SUPREME COURT STATE OF NEW YORK

COUNTY OF QUEENS
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HSBC USA, NA AS TRUSTEE FOR NOMURA ASSET
ACCEPTANCE CORPORATION MORTGAGE PASS THROUGH
CERTIFICATE SERIES 2006-AP1
Plaintiff
Index No. 8623 / 2008
-against-
PROPOSED ANSWER

PEGGY BEEN INDIVIDUALLY AND AS HEIR TO THE ESTATE

JUNE BEEN AKA JUNE BROWN
Defendant(s)
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STATE OF NEW YORK
COUNTY OF QUEENS
Defendant(s)
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STATE OF NEW YORK
COUNTY OF QUEENS
The Defendant in the above titled action, PEGGY BEEN , states the following

answers to the Complaint and allegations made by the Plaintiff as follows:

1. Defendant denies the allegations in paragraph 1 and state that the

plaintiff is New York Common Law Trust with a REMIC tax status

organized under the laws and jurisdiction of New York state under IRS

Employer Identification Number’s 54-2193519 54-2193520 54-

 2193521 and that Wells Fargo National Association according to the

terms of pooling and servicing agreement is the custodian of original

documents being foreclosed upon and that First National Bank of

Nevada is last indorse of the alleged note.

2. Defendants denies the allegations in paragraph 2 and states that

plaintiff has no direct or personal knowledge as to whether the

defendant June Brown executed or delivered a promissory note in the

amount of $340,000. Defendant demands strict proof to support

plaintiff’s allegations. Any documented submitted as exhibit claiming

to be defendant’s signature is a masterfully forgery and only the

original document with the defendant’s signature in wet ink can be

relied upon to support the allegations in paragraph 2.

3. Defendants denies the allegations in paragraph 3 and states that

plaintiff has no direct or personal knowledge as to whether defendants

June Brown or Peggy Brown executed or delivered a mortgage in an

amount of $340,000. The defendant demands strict proof to the above

allegations in paragraph 3. Any documented submitted as exhibit or

submitting into the record claiming to be defendant’s signature is a

masterfully forgery and only the original document with the

defendant’s signature in wet ink can be relied upon to support the

allegations in paragraph 3. In addition to the fact that defendant fails

to state the time said mortgage was given to plaintiff and the price

paid by plaintiff paid to become owner or holder of the instruments as

 claimed.

4. Defendant admits the allegation in paragraph 4

5. Defendants denies the allegations in paragraph 5 and demand strict

proof to support the allegations in paragraph 5.

6. Defendants denies the allegations in paragraph 6 and demand strict

proof to support the allegations in paragraph 6.

7. Defendant is without knowledge or information sufficient to form a

belief regarding the allegations in paragraph 7

8. Defendant is without knowledge or information sufficient to form a

belief regarding the allegations in paragraph 8

9. Defendant is without knowledge or information sufficient to form a

belief regarding the allegations in paragraph 9

10. Defendant denies the allegations in paragraph 10 and demand strict

proof to support the allegations in paragraph 10.

11. Defendant denies the allegations in paragraph 11 and states that the

plaintiff as there predecessor violated section 595a(3)a-b) by not

giving either defendant at the time of the application and before the

commitment mandatory pre-disclosures required by Federal and New

York State Banking Law and the defendant demands strict proof to

support the allegations in paragraph 11.

12. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 12

13. Defendant is without knowledge or information sufficient to form

 a belief regarding the allegations in paragraph 13

14. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 14

15. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 15

16. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 16

17. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 17

18. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 18

19. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 19

20. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 20

21. Defendant is without knowledge or information sufficient to form

a belief regarding the allegations in paragraph 21

Affirmative Defenses

Defendant, Peggy Been as heir to June Brown and individually state the

following affirmative defenses to each claim asserted by Plaintiff:

22. Defendant incorporates paragraph 1-21 of this document as if

rewritten here.
23. Plaintiff lacks standing at the time the action was filed. The

assignment of mortgage is invalid. The assignment executed by Ronald

Zackem as an Officer of of MERS as nominee for Fairfield Financial

Mortgage Group failed to be recorded with a corporate resolution and

or a power of attorney from MERS to act on behalf of Fairfield Financial

Mortgage Group which makes the assignment invalid. The assignor is

actually an employee of plaintiff’s counsel Steven J. Baum which

creates a conflict of interest in regards to executing the assignment on

behalf of the assignor and nullifies any document purported to give a

claim to the plaintiff.

24. Plaintiff’s assignment from MERS is without legal effect. Plaintiff and

their attorney's attempt to bring forth any putative assignment of

mortgage effective after December 7th 2007 to create a purported attempt

at standing is void and defective as result of not being authorized.

25. Plaintiff has failed to state a claim upon which relief can be granted

pursuant to CPLR 3211 (a) 7 because the plaintiff has not presented

any proof to the court that it is the bonafied owner of the obligation

pursuant to UCC § 3-301(i), (UCC § 3-309(a)(1)) and 15 USC 1641(f)2 .

The copy of the note from plaintiff’s servicer files contains an

indorsement underneath June Brown’s alleged signature to First

National Bank of Nevada pursuant to New York UCC §3-202.

26. Plaintiff has failed to join real parties of interest to the suit that may

have a claim. The Truth in Lending Act (15 U.S.C. 1641(f)2 prevents the
 plaintiff from claiming to be owner of an obligation on the basis of

assignment for administrative convenience and makes plaintiff liable

pursuant to section 1602(aa) of all claims and defenses with respect

to that mortgage that the defendant could assert against the plaintiff if

determine that there are actually the true creditor of the mortgage as

claimed.

27. Plaintiff has failed to plead performance or occurrence of conditions

precedent that the proper mortgage mailed Defendant a proper notice

that of whom the new owner or assignee of the defendant’s mortgage

loan is writing within 30 days after the defendant’s mortgage loan was

old or otherwise transferred on December 7th 2007 pursuant to

Section 131(g) of the Truth in Lending Act.

28. Plaintiff has failed to plead performance or occurrence of

conditions precedent, that the proper and valid agent of mortgagee

mailed Defendant a proper notice of acceleration as required in

covenant 22 of the Mortgage;

29. Plaintiff has failed to comply with pre closing loan disclosures

requirements of New York Banking Law 595-a and Truth in Lending Act

by failing to provide the defendants with the following disclosure

before or at the time of commitment : Initial Truth In Lending

Disclosure, Initial Good Faith Estimate ARM Rate Lock Disclosures, ARM

Interest Rate Disclosures, Arm Balloon Rate Lock Disclosures, NY Interest Rate

Disclosures, Appraisal Disclosures, New York Application Disclosures, New York Credit
 Disclosures, New York Insurance Disclosures, New York Escrow Account Option, New

York Balloon Disclosures, Notice of Loan Transaction Fees, Credit Score Notice, Credit

Score Disclosure, USA Patriot Act Section 326 Disclosure and the Consumer Handbook

on Adjustable Mortgages.

30. The loan documents relied upon by Plaintiff are void for

compliance with New York State Banking Law 9-0, New York Banking

Law 595-a and Regulation Z of the Truth in Lending Act, 15 U.S.C.

1601, et seq and Regulation Z, 12 C.F.R. 226.1., et seq.;

31. Defendants performance under contract is excused due to

plaintiff's breach of contract for failure to provide adequate assurance

of performance pursuant to NY UCC-2-609 of whether plaintiff actually

used their own funds to purchased the defendant’s promissory note

and whether the bookkeeping entries of such a transaction follows

U.S.C. 1831n (a)2a and/or 12 CFR 741.6 (b) regarding GAAP concerning

the purchase of said loan.

32. Defendant has repeatedly requested and demanded compliance

with a Notice of Adequate Assurance, Qualified Written Requests under

Real Estate Settlement Procedures Act, the Truth in Lending Act, and

other applicable state and Federal Statutes which the Defendants have

either ignored or refused to acknowledge in 20 days or refused to

resolve or respond within 60 days.

33. The defendant's mortgage involved a variable rate mortgage and

 the CHARM booklet was not provided at any time during the loan

transaction.

34. Plaintiff has failed to produce to the court a certified copy of the

Pooling and Servicing and Agreement and an Assignment and the

Assumption Agreement.

35. The defendant is entitled, and hereby exercises his right to rescind the

loan transaction pursuant to UCC 3-202. The mortgage transaction is

void as result of contracted being executed under fraudulent

intentions. As result of such conduct the true terms of the mortgage

note were altered from its original terms and intent. The entire

scheme was intended to trick investors into investing their capital into

securities that were unregistered and unregulated, using the

Defendant’s signature as the issuer of the negotiable instrument. The

Defendant’s signature as the issuer of the negotiable instrument which

was perceived to give an inflated value to the derivative security

purchased by third party investors. This includes the undisclosed

purchase of insurance that qualifies as mortgage insurance, credit

default swaps that qualify as mortgage insurance, and guarantees

from third parties, including but not limited to the mortgagors whose

negotiable instruments were also assigned to tranches that had lower

priority than that which the subject loan transaction was assigned, and

the payments made by Defendant were in fact allocated and given not

to the holder in due course of the subject mortgage and note, but to
 the CDO manager for allocation to tranches and securities which held a

higher place in the hierarchy of the tranches within the SPV. This

inflation of value was an exact reflection of the inflation of value that

Plaintiff and its co-conspirators paid for when they hired an appraiser

for the loan closing. Thus the borrower and the investor, the only real

parties in interest to the transaction were both tricked, cheated and

now, to add insult to injury, are being sued by Plaintiff . The failure to

disclose the real parties, and all the fees paid to the undisclosed

parties is a violation on the face of TILA, the contract between the

parties, the Good Faith Estimate provided to Defendant, and fair

dealing, in addition to a breach and in fact total abdication of the

fiduciary duty owed by a lender to its borrower in which underwriting

standards were reduced to zero because the plaintiff did not perceive

itself to be at risk.

36. Plaintiff’s has violated 16 C.F.R. §§433.1 and 433.2 and New York

General Business Law 349 with its assumption of the liability as

assignee as result of its predecessor’s failure to give required

disclosure notices on the face of the contract and other unethical and

unscrupulous conduct associated with the transaction that caused

substantial injury to defendant as mentioned above.

37. The plaintiff and its agents never qualified the defendant’s ability

to repay at the fully index rate at the total principal amount.

38. The plaintiff is liable to its predecessor for knowing purchasing a

 loan where the assignor never performed a credible analysis of the

defendants willingness to repay the loan that is consistent with prudent

lending practices in violation of 12 C.F.R. 226.32(a)4 and OCC-Advisory

Letter 2003-3.

39. The plaintiff predecessor’s failed to perform a payment shock

calculation when originating this loan.

40. The loan is void for failure to comply with Interagency Guidance

on Nontraditional Mortgage Product Risk, 71 FR 58609.

41. The action is fails to meet conditions precedent as result of the

plaintiff not serving a HEPTA notice pursuant to RPAPL 1303 with the

summons and complaint.

42. Any contract between the parties is void for unconscionability

because the terms of the loan were extremely in favor of the plaintiff

and it’s predecessor.

43. The defendant June Brown being disabled and mentally incapacitated

was not of sound mind when the allege contract was executed and was

induced into doing so by the plaintiff and their agents.

44. The plaintiff has failed to add real parties who should be a party

in this matter.

45. Upon information and belief, the mortgage note has been paid in

whole or in part by one or more undisclosed third party(ies) who, prior

to or contemporaneously with the closing on the “loan”, paid the

originating lender in exchange for certain unrecorded rights to the

 revenues arising out of the loan documents.

46. Upon information and belief and in connection with the matters

the subject of paragraph “1” above, Plaintiff (foreclosing party) has no

financial interest in the note or mortgage.

47. Upon information and belief, the original note was destroyed or

was transferred to a structured investment vehicle which may be

located offshore, which also has no interest in the note or mortgage or

revenue there under.

48. Upon information and belief, the revenue stream deriving from

the note and mortgage was eviscerated upon one or more assignments

of the note and mortgage to third parties and parsing of obligations as

part of the securitization process, some of whom were joined as co-

obligors and co-obliges in connection with the closing.

49. To the extent that Plaintiff has been paid on the underlying

obligation or has no legal interest therein or in the note or mortgage,

or does not have lawful possession of the note or mortgage, Plaintiff’s

allegations of possession and capacity to institute foreclosure

constitute a fraud upon the court.

50. Based upon one or more of the affirmative defenses set forth above,

Defendant (Peggy Been) is entitled to a release and satisfaction of the

note and mortgage and dismissal of the foreclosure claim with

prejudice.
WHEREFORE, Defendant prays this court:

A. Grant her relief in the form voiding the mortgage contract for being

enter under the umbrella of unconscionability and/or restructuring his

mortgage contract to reflect terms that more includes more affordable fully

amortizing fixed rate loan to include monthly payment and mortgage

balance reduction that is based on 38% of the borrowers actual income when

the loan was originated that assess his ability to repay.

B. Credit her payments in excess of the amortized amount after restructuring

to the loan principle balance.

Order Plaintiff to produce the book keeping entries to substantiate that the

plaintiff purchase said assignment of mortgage with their own funds

pursuant to U.S.C. 1831n (a)2a and/or 12 CFR 741.6 (b) regarding GAAP

concerning the purchase of said loan.

1. Order Plaintiff to update Defendant's credit report, removing any

negative coding arising from the issues presented in this action, including

foreclosure;

F. Order Plaintiff to reveal true source of the funds for said mortgage and

note and reveal the actual current owner of defendant's original promissory

note in ink.

G Reduction of Interest on said note.

H. Extension of the repayment period;

I. Grant Defendant's reasonable attorneys fees;

J. Deny Plaintiff's requested relief; and

K. Grant Defendant any and all other relief this Court deems equitable.

Sworn to before us on the ________________

____day of _______,200__ Peggy Been

________________________

Notary Public