FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
`
`INDEX NO. 135161/2022
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`RECEIVED NYSCEF: 04/29/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`
`Mortgage Assets Management, LLC.
`Plaintiff,
`
`Index Nø.: 135161/2022
`
`– against –
`
`Erick Mariano
`
`Defendant.
`
`AFFIDAVIT OF SERVICE
`
`I, ___________________________________, served the Verified Answer to the
`Name of person who mailed the envelope
`
`Complaint on Plaintiff’s attorney at:
`
`Matthew Rothstein
`Robertson, Anschutz, Schneid, Crane & Partners, PLLC
`900 Merchants Concourse, Suite 310
`New York, NY 11590
`
`I served the Verified Answer by first class mail on ____________________________.
`Date papers were mailed
`
`I am eighteen years or older and I am not a Defendant in this lawsuit.
`
`STOP! Take this document to a Notary Public BEFORE signing it
`
`_______________________________
`Signature
`
`________________________________
`Print name
`
`Sworn to and subscribed before me this
`
`_____ day of _____________, 20_____
`
`________________________________
`Notary Public
`
`Index No.: 135161/2022 / Affidavit of Service
`Made using the NYS Courts FREE DIY Forms
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`Page 1 of 1
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`1 of 9
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`Erick Mariano
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`Erick  Mariano
`
`State of: Texas County: Ellis
`
`27th
`
`April
`
`24
`
`Electronically signed and notarized online using the Proof platform.
`
`

`

`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
`
`INDEX NO. 135161/2022
`
`RECEIVED NYSCEF: 04/29/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`
`Mortgage Assets Management, LLC.
`Plaintiff,
`
`– against –
`
`Erick Mariano
`
`Defendant.
`
`Defendant, Erick Mariano answers as follows:
`
`I plead the following Defenses and Counterclaims :
`
`DEFENSES
`
`Index Nø.: 135161/2022
`
`VERIFIED ANSWER TO
`FORECLOSURE COMPLAINT
`AND COUNTERCLAIMS
`
`1. Lack of Standing: Plaintiff, upon information and belief, does not own the note and
`mortgage. Plaintiff therefore does not have standing to sue because it was not the
`legal owner of the note and/or mortgage at the time it commenced this foreclosure
`lawsuit.
`
`2. Foreclosure Cause of Action: Plaintiff, upon information and belief, does not own
`the note and mortgage. Because ownership of the note and mortgage is an element
`of a foreclosure cause of action, Plaintiff has no right to foreclose.
`
`3. 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):
`
` Neither the Summons nor the Complaint were served on me.
`
`4. Payment or Partial Payment: I have paid, in whole or in part, the amounts claimed
`by Plaintiff.
`
`Reverse Mortgages
`
`5. Reverse Mortgage – NY Real Property Law § 280-b: Plaintiff and/or its
`predecessor-in-interest, upon information and believe, violated the requirements of
`NY Real Property Law § 280-b, compliance with which is a condition precent to
`commencing an action to foreclose on a reverse mortgage loan covered by that
`statue, mandating dismissal of this foreclosure action, which defense also supports
`the separately please counterclaim for damages under NY Real Property
`Law § 280-b
`
`Predicate Notices/Conditions Precedent
`
`Index No.: 135161/2022 / Answer to Foreclosure Complaint
`Made using the NYS Courts FREE DIY Forms
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`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
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`INDEX NO. 135161/2022
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`RECEIVED NYSCEF: 04/29/2024
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`6. Notice of Default: Plaintiff failed to comply with the requirements for the notice of
`default in my mortgage loan agreement, a condition precedent to this foreclosure
`action.
`
`7. 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.
`
`8. 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.
`
`Real Estate Settlement Procedures Act
`
`9. 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:
`
` 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.
`
` 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.
`
`* * * * *
`
`10. 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.
`
`11. 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.
`
`12. 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 by operation of
`the CPLR.
`
`13. Action Commenced Against a Deceased Party: This action is a nullity because it
`was commenced against Defendant Maxine Mariano-Doyle, Richard Doyle , and
`Richard Doyle after that party was already deceased and it should, therefore, be
`dismissed.
`
`Index No.: 135161/2022 / Answer to Foreclosure Complaint
`Made using the NYS Courts FREE DIY Forms
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`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
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`INDEX NO. 135161/2022
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`RECEIVED NYSCEF: 04/29/2024
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`14. 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
`
`Equitable Defenses
`
`15. Unclean Hand and/or Unconscionability: This action is barred by the doctrine of
`unclean hands and/or unconscionability for the following reasons: Defense
`Statement Against Foreclosure Proceedings
`
`To the Honorable Court,
`
`I, Erick Mariano am submiting this statement to contest the foreclosure proceedings
`initiated by PHH. This challenge is predicated on significant procedural deficiencies,
`legal oversights, and violations of my consumer rights, which collectively render the
`foreclosure unjust and invalid.
`
`1. **Violation of the Truth in Lending Act (TILA)**: The Truth in Lending Act
`mandates that borrowers be notified of any sale or transfer of their mortgage. In my
`case, I was not informed by the previous servicer, Champion Mortgage, nor by the
`current claimant, PHH, of the transfer. This failure to notify constitutes a clear
`violation of TILA, designed to protect consumers from such deceptive practices that
`could lead to significant financial and personal distress.
`
`2. **Lack of Standing**: The failure to notify me of the mortgage transfer until several
`months into the process undermines the legitimacy of PHH's claim and raises
`serious questions regarding their standing to foreclose. This lack of timely and
`transparent communication deprived me of the opportunity to verify the claimant’s
`legal standing and disrupted my ability to manage or contest the mortgage
`responsibilities effectively.
`
`3. **Procedural Mismanagement and Breach of Contract**: I initiated contact with
`Champion Mortgage only two to three months following my mother’s passing to
`begin the property sale process. It was then I learned of the mortgage transfer,
`though no details regarding the identity of the new holder were provided. This
`obfuscation continued for approximately seven to eight months, during which my
`repeated inquiries yielded no concrete information. This not only represents a breach
`of the mortgage contract but also a gross mismanagement of the mortgage servicing
`process, both of which have severely disadvantaged me in fulfilling my obligations
`
`Index No.: 135161/2022 / Answer to Foreclosure Complaint
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`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
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`INDEX NO. 135161/2022
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`RECEIVED NYSCEF: 04/29/2024
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`and intentions regarding the property.
`
`4. **Unfair and Deceptive Acts and Practices (UDAP)**: The continued lack of clear
`communication and the failure to provide timely notifications by PHH constitute unfair
`and deceptive practices under state-specific UDAP laws. By the time I was informed
`of the mortgage transfer to PHH in May, I was already facing significant health
`challenges, which, compounded by the absence of critical information, left me
`unable to utilize the designated six-month period for selling the property.
`
`5. **Misrepresentation and Non-Adherence to Assurances**: I was repeatedly
`assured that no foreclosure proceedings would commence until November 8, 2022,
`the first anniversary of my mother’s death. Contrary to these assurances, foreclosure
`was initiated prematurely in August. During this critical period, I received no
`communication from PHH—no responses to my emails nor any postal
`correspondence—leaving me entirely uninformed about the foreclosure proceedings
`and unable to mount an appropriate response.
`
`Given the above points, it is evident that the foreclosure proceedings initiated by
`PHH are fundamentally flawed and legally insufficient. I respectfully request that this
`court consider these factors and declare the foreclosure proceedings invalid or, at a
`minimum, allow a stay of proceedings until these severe concerns can be fully
`addressed and rectified.
`
`I am prepared to provide further documentation and testimony to support these
`claims and welcome the opportunity for mediation or other resolution forms to
`address this matter equitably.
`
`Respectfully submitted,
`
`Erick Mariano
`
`16. 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 reasons: The facts
`collectively illustrate that the lender, PHH, acted unfairly towards me due to several
`significant missteps:
`
`1. **Lack of Notification**: I was not promptly informed about the transfer of the
`mortgage from Champion Mortgage to PHH. This essential information was withheld
`
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`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
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`INDEX NO. 135161/2022
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`RECEIVED NYSCEF: 04/29/2024
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`for an extended period, hindering my ability to manage the property effectively and
`prepare for a potential sale.
`
`2. **Miscommunication**: Despite my repeated inquiries, I was not given clear
`answers about who held the mortgage for several months. This ongoing uncertainty
`made it impossible for me to take necessary actions, such as proceeding with the
`sale of the property.
`
`3. **Health Challenges and Timing**: By the time I was informed about the mortgage
`transfer, I was dealing with serious health issues, which further compromised my
`ability to manage the property sale within the intended timeframe.
`
`4. **Broken Assurances**: The lender assured me that foreclosure would not begin
`until a specific date (one year after my mother's death), providing a sense of
`security. However, they initiated foreclosure proceedings much earlier than
`promised, breaking their assurance and catching me unprepared.
`
`5. **No Communication Before Foreclosure**: Throughout the critical period leading
`up to the foreclosure notice, I received no communication from PHH. This lack of
`correspondence left me in the dark about the impending legal actions and without a
`fair chance to address or rectify the situation.
`
`These factors combined show a pattern of unfair and deceptive practices by the
`lender, making it difficult for me to defend my rights and manage my property,
`ultimately leading to an unjust foreclosure proceeding.
`
`17. Other Defenses or Counterclaims: Your Honor,
`
`As I stand before you today, I wish to present a clear and compelling case
`regarding the unfair practices that have led to the unjust foreclosure proceedings
`against my property. The following points highlight the issues that have severely
`impacted my ability to manage my mortgage and retain my home:
`
`1. **Failure to Provide Legally Required Notifications**: I was never properly
`informed about the transfer of my mortgage from Champion Mortgage to PHH.
`This oversight is not only a breach of the Truth in Lending Act but also deprived me
`of crucial information needed to manage my financial obligations effectively.
`
`2. **Significant Delays and Lack of Transparency**: The delay in communication
`about the transfer of my mortgage and the ongoing lack of transparency from PHH
`severely hampered my ability to make informed decisions regarding my property.
`These delays occurred during a particularly vulnerable time, as I was dealing with
`the loss of my mother and subsequent health issues.
`
`Index No.: 135161/2022 / Answer to Foreclosure Complaint
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`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
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`INDEX NO. 135161/2022
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`RECEIVED NYSCEF: 04/29/2024
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`3. **Violation of Assurances Provided by the Lender**: PHH explicitly assured me
`that foreclosure proceedings would not commence until after November 8, 2022.
`However, they initiated these proceedings prematurely in August, in direct violation
`of their assurances. This breach of trust left me with insufficient time to rectify the
`situation or pursue alternative solutions.
`
`4. **Impact of Health Issues**: At the critical juncture when I needed to be most
`engaged in managing my property affairs, I was contending with serious health
`challenges. These health issues were exacerbated by the stress and uncertainty
`caused by PHH's lack of communication and misleading information.
`
`5. **Lack of Due Process**: Throughout this ordeal, I was not afforded the due
`process to which I am entitled. The sudden initiation of foreclosure without prior
`adequate notice or an opportunity to dispute the claims or rectify any defaults has
`fundamentally undermined my legal rights.
`
`6. **Request for a Fair Resolution**: In light of these points, I respectfully request
`the court to consider these unjust practices and the significant procedural failings
`that have led to this foreclosure. I ask for a stay of the foreclosure proceedings to
`allow for a thorough review of the case and for PHH to demonstrate proper cause
`for their actions.
`
`Thank you for considering my plea.
`
`Sincerely,
`Erick Mariano
`
`COUNTERCLAIMS
`
`18. Violations of NY Real Property Law § 280-b: I have been injured by reason of
`Plaintiff’s and/or its predecessor-in-interest’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
`attorney’s fees if I retain an attorney, in an amount to be proven at trial.
`
`19. 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 NY Real Property
`Law § 282.
`
`Index No.: 135161/2022 / Answer to Foreclosure Complaint
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`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
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`INDEX NO. 135161/2022
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`RECEIVED NYSCEF: 04/29/2024
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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 counsel is retained; and that Defendant be
`granted any other relief allowed by law or equity as this Court shall deem just and
`proper.
`
`Dated: ________________, 20____
`
`_____________________________
`Erick Mariano
`Defendant, Pro Se
`
`70 East Macon Avenue
`New York, NY 10308
`(347) 205-5723
`
`Index No.: 135161/2022 / Answer to Foreclosure Complaint
`Made using the NYS Courts FREE DIY Forms
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`April
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`27th
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`24
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`FILED: RICHMOND COUNTY CLERK 04/29/2024 12:45 AM
`NYSCEF DOC. NO. 111
`
`INDEX NO. 135161/2022
`
`RECEIVED NYSCEF: 04/29/2024
`
`VERIFICATION
`
`STOP! Take this document to a Notary Public BEFORE signing it
`
`I, Erick Mariano, being duly sworn, state that the within 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.
`
`_______________________________,
`Erick Mariano, Defendant
`
`Sworn to and subscribed before me this
`
`_____ day of _____________, 20_____
`
`________________________________
`Notary Public
`
`Index No.: 135161/2022 / Answer to Foreclosure Complaint
`Made using the NYS Courts FREE DIY Forms
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`Page 8
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`9 of 9
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`State of: Texas County of: Ellis
`
`27th
`
`April
`
`24
`
`Electronically signed and notarized online using the Proof platform.
`
`