`NYSCEF DOC. NO. 42
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`INDEX NO. 725219/2023
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`RECEIVED NYSCEF: 04/16/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`Bank of America N.A.
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`Plaintiff,
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`v.
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`Ayman Gebrail, et. al.
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`Defendants.
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`Index No.
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`725219/2023
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`VERIFIED PRO SE
`ANSWER TO
`FORECLOSURE
`COMPLAINT [7]AND
`COUNTERCLAIMS
`[Defendant: check this box if
`you checked any item in the
`“counterclaim” section
`below]
`
`Ayman Gebrail
`Defendant
`proceeding as follows:
`
`Pro Se answers the complaint in this
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`|
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`|
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`|
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`I plead the following Defenses and Counterclaims:
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`I generally deny each allegation of the Complaint, including any allegation that Plaintiff
`FILED
`is the owner of the note and mortgage.
`APR 1 6 2024
`COUNTY CLERK A
`QUEENS COUNTY [*'
`| Lack of Standing: Plaintiff, upon information and belief, was not the legal owner of the
`note and/or mortgage, and did not otherwise have the right to enforce the mortgage, at the
`time it commenced this foreclosure lawsuit and therefore lacks standing.
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`DEFENSES
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`| Foreclosure Cause of Action: Plaintiff has not pleaded that it owns the note and
`mortgage, which is an element of a foreclosure cause of action, and it therefore has failed
`to plead a foreclosure cause of action.
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`| Statute of Limitations (NY Civil Practice Law and Rules § 213(4)): Plaintiff may not
`sue on all or part of the mortgage debt because Plaintiff, upon information and belief,
`commenced this action more than six years after the debt became due, which defense also
`supports the separately pleaded counterclaim to cancel and discharge the mortgage under
`NY Real Property Actions and Proceedings Law § 1501(4).
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`Service of Process (NY Civil Practice Law and Rules § 308): I was not properly served
`with process in this action for the following reason(s):_________________________
`I was never served with the complaint; it was served to an address that I have not lived
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`at since 2017.1 have lived at 108-10 65th Avenue, Apt 5-G, Forest Hills, 11375 for 3 ^
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`1 of 7
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`FILED: QUEENS COUNTY CLERK 04/16/2024 10:33 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 725219/2023
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`RECEIVED NYSCEF: 04/16/2024
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`□ Prior Pending Action (NY Real Property Actions and Proceedings Law § 1301):
`□ No Default/Payment or Partial Payment: I have paid, in whole or in part, the amounts
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`Plaintiff impermissibly commenced this action because there is a prior pending action to
`recover all or part of the mortgage debt.
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`claimed by Plaintiff, or the amounts claimed by Plaintiff are not due, or the loan is
`otherwise not in default.
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`Reverse Mortgages
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`requirements under New York and/or federal law or failed to comply with contractual
`requirements of the reverse mortgage, which are conditions precedent to this foreclosure
`action.
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`does not specify the alleged default and/or the amount(s) plaintiff claims in this action.
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`□ Reverse Mortgage-Notice Requirements: Plaintiff failed to comply with the notice
`□ Reverse Mortgage—Failure to Specify Alleged Default: The complaint is vague and
`□ Reverse Mortgage—Foreclosure on a Reverse Mortgage for Property Charge
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`Defaults is Against Public Policy: The purpose of reverse mortgage loans under the
`Home Equity Conversion Mortgage (“HECM”) program is to assist senior citizens to stay
`in their homes, and reverse mortgage lenders have other remedies in the event of alleged
`failure to pay property charges. Plaintiff, accordingly, as a matter of equity and public
`policy, should not be permitted to foreclose.
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`□ Reverse Mortgage—NY Real Property Law § 280-b: Plaintiff and/or its predecessor-
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`in interest, upon information and belief, violated the requirements of NY Real Property
`Law § 280-b, compliance with which is a condition precedent to commencing an action
`to foreclose on a reverse mortgage loan covered by that statute, mandating dismissal of
`this foreclosure action, which defense also supports the separately pleaded counterclaim
`for damages under NY Real Property Law § 280-b.
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`Predicate Notices/Conditions Precedent
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`0 Notice of Default: Plaintiff failed to comply with the requirements for the notice of
`0 90-Day Notice Requirement (NY Real Property Actions and Proceedings Law § 1304):
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`default in my mortgage loan agreement, a condition precedent to this foreclosure action.
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`Plaintiff failed to comply with the requirements of NY Real Property Actions and
`Proceedings Law § 1304, a condition precedent to this foreclosure action.
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`Prepared with assistance from Queens Legal Services
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`FILED: QUEENS COUNTY CLERK 04/16/2024 10:33 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 725219/2023
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`RECEIVED NYSCEF: 04/16/2024
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`| J | 90-Day Notice Filing Requirement (NY Real Property and Proceedings Law § 1306):
`Plaintiff failed to comply with the requirements of NY Real Property and Proceedings
`Law § 1306, a condition precedent to this foreclosure action.
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`| /1 Help for Homeowners in Foreclosure Notice Requirement (NY Real Property Actions
`and Proceedings Law § 1303): Plaintiff failed to comply with the requirements of NY
`Real Property and Proceedings Law § 1303, a condition precedent to this foreclosure
`action.
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`Real Estate Settlement Procedures Act
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`| /1 Real Estate Settlement Procedures Act Early Intervention Requirement (12 C.F.R.
`§ 1024.39): Upon information and belief, Plaintiff violated the early intervention
`requirements of the Real Estate Settlement Procedures Act because {check one or both if
`applicable):
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`|
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`| Within 36 days of my delinquency, the loan servicer did not attempt to establish
`live contact with me to inform me about the availability of loss mitigation options.
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`| f | Within 45 days of my delinquency, the loan servicer did not send me a written
`notice that included contact information for the servicer, a description of loss
`mitigation options available from the servicer, information about applying for loss
`mitigation, and a website listing housing counselors.
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`C.F.R. § 1024.41): Plaintiff impermissibly filed this foreclosure during the pre
`foreclosure review period because {check one or both if applicable):
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`□ Real Estate Settlement Procedures Act Pre-Foreclosure Review Requirement (12
`□ Plaintiff commenced this action before my loan was more than 120 days
`□ I submitted a complete loss mitigation application to my loan servicer but Plaintiff
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`delinquent.
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`commenced this action (1) before the loan servicer made a decision on that
`application, (2) before the time period to appeal the loan servicer’s decision
`lapsed, or (3) before the loan servicer made a decision on an appeal I submitted in
`connection with the loss mitigation application.
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`Prepared with assistance from Queens Legal Services
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`FILED: QUEENS COUNTY CLERK 04/16/2024 10:33 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 725219/2023
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`RECEIVED NYSCEF: 04/16/2024
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`FHA-Insured Loans
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`|
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`| FHA Pre-Foreclosure Requirements: My loan is insured by the Federal Housing
`Administration. Upon information and belief, the loan servicer/mortgagee has not
`complied with regulations of the Department of Housing and Urban Development
`because the loan servicer/mortgagee did not do one or more of the following (check all
`that are applicable):
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`delinquency (24 C.F.R. § 203.602).
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`installments due under the mortgage were unpaid (24 C.F.R. § 203.604).
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`□ Send me a notice of default before the end of the second month of my
`□ Attempt to arrange a face-to-face interview with me before three full monthly
`□ Evaluate me for loss mitigation before four full monthly installments due under
`□ Wait until three full monthly installments due under the mortgage were unpaid
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`the mortgage were unpaid (24 C.F.R. § 203.605).
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`before commencing this foreclosure action (24 C.F.R. § 203.606).
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`******
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`|
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`| Certificate of Merit Requirement (NY Civil Practice Law and Rules § 3012-b): Upon
`information and belief, Plaintiff failed to comply with the Certificate of Merit
`requirements of NY Civil Practice Law and Rules § 3012-b.
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`I 1 Request for Judicial Intervention (NY Codes, Rules and Regulations Title 22, §
`202.12-a(b)): Upon information and belief, Plaintiff did not file a Request for Judicial
`Intervention.
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`|
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`|
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`|
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`| Excessive Interest and Fees (NY Civil Practice Law and Rules § 3408(f)): In a prior
`foreclosure action, Plaintiff failed to negotiate in good faith pursuant to CPLR 3408(f).
`This failure to negotiate in good faith has caused excessive interest and fees to accrue
`which Plaintiff, as a matter of equity and by operation of the CPLR, is not entitled to
`recover.
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`| Excessive Interest (NY Civil Practice Law and Rules § 5001(a)): Plaintiff has
`unreasonably delayed filing this action, failed to file the Request for Judicial Intervention
`or engaged in other dilatory conduct causing excessive interest to accrue which the Court
`may reduce or toll, as a matter of equity and pursuant to NY Civil Practice Law and
`Rules § 5001(a).
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`[ Action Commenced Against a Deceased Party: This action is a nullity because it was
`commenced against___________ after that party was already deceased and before a
`personal representative was appointed and it should therefore be dismissed.
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`Prepared with assistance from Queens Legal Services
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`4 of 7
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`FILED: QUEENS COUNTY CLERK 04/16/2024 10:33 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 725219/2023
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`RECEIVED NYSCEF: 04/16/2024
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`|
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`|
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`| Failure to Join Necessary Party: This action should be dismissed because of Plaintiff s
`failure to join a necessary party.
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`| Coronavirus Foreclosure Moratoriums/Forbearance and Loss Mitigation Programs:
`Plaintiff failed to comply with federal or New York State law requiring forbearance and
`loss mitigation programs for borrowers affected or impacted by the Coronavirus
`pandemic, or it commenced this action in violation of federal or New York State law
`imposing moratoriums on the commencement of residential foreclosure actions, or
`otherwise in violation of any applicable Executive Order promulgated by the Governor of
`the State of New York or Administrative Orders promulgated by the Chief
`Administrative Judge of the State of New York.
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`Equitable Defenses
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`|
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`| Unclean Hands and/or Unconscionability: This action is barred by the doctrine of unclean
`hands and/or unconscionability for the following reason(s):
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`|
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`| Implied Covenant of Good Faith and Fair Dealing: Plaintiff or its predecessor-in-interest
`violated the covenant of good faith and fair dealing implied in all contracts and is barred from
`recovery in this action for the following reason(s):___________________________________
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`Other Defenses or Counterclaims (attach additional pages if needed)-.
`e status of this home is currently the subject of a divorce proceeding.
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`Prepared with assistance from Queens Legal Services
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`FILED: QUEENS COUNTY CLERK 04/16/2024 10:33 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 725219/2023
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`RECEIVED NYSCEF: 04/16/2024
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`COUNTERCLAIMS
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`|
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`|
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`| Quiet Title/Cancel and Discharge the Mortgage: The statute of limitations for
`commencement of this foreclosure action on the subject mortgage has expired because
`Plaintiff, upon information and belief, commenced this action more than six years after it
`accelerated the mortgage debt. Plaintiff is not in possession of the mortgaged property
`and I am the owner of the property and therefore am entitled to a judgment cancelling and
`discharging the mortgage and adjudging the property free of any encumbrance by such
`mortgage pursuant to NY Real Property Actions and Proceedings Law § 1501(4).
`
`| Violations of NY Real Property Law § 280-b: I have been injured by reason of
`Plaintiffs and/or its predecessor-in-interesf s violations of NY Real Property Law § 280-
`b or the rules and regulations of the federal Department of Housing and Urban
`Development relating to the home equity conversion mortgage program and I am
`therefore entitled to recover treble and actual damages, in addition to reasonable
`attorneys’ fees if I retain an attorney, in an amount to be proven at trial.
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`| /1 Attorney’s Fees (NY Real Property Law § 282): If I retain counsel, I am entitled to
`recover my attorney’s fees in defending this action pursuant to New York Real Property
`Law § 282.
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`Wherefore, Defendant requests that the Complaint be dismissed; that judgment in favor
`of Defendant be granted on Defendant’s counterclaims in their entirety; that Defendant be
`granted costs and attorneys’ fees if he or she retains counsel; and that Defendant be granted any
`other relief allowed by law or equity as this Court shall deem just and proper.
`
`Dated: Jamaica, New York
`3
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`(Defendant’s Signature).
`(Defendant’s Name) Ayman Gebrail
`(Defendant’s Address)
`(Defendant’s Address)
`(Defendant’s Telephone Number) ^11-571-7^5.
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`K375-
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`0 Prepared with the assistance of counsel admitted in New York.
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`Prepared with assistance from Queens Legal Services
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`6 of 7
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`FILED: QUEENS COUNTY CLERK 04/16/2024 10:33 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 725219/2023
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`RECEIVED NYSCEF: 04/16/2024
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`VERIFICATION
`
`Ayman Gebrail
`being duly sworn, state that the within
`I,
`Answer is true to the best of my knowledge, except as to those matters alleged upon information
`and belief, which I believe to be true
`
`AymafyGebrail
`
`Sworn to before me this /
`j/J- day of
`
`203jf
`
`Notary Pubjic^^
`>< tfiOWEAJ LI An/6
`of A/e*J Yofrl*
`tjoTAft yiA&uc,
`1^0 ■ 02Uo*16o°I°I
`in I^ROA/^ ^bU- tvJJ
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`
`■OretL-
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`Prepared with assistance from Queens Legal Services
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