintiff’s claims must fail because plaintiff is not a holder in due course of
`
`the mortgage.
`
`AS AND FOR A TWENTY EIGHTH AFFIRMATIVE DEFENSE
`
`49.
`
`Accord, Satisfaction and Unjust enrichment. The plaintiff has received
`
`payment in full by one or more collateral sources; therefore, plaintiff would be unjustly
`
`enriched if allowed to foreclose upon said property.
`
`AS AND FOR AN TWENTY NINTH AFFIRMATIVE DEFENSE
`
`50.
`
`Plaintiff, the originating lender, their agents, employees, agents, servants,
`
`contractors, licensees, subcontractors induced defendant(s) into breaching the terms of the
`
`Mortgage Note under the guise that a breach of the note was necessary to obtain a
`
`modification and/or alteration of the terms of the promissory note. The plaintiff agents,
`
`employees, agents, servants, contractors, licensees, subcontractors induced defendant(s)
`
`into breaching the contract with the promise of favorable modification of terms including
`
`but not limited to a lower interest rate.
`
`AS AND FOR A THRITIETH AFFIRMATIVE DEFENSE
`
`51.
`
`The Court lacks jurisdiction over one or more of the Defendants.
`
`AS AND FOR A THIRTY FIRSTAFFIRMATIVE DEFENSE
`
`52.
`
`Some of the documents annexed to the complaint are not those signed by
`
`the Defendants.
`
`AS AND FOR AN THRITY SECOND AFFIRMATIVE DEFENSE
`
`53.
`
`Plaintiff’s claims are barred, in whole or in part, by the applicable principles
`
`of waiver, ratification, latches and/or estoppel.
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`AS AND FOR A THIRTY THIRD AFFIRMATIVE DEFENSE
`
`54.
`
`Plaintiff’s claims are barred, in whole or in part, by the doctrine of unclean
`
`hands. Moreover, Plaintiff has engaged in deceptive practices in an unlawful attempt to
`
`acquire Defendants’ property by unlawful means as the property is worth more than the
`
`debt securing same.
`
`AS AND FOR A THIRTY FOURTH AFFIRMATIVE DEFENSE
`
`55.
`
`The alleged lender(s) and mortgage holder(s) violated the Federal Truth In
`
`Lending Act by rejecting Defendant’s reinstatement.
`
`AS AND FOR A THIRTY FIFTH AFFIRMATIVE DEFENSE
`
`56.
`
`Plaintiff is not a real party in interest and is not an aggrieved party.
`
`AS AND FOR A THIRTY SIXTH AFFIRMATIVE DEFENSE
`
`57.
`
`The Plaintiff failed to apply all credits due and owing to Defendants prior
`
`to the institution of the lawsuit. That Plaintiff and/or its predecessor in interest held certain
`
`monies in Escrow which were supposed to be applied to payments due under any mortgage.
`
`AS AND FOR THIRTY SEVENTH AFFIRMATIVE DEFENSE
`
`58.
`
`Defendants never borrowed any money from Plaintiff and are unaware of
`
`any debt or obligation to the Plaintiff and was never advised by the Plaintiff or the
`
`originating lender that Plaintiff obtained, secured, or acquired any obligation signed by
`
`defendant.
`
`AS AND FOR A THIRTY EIGHTH AFFIRMATIVE DEFENSE
`
`59.
`
`Defendants never entered into any contract or agreement with Plaintiff.
`
`There exists no privity of contract with the Plaintiff.
`
`AS AND FOR A THIRTY NINTH AFFIRMATIVE DEFENSE
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`60.
`
`Plaintiff, its agents, employees, servants, contractors, partners, licensees
`
`and the like tortuously interfered with the contract between the defendant and the Note
`
`Holder.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`
`61.
`
`Plaintiff failed to add a known indispensable party and/or parties to the
`
`within cause of action, including but not limited to Mortgage Electronic Recording
`
`Systems, Inc.
`
`AS AND FOR A FORTY ONE AFFIRMATIVE DEFENSE
`
`62.
`
`Defendants have no obligations under the note in light of COVID-19 and
`
`are NOT in default of any obligation owed to the Plaintiff.
`
`AS AND FOR A FORTY TWO AFFIRMATIVE DEFENSE
`
`63.
`
`Defendants never agreed to pay attorneys’ fees to plaintiff under any
`
`circumstances, and therefore Plaintiff is not entitled to attorneys’ fees in this action.
`
`AS AND FOR A FORTY THIRD AFFIRMATIVE DEFENSE
`
`64.
`
`Defendants were not duly notified of the alleged default as required under
`
`the alleged promissory note and/or alleged mortgage. In fact, there has been a lack of
`
`communication from the note holder and/or its servicing agent.
`
`AS AND FOR A FORTY FOURTH AFFIRMATIVE DEFENSE
`
`65.
`
`Plaintiff has not fully complied with all of its duties and obligations under
`
`the alleged note and/or alleged mortgage.
`
`AS AND FOR A FORTY FIFTH AFFIRMATIVE DEFENSE
`
`66.
`
`Plaintiff has not fully complied with all the preconditions to bringing the
`
`instant action.
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`AS AND FOR A FORTY SIXTH AFFIRMATIVE DEFENSE
`
`67. Plaintiff, its agents, licensees, contractors, subcontractors, employees and the like
`
`have engaged in wholesale document fraud upon the Court and the defendant(s)
`
`herein.
`
`
`
`AS AND FOR A FORTY SEVENTH AFFIRMATIVE DEFENSE
`
`68.
`
`The alleged mortgage was not duly assigned, transferred or sold to plaintiff.
`
`AS AND FOR A FORTY EIGHTH AFFIRMATIVE DEFENSE
`
`69.
`
`The note was not duly assigned, sold or transferred each and every time the
`
`note was assigned, sold or conveyed.
`
`AS AND FOR A FORTY NINTH AFFIRMATIVE DEFENSE
`
`70.
`
`Plaintiff has no recourse to collect any amounts from the homeowner not
`
`realized from any future foreclosure sale.
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
`
`71.
`
`Plaintiff breached the contract first as the plaintiff and/or its predecessors in
`
`interest of the alleged mortgage and promissory note failed to respond to the homeowner’s
`
`request for validation of the alleged debt despite repeated requests.
`
`AS AND FOR A FIFTY ONE AFFIRMATIVE DEFENSE
`
`72.
`
`The Statute of Frauds applies to invalidate any and all transfers of the
`
`mortgage or the note that were not memorialized in writing at the times of the transfers.
`
`AS AND FOR A FIFTY TWO AFFIRMATIVE DEFENSE
`
`73.
`
`The Originating Lender, its servicers, agents, contractors, subcontractors
`
`and/or employees traded the mortgage inside of MERS separate and apart from the trading
`
`of the promissory note.
`
`AS AND FOR A FIFTY THIRDAFFIRMATIVE DEFENSE
`
`
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`74.
`
`The Plaintiff, its servicers, agents, contractors, subcontractors and/or
`
`employees traded the mortgage inside of MERS separate and apart from the trading of the
`
`promissory note.
`
`AS AND FOR A FIFTY FOURTH AFFIRMATIVE DEFENSE
`
`75.
`
`The note and mortgage were obtained from and executed by the Defendants
`
`under fraudulent pretenses by the originating lender, its agents, servants, attorneys,
`
`employees, etc.
`
`
`
`AS AND FOR A FIFTY FIFTH AFFIRMATIVE DEFENSE
`
`76.
`
`Any alleged rights of Plaintiff, the alleged trust, and/or any alleged
`
`predecessor(s) in interest with regard to the alleged mortgage were extinguished as a result
`
`of the bankruptcy of the original lender or subsequent mortgage holder prior to the time of
`
`the alleged conveyance of the mortgage and note to plaintiff and/or the alleged trust.
`
`AS AND FOR A FIFTY SIXTH AFFIRMATIVE DEFENSE
`
`77.
`
`Documents were forged by Plaintiff and/or other parties to this action and
`
`not parties to this action, rendering Plaintiff’s claims invalid.
`
`AS AND FOR A FIFTY SEVENTH AFFIRMATIVE DEFENSE
`
`78.
`
`There was no contractual formation between the Defendants and the
`
`originating lender as there was NO meeting of the minds as to all material terms.
`
`AS AND FOR A FIFTY EIGHTH AFFIRMATIVE DEFENSE
`
`79.
`
`There was no contractual formation between the Defendants and the
`
`originating lender as it was the product of illusory promises made by the originating lender,
`
`its agents, employees, servants, contractors, subcontractors and/or lawyers.
`
`
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`AS AND FOR A FIFTY NINTH AFFIRMATIVE DEFENSE
`
`80.
`
`The promissory note and mortgage are void ab initio under the doctrine of
`
`Non est factum.
`
`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
`
`81.
`
`The promissory note and mortgage are void, voidable and/or unenforceable
`
`as they are adhesion contracts especially in light of the fact that all the banks conspired
`
`together to defraud borrowers and Defendants, all used the same contracts or materially
`
`similar contracts to defraud the Defendants.
`
`AS AND FOR A SIXTY ONE AFFIRMATIVE DEFENSE
`
`82.
`
`The Contracts (note and mortgage) contain ambiguous terms and phrases
`
`which must be construed against the party that imposed its inclusion in the contract (its
`
`successors and assigns) or, more accurately, against the interests of the party who imposed
`
`it (its successors and assigns).
`
`AS AND FOR A SIXTY SECOND AFFIRMATIVE DEFENSE
`
`83.
`
`The note and/or mortgage are void, voidable and/or unenforceable as they
`
`are the product of a mistake in law and/or fact.
`
`AS AND FOR A SIXTY THIRD AFFIRMATIVE DEFENSE
`
`84.
`
`The note and/or mortgage are void, voidable, and/or unenforceable under
`
`the doctrine of misrepresentation. The Originating Lender its agents, servants, employees,
`
`licensees, contractors, subcontractors and/or attorneys made representations to the
`
`Defendants which were not true nor accurate.
`
`AS AND FOR A SIXTY FOURTH AFFIRMATIVE DEFENSE
`
`
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
`
`85.
`
`The contracts (note and mortgage) are unenforceable under the doctrine of
`
`Frustration of purpose.
`
`AS AND FOR A SIXTY FIFTH AFFIRMATIVE DEFENSE
`
`86.
`
`The contracts (note and mortgage) are unenforceable under the doctrine of
`
`impossibility.
`
`AS AND FOR A SIXTY SIXTH AFFIRMATIVE DEFENSE
`
`87.
`
`The contracts (note and mortgage) are unenforceable under the doctrine of
`
`illegality.
`
`
`
`AS AND FOR A SIXTY SEVENTH AFFIRMATIVE DEFENSE
`
`88.
`
`The contracts (note and mortgage) are unenforceable under the doctrine of
`
`repudiation as the originating lender and/or the Plaintiff, their agents, servants, employees,
`
`contractors, subcontractors, licensees repudiated the contract when they told the
`
`Defendants to cease paying their monthly payments in order to be eligible for a
`
`modification of the terms of the existing contract.
`
`AS AND FOR A SIXTY EIGHTH AFFIRMATIVE DEFENSE
`
`89.
`
`The Plaintiff and/or its predecessor in interest violated numerous statutes
`
`regarding discriminatory and predatory lending.
`
`AS AND FOR A SIXTY NINTH AFFIRMATIVE DEFENSE
`
`90.
`
`The mortgage in question is a New York State Mortgage, existing under and
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`governed by the laws of New York State, and as such, plaintiff’s claims are time barred
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`under CPLR § 213(2).
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`AS AND FOR A SEVENTHITH AFFIRMATIVE DEFENSE
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`Page 13 of 14
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`13 of 15
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`91.
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`Plaintiff, some of the defendants and other persons and entities not a party
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`to this action conspired to commit wrongful acts against Defendants and other parties, thus
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`rendering Plaintiff’s causes of action invalid.
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`WHEREFORE, Answering Defendants respectfully request that this Court:
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`1. Dismiss the complaint in its entirety;
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`2. Grant Answering Defendants’ Counterclaims against plaintiff;
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`3. Award sanction against plaintiff; and
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`3. Award such other and further relief that this Court deems just and proper.
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`Brooklyn, New York
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`March 26, 2024
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` _/S/Morris Fateha________________
`Morris Fateha, Esq.
`Attorney for Defendants
`911 Avenue U
`Brooklyn, NY 11223
`(718) 627-4600
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`Page 14 of 14
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`14 of 15
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`FILED: KINGS COUNTY CLERK 04/07/2024 08:56 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 537205/2023
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`RECEIVED NYSCEF: 04/07/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`--- ---- - ---- ------------
`---------
`--X I ndex No.: 537205/2023
`MCLP A SSET COMP ANY, INC
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`Plaintiff,
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`ANSWER
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`-
`-against
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`DIPAKROY A/K/A/DIPAKK. ROY, ET AL
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`Defendants.
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`--X
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`-----------------------------------------
`STATE OF NEW YORK
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`COUNTY OF KINGS
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`DIP AK ROY, being duly sworn, deposes and says:
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`I am a Defendant in the within action; I have read the foregoing Verified Answer with
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`Counterclaims and know the contents thereof; and that the same is true to my own knowledge
`except
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`I believe and belief, and as to those matters as to those matters alleged upon information
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`them to be true. The grounds of my belief as to matters not stated upon my knowledge are based
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`upon my books and records and other original documents, and as to those matters I believe them
`to be true.
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`Dated: Brooklyn , New York
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`MORRIS FATEHA
`NOTARY PUBLIC
`STATE OF NEW YORK
`QUALIFIED IN KINGS COUNTY
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`REGISTRATION NUMBER 02FA6196442
`COMMISSION EXPIRES:
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`11/17/2021 (!:!?)
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`15 of 15
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