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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK Index No. XXXXX


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GOSHEN MORTGAGE, LLC, AS SEPARATE TRUSTEE
FOR GDBT I TRUST 2011-1,

Plaintiff
OPPOSITION TO PLAINTIFFS MOTION
WITH CROSS MOTION

-against-

XXXXXXXXXXXXXXXXXX,

Defendant(s).
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AFFIRMATION OF ELIAS SAKALIS, ESQ. IN OPPOSITION TO PLAINTIFFS


MOTION FOR JUDGMENET OF FORECLOSURE

___________., the undersigned, an attorney licensed to practice in the Courts of this State,
Pursuant to CPLR 2106 and under penalties of perjury, affirms:

1. I respectfully submit this Affirmation in Opposition with Cross Motion on behalf of


Defendant, XXXX, (hereinafter XXXX), to the Motion dated as of February 2nd, 2017, by
Plaintiffs Attorney and set for hearing on March 3rd, 2017 whereby Plaintiff is seeking the
entry of a Judgment of Foreclosure and Sale upon the Defendant.

2. As attorney for the Defendant XXXX, I am fully familiar with the facts and
circumstances in this action and make this Affirmation in support of Defendants Opposition
and Cross Motion. Statements made herein are based upon information and belief. The
sources of the information and grounds for my belief reflected in this Affirmation are from
examination of the various papers filed in connection with this action, my independent
research and investigation of this matter, inspection of the various documents publically
recorded in the land records and the foreclosure file maintained in the Office of the Suffolk
County Clerk together with all applicable Legal Statutes and any applicable case Law.
3. Plaintiff should not be granted any of the relief that is being sought, Plaintiff has not
satisfactorily proven that the Promissory Note had been physically transferred, nor is
Plaintiff the entity to which said relief being sought should be granted to.

BACKGROUND

4. Defendant XXXX executed a Promissory Note in favor of Lender, North Fork Bank
on July 31st, 2002 in the amount of $ 618,750.00. The said interest rate to be charged
6.25%. Payments of $5,305.31 per month were to begin on September 1st 2002. The Note
states if on date of August 1st, 2017, any amounts owed under the Note should be paid in full
on that date, which is called the Maturity Date.

5. XXXX pledged the Real Property located at XXXXXXXXXXXX, as collateral,


thereby executing a Mortgage in favor of North Fork Bank in the amount of $618,750.00,
dated July 31st, 2002.

6. An Assignment of Mortgage was thereafter recorded in the Office of the Suffolk


County Clerk on February XX, 2008, under Liber XXXXXX at Page 577.

7. The Assignment purportedly transferred the subject Mortgage from its originator,
North Fork Bank (Assignor) to Private Capital Group (Assignee).

8. Plaintiff retained the counsel of Stevem J Baum, P.C. and commenced the instant
action on March 25th, 2010.

9. The subject Mortgage was then transferred, after the commencement of this action,
by Assignment of Mortgage dated December 13th, 2011 and recorded in the Office of the
Suffolk County on February 8th, 2012. The Assignment purported to hereby assign and
transfer to Assignee all rights accrued under said Mortgage and all indebtedness secured
thereby from Private Capital Group (Assignor) to Roundpoint Mortgage Servicing
Corporation (Assignee).
10. Thereafter, the subject Mortgage was again transferred by Assignment of Mortgage
dated May 14th, 2015 and recorded in the Office of the Suffolk County Clerk on September
2nd, 2015, purporting now to transfer the debt from Roundpoint Mortgage Servicing
(Assignor) to Goshen Mortgage LLC as Separate Trustee for GDBT I Trust 2011.

11. A Corrective Assignment of Mortgage was thereafter recorded to correct the


Assignee to reflect, Goshen Mortgage LLC as Separate Trustee for GDBT I Trust 2011-1.

ARGUMENT / PLAINTIFF IS NOT ENTITLED TO JUDGMENT


LACK OF PROOF OF PHYSICAL DELIVERY OF THE NOTE

12. In its Complaint, Plaintiff does not state, allege or even allude to being the owner
and/or holder of the Promissory Note and Mortgage.

13. The Assignment(s) of Mortgage do not purport to assign the underlying Note,
nor is there any showing that Private Capital Group nor Roundpoint Mortgage
Servicing would have had the power or authority to do so.

14. In support of Plaintiffs instant Motion, Plaintiff submits the Affirmation by


Plaintiffs attorney, Jeffrey A. Kosterich and an Affidavit in Support of Motion by Lucas
Jon Hansen, described as foreclosure specialist for Fay Servicing, LLC, servicer and
attorney-in-fact for Goshen..

15. Neither the affidavit of Lucas Jon Hansen, nor the affirmation of counsel, nor any
further supporting documents, attempts to describe the transactions purportedly reflected in
the submitted agreements or Assignments of Mortgage, nor does any of them cite to specific
language or provisions that purportedly have the legal effects ascribed to them in conclusory
fashion. Indeed, the cursory treatment of the standing question in the affidavits evidences a
misunderstanding of the general law of negotiable instruments in its equation of the status as
holder to mere possession of the instrument.
16. In addition, to the degree Plaintiffs attorney, Jeffrey A. Kosterichs knowledge is
based upon communications where he was informed, does not establish that he had
personal knowledge of plaintiffs business practices or procedures. The affirmation of
plaintiffs counsel is not based upon personal knowledge and therefore is of no probative or
evidentiary significance regarding the issue of whether plaintiff received physical
possession of the note prior to commencement of the action (see Zuckerman v City of New
York, 49 NY2d at 563). That a copy of the note and endorsement was annexed to the
Complaint does not itself demonstrate plaintiff was in physical possession of the original
Note at the time of commencement of the action.

17. The core of the law of negotiable instruments is found in Article 3 of the Uniform
Commercial Code, adopted in New York in 1962 (NYUCC.) In 1990, The National
Conference of Commissioners on Uniform State Laws proposed a revision of Article 3 that
has been adopted in all of the states except New York. Amendments to Revised Article 3
were proposed in 2002, and have been adopted in 10 states. The provisions of these later
versions of Article 3 (Revised UCC) can be helpful in interpreting and applying the
former version, still effective in New York. (See Lawyers Fund for Client Protection v
Bank Leumi Trustm Co., 94 NY2d 398, 406 [2000]; Gabriel v Kost, 2001 NY Slip Op
40288 [U] [Civ Ct, Kings County 2001].)

18. New Yorks version of Article 3 does not in terms define standing or otherwise set
out those persons who are entitled to enforce a note (see NYUCC 3-104 [2] [d]) or a
draft (see NYUCC 3-104 [2] [a]), the two most common forms of negotiable
instruments. Revised UCC Article 3 sets out those persons entitled to enforce an instrument,
including, in the first instance, the holder of the instrument (see Revised UCC 301 [i]),
and a non holder in possession of the instrument who has the rights of a holder (see
Revised UCC 301 [ii].)

19. The concept of a holder and the related concept of negotiation are central to one
of the unique features of the law of negotiable instruments, i.e., the concept of holder in
due course (see NYUCC 3-302) and the immunity from claims and defenses that comes
with that status (see NYUCC 3-305.) The holder of an instrument may enforce
payment in his own name. (See NYUCC 3-301.)

20. A holder is a person who is in possession of an instrument issued or


indorsed to him or to his order or to bearer or in blank. (See NYUCC 1-201 [20].)
Negotiation is the transfer of an instrument in such form that the transferee becomes a
holder. (NYUCC 3-202 [1].) The mechanism of negotiation depends upon the form in
which the instrument was originally made or drawn, or in which it has been subsequently
indorsed (see NYUCC 3-204.) Thus, [i]f the instrument is payable to order it is
negotiated by delivery with any necessary endorsement; if payable to bearer it is negotiated
by delivery. (NYUCC 3-202 [1].)

21. Here, the allonge on the Note was payable to Private Capital Group LLC, and was
specially indorsed by North Fork Bank. Assuming that the Note was also endorsed to
Plaintiff and delivered to Plaintiff, the Note was properly negotiated to Plaintiff, which
became its holder and entitled to enforce it. Delivery of a negotiable instrument means
voluntary transfer of possession. (See NYUCC 1-201 [14].)

22. It is clear that Plaintiff has not sufficiently established that it is the holder of the
Note. There is no further endorsement on the Note to Goshen, and Plaintiff submits no
evidence that the Note was ever legally negotiated or delivered to Plaintiff Goshen.

23. Here, Plaintiff has not established prima facie with evidence in admissible form
either assignment or delivery of the Note from a holder, sufficient to allow Plaintiff to
enforce the Note and related Mortgage.

24. Moreover, the affiant, Lucas Jon Hansen, does not assert any personal knowledge of
delivery to, or possession by, either Roundpoint Mortgage Servicing, Fay Servicing or
Plaintiff. Lucas Jon Hansen does not attach or describe any of Plaintiffs or Fay Servicings
regularly maintained records on which she relies, nor render them admissible as evidence.
(See JP Morgan Chase, N.A. v Rads Group, Inc., 88 AD3d 766, 767 [2d Dept 2011];
HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009]; Unifund CCR Partners
v Youngman, 89 AD3d 1377, 1377-78 [4th Dept 2011]; Reiss v Roadhouse Rest. 70 AD3d
1021, 1024 [2d Dept 2010]; Lodato v Grehawk North America, LLC 39 AD 494, 495 [2d
Dept 2007]; Whitfield v City of New York, 16 Misc 3d 1115, [A], Lucas Jon Hansen does
not state that the regularly maintained records show delivery of the Note by Roundpoint
(or anyone else), and, as noted above, there is no evidence that Plaintiff ever had possession
of the Note.

25. These are clearly triable issues of fact which cannot be disposed of within Plaintiffs
instant Motion, but instead requires further research and examination, and as such, Plaintiff
should be barred from the relief which it is now seeking.

26. Defendant repeats and re-alleges each and every allegation contained in paragraphs 1
through 25 of this Opposition as though fully set forth at length herein.

WHEREFORE, Defendant respectfully seeks judgment as follows :

(a) Alleging the Complaint and Plaintiffs Moving Papers to insufficiently


demonstrate physical delivery or possession of the Note, Defendant requests that
Plaintiffs Motion be denied;

(b) and for such other and further relief as this Court deems just and proper.

Dated: February ___, 2017


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