Preview
FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
________________________________.._________________Ç
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE, FOR CARRINGTON MORTGAGE
LOAN TRUST, SERIES 2005-NC5 ASSETBACKED Index No.: 004383/2014
PASS-THROUGH CERTIFICATES,
Plaintiff, AFFIDAVIT OF
- against - SERVICE
JOSEPH MOSEY; ET AL.,
Defendant(s).
______________________________-___----------------Ç
STATE OF NEW YORK )
COUNTY OF SUFFOLK )
I, Jocelyn Zelaya, being duly sworn, deposes and says:
I am not a party to the action and am over 18 years of age.
On September 7, 2023, I served a copy of the within SIGNED ORDER TO SHOW
CAUSE, AFFIRMATION IN SUPPORT, AFFIRMATIONS IN COMPLIANCE,
AFFIDAVIT IN SUPPORT AND SUPPORTING EXHIBITS A-J by NYSCEF electronic
filing system, and by depositing a true copy thereof, enclosed in a wrapper addressed as shown
below into the custody of Federal Express for overnight delivery prior to the latest time designated
by that service for overnight delivery as indicated below upon:
VIA OVERNIGHT AND NYSCEF VIA OVERNIGHT
LOGS Legal Group LLP f/k/a Shapiro, Janine T. Lynam Esq.
DiCaro & Barak, LLC Referee
Attorney(s) for the Plaintiff 2 Roosevelt Ave Ste 200
175 Mile Crossing Boulevard Syosset, NY 11791
Rochester, New York 14624
.
Joce n elaya
Sworn to before me this
7d'
day of September 2023
NOTA PUBLIC
Misty Ann McManus
Notary Public State of New York
No. 01 C0011425
Qualified in Suffolk County
Commission Expires 7/18/2027
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FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023
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FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023
(FILED: NASSAU COUNTY CLERK INDEX NO. 004383/2014
09/05/2023 09 : 00 AM)
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/05/2023
ORIG!NALRETll9N DATE f 7
At a Special Term Part, of the Supreme Court
REilEF 96 5 of the State of New York, held in imd ibr the
County of Nassau, at the Suprerne Courthouse
thereof located at 10 Supreme Court Dr . Mineob:
New .fd'
York, on the ..day of 2023
PRESENT: HON. Ortmef~> O
LS.C. NO APPEARANCES
ARE NBCESSARY ON THE REURN
SUPREME COURT OF THE STATE OF NEW YORK DATE OF THis ORDER
TOSHOW CAusr:
orai AramnentoMy
COUNTY OF NASSAU hy wrinenremew
. ""**""
DEUTSCHE BANK NATIONAL TRUST CO., AS
TRUSTEE FOR CARRINGTON MORTGAGE LOAN
TRUST, SERIES 200S-NC5 ASSET-BACKED PASS- index No
THROUGH CERTIFICATES, M
004383/20
PlaintifT,
-against-
JOSEPM MOSEY, ET AL.,
Defendant(s)
EMERGENCY OIGER TO SHOW CAUSE TO STAY SALE SCHEDULED FOR
SEPTEMBEN 7, 2023
Upon the annexed Affidavit of JOSEPH swom 30*
MOSEY, to on the day of August
2023, and Affirmation of Ronald D Weiss, Esq., dated the 305 day of August, 2023, the Exhibit::
annexed hereto, and upon all the pleadings and proceedings had herein,
hetctofore
LET, Plaintiff Show Cause before the Supreme Court of the State of New York, County
of Nassau, the Courthouse located at 100 Supreme Court Ni'
Drive, Mirieola, 1 1501 before the
1
.... ........._..._.-----..._..._.................. ... .............. ....... ........ ......... ..__..... ........ ................ ............ .._...
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FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023
(FILED: NASSAU COUNTY INDEX NO. 004383/2014
CLERK 09/05/2023 09: 00 AM)
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/05/2023
Honorable , Justice, on the y of_ f .. . , 2023 at in e c noon a
that day or as soon thereafter as counsel can be heard,
WHY AN ORDER SHOULD NOT BE MADE AND ENTERED granting the
Defendant the fo!!owing relief staying the foreclosure sale scheduled for September 7 , 2023 of
the premi.ses known as 224 Pennsylvania Ave., Island NY
Park, 11558, dismissing this force!oune
action because the Plain1iff failed to comply with RPAPL based upon the holding of the
1304(2)
Appellate Division in Wells itargo Bank; NA. v. Yapkowitz; the Judgment of Forecloame
vacating
and Sale and Order of Reference; or, in the alternative, staying the fbreclosure sale in order aGbrd
the Defendant additional time to try to obtain a loan modification and save his house: and granting
the Defendant such other and further relief as this Court deems just, proper and eqtutable
SUFFICIENT CAUSE APPEARING THEREFORE, it is hereby,
ORD SED, t ' pending the hearing as ef decision of this mt ion, t uant to CP[.R
§2201, all proceedmas in this foreclosure a i n, including the foreclosu c ale and deed tran E:r
against the Pr perty lo ted at 224 Penn 'tvan Island
\ve., Park/4Y 11558. are hereby stayeÎ
and
ORDERED, that pehdin the retum date of t s otion pursuant to CPLI 220 c
Plaintiff is prohibited from · an' the deed to t e Pr.. and
crring eriy;
2
.............._....._............ .. - .- .- - ·---.- -. ----.--.-..----------.
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023
|FILED: NASSAU COUNTY CLERK /05 TNDEX NO. 004383/2014
09 /2023 09 : 00 AN|
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/05/2023
ORDE ED, 1 pending the r tur ate of this motit n proceeding to e e
residents from the temises is hereby staf d; and ,/
ORDERED, that service of a copy of the within Order to Show Cause and the papen
upon which it is based, be made on or before _/ f.Ó . 2023, upon the of.t~ee of the
attorneys the LOGS LEGAL and/or
representing Plaintiff, GROUP, LLP, by overnight mail
pursuant to CFLR § 2103(b) (1) (2) (5) (6) or (7) shall be deemed good and sufficient
ORDERED, that service of a copy of the within Order upon which í t is based, be made
on or before . 2023, upon the Referee Janine T. Lynam, Esq, via overnigh.
mail shall be deemed good and sufficient service.
ENTEI 2 :
.S.C.
ENTERED
Sep 05 2023
NASSAU COUNTY
COUNTY CLERK'S OFFICE
3
...--. . .............. ...........--... ........................_....... . .. ____.__.........._.,_..............._...___............................... .. . . .. _........ . ..... . ......
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023
INDEX NO. 004383/2014
|FILED: NASSAU COUNTY CLERK 08 /31/2023 10 : 47 AM|
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023
SUPREME COURT OF THE S.TATE OF NEW YORK
COUNTY OF NASSAU
_________________________.._..________________________Ç
DEUTSCHE BANK NATIONAL TRUST CO., AS Index No.: 004383/2014
TRUSTEE FOR CARRINGTRON MORTGAGE LOAN
SERIES 2005-NC5 ASSET-BACKED PASS-
TRUST,
THROUGH CERTRIFICATES, EMERGENCY
AFFIRMATION IN
Plaintiff, SUPPORT OF
DEFENDANT'S ORDER
-against- TO SHOW CAUSE TO
STAY SALE
JOSEPH MOSEY, ET. AL. SCHEDULED FOR
SEPTEMBER 7, 2023
Defendants.
...-_______________....._______________________________Ç
Ronald D. Weiss, an attorney duly sworn to practice before this Court affirms under the
penalty of perjury as follows:
1. I am the attorney retained to represent the defendant Joseph Mose (hereinafter
"Defendant") in defending this foreclosure action against the Premises commonly known as 224
Pennsylvania Ave., Island Park, NY 11558 (hereinafter "Premises"). As such, I am fully familiar
with the-facts and circumstances set forth below based on my review of the files maintained by
this office and my conversations with my client.
2. I submit this Affirmation in support of the Order to Show Cause of the Defendant
seeking a stay of the foreclosure sale of the subject Premises scheduled for September 7, 2023, the
dismissal this action on the grounds that the Plaintiff failed to comply with RPAPL § 1304(2)
(2nd
based upon the Court holding in Wells Fargo Bank, NA. v. Yapkowitz Dept. 2021); the
Plaintiff failed to comply with RPAPL § 1304(2) as the 90 Day Notices did not list 5 Housing
Counseling agencies that service Nassau County; the vacatur of the Judgment of foreclosure and
Sale and the Order of Reference; and for such other and further relief as this Court deems just and
proper.
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023
Defendants'
3. The basis for the Motion is as follows:
a. Plaintiff's failure to comply with 1304(2) based upon Wells Fargo Bank,
126(2""
N.A. v. Yapkowitz, 199 AD3d Dept. 2021).
b. Failure to comply with Judgment of Foreclosure & Sale requirements
c. The Sale violates RPAPL 1321 Pursuant to the Bardi Directive
d. Need for good faith settlement negotiations because the Defendant should
qualify be a loan modification and be afforded the opportunity to save his
home
e. Judgment of Foreclosure & Sale includes excessive amount of interest,
which the Plaintiff should be barred from collecting
f. Lack of standing of the Plaintiff is a non-waivable defense, which is being
asserted at this time
g. Referee Hearing was not conducted warranting the vacatur of the
Judgment of Foreclosure and Sale.
4. This application is being filed an emergency basis because a foreclosure sale is
scheduled for September 7, 2023. A copy of the Notice of Sale is annexed hereto as Exhibit A.
5. Advance notification of this application was provided to counsel for the Plaintiff,
LOGS Legal Group, LLP, andthe Referee Janine Lynam, Esq. by email on August 31, 2023. Proof
of this advance notification is annexed hereto as Exhibit B.
PROCEDURAL HISTORY OF THE FORECLOSURE ACTION
6. On or about May 2, 2014 the Plaintiff filed their Summons and Complaint and
Notice of Pendency to this foreclosure action with the Nassau County Clerk. Copies of the
Summons & Complaint and Notice of Pendency are annexed hereto as Exhibit C.
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INDEX NO. 004383/2014
|FILED: NASSAU COUNTY CLERK 08/31/2023 10 : 47 AN|
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023
7. The Defendant recently retained the Law Office of Ronald D. Weiss, PC to defend
him in this foreclosure action. A copy of the Notice of Appearance is annexed hereto as Exhibit
D.
8. The Plaintiff moved for an Order of Reference on or about April 13, 2015, which
was granted by the Court on or about August 11, 2015. A copy ofthe Order ofReference is annexed
hereto as Exhibit E.
9. On or about August 25, 2016, Plaintiff moved for a Judgment of Foreclosure and
Sale, which was granted on March 1, 2017. A copy of the Judgment of Foreclosure and Sale is
annexed as Exhibit F.
10. Upon information and belief, the Plaintiff did not move for an extension of
time to conduct the sale.
11. The Plaintiff has scheduled a foreclosure sale for September 7, 2023 at 2:30 pm.
PLAINTIFF FAILED TO COMPLY WITH RPAPL § 1304(2) AS 90 DAY NOTICES
WERE IMPROPERLY ADDRESED TO BOTH BORROWERS JOINTLY
12. In this case, Carrington Mortgage Services, LLC allegedly sent 90 Day
Notices on June 28, 2012 which were addressed to both Borrowers jointly. The Notices were
addressed to both Joseph Mosey and Tracey Gottlieb. Copies of the 90 Day Notices are annexed
hereto as Exhibit G.
13. The 90 Day Notices were not mailed in separate envelopes to each Borrower
and, therefore this action must be dismissed as the Plaintiff failed to comply with RPAPL §
1304(2).
(2""
14. In Wells Fargo Bank; N A. v. Yaphowitz, 199 AD3d 126, 155 NYS3d 163
Dept. 2021), the Appellate Division held that:
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|FILED: NASSAU COUNTY CLERK 08 /31/2023 10 : 47 AN|
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023
"We hold that the mailing of a 90-day notice addressed to two or more borrowers in a single
jointly
envelope is not sufficient to satisfy the requirements of RPAPL 1304, and that the plaintiff must
separately mail a 90-day notice to each borrower as a condition precedent to commencing the
action."
foreclosure
The Appellate Division provided the rationale for its holding:
following
borrower,"
"RPAPL 1304
Preview
FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ________________________________.._________________Ç DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, FOR CARRINGTON MORTGAGE LOAN TRUST, SERIES 2005-NC5 ASSETBACKED Index No.: 004383/2014 PASS-THROUGH CERTIFICATES, Plaintiff, AFFIDAVIT OF - against - SERVICE JOSEPH MOSEY; ET AL., Defendant(s). ______________________________-___----------------Ç STATE OF NEW YORK ) COUNTY OF SUFFOLK ) I, Jocelyn Zelaya, being duly sworn, deposes and says: I am not a party to the action and am over 18 years of age. On September 7, 2023, I served a copy of the within SIGNED ORDER TO SHOW CAUSE, AFFIRMATION IN SUPPORT, AFFIRMATIONS IN COMPLIANCE, AFFIDAVIT IN SUPPORT AND SUPPORTING EXHIBITS A-J by NYSCEF electronic filing system, and by depositing a true copy thereof, enclosed in a wrapper addressed as shown below into the custody of Federal Express for overnight delivery prior to the latest time designated by that service for overnight delivery as indicated below upon: VIA OVERNIGHT AND NYSCEF VIA OVERNIGHT LOGS Legal Group LLP f/k/a Shapiro, Janine T. Lynam Esq. DiCaro & Barak, LLC Referee Attorney(s) for the Plaintiff 2 Roosevelt Ave Ste 200 175 Mile Crossing Boulevard Syosset, NY 11791 Rochester, New York 14624 . Joce n elaya Sworn to before me this 7d' day of September 2023 NOTA PUBLIC Misty Ann McManus Notary Public State of New York No. 01 C0011425 Qualified in Suffolk County Commission Expires 7/18/2027 1 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 9/7/23, 2:57 PM FedEx Ship Manager - Print Your Label(s) IT1 eastmim= En a m m O A -I T ,12:smomo1uv 583J3/CEEDSAE3 After printing this label: 1. Use the "Print button on this page to print your label to your laser or inkjet printer. 2. Fold the printed page along the horizontal line. 3. Place label in shipping pouch and affix it to your shipment so that the barcode portion of the label can be read and scanned. Warning: Use only the printed original label for shipping. Using a photocopy of this label for shipping purposes is fraudulent and could result in additional billing charges, along with the cancellation of your FedEx account number. Use of this system constitutes your agreement to the service conditions In the current FedEx Service Guide, available on fedex.com.FedEx will not be responsible for any claim in excess of $100 per package, whether the result of loss, damage, delay, non-delivery,misdelivery,or misinformation, unless you declare a higher value, pay an additional charge, document your actual loss and file a timely claim.Limitations found in the current FedEx Service Guide apply. Your right to recover from FedEx for any loss, including intrinsic value of the package, loss of sales, income interest, profit, attorney's fees, costs, and other forms of damage whether direct, incidental,consequential, or special is limited to the greater of $100 or the authorized declared value. Recovery cannot exceed actual documented loss.Maximum for items of extraordinary value is $1,000, e.g. jewelry, precious metals, negotiable instruments and other items listed in our ServiceGuide. Written claims must be filed within strict time limits, see current FedEx Service Guide. https://www.fedex.corn/shipping/shipmentConfirmationAction.handle?method=doContinue 1/1 2 of 105 FILED: INDEX NO. 004383/2014 9/7/23, 3:02NASSAU PM COUNTY CLERK 09/07/2023 03:22 FedEx Ship Manager - Print PM Your Label(s) NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 a!iteiseliiE=- as is o mm ! 4 o = < r < a amnemain 583J3/CEED/9AE3 After printing this label: 1. Use the 'Print button on this page to print your label to your laser or inkjet printer. 2. Fold the printed page along the horizontal line. 3. Place label in shipping pouch and affix it to your shipment so that the barcode portion of the label can be read and scanned. Warning: Use only the printed original labei for shipping. Using a photocopy of this label for shipping purposes is fraudulent and could result in additional billing charges, along with the cancellation of your FedEx account number. Use of this system constitutes your agreement to the service conditions in the current FedEx Service Guide, available on fedex.com.FedEx will not be responsible for any claim In excess of $100 per package, whether the result of loss, damage, delay, non-delivery,misdelivery,or misinformation, unless you declare a higher value, pay an additional charge, document your actual loss and file a timely claim.Limitations found in the current FedEx Service Guide apply. Your right to recover from FedEx for any loss, including intrinsic value of the package, loss of sales, income interest, profit, attorney's fees, costs, and other forms of damage whether direct, incidental,consequential, or special is limited to the greater of $100 or the authorized declared value. Recovery cannot exceed actual documented loss.Maximum for items of extraordinary value is $1,000, e.g. jewelry, precious metals, negotiable instruments and other items listed in our ServiceGuide. Written claims must be filed within strict time limits, see current FedEx Service Guide. https://www.fedex.com/shipping/shipmentConfirmationAction.handle?method=doContinue 1/1 3 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 (FILED: NASSAU COUNTY CLERK INDEX NO. 004383/2014 09/05/2023 09 : 00 AM) NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/05/2023 ORIG!NALRETll9N DATE f 7 At a Special Term Part, of the Supreme Court REilEF 96 5 of the State of New York, held in imd ibr the County of Nassau, at the Suprerne Courthouse thereof located at 10 Supreme Court Dr . Mineob: New .fd' York, on the ..day of 2023 PRESENT: HON. Ortmef~> O LS.C. NO APPEARANCES ARE NBCESSARY ON THE REURN SUPREME COURT OF THE STATE OF NEW YORK DATE OF THis ORDER TOSHOW CAusr: orai AramnentoMy COUNTY OF NASSAU hy wrinenremew . ""**"" DEUTSCHE BANK NATIONAL TRUST CO., AS TRUSTEE FOR CARRINGTON MORTGAGE LOAN TRUST, SERIES 200S-NC5 ASSET-BACKED PASS- index No THROUGH CERTIFICATES, M 004383/20 PlaintifT, -against- JOSEPM MOSEY, ET AL., Defendant(s) EMERGENCY OIGER TO SHOW CAUSE TO STAY SALE SCHEDULED FOR SEPTEMBEN 7, 2023 Upon the annexed Affidavit of JOSEPH swom 30* MOSEY, to on the day of August 2023, and Affirmation of Ronald D Weiss, Esq., dated the 305 day of August, 2023, the Exhibit:: annexed hereto, and upon all the pleadings and proceedings had herein, hetctofore LET, Plaintiff Show Cause before the Supreme Court of the State of New York, County of Nassau, the Courthouse located at 100 Supreme Court Ni' Drive, Mirieola, 1 1501 before the 1 .... ........._..._.-----..._..._.................. ... .............. ....... ........ ......... ..__..... ........ ................ ............ .._... 1 of 3 4 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 (FILED: NASSAU COUNTY INDEX NO. 004383/2014 CLERK 09/05/2023 09: 00 AM) NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/05/2023 Honorable , Justice, on the y of_ f .. . , 2023 at in e c noon a that day or as soon thereafter as counsel can be heard, WHY AN ORDER SHOULD NOT BE MADE AND ENTERED granting the Defendant the fo!!owing relief staying the foreclosure sale scheduled for September 7 , 2023 of the premi.ses known as 224 Pennsylvania Ave., Island NY Park, 11558, dismissing this force!oune action because the Plain1iff failed to comply with RPAPL based upon the holding of the 1304(2) Appellate Division in Wells itargo Bank; NA. v. Yapkowitz; the Judgment of Forecloame vacating and Sale and Order of Reference; or, in the alternative, staying the fbreclosure sale in order aGbrd the Defendant additional time to try to obtain a loan modification and save his house: and granting the Defendant such other and further relief as this Court deems just, proper and eqtutable SUFFICIENT CAUSE APPEARING THEREFORE, it is hereby, ORD SED, t ' pending the hearing as ef decision of this mt ion, t uant to CP[.R §2201, all proceedmas in this foreclosure a i n, including the foreclosu c ale and deed tran E:r against the Pr perty lo ted at 224 Penn 'tvan Island \ve., Park/4Y 11558. are hereby stayeÎ and ORDERED, that pehdin the retum date of t s otion pursuant to CPLI 220 c Plaintiff is prohibited from · an' the deed to t e Pr.. and crring eriy; 2 .............._....._............ .. - .- .- - ·---.- -. ----.--.-..----------. 2 of 3 5 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 |FILED: NASSAU COUNTY CLERK /05 TNDEX NO. 004383/2014 09 /2023 09 : 00 AN| NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/05/2023 ORDE ED, 1 pending the r tur ate of this motit n proceeding to e e residents from the temises is hereby staf d; and ,/ ORDERED, that service of a copy of the within Order to Show Cause and the papen upon which it is based, be made on or before _/ f.Ó . 2023, upon the of.t~ee of the attorneys the LOGS LEGAL and/or representing Plaintiff, GROUP, LLP, by overnight mail pursuant to CFLR § 2103(b) (1) (2) (5) (6) or (7) shall be deemed good and sufficient ORDERED, that service of a copy of the within Order upon which í t is based, be made on or before . 2023, upon the Referee Janine T. Lynam, Esq, via overnigh. mail shall be deemed good and sufficient service. ENTEI 2 : .S.C. ENTERED Sep 05 2023 NASSAU COUNTY COUNTY CLERK'S OFFICE 3 ...--. . .............. ...........--... ........................_....... . .. ____.__.........._.,_..............._...___............................... .. . . .. _........ . ..... . ...... 3 of 3 6 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 INDEX NO. 004383/2014 |FILED: NASSAU COUNTY CLERK 08 /31/2023 10 : 47 AM| NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023 SUPREME COURT OF THE S.TATE OF NEW YORK COUNTY OF NASSAU _________________________.._..________________________Ç DEUTSCHE BANK NATIONAL TRUST CO., AS Index No.: 004383/2014 TRUSTEE FOR CARRINGTRON MORTGAGE LOAN SERIES 2005-NC5 ASSET-BACKED PASS- TRUST, THROUGH CERTRIFICATES, EMERGENCY AFFIRMATION IN Plaintiff, SUPPORT OF DEFENDANT'S ORDER -against- TO SHOW CAUSE TO STAY SALE JOSEPH MOSEY, ET. AL. SCHEDULED FOR SEPTEMBER 7, 2023 Defendants. ...-_______________....._______________________________Ç Ronald D. Weiss, an attorney duly sworn to practice before this Court affirms under the penalty of perjury as follows: 1. I am the attorney retained to represent the defendant Joseph Mose (hereinafter "Defendant") in defending this foreclosure action against the Premises commonly known as 224 Pennsylvania Ave., Island Park, NY 11558 (hereinafter "Premises"). As such, I am fully familiar with the-facts and circumstances set forth below based on my review of the files maintained by this office and my conversations with my client. 2. I submit this Affirmation in support of the Order to Show Cause of the Defendant seeking a stay of the foreclosure sale of the subject Premises scheduled for September 7, 2023, the dismissal this action on the grounds that the Plaintiff failed to comply with RPAPL § 1304(2) (2nd based upon the Court holding in Wells Fargo Bank, NA. v. Yapkowitz Dept. 2021); the Plaintiff failed to comply with RPAPL § 1304(2) as the 90 Day Notices did not list 5 Housing Counseling agencies that service Nassau County; the vacatur of the Judgment of foreclosure and Sale and the Order of Reference; and for such other and further relief as this Court deems just and proper. 1 of 20 7 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023 Defendants' 3. The basis for the Motion is as follows: a. Plaintiff's failure to comply with 1304(2) based upon Wells Fargo Bank, 126(2"" N.A. v. Yapkowitz, 199 AD3d Dept. 2021). b. Failure to comply with Judgment of Foreclosure & Sale requirements c. The Sale violates RPAPL 1321 Pursuant to the Bardi Directive d. Need for good faith settlement negotiations because the Defendant should qualify be a loan modification and be afforded the opportunity to save his home e. Judgment of Foreclosure & Sale includes excessive amount of interest, which the Plaintiff should be barred from collecting f. Lack of standing of the Plaintiff is a non-waivable defense, which is being asserted at this time g. Referee Hearing was not conducted warranting the vacatur of the Judgment of Foreclosure and Sale. 4. This application is being filed an emergency basis because a foreclosure sale is scheduled for September 7, 2023. A copy of the Notice of Sale is annexed hereto as Exhibit A. 5. Advance notification of this application was provided to counsel for the Plaintiff, LOGS Legal Group, LLP, andthe Referee Janine Lynam, Esq. by email on August 31, 2023. Proof of this advance notification is annexed hereto as Exhibit B. PROCEDURAL HISTORY OF THE FORECLOSURE ACTION 6. On or about May 2, 2014 the Plaintiff filed their Summons and Complaint and Notice of Pendency to this foreclosure action with the Nassau County Clerk. Copies of the Summons & Complaint and Notice of Pendency are annexed hereto as Exhibit C. 2 of 20 8 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 INDEX NO. 004383/2014 |FILED: NASSAU COUNTY CLERK 08/31/2023 10 : 47 AN| NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023 7. The Defendant recently retained the Law Office of Ronald D. Weiss, PC to defend him in this foreclosure action. A copy of the Notice of Appearance is annexed hereto as Exhibit D. 8. The Plaintiff moved for an Order of Reference on or about April 13, 2015, which was granted by the Court on or about August 11, 2015. A copy ofthe Order ofReference is annexed hereto as Exhibit E. 9. On or about August 25, 2016, Plaintiff moved for a Judgment of Foreclosure and Sale, which was granted on March 1, 2017. A copy of the Judgment of Foreclosure and Sale is annexed as Exhibit F. 10. Upon information and belief, the Plaintiff did not move for an extension of time to conduct the sale. 11. The Plaintiff has scheduled a foreclosure sale for September 7, 2023 at 2:30 pm. PLAINTIFF FAILED TO COMPLY WITH RPAPL § 1304(2) AS 90 DAY NOTICES WERE IMPROPERLY ADDRESED TO BOTH BORROWERS JOINTLY 12. In this case, Carrington Mortgage Services, LLC allegedly sent 90 Day Notices on June 28, 2012 which were addressed to both Borrowers jointly. The Notices were addressed to both Joseph Mosey and Tracey Gottlieb. Copies of the 90 Day Notices are annexed hereto as Exhibit G. 13. The 90 Day Notices were not mailed in separate envelopes to each Borrower and, therefore this action must be dismissed as the Plaintiff failed to comply with RPAPL § 1304(2). (2"" 14. In Wells Fargo Bank; N A. v. Yaphowitz, 199 AD3d 126, 155 NYS3d 163 Dept. 2021), the Appellate Division held that: 3 of 20 9 of 105 FILED: NASSAU COUNTY CLERK 09/07/2023 03:22 PM INDEX NO. 004383/2014 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/07/2023 INDEX NO. 004383/2014 |FILED: NASSAU COUNTY CLERK 08 /31/2023 10 : 47 AN| NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/31/2023 "We hold that the mailing of a 90-day notice addressed to two or more borrowers in a single jointly envelope is not sufficient to satisfy the requirements of RPAPL 1304, and that the plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the action." foreclosure The Appellate Division provided the rationale for its holding: following borrower," "RPAPL 1304