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Case 1:19-cv-00514-KAM-SMG Document 1 Filed 01/25/19 of 47 PageID #: 1Case 1:19-cv-00514-KAM-SMG Document 1 Filed 01/25/19 Page 1 of 47 PageID #: 1

EOB|CEu.s. liilsgiiiEgTKgouar E.D.N.Y.UNITED STATES DISTRICT COURT

EASTERNDISTRICTOFNEWYORK * JAN 2 5 2019 *

BROOKLYN OFFlCECARLA BARKER,

Plaintiff, V _ 5 1 4 t!

COMPLAINT ANDJURY DEMAND

-against‑

1 e r ROKOSZ,JANELLE DEFREITAS,STEVEN G. LEGUM,FRANK RICHARD 7HURLEY, GREGGTELSEY, ROBERT MFISHBEIN,BETTY J.HINGLE,ROYCE LLC, ATSUMOTO' J‑JACKIE MARKETINGLLC, LOCKDECOA/K/A LODECO,“JOHN DOE #1” through“JOHN DOB #100,” said names bein fictitiousg GOLD, M 3 ,and unknown, the parties intendedbeingpersonsor corporations, if any, havingparticipated in theenterprise described in the complaint,

Defendants.

PlaintiffCarla éarker, fer her complaint, alleges uponpersonalknowledge asto herself

and information andbeliefasto other matters asfollows:

PRELIMINARY STATEMENT

1. Carla Barker, a 51-year-Oid Afro-Caribbean cancer survivor, is at risk of losing

her home of over 35 years because of afraudulent equity-shipping scheme. Defendants Izia

Rokosz,Janelle Defreitas, Steven G. Legum, Frank RichardHurley, GreggTelsey, Robert

Fishbein, and Betty J. Hingle conspired to induce Ms. Barker to enter into illegal and

unconscionablehigh-cost mortgage loantransactions with the intent to evade consumer

protection laws and rob Ms. Barkerof her family home.


2. Defendants enticedMs.Barker to transfer herhometo ashell corporation and

enter into two mortgage loantransactions that created asingle lienof $450,000 on the house (the

transactions are coilectively referredto asthe “Subject Loan”). The Subject Loan,which

required interest-onlypayments for one year ata i2 percent interest rate,was paddedwith

excessive andhidden fees paiddirectly or indirectly to the Defendants,was priced iliegally and

madewithout regardto Ms.Barker’s ability to repay it, and strippedtheproperty of significant

equity. Ms. Barker is now in imminentjeopardy of losingherhome.

3. The Subject Loan is ahigh-costmortgage that violates: the Truth in LendingAct

(“TILA”), 15U.S.C. § 160}, et seq.; the HomeOwnership EquityProtectionAct (“HOEPA”),

15U.S.C. § 1639;NewYork BankingLaw §6-1; NewYork’s prohibitionagainst usury; and

NewYork’s deceptivepractices act, General Business Law, § 349. In furtherance of their

scheme, the Defendants acted asanenterprise engaged in the collection of unlawful debts, in

violation of the Racketeer Influencedand Corrupt Organizations Act (“RICO”), 18U.S.C.

§ 1691,et seq.

JURISDICTIONAND VENUE

4. This Court has jurisdiction over Plaintiff’s federal claims pursuant to 28U.S.C.

§ 1331, 15U.S.C. § i640(e), and 18U.S.C. § 1964. This Court has supplementaljurisdiction

11over Plaintiff‘s state law claims pursuant to 28U.S.C. § 1367because they are sorelated to the

ciaims within the Court’s originaljurisdiction that they form part of the same case or controversy

underArticle 3 of the US.Constitution.

5. This Court hasjurisdiction to render the declaratory judgment Plaintiffseeks

pursuant to 28 U.S.C. §2201.


6. Venue lies in the EasternDistrict of NewYork pursuant to 28U.S.C. § 1391(b)

because the property that is the subject of the action is situated in Brooklyn,NewYork.

PARTIES

7. PlaintiffCarla Barker is anatural personwho resides at611East 48th Street,

Brooklyn,NewYork 11203 (the “Subject Property”), located in the East Flatbushneighborhood

of Brooklyn. 5

8. Defendant IziaRokosz is anaturalpersonWho, upon informationand belief,

maintains aprincipal residenceat 335 Broadway,Lawrence,NewYork 11559. Defendant

Rokoszregularlyoriginates residentialmortgage loans withhigh-cost terms. Since 2014,

DefendantRokoszhas originated at least 14mortgage loans for one-to~four family homes in

NewYork City, eachwith similar high-cost terms requiringinterest-onlypayments for one to

three years at a 12percent interest rate. DefendantRokosz is the lenderwho originated the

Subject Loan,which is comprisedof the First Loan, dated February6, 2017, and the Second

Loan,datedFebruary 16,2017.

9. DefendantJanelle Defreitas is anatural personwho is currently incarcerated,but,

upon information andbelief,maintains aprincipalplaceof business at 609 East 40th Street,

Brooklyn,NewYork 11203. In 2017, theNewYork Attorney General andKings County

DistrictAttorney’s Office indictedDefendantDefreitas oncharges related to acomplex

mortgage fraud andmoney-launderingscheme. According to the NewYork StateDepartment of

Correction andCommunity Supervision Inmate InformationDatabase,DefendantDefreitas is

incarcerated for certain charges from that indictment, includinggrand larceny, residential

mortgage fraud, conspiracy and scheme to defraud. DefendantDefreitasbrokered the home loan

transactions at issue.


10. DefendantStevenG.Legumis anatural personwho, upon informationandbelief,

resides in or aroundMineola,NewYork. Defendant Legumis anattorney admitted to practice

in the State of NewYork,with aprincipal placeof business locatedat 170Old CountryRoad,

Mineola,NewYork 11501. Defendant LegumservedasDefendantRokosz’s agent and attorney

for the home loantransactions at issue.

11. DefendantFrankRichardHurley (also known asF. RichardHurleyor Richard

Hurley) is anaturalpersonwho, uponinformationandbelief, resides in or aroundBrooklyn,

NewYork. DefendantHurley is anattorney admitted to practice in the State of NewYork,with

aprincipalplaceof business locatedat30Vesey Street, 15thFloor,NewYork,NewYork 10007.

DefendantDefreitas arranged for DefendantHurley to act asMs.Barker’s attorney for the

closings.

12. DefendantGreggTelsey is anatural personwho, upon informationandbelief,

resides in the State of NewYork. Uponinformation andbelief,DefendantTelsey is amanaging

partner atRoyceLLCandmaintains aprincipalplaceof business at 364 Central Avenue,

Brooklyn,NewYork 11221. Upon informationandbelief,DefendantTelsey is anassociate of

one ormoreDefendants and receivedproceeds from the Subject Loan in furtherance of the

scheme.

13. DefendantRobert Fishbeinis anaturalpersonwho, upon informationandbelief,

resides in the State of NewYork andmaintains aprincipalplaceof business at 110-20Jamaica

Avenue, Suite 2D, RichmondHill,NewYork 11418. Upon informationandbelief,Defendant

Fishbein is anassociate of one or moreDefendants and receivedproceeds from the Subject Loan

in furtherance of the scheme.


14. DefendantBettyJ.Hingle is anatural person, who upon information andbelief,

resides in or around Sayville,New York. DefendantHingle is anattorney admitted to practice in

the State of New York,with aprincipalplaceof business locatedat 53RooseveltAvenue,

Sayville,New York 11782. Uponinformationand belief,DefendantHingle is anassociate of

one or moreDefendants and receivedproceeds from the Subject Loan in furtherance of the

scheme.

15. DefendantRoyceLLC (“Royce”) is adomestic limited liability company

registeredwith the NewYork State Department of Stateunder ID No. 2673038 with aprincipal

place of business located at97294th Avenue, Brooklyn,New York 11209. Roycereceived

proceeds from the Subject Loan in fiartherance of the scheme.

16. DefendantJackie Marketing, LLC (“Jackie Marketing”) is a domestic limited

liability company registeredwith the New York State Department of State under ID No.

4073191 with aprincipalplace of business located at35-15 84th Street, 211, Jackson Heights,

New York 11372. Jackie Marketingreceivedproceeds from the Subject Loan in furtherance of

the scheme.

17. DefendantLockdeco, also knownasLodeco, is anentity doing business in the

State of New York, but is not registeredwith the New York State Department of State. Upon

informationand belief, Lockdeco’s principalplace of business is located at 115-53 Mexico

Street, Saint Albans, NewYork 11412. Lockdeco receivedproceeds from the Subject Loanin

furtherance of the scheme.

FACTUAL ALLEGATION S


18. PlaintiffCarlaBarker is a51-year-oldAfro-Caribbean cancer survivor andmother

of two. She is ahighschool graduate. Ms. Barkerhas lived in the Subject Property,which is her

primary residence, for more than 35years. It is atwo-family home.

19. The Kings County DistrictAttorney’s office referredMs.Barker toMobilization

for Justice, Inc. (“MFJ”) asapossiblevictim of mortgage fraud in needof free civil legal

services.

20. In 1983,Ms.Barker’smother,Claudine Langevine,purchased the Subject

Property to be ahome for herself,Ms. Barker, and Ms.Barker’s stepfather and stepbrother. Ms.

Langevinepurchasedthe Subject PartyWith a$64,600mortgage,which was refinanced into a

$75,000mortgage in 1993.

21. Ms. Barker has lived in the Subject Property since 1983 and raisedher daughter

and son there. Her 18-year-oldson still liveswithher. Ms.Barkerwas proud that her family, an

immigrant family from Guyana,had achieved the Americandreamof homeownership.

22. In 2004,Ms. Langevinepassedaway from cervical cancer. In herwill, Ms.

Langevinedevised the Subject Property to Ms.Barker andMs. Barker’s half-sister, Sandra

Vaughan.

23. In or aroundNovember2004,Ms. Langevine’swill was probated and the Subject

Propertywas deeded to Ms. Barker andMs. Vaughan. Ms. Barker remained in the Subject

Property,makingall mortgage payments andmaintainingher family home. Ms.Vaughan did

not reside in the homenor did she assist withmortgagepayments andproperty charges.

24. By 2006,Ms. Barkerwas able to pay offhermother’s smallmortgage.

25. In 2008,Ms.Vaughanbrought apartitionaction against Ms. Barker.Ms. Barker

was unableto defend this actionbecause shewas undergoingchemotherapy, and was no longer


able to work atherjob asahomehealthaide. As aresult,Ms. Vaughan obtained adefault

judgment in this actionagainstMs.Barker.

26. Formany years thereafter,Ms.VaughanpressuredMs.Barker to payher for her

portionof the Subject Property. Shewould frequently callMs. Barker to pressure her to take out

aloan to buyherportionof the Subject Property. On several occasions, Ms.Vaughan, or her

attorney or other agents, also came to Ms.Barker’shomeunannounced to show the Subject

Property to potentialbuyers.

27. By this time,Ms.Barkerhadalso fallenbehindonherproperty taxes due to her

battlewith cancer. In addition to pressure fromMs.Vaughan,Ms. Barker also became

concerned about property tax liensplaced against her home.

28. Ms.Barkerattempted to obtain amortgage loanfrom traditional mortgage

lenders,but shewas denied because she was not working at the time. Feelingdesperate andout

of options,Ms.Barkerwould often talk to fiiends andneighbors in EastFlatbushabout her

situation andher fear of losingher family home. She asked them for advice about how she could

saveher home fromMs.Vaughan’s threats or aninevitable tax lien foreclosure.

29. In 2016,Ms.Barker confided in JuneWhyte, the daughter of her latemother’s

best friend,who, likeMs. Barker, is also fromGuyana and lives in the neighborhood. Ms. Barker

consideredMs.Whyte andMs.Whyte’s mother family.

30. Ms.Barker told Ms.Whyte about her sister’s repeated threats to buyher out and

the risk of losingher home, even thoughMs.Barkerhadpaidoff themortgageandher sister had

not lived there for over adecade. Ms.Whyte referredMs.Barker to Defendant JanelleDefreitas,

amember of the local community, for help.


31. DefendantDefreitas toldMs.Barker that she could help her obtain amortgage to.

pay offMs. Vaughan. Uponinformationandbelief,DefendantDefreitasknew that Ms.Barker,

still recuperating from cancer, had little or no incomebecause she only sporadically worked odd

jobs due to herpoorhealth.Ms. Barker toldDefendantDefreitas about the threats fromher sister

and her desire to saveher home.

32. DefendantDefreitas further advisedMs. Barker that she coulduse the proceeds

fiom amortgage to repair the secondunit of herhome, so that she could rent it out andhave a

steady source of income. She also toldMs.Barker that she could findher acontractor for this

purpose.

33. In late2016 or early 2017,DefendantDefreitas informedMs.Barker that shehad

foundher amortgage lender. As aconditionof obtaining the loan,DefendantDefreitas informed

Ms.Barker that because she planned to rent out the second floor apartment, shewas required to

transfer the Subject Property to acorporation, J&MProperty Holdings, Inc. (“J&M Holdings”).

DefendantDefreitasexplained that the personwho receives aloan cannot both live in the

property andbe the owner of the property. She reassuredMs. Barker that Ms.Barkerwould

retaincontrol of the corporation, and thus remain the owner of her house.

34. In or around late2016 or early 2017,DefendantDefreitas droveMs.Barker to

Queens to meet with Jaipaul Persaud. DefendantDefreitas informedMs.Barker that Mr.

Persaudwould drawup thepaperwork to set upJ&M Holdings. However,when they arrived at

Mr.Persaud’s office,DefendantDefreitas instructedMs.Barker to wait in the car while she went

into the office. DefendantDefreitaswent inside for a longtime.Ms. Barkernever received any

incorporationdocuments, either to sign, review, or keep for her records.


35. According to adocument filedwith theNewYork StateDepartmentof State,

DefendantDefreitas signeda“Certificate of Incorporation” for J&M Holdingsasthe

“Incorporator.” Mr. Persaudfiled the document onJanuary 13,2017. I

36. Also in or around late2016 or early 2017,DefendantDefreitas introducedMs.

Barker to Defendant FrankRichardHurley, and informedMs.Barker that DefendantHurley

would beher lawyer at themortgage closing. DefendantDefreitas took Ms.Barker to meet

DefendantHurleyat a local restaurant insteadof an office. This was a shortmeetingduring

whichDefendantDefreitas didmost of the talking for Ms.Barker,anddiscussedwithDefendant

HurleyrepresentingMs. Barker in arefinance. DefendantHurleyagreed to representMs.

Barker,but Ms.Barker never signed aretainer. Ms. Barkerdid not see or communicate with

DefendantHurley againbefore the closing.

37. Uponinformation andbelief,DefendantHurley’s specialized area of law is

criminal law,not real estate.

38. Also in or around late2016 or early 2017,DefendantDefreitas droveMs.Barker

to Queens to meetwith DefendantRobertFishbein,describingDefendant Fishbeinasthe person

they had “to go through first” for the loan. This time, Ms. Barker entered the officewith

Defendant Defreitas,who instructedMs. Barkernot to speak and to letDefendantDefreitas do

all the talking. Duringthemeeting,DefendantFishbein andDefendantDefreitas spoke asif they

were familiar with each other. Ultimately,Defendant Fishbein informedthem that hecould

arrange financing for Ms.Barker to buyout her sister. Healso said that hewould eventually be

able to helpMs. Barkerobtain aFederalHousingAdministration (“FHA”)mortgage

administeredby the UnitedStates Department of HousingandUrbanDevelopment. Upon

informationandbelief,Defendant Fishbein thereafter reachedout to Defendants Legumand


Rokosz and arrangedthe closing. NeitherDefendantFishbeinnorDefendantDefreitas explained

the terms of the financing to Ms.Barker at this meeting.

39. In or around early 2017, DefendantDefreitas advisedMs.Barker of adate, time,

and location for the closing. DefendantDefreitas did not informMs.Barker of the nameof the

lender or who elsewould beat the closing.

40. Before the closing, in or around early 2017, DefendantGreggTelsey came to Ms.

Barker’s house. DefendantTelseywas accompaniedby anotherman. Ms. Barkerbelieved that

Defendant Telsey was anappraiser soshe allowedhiminside to inspect herhouse. At that time

or thereafler, DefendantTelsey gaveMs.Barker abusiness card fromRoyceLLC.

First LoanClosing

41. On February 6, 2017,Ms.Barker attended the loanclosing at the office of

Defendant Steven Legumat 170Old Country Road in Mineola,NewYork.

42. At the closing, Ms. Barker first learnedthe identity of the lender: Defendant Izia

Rokosz.DefendantRokoszwas not at the closing. His attorney,Defendant Legum,was present

onhisbehalf.

43. DefendantDefreitaswas at the closing.

44. DefendantHurleywas also at the closing.

45. DefendantHinglewas also at the closing.

46. DefendantTelsey was also at the closing.

47. Ms.Barker’s half-sister and co~owner of the property,Ms. Vaughan, was also at

the closing, alongwith her lawyer andher son.

10


48. Either immediatelyprior or during the closing, DefendantHurleytoldMs.Barker

to sign aletter, dated February6, 2017. The letter stated that the loanshe was receivingwas a

“hardmoney loan,” that most borrowers cannot afford such loans, and that she would release

DefendantHurleyof any liability if there was afuture lawsuit.

49. After havingMs. Barker sign this document,DefendantHurleyproceeded to

represent her at the closing.

50. DefendantTelsey was also at the closing.

51. At the ciosing, Defendant Legumdistributed various documents to Defendant

Hurley to pass to Ms. Barker to sign. At nopoint during the closing didDefendantHurley

explain to Ms. Barkerany of the documents heinstructedher to sign, or discuss withher the

potential consequences of signing.

p52. DefendantLegum thenprovidedDefendantHurleywith the deed transferring the

Subject Property to J&M Holdings. DefendantHurley instructedMs.Barker to sign the deed,

which she signed onbehalfof J&M.

53. Thereafter, Ms. Vaughan signed the deed transferringher share of the title to Ms.

Barker.

54. Defendant Legumalso providedDefendantHurleywith theFirst Loandocuments

that Ms.Barker signed asthe president of J&M Holdings.

55. At one point, DefendantHurley asked to speak privatelywith Ms.Barker and

escortedher into aseparate room. When the two were alone,DefendantHurley toldMs. Barker

that he “didn’t like the figures” that were provided. Ms.Barker did not understandwhat he

meant and waited for himto clarify, butbeforehecould continue,DefendantDefreitas entered

the roomand interrupted them. DefendantDefreitas toldDefendantHurley not to tell MS.

11


Barker anythingand that his job was to haveher sign the documents. That forcedDefendant

Hurley andMs. Barker’s private conversation to end and the two went back to the conference

roomWhere DefendantHurley instructedMs.Barker to sign the remainingdocuments.

56. DefendantDefreitas reassuredMs.Barker that she did not have to worry about

monthlypayments because shewouldmake the paymentsuntil Ms. Barker refinancedwith an

FHA loan.

57. In addition to theNote andMortgage,DefendantLegurn also providedDefendant

Hurleywith the following documents at the closing for the First Loan: aPromissoryNote, an

EscrowAgreement, anAssignment and Security Agreement, aGuarantee, andaCorporate

Resolution.DefendantHurley,without explainingany of the terms of these documents,

instructedMs.Barker to sign them. Ms.Barkerwas notprovidedanopportunity to readthe

documents, they were not explained to her, and shedid not fully understandwhat they were or

their legalramifications.

58. Relyingon the reassurances of DefendantHurley,her lawyer, andDefendant

Defreitas,whom she trusted, Ms. Barkerultimately signed eachFirst Loandocument presented

to her.

59. Ms. Barker also signed aPromissoryNote for $10,000 that was payable to

DefendantsTeisey andFishbein. The PromissoryNotedeclared that the funds advancedwere

for the purposeof closing the contemporaneously issuedFirst Loan. The PromissoryNotealso

provided that any default under its terms would bedeemed adefault of the First Loan. Ms.

Barkerwas instructed to Sign thePromissoryNote in her individual capacity asthe obligor.

60. The EscrowAgreement requiredasum of $45,792.68 to beposted to Defendant

Legumasthe authorized EscrowAgent. The EscrowAgreement provided that, in the event of

12


default, Defendant Legumcould,upondirection of DefendantRokosz,andwithout notice to Ms.

Barker,make requiredpayments out of the escrowedbfunds. Ms. Barker was instructedto sign

the EscrowAgreement asthe president of J&M Holdings.

61. TheAssignment and Security Agreement required that Ms.Barker, aspresident

and secretary of J&MHoldings, to assignall interest and stock in J&MHoldings to Defendant

Rokosz,the assignee. Per the agreement, the assignment was to be held in escrow by Defendant

Legum, to bereleased to DefendantRokosz if Ms.Barker defaulted on the loan.

62. The Guaranteeprovided that Ms. Barker agreed to be boundto the loanterms asa

personal obligor. Again without any explanation,Ms.Barker was instructed to sign the

Guarantee in herpersonalcapacity.

63. The Corporate Resolutionprovided that all shareholders, officers, anddirectors of

1&MHoldingsunanimously agreed to borrow $330,000 fromDefendantRokosz and to provide

asecurity interest to him in the Subject Property. Ms. Barkerwas instructed to sign the

Corporate Resolutionboth asPresident and Secretary of J&M Holdings.

64. At the conclusion of the First Loanclosing, Ms. Barkerdid not receive any copies

of anyof the documents signed at the closing.

65. The First Loan agreement that Ms.Barker signed on February 6, 2017 was in the

amount of $330,000. Ms.Barkerwas never informedof the terms of the First Loan, nor

providedwith any documentation reflecting the terms of the First Loan. The First Loanwas

issuedwithout any regard to Ms. Barker’s ability to repay.

66. The First Loanprovided for a 12percent annual interest rate, aone-year term, and

interest-Onlypayments for the term of the loan,with noprepayment allowedbefore six months.

13


67. Of the $330,000 initialprincipal amount, $221,276.85 was applied to Ms.

Barker’s debts: $150,000 to buy out her sister’s interest in the property, $71,126.85 to pay off

property tax liens, and $150 to adebt owed to NewYork State. Ms. Barker didnot directly

receive any of the proceeds.

68. The remainingproceeds were distributedto the following entities, asfollows:

EastCor LandServices (title company) $36,573.80Royce LLC $2,980.00Jackie Marketing LLC $3,460.00Lodeco (constructioncompany) $14,416.67StevenLegum $3,000.00RichardHurley $1,500.00BettyHingle $1,000.00Retainedin Escrow $45,792.68Total of RemainingProceeds $108,723.15

69. At the closing, Ms. Barker didnot knowwhat RoyceLLCor JackieMarketing

LLCwere, although she recalls receivingabusiness card fromDefendantTelsey that identified

RoyceLLCashis company. She is not awareof any services performedby these companies to

her benefit. Upon informationandbelief,bothcompanies are associatedwithDefendantTeisey.

70. At closing, Ms. Barkerdid not knowwhat EastCor LandServices was nor did she

retainEastCor LandServices to assist her in the closing.

71. Similarly,Ms. Barker did not retainthe services of Defendant Lodeco,upon

informationandbelief, aiso knownasLockdeco, the purported contractor that Defendant

Defi‘eitas arranged to conduct repair work onMs. Barker’s property. Prior to the closing, Ms.

Barker never communicatedwithDefendant Lodeco. Ms. Barkernever receivedaninvoice for

any work performed. DefendantDefreitaspromisedMs.Barker that Defendant Lodecowould

perform significant repairwork, including, for example, insulation, and roof,electrical, and

plumbingrepairs. Instead,Lodeco employees installed some sheetrock andbegancertain

14


preparationwork,which created holes and left exposed electrical wiring in certain areas. No

significant repair work was ever completedby Defendant Lodeco.

72. Upon informationandbelief,neither Lodeconor Lockdeco are licensedby the

NewYork CityDepartment of ConsumerAffairs ashome improvement contractors.

73. Uponinformationandbelief, DefendantDefreitas sued Lockdeco in Kings

County Supreme Court in August 2017 (IndexNo. 515459/2017) for breachof contract and

unjust enrichment, seeking $42,106.01. According to the complaint filed in that case, Defendant

Deficitashired Lockdeco onor about February6, 2017 for ahouse repair project andpaid

Lockdeco aninitial sum of$14,416.67 and anadditional sum of $78,140.70 ten days later, for a

total of $92,557.37. Also accordingto the complaint, Lockdeco reimbursedDefendantDefreitas

$50,451.36 of those fimds.

74. Upon informationandbeliefDefendantDefreitas is seekingadefault judgment

against Lockdecoand its two principals.

75. Upon informationandbelief,Ms.Barker spokewith one of theprincipals of

LockdecoWhile Lockdecoemployees were ather homeone day. The Lockdecoprincipal

advisedMs.Barker that DefendantDefreitas had givenLockdeco checks, and they hadgiven

cashback to Defendant Defreitas.

76. At no time before, during, or after this first closing onFebruary6, 2017, was Ms.

Barker advised about meetingwith nor didMs.Barkermeet with acertified loancounselor

concerning the First Loanor any other loan. If she hadmetwith ahousingcounselor and that

counselor had explained the terms of the loanto her,Ms.Barkerwould not have gone through

with the closing.

15


77. At no timebefore, during, or after this first closing onFebruary 6, 2017, did Ms.

Barker receiveany noticeabout her right to rescind themortgage.

16


SecondLoanClosing

78. At somepoint,DefendantDefreitas informedMs.Barker that she wouldhaveto

returnto Defendant Legum’s office to Signmore documents.

79. OnFebruary 16,2017, 10days afler the first closing,Ms. Barker returnedto

Defendant Legum’s office to signadditionalmortgagedocuments. DefendantDefreitas,

DefendantHurley,andDefendantLegumwere once againpresent. DefendantFishbein,theman

who, upon informationandbelief,arranged the closing andwas apayee of the $10,000

PromissoryNote dated February 6,2017, was also present. DefendantTelseywas not present at

this closing.

80. Ms.Barkerwas under the impressionthat shewas signing additional documents

for the First Loan. However,unbeknownst to Ms. Barker, she was ledto execute documents

taking out aSecondLoanof $120,000,whichwas then consolidatedwith the First Loan to create

the Subject Loanof $450,000. No one advisedMs.Barker that she was entering into an

additional loanagreement:

81. Defendant Legumagainprovideddocuments to Defendant Huricy for Ms.Barker

to sign.

82. DefendantHurley instructedMs. Barker to sign updatedcopies of the Escrow

Agreement, Assignment and Security Agreement, Guarantee, and CorporateResolution,all dated

February 16,2017. Eachagreement provided for the same general terms aseach respective

original agreement, but recognizedthe additional $120,000 obligation and total consolidated

obligation of $450,000. Again, noone, includingDefendantHurley, explained any of the

documents to Ms. Barker at this second closing. Beingfinancially unsophisticatedand

inexperiencedwithmortgages,Ms.Barker did not understand any of the terms of these

l7


documents. Ms. Barker signed them anyway, given thepresence andparticipationof Defendant

Defreitas andDefendantHurley,people she trusted andbelievedwere acting in herbest interest.

83. I TheEscrowAgreement dated February 16,2017a1so provided for anadditional

$14,400 to be retained in escrow, in addition to the $45,792.68 aiready retained in escrow.

Again, the EscrowAgreement provided that, in the event of default,Defendant Legumas

EscrowAgent could, upondirection of DefendantRokoszandwithout notice to Ms. Barker,

makerequiredpayments out of the escrowed funds.

84. The SecondLoanwas again issuedby DefendantRokosz,with the same loan

terms: aone-year term, with interest-onlypayments at a 12percent interest rate,with no

prepayment allowedbefore six months. Once again, the loanwas issuedwithout any regard for

Ms. Barker’s ability to repay.

85. Ms. Barker did not receive any of the proceeds. The proceeds of the Second Loan

were distributed to the following entities:

IziaRokosz (interest accrued2/6 to 2/16) $1,193.42EastCor LandServices, Inc. $3,715.88Royce, LLC $5,733.33Jackie MarketingLLC $11,466.67Lodeco $78,140.70Steven Legum $3,500.00RichardHurley $1,500.00Ronald Ifraimov $350.00Retained in Escrow ' $14,400.00Total: $120,000.00

86. At the closing, Ms. Barker did not receive copies of any of the documents she

signed.

87. At no timebefore, during, or after this closingon February 16,2017,was Ms.

Barker advised aboutmeetingwith or didMs. Barkermeetwith acertified loancounselor

concerning the Second Loanor any loan. If she hadmetwith ahousing counsetor and that

18


counselor hadexplained the terms of the loanto her,Ms. Barkerwould not have gone through

with the closing.

88. At no timebefore, during, or alter this closing onFebruary 16,2017, didMs.

Barker receiveany noticeabout her right to rescind themortgage.

PostClosings

89. Between the First Loanand SecondLoan, comprising the Subject Loan, atotal

debt of $450,000 was borrowedagainst the SubjectProperty.

90. Beingafirst-timemortgageborrower and financially unsophisticated,Ms. Barker

was not familiar with nor did sheunderstandany of the loanterms underlyingthe Subject Loan.

91. Ms.Barker never directly receivedany proceeds from the Subject Loan.Of the

$450,000, Ms. Barker only benefited from $221,276.85 to buy out Ms. Vaughan and to pay o f f

the tax liens and a small $150 debt to NewYork State.

92. Uponinformationandbelief, DefendantDefieitas claimed to bethe owner of the

Subject Property in communications with the purported contractor, Lodeco. As aresult Lodeco

never had any direct contact withMs. Barker about the constructionwork, nor did Ms.Barker

ever receive any invoices for any constructionworkon the SubjectProperty.Ms.Barkerwas led

to believe that moneywould be set aside from themortgageproceeds to pay for the repairs.

93. DefendantDefreitas toldMs. Barker that shewouldmake themonthlymortgage

payments while sheheipedMs. Barker apply for anFHA loanthat would clear the Subject Loan.

94. At neither closing didMs.Barker receivecopies of any of the documents she

executedon February 6, 2017 or February 16,2017.

95. After the closings, Ms. Barker repeatedly called DefendantHurley to request

copies of her loandocuments. WhenMs. Barkerwas finally able to reachDefendantHurley,he

19


agreed to meetwith her at acafe and toldher that hehadjust returned from acruise. At that

meeting,Ms. Barkerwas finally able to obtain some of the documents from the loanclosings.

96. The itemizationof disbursement proceeds that DefendantHurleyprovided to Ms.

Barker after the closing includedanumberof loanproceedswhichwere never receivedby Ms.

Barker,were notpaidentirely to satisfy Ms.Barker’sprior debts, andwere notpaidto third

parties for purposes that were definedor communicated to Ms.Barker. Noneof the documents

referenceMs.Barker’s right to rescission.

97. In or aroundApril 2017, DefendantTelsey again visitedMs.Barker ather home.

Hewas againaccompaniedby the samemanwho camewith himto herhousebefore the first

closing. Duringthis visit, DefendantTelsey informedMs.Barker that she was behindonher

mortgage. DefendantTelsey insisted that Ms.Barkerhad to signover all the paperwork for the

house to DefendantRokosz,who was now goingto own the house.

98. This was the first time that Ms.Barker learnedthat DefendantDefreitashadnot

made the payments onhermortgage asshehadrepeatedly stated shewould. Ms. Barkerhadnot

receivedanymortgage invoices fromDefendant Legumor anyone else notifyingher that she was

behindonmortgagepayments.Ms. Barkerhadreasonablybelieved that DefendantDefreitaswas

makingthose mortgagepayments andwas shocked to learnotherwise.

99. Desperate for answers, Ms. Barker calledDefendant Legumto requestmortgage

statements. Defendant Leguminformedheron the phone that hermortgagepaymentwas $5,000

amonth and that she was in default. Ms. Barker asked to use the funds in the escrow acCOunt to

helpherwith payments andalso to pay the construction company to finish the work. it started on

herhouse, soshe couldbeginrenting it out and receive income. Defendant Legumtold her this

would notbepossible.

20


100. Subsequent to that phonecall, Ms. Barkerdid not receiveanymortgage

statements.

101. By letter datedMay9, 2017,Defendant LeguminformedMs.Barker for the first

time in writing that she was in default of themortgage, and that, asaresult,hewas transferring

the shares of J&MHoldings to DefendantRokosz.

102. In the summer of 2017, two mencame to Ms.Barker’shome. She was in the

backyardgarden andhad left the front door unlocked. A neighbor saw the two menenter Ms.

Barker’shomeandalertedMs. Barker. Ms.Barker confronted the two men,whom shehadnever

metbefore, insideherhome. To her shock anddismay, they toldher that she did not own the

house and that shewould have to leave in eight days. When themenrefusedto leave,Ms.

Barker left to seek thehelp of her neighbor, acorrections officer. By the time she returned

shortly thereafter, the two menhad left her property.

103. It was then that Ms. Barkerrealized that shemay loseherhomeof 35years and

the house that hermotherhadworked sohard to purchase. Ms.Barkerwas scared and ashamed

that she hadunknowinglyjeopardized something that meant somuchto her andher family.

EvictionProceedingsAgainst Ms.Barker

104. In November2017,J&M Hoidings,in petitions verified by DefendantRokosz,

sued to evict Ms. Barker from the Subject Property in the Kings County HousingPart of New

York City Civii Court. J&M Holdings commenced two evictionproceedings against Ms. Barker,

eachunder the captionJ &MPropertiesHoldings Inc. v. Carla Barker, andbearingKings

County LandlordTenant indexnumbers 95190/2017 and 95191/2017.

105. J&M Holdingswas representedby CohenHurkinEhrenfledPomerantz&

Tenenbaum, LLP in those cases.

21


106. Thepetitioner in those cases, J&MHoldings,maintainedthat DefendantRokosz

was the president of J&M Holdings and the sole shareholder.

107. By havingMs.Barker transfer oWnership to J&M Holdings and insistingshe sign

the Assignment and Security Agreement, DefendantRokoszdid nothaveto pursue aresidential

foreclosure action to obtainownership of the property and thus deniedMs.Barker the legal

protections that theNewYork State legislatureenacted to protect homeowners.

108. Ms. Barker,representedby MFJ,movedto dismiss these cases in HousingCourt j

onprocedural and substantive grounds.

109. On July 10,2018, the housingcourt dismissed bothactions. J&MHoldingshas

noticedanappealbut has yet to perfect it.

110. Although the evictionproceedinghasbeendismissed,Ms. Barker still does not

feel safe in her ownhome. Throughout the evictionproceeding,multiple individuals came to her

home claiming they hadpurchasedher property.

111. In or aroundJuly 2018, someoneplaceda “For Sale” sign onher property. Ms.

Barker took it down.

112. In or aroundOctober 2018, amanwith akey to Ms.Barker’shomeunlockedthe

bottom lock and tried to enter, but was unableto becauseof adeadbolt. Through the door, the

man told Ms.Barker that hehadbeen informedthe housewas available for rent.

113. Eachof these incidents has scaredMs.Barker andmadeher feel unsafe.

114. Prior to taking out the Subject Loan,Ms. Barker never experienced this type of

harassment.

115. As aresult of these incidents and the threat of losingher home,Ms. Barker has

had to change her lifestyle. A homehealthaide,Ms. Barkernow onlyworks night shifts soshe

22


canbe at home in the day to protect herhome from intruders andothers whomay try to take

away her property.

116. Ms. Barker is ashamed that shewas scammed intopotentially losingher home

and experiencesbouts of depression. Herhome,once asource of family pride, no longerbrings

her happinessbecause it is still in a state of disrepair asaresult of the constructionwork that was

startedbut never finished.

117. OnDecember22, 2018, afire caused damage to the Subject Property. Since the

fire,Ms. Barker andher son havebeenunable to live in the property andhavebeen stayingwith

friends and family temporarily. Becauseof her temporary absence from the property,Ms.

Barker is unable to keep acareful watch on her home.

Defendants’ RelatedPractices

118. "InApril 2017, the KingsCOunty DistrictAttorney’s Office and theNewYork

Attorney General’s Office arrestedand indictedDefendantDefreitas, alongwithPaula

Blackwood-Sambury,DarrenDownes,RickleyGregoire, RoxanneHarmon,LesterWayne

Mackey,RaymondMcKayle, JaipaulPersaud, and JuneWhyte. All were arrested and charged

with mortgage fraud andmoney laundering for incidents from 2012.

119. Upon informationandbelief, since 2014,DefendantRokoszhas issued at least 13

other mortgage loans for one-to-four family homes,eachof which havesimilar terms to the

Subject Loan, including 12percent annual interest rates, interest-onlypayments, and one‐year

terms.

120. Of those 14,Defendant Legum’s name is on six of the transactions.

1 2 ] . In 2014, DefendantRokosz issued at least four mortgages for one-to-four family

homes with similar terms to the Subject Loan.

23


122. In 2015, DefendantRokosz issuedat least fivemortgages for one‐to-four family

homeswith similar terms to the Subject Loan.

123. In 2016,DefendantRokosz issuedat least onemortgage for one-to-four family

homeswith similar terms to the Subject Loan.

124. In 2017, in addition to the Subject Loan,DefendantRokosz issuedat least three

othermortgages for one-to-four family homeswith similar terms to the Subject Loan.

125. Ten of the 14predatory loans issuedby DefendantRokoszduring this time period

‐ or 71percent - were issued in predominantiyminority communities.

FIRSTCLAIMFORRELIEF(TILA)

(Against DefendantRokosz)

126. Plaintiffrestates, reaileges,and incorporates by referenceall foregoingparagraphs

asif fully set forthherein.

127. The Truth in LendingAct (“TILA”) requires creditors to provide disclosures

about the cost of credit in covered transactions. The right of rescissionmay apply if acreditor

fails to providesuchdisclosures.

128. TILA’s disclosure requirements apply to creditors in consumer credit transactions.

See 15U.S.C. § 1638.

129. A creditor refers to apersonwho both: (1) regularly extends consumer credit

payableby agreement in more than four installments or for which the‘payment of afinance

charge is ormayberequired; and (2) is theperson to whom the debt arising from the consumer

credit transaction is initiallypayableon the face of the evidence of indebtedness. 15U.S.C. §

1602(g). A creditor also refers to anypersonwho originates two or moremortgages considered

“high-cost mortgages,” asdefinedby TILA, in any l2-monthperiod. 15U.S.C. § 1602(g).

24


130. A consumer credit transaction is one in which the party to whomcredit is offered

or extended is anaturalpersonand themoneyor propertywhich are the subject of the

transaction areprimarily for personal, family, or householdpurposes. 15U.S.C. § 1602(i).

131. If TILA applies, the creditor mustprovideaseries of disclosures meant to inform

the borrower of the cost of credit for the transaction, includingthe following terms, among

others: the identityof the creditor, amount financed, finance charge, finance charge expressed as

an annual percentagerate, total of payments, payment schedule, amount of late fees, andother

statements of the borrower’s rights. 15U.S.C. § 1638(a). Suchdisclosures mustbemade before

the credit is extended. 15U.S.C. § 1638(b).

132. UnderTILA, the creditormust also providethe borrower,prior to closing, two

copies of anoticeof her right to rescind the loancontract, which are “clearly and conspicuously

in writing, in a form that the consumer may keep.” 12C.F.R. § 1026.17(a)(l); accord 15U.S.C.

§ I635(a); 12CPR. § 1026.15(b).

133. If,asaresult of the consumer credit transaction, asecurity interest is or will be

retainedor acquired in the principal dwelling of the person to whom credit is extended, the

consumer shallhave the right to rescind the loanfor a certainperiodof time after the creditor

makes the requireddisclosures. 15U.S.C. § 1635(a). In the event the creditor fails to comply

with TILA’S disclosure andnotice requirements, aborrower is entitled to rescinda transaction up

to three years after the date of consummation of the transaction. 15U.S.C. § 16350).

134. At all relevant times, DefendantRokosz, in the ordinary course of hisbusiness:

( I ) regularly extends consumer credit payableby agreement in more than four-installments; and

(2) is the personto whom the debt arising from the consumer credit transaction is initially

payable to. 15U.S.C. § 1602(g). DefendantRokoszhas also originated two or more “high-cost

25


mortgages” in any 12-monthperiod. Id. DefendantRokosz is therefore a“creditor” within the

meaningof TILA.

135. At all relevant times, J&M Holdingswas amere shamcorporation that one or .

moreDefendantsdesigned to evade consumer protection statutes. The true borrower and

purportedguarantor for 1&MHoldings isMs.Barker, anatural person. DefendantRokosz’sbad

faith attempt to subvert the protections of TILA shouldberejectedandMs.Barker,anatural

person, shouldbedeemed the true borrower. See 12CPR. § 1026.34(b).Because the extension

of credit was, for all intents andpurposes,extendedto a “natural person,” the loanmust be

considered a“consumer credit transaction” within the meaningof TILA and subject to its

protections. See 15U.S.C. § l602(i).

136. DefendantRokosz did not provideMs. Barkerwith any disclosures before the

credit transactions took place. 15U.S.C. § 1638(b)(1). Ms.Barker did not otherwise waive or

modify the timing requirements for the disclosures. 15U.S.C. § 1638(b)(2)(F).

137. The itemizationof disbursement proceeds laterprovided to Ms. Barker includeda

number of loanproceedswhichwere not directly distributed toMs. Barker,were notpaid

entirely to satisfy Ms.Barker’s prior debts,were not fees or charges properly excluded from the

finance charge pursuant to RegulationZ, 12CPR . § 1026.4(0),andwere notpaid to third

parties for purposes that were defined or communicated to Ms.Barker. DefendantRokosz thus

inaccurately disclosed the amount financed, the APR, and the finance charges related to Ms.

Barker’s mortgage transaction.

138. As aresult of the foregoing, DefendantRokosz failed to provideMs. Barkerwith

any requireddisclosures and notices in themanner and timeprescribedby TILA. 15U.S.C. {5

1638. The contents of the untimely itemizationof disbursement proceeds that DefendantHurley

26


eventually provided to Ms.Barker after the closing also substantively violated TILA in various

ways, includingbut not limited to, by:

a. failing to preperly andaccurately disclose the “amount financed,” and thereby

violating 15U.S.C. § 1638(a)(2)and 12C.F.R. § 1026.18(b);

b. failing to properly andaccurately disclose the “finance charge,” and thereby

violating 15U.S.C. § 1638(a)(3)and 12C.F.R. §§ 1026.18(d)and 1026.4; and

c. failing to properly andaccurately disclose the “annual percentage rate,” and

thereby violating 15U.S.C. § 1638(a)(4) and 12C.F.R. § 1026.18(e).

139. DefendantRokoszalso failed to provide two notices to Ms.Barker regardingher

right to rescind the loancontract, in the time andmanner requiredby TILA. 15U.S.C. §

1635(a); 12C.F.R. §§ 1026.15(b)and 1026.17(a)(1).

140. Because the Subject Loancreated asecurity interest in Ms.Barker’sprincipal

dwelling, the Subject Loan is subject to rescissionunderTILA. 15U.S.C. § l635(a).

141. The first closing date of Ms. Barker’s loanwas February 6, 2017. Because

DefendantRokoszhas failed to provide the requirednotices anddisclosures,Ms-Barkermay

exerciseher right to rescind the transactionupuntil and includingat leastFebruary 5,2020. 15

U.S.C. § l635(f); 12C.F.R. § 1026.23(a)(3)(i).

142. As aresult of the foregoing,Ms. Barker has a statutory right to rescindthe

Subject Loanpursuant to 15U.S.C. § 1635 and 12C.F.R. § 1026.23. Ms.Barker therefore

requests that this Court enter judgment in her favor and againstDefendantRokosz,by:

a. ordering the rescissionof Ms.Barker’s Subject Loan;

b. orderingDefendantRokosz to return to Ms.Barker any finance charges and fees

paid in connectionwithMs. Barker’s Subject Loan;

27


c. orderingDefendantRokoszto terminate any security interest in the Subject

Property created asaresult of themortgageSubject Loandescribedherein;

d. declaring any security interest in the SubjectProperty created asaresult of the

Subject Loandescribedhereinasnull andvoid; and

e. orderingthat DefendantRokoszpay to Ms.Barker the costs of this action,

together with reasonable attorney’s fees asdeterminedby this Court.

SECONDCLAIMFORRELIEF(HOEPA)

(AgainstDefendantRokosz)

143. Plaintiffrestates,realleges, and incorporatesby referenceall foregoingparagraphs


144. The HomeOwnership andEquityProtectionAct (“HOEPA”) is anamendment to

TILA, designed to address abusivepractices in refinances andhomeequity loanswithhigh

interest rates or high fees.

145. When aTILA creditor extends a“high-cost mortgage”within the meaningof

HOEPA, it is subject to additionaldisclosure requirements and loan term restrictions. See 15

U.S.C.§ 1639.

146. A mortgage loanmay be considered a “high-cost mortgage” if it is afirst

mortgage on the consumer’s principal dwellingwith anannual percentage rate (“APR”) that

exceeds, by more than 6.5 percentagepoints, the average prime offer rate (“APOR”). See 15

U.S.C. § 1602(bb)(1)(A)(i)(I); 12CPR . § 1026.32(a)(l)(i).

147. The APOR is the averageprimeoffer rate for acomparable transaction asof the

date onwhich interest for the transaction is set, aspublishedby the FederalFinancial Institutions

28


ExaminationCouncil (“FFIEC”)onbehalfof the Consumer FinancialProtectionBureau

(“CFPB”). See 15U.S.C. § i639c(b)(2)(B); 12CPR . § 1026.35(a)(2).

148. TheAPR is the annual percentage ratewhich will yield a sumequal to the amount

of the finance chargewhen it is applied to the unpaidbalances of the amount financed, calculated

accordingto the actuarialmethodof allocatingpaymentsmadeonadebt between the amount

financed and the amount of the finance charge. 15U.S.C. § 1606(a).

149. TheUnitedStates Departmentof the Treasury, through the Office of the

Comptroller of the Currency (Q‘OCC”)publishes anAPR calculator that can simplify the

computationwith the following inputs: the amount financed, the disclosed interest rate, and the

payment schedule of the loan. See Office of the Comptroller of the Currency, Annual Percentage

RateCalculationProgramfor Windows (“APRWIN”),available at

https://www.occ.treas.gov/tools-forms/tools/compliance‐bsa/aprwin‐soitwarehtml; see also 15

U.S.C. § 1606(a)(l)(B) (“the rate determinedby any method prescribedby the Bureauasa

methodwhichmaterially simplifies computation”).

150. A finance charge is the sum of all charges,payabledirectly or indirectlyby the

person towhom the credit is extended, and imposeddirectly or indirectlyby the creditor asan

incident to the extensionof credit. 15U.S.C. § 1605(a).

151. If aloan is considereda “high-costmortgage”within the meaningof HOEPA, it

is subject to additional substantive protections, includingbut not limited to: high~eost mortgage

disclosures,prohibitiononprepaymentpenaities,prohibitiononballoonpayments,underwriting

requirements in consideration of ability to repay,protections in home improvement contracts,

prohibitionagainst financing of points and fees, and loancounseling requirements. 15U.S.C. §

1639.

29


152. A creditor that fails to comply with thehigh-costmortgage requirements of

HOEPAmaybeliable for actual damages, statutory damages of up to $4,000, additional

statutory damages amounting to the sum of all finance charges and fees paidby the consumer,

and reasonable costs and attorney’s fees. 15U.S.C. § 1640(e). Violations of HOEPA are subject

to athree-year statute of limitationsbeginningonthe date of the occurrence of the violation. 15

U.S.C. § 1640(e).

153. The Subject Loan is a “high-costmortgage”within themeaningof HOEPA, in

that it is afirst mortgageonMs. Barker’sprincipal dwelling, with anAPR that exceeds the

APORbymore than 6.5 percentagepoints. See 15U.S.C. §1602(bb)(1)(A)(i)(I); 12C.F.R. §

1026.32(a)(1)(i).

154. The “Average PrimeOffer RatesTables” arepublicly available onthe FFIEC’s

website athttps://www.ffiec.gov/ratespread/aportableshtm. TheAPOR for aone-year loan term

on February 6, 2017 was 3.52 percent.

155. The Subject Loanincludedroughiy$85,376.10 in finances charges, consisting of

the following charges paid directly or indirectlyasanincident to the extensionof credit: (a)

$60,192.68 retained in escrow asapremiumor other charge for a guarantee protectingthe

creditor against the obligor’s default; (b) at least $23,990.00 to corporations and/or individuals

unknown to Ms. Barker, for services undeclared to Ms. Barker, that were imposedby the creditor

asanincident to the extensionof credit; and (0) $1,193.42 to the creditor asanupfront interest

charge. See 15U.S.C. § 1605(a); 12C.F.R. § 1026.4(a).

156. After deducting finance charges from the $450,000.00 amount borrowed, the

amount financed is $364,623.90.

30


157. With adisclosed annual interest rate of 12percent, and interest-onlymonthly

payments for a lZ-monthterm, the Subject Loan’s payment schedule requiredthe following:

a. Twelve interest-only installments of $4,500.00; and

b. A 13thsinglepayment for the entireprincipalbalanceof $450,000.00.

158. With anamount financed of $364,623.90 and the abovepayment schedule, the

resultingAPR of the Subject Loan is at least 32.19 percent for purposes of TILA.

159. The APR easily exceeds the 3.52 percent APORby more than 6.5 percentage

points. Eventhe nominal stated interest rateof the Subject Loan‐12percent‐exceeds the

APOR by more than 6.5 percentagepoints. The Subject Loan is therefore a “high-cost

mortgage”within themeaningof HOEPAand is subject to its additional protections. See 15

U.S.C. § l602(bb)(1)(A)(i)(I); 12CPR . § 1026.32(a)(l)(i).

160. Upon informationandbelief, the terms of the Subject Loanvioiated HOEPA’s

additional protections in the following ways, includingbut not limited to:

a. failing to providespecific disclosures in conspicuous type size not less than three

business days prior to consummation of the transaction in violation of 15U.S.C.

§§ 1639(a), 1639(b);

b. prohibitingprepayment any timebefore six months from origination in violation

of 15U.S.C. § 1639(c);

c. providing for ascheduled payment that is more than twice aslarge asthe average

of earlier scheduled payments,by requiringthe entire loanbalance to becomedue

after one year of interest-onlypayments in violation of 15U.S.C. § 1639(e);

(1. extending credit to Ms. Barkerwithout regard to her repayment ability in

violation of 15U.S.C. § l639(h);

31


e. makingapayment directly to acontractor under ahome improvement contract

from amounts extended in the Subject Loan,with nowritten agreement signedby

the consumer in violation of 15U.S.C. § 1639(i);

f. directly or indirectly financing, in connectionwith the Subject Loan,points and

fees in violation of 15U.S.C. § 1639(rn); and

g. failing to obtain acertificate of loan counseling itemacounselor approvedby the

Secretary of HousingandUrbanDevelopmentpursuant to 15U.S.C. § 1639(u).

161. As aresult of the above-described violations of HOEPAandTILA,Ms. Barker

has a statutory right to rescind the Subject LoanwithDefendantRokoszpursuant to 15U.S.C. §

1635 and 12CPR. § 1026.23.

162. As aresult of the above-describedViolations of HOEPA,DefendantRokosz is

liable for actual damages sustainedby Ms.Barker, statutory damages of up to $4,000, additional

statutory damages for HOEPAviolations amountingto the sumof all finance charges and fees

paidby Ms. Barker, and reasonable costs and attorney’sfees for this action. 15U.S.C. §§

1640(a)(1), (a)(2)(A)(iV), (606)and (a)(4)~

163. Accordingly, Ms. Barker requests that this Court enter judgment in her favor and

against DefendantRokosz,by:

a. ordering the rescissionof Ms. Barker’s loantransactions;

b. orderingDefendantRokosz to returnto Ms.Barker any finance charges and fees

paid in connectionwithMs.Barker’s loan transactions;

0. orderingDefendantRokosz to terminate any security interest in the Subject

Property created asaresult of themortgage loantransactions describedherein;

32


d. declaring any security interest in the Subject Property created asaresult of the

mortgage loan transactions describedhereinasnulland void; and

e. ordering that DefendantRokoszpay the following damages to Ms.Barker:

i. actual damages sustainedasaresult of Defendant Rokosz’sviolations of

15U.S.C. §§ 1635 and 1639;

ii. statutory damages asdescribed in 15U.S.C. § 1640(a);

iii. the costs of this action, together with reasonable attorney’s fees as

determined by this Court; and

iv. additional enhanced damages in anamount equal to the sumof all finance

charges and fees paidby Ms. Barker.

THIRD CLA IMFORRELIEF(NewYork BankingLaw §6-1)(Against DefendantRokosz)

164. Plaintiffrestates, realleges, and incorporatesby referenceall foregoingparagraphs

asif fully set forth herein.

165. LikeTILA and HOEPA,theNewYork BankingLaw (“NY BankingLaw”) limits

andprohibits certainpracticeswith regard to “high-cost home loans.” N.Y.BankingLaw § 6-1.

166. NY BankingLawapplies to “home loans,”which are defined asloans in which:

(a) the principal amount does not exceed the conforming loansize limit for comparable

dwellings asestablishedby the FederalNationalMortgageAssociation; (2) the borrower is a

naturalperson; (3) the debt is incurredby theborrower primarily for personal, family, or

householdpurposes; and (4) the loan is secured by amortgageor deed of trust on the borrower’s

one~to~four family principal dwelling in NewYork. N Y .BankingLaw §6-l(1)(e).

33


167. A home loan is a “high-cost home loan”within the meaningof theNY Banking

Law if it is ahome loanwith anAPR that exceeds eight percentagepoints over the yield on

treasury securities havingcomparable periods of maturity. N.Y.BankingLaw §§6-l(l)(d), (g).

168. For purposes of determiningAPR,NewYork expressly adopts the federal TILA’s

definition andcalculation guidance. N.Y.BankingLaw §6-l(1)(b).

169. A high-costhome loan is subject to the following substantive limitations: no

balloonpayments; nonegative amortization; no increased interest rate; no limitationon advance

payments; no lendingwithout regard to repayment ability; and no lendingwithout counseling

disclosure. N.Y.Banking Law §6-l(2). I

170. Violations of section 6-lprotectionsmayresult in liability to the borrower for:

actual damages; statutory damages; rescission; reasonableattorney’s fees; injunctive,declaratory

andother equitable relief; andupon afinding of anintentionalviolation, the agreement shall be

deemedvoid and the lender shall havenoright to collect or retain any principal, interest, or other

charges, andtheborrowermay recover any paymentsmade. N.Y. Banking Law §§6-l(7)-(11).

The statute of limitations for actionsunder section6-1is six years fiom origination of the high‑

cost home loan. N.Y.BankingLaw §6-l(6).

171. The Subject Loan is a “high-cost home loan”within the meaningof theNY

BankingLawbecause it is a“home loan”with terms that exceed ahigh-cost threshold. N.Y.

BankingLaw §6~l(1)(d).

172. It is afirst lien“home loan”madeto anaturalperson for personalpurposes,

securedby Ms.Barker’s one-to-four family principal residence in the State of NewYork. N.Y.

BankingLaw §6‐l(l)(e).

34

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173. At all relevant times, J&M Holdingswas amere sham corporation that Defendant

Rokoszcreated to evade consumer protectionstatutes. The trueborrower andpurported

guarantor for J&M Holdings is Ms.Barker, anaturalperson. Thus, the loanwas, for all intent

and purposes, extended to a “natural person”within the meaningof the NY BankingLaw. N.Y.

BankingLaw §6‐l(1)(e)(ii). DefendantRokosz’sbad faith attempt to subvert the protections of

NewYork BankingLaw Section 6-l shouldbe rejectedandMs.Barker,anaturalperson, should

bedeemed the trueborrower. SeeN.Y.BankingLaw §6-l(3) (statute applies “to any person

who in bad faith attempts to avoid the applicationof this sectionby any subterfuge”). Because

the loanwas made to anaturalperson, for personalpurposes, and secured by a two-family

principal dwelling in the State of NewYork, it must beconsidereda“home loan”within the

meaningof theNY BankingLaw and subject to its protections. SeeN.Y. BankingLaw §6‑

l(1)(e).

174. Furthermore, the Subject Loanexceeds theAPR high-cost threshold. ‘TheAPR

exceeds the yield onTreasury securities with acomparablematurityby more than eight

percentagepoints. N.Y.BankingLaw §§6-l(l)(d), (g).

175. in themonth includingandpreceding the Subject Loanorigination, the yield ona

one-year Treasury security did not riseabove 0.89 percent. The APR threshold is thus nohigher

than 9 percent.

176. Because the NY BankingLawadopts the federal TILA’S definition and

calculation for APR, theAPR of the Subject Loan is at least 32.19 percent and clearly exceeds

the relevant 9percentAPR threshold for a “high-cost home loan.” Eventhe nominal stated

interest rateof 12percent exceeds the APR threshold.

35


177. The terms of the Subject LoanviolatedNY BankingLaw §6-1protectionsonhigh‑

cost home loans in various ways, includingbut not limited to:

a. providingfor ascheduledpayment that is more than twice aslargeasthe average

of earlier scheduled paymentsby requiringthe entire loanbalanceto becomedue

after one year of interest‐onlypayments in violation of N Y.BankingLaw §6‑

l(2)(b);

providingaprovisionthat increases the interest rate after default to “the

maximumrate permittedby law” in violation of N Y .BankingLaw §6~l(2)(d);

extending credit to Ms. Barkerwithout regard to her repayment ability in

violation of N Y .BankingLaw {56-l(2)(k);

failing to provide a list of counselors in violation of N Y.BankingLaw § 6»

l(2)(1)(i);

failing to provide amandatednoticeno fewer than 10days before closing in

violation ofN Y.BankingLaw §6-l(2)(l)(ii);

directly or indirectly financing, in connectionwith the Subject Loan,points and

fees in anamount exceedingthree percent of the principal amount of the loan in

violation ofN.Y. BankingLaw §6-l(2)(m);

makingapayment to acontractor under ahome improvement contract from

proceeds of the Subject Loan,with no written agreement signedby the borrower

in violation of N Y.BankingLaw §6‐l(2)(n);

failing to disclose the approximate amount due for property taxes andhazard

insurance in Violation of N Y.BankingLaw §6-l(2)(u); and

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i. failing to state that the Subject Loan is ahigh-costhome loansubject to NY

BankingLawprotections in violation of N.Y.BankingLaw § 6-l(2-a)(a).

178. DefendantRokosz attempted to evadeNY Banking Law § 6-lby forcingMs.

Barker to take out the Subject Loanthrough ashamcorporation. This conduct evinces

DefendantRokosz’s intentional violation of NY BankingLaw §6-1.

179. Ms.Barker’s claims underNewYork BankingLaw §6‐ l are timely raisedwithin

six years of origination of the Subject Loanin February2017. N.Y.BankingLaw §6-l(6).

180. As aresult of the above-describedviolations of NY BankingLaw §6-1,

DefendantRokosz is liable for actual damages sustainedby Ms. Barker, statutory damages,

reasonable costs and attorney’s fees, and injunctiveand suchother equitable reliefasdeemed

appropriateby this Court. N.Y.BankingLaw §§6-l(7)~(9). Becauseof DefendantRokosz’s

intentional violation of the statute, the Subject Loanmust berenderedvoid andDefendant

Rokoszshall havenoright to collect, receive,or retainanyprincipal, interest or other charges

with respect to the Subject Loan, andmust returnany paymentsMs. Barker hasmadeunder the

loanagreement. N.Y.BankingLaw §6-l(10). The Subject Loan is further subject to rescission.

N.Y. BankingLaw §6»l(11).

181. Accordingly,Ms. Barker requests that this Court enter judgment in her favor and

against DefendantRokosz,by: l

a. ordering the rescissionof Ms.Barker’s Subject Loan;

b. declaring the Subject Loanvoid;

c. declaring that DefendantRokoszhas no right to collect, receive, or retainany

principal, interest,or other charges with respect to the Subject Loan;

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d. orderingDefendantRokoszto return to Ms.Barker anypaymentsmade in

connectionwith the Subject Loan;

e. declaring any security interest in the Subject Property created asaresult of the

mortgage loantransactions describedhereinasnull and void;

f. ordering that DefendantRokoszpay the followingdamages to Ms.Barker:

i. actual damages sustained asaresult of DefendantRokosz’sviolations of

N Y.BankingLaw §6-1;

ii. statutory damages pursuant toN.Y.BankingLaw §6‐l(7)(b);

iii. the costs of this action, together with reasonable attorney’s fees as

determinedby this Court;

g. granting suchother equitable reliefasthis Court deems just and appropriate.

FOURTHCLA IM FORRELIEF(Usury)

(Against DefendantRokosz)

182. Plaintiffrestates, realleges,and incorporates by reference all foregoingparagraphs

asif fully set forth herein.

183. In NewYork, loancontracts exceedinga rate of 16percent aredeemedusurious

andvoid. N.Y.Gen. Oblig. Law §§5-501, 5511; N Y .BankingLaw § 14-a.

184. LikeTILA, the rate of interestpursuant to NewYork law is the annualpercentage

rate yielding asumequal to the amount of “interest,” when applied to the unpaidbalances of the

amount financed, calculated according to the actuarialmethod. 3NYCRR§4.4.

185. “Interest” is defined asorigination fees, points andother discounts, andall other

amounts paidorpayable, directly or indirectly,by any person, to or for the account of the lender

in consideration for makingthe loanor forbearance. 3NYCRR§4.2(a). Thus,NewYork’s

38


definition of “interest” also tracks federal TILA’S definition of “finance charge.” See 15U.S.C.

§ 1605(a) (“all charges,payable directly or indirectlyby the person to whom the credit is

extended, and imposeddirectly or indirectlyby the creditor asanincident to the extension of

credit”).

186. NewYork’s usury remediesmaybe limitedwhere a lender is asavings bank,a

savings and loanassociation, or afederal savings and loanassociation. N.Y. Gen. Oblig. Law §

5-511. NewYork’s usury limits also do not apply to loans of $250,000 or more,unless the loan

is secured primarilyby an interest in realproperty improvedby aone or two family residence.

N.Y.Gen. Oblig. §5-501(6)(a).

187. At all relevant times, DefendantRokoszwas not asavingsbank, asavings and

ioanassociation, or a federal savings and loanassociation. N.Y.Gen. Oblig. Law §5‐511.

188. At all relevant times, the Subject Loanwas securedby an interest in realproperty

improvedby atwo‐family residence. N.Y.Gen. Oblig. §5-501(6)(a).

189. Accordingly,NewYork’s prohibitionagainst usurious rates applies to Defendant

Rokoszand the Subject Loan.

190. DefendantRokosz charged an annual percentage rate of at least 32.19 percent,

exceeding the usury threshold of 16percent.


against DefendantRokosz,by:

a. declaring the Subject Loanvoid; and

b. declaring that DefendantRokoszhas no rightto collecit, receive, or retain any

principal, interest, or other charges with respect to the Subject Loan.

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FIFTH CLA IMFORRELIEF(NewYork Generai Business Law §349)

(Against Defendants Rokosz,Defreitas,Legum,Hurley,Telsey, Fishbein,andHingie)

192. Plaintiffrestates, realleges, and incorporates by reference all foregoing paragraphs


193. NewYork prohibits “deceptive acts, or practices in the conduct of any business,

trade or commerce or in the fumishing of any service in this state. . . .” N.Y.Gen. Bus. Law §

349(a).

194. Any person “injuredby reasonof any violation of this sectionmay bringanaction

in his own nameto enjoin suchunlawful act orpractice, anaction to recover his actual damages I

or fifty dollars,whichever is greater, or bothsuchactions.” N.Y.Gen. Bus. Law §349(h).

195. As enumerated above, DefendantRokosz,DefendantDefreitas,Defendant

Legum,DefendantHurley,DefendantTelsey, DefendantFishbein, and DefendantHingle.

(hereinafter collectively referred to asthe “GBL Defendants”)violated section 349 of the New

York GeneralBusiness Lawby usingdeceptive acts andpractices in the conduct of their

businesses.

196. The GBLDefendants’ conduct has abroad impact onconsumers at large.

197. The GBL Defendants committed the above‐described acts willfully and/or

knowingly.

198. The GBLDefendants’ wrongful and deceptive acts havecaused injury and

damages to Ms.Barker andunless enjoined,will cause further irreparable injury.

199. The GBL Defendants’ violations include,but are not limitedto:

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200.

. inducingMs.Barker to transfer title to asham corporation andmisrepresenting

her ability to remainin complete control of the corporation and retaintitle to her

home;

falsely claimingthat Ms. Barker would receivea federal government sponsored

FHA loan to refinance the Subject Loan;

. inducingMs.Barker to execute additional loandocuments atasecond closing,

while misrepresentingto Ms. Barker that shewas signing additional paperwork

related to the initial closing;

. using fraudulent, deceptive, andmisleadingloandocuments and agreements to

strip Ms. Barker’s home of equity; and

. using fraudulent, deceptive, andmisleadingagreements to obtain title to Ms.

Barker’s property.

As adirect andproximate resultof the GBL Defendants’ violations of section 349

of theNewYork GeneralBusiness Law,Ms. Barkerhas suffered compensable harm, including

emotional distress.

201. Accordingly, Ms.Barker requests that this Court enter judgment in her favor and

against DefendantRokosz,DefendantDefreitas,Defendant Legum,DefendantHurley,

Defendant Telsey, DefendantHingle, andDefendantFishbein,by:

a. orderingpreliminary andpermanent injunctive relief,prohibitingeachGBL

Defendant from continuing to engage in the fraudulent and deceptive acts alleged

herein;

b. ordering eachGBLDefendant to pay the following damages to Ms. Barker:

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i. compensatory and treble damages in anamount to be determinedby this

Court; and

ii. the costs of this action, together with reasonableattorney’s fees as

determinedby this Court.

SIXTHCLA IM FORRELIEF(CivilRICO,28U.S.C. § 1962(c))

(Against All Defendants)

202. Plaintiffrestates, realleges, and incorporatesby reference all foregoing paragraphs


203. Under the Racketeer InfluencedandCorrupt Organizations Act (“RICO”), it is

“unlawful for any personemployedby or associatedwith any enterprise engaged in,or the

activities of which affect, interstate or foreign commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s affairs through apatternof racketeeringactivity or

collectionof unlawfuldebt.” 18U.S.C. § 1962(c).

204. “Person” includes any individual or entity capable of holdingalegal or beneficial

interest in property. 18U.S.C. § 1961(3).

205. “Enterprise” includes any individual,corporation, or other legalentity and any

union or group of individuals associated in fact althoughnot alegal entity. 18U.S.C. § 1961(4).

206. “Unlawful debt” includes adebt which is unenforceableunder State or Federal

law in whole or in part asto principalor interest becauseof the laws relatingtousury, andwhich

was incurred in connectionwith the business of lendingmoney at arateusuriousunder State or

Federal law,Where the usurious rate is at least twice the enforceable rate. 18U.S.C. § 1961(6).

42


207. Any person injured in herbusiness or propertyby reason of aviolation of section

1962may recover threefold the damages she sustains and the cost of the suit, including

reasonable attorney’s fees. 18U.S.C. § 1964(c). l

208. Ms.Barker is anaturalperson, andassuch is a“person” within the meaningof 18 i

U.S.C. § 1961(3). v

209. Defendants are natural persons and corporate entities, and assuchare “persons”

within the meaningof 18U.S.C. § 1961(3).

210. Upon informationandbelief,Defendants IziaRokosz,JanelleDefieitas,Steve

Legum,FrankRichardHurley,GreggTelsey, RobertFishbein, BettyJ.Hingie,RoyceLLC,

JackieMarketing, LLC, Lockdeco, and any John and Jane Doedefendants unknownto Plaintiff

(hereinafter collectively referred to asthe “Enterprise”) are separate and distinct persons and

entities who, taken together, form anassociation in fact, althoughnot a legalentity, and therefore

constitute anenterprisewithin themeaningof 18U.S.C. § 1961(4).

2 1 ] . Upon informationandbelief, the individual Defendants engaged in anongoing

informalenterprise, established for the commonpurposeof establishinga fraudulent equity‑

strippingscheme.

212. Thepurpose of the Enterprise is to target distressedhomeowners with equity in

their homes, issuehardmoney loans with such onerous terms and costs that default and

immediate deed transfer are guaranteed, all while completely stripping the homeof equity to the

benefit of themembers of the Enterprise. The Enterprise also convinces the homeowner to

transfer title to asham corporation in anattempt to avoid consumer protection laws.

213. This is accomplishedby DefendantDefreitasutilizingher connections in the

community to connect astrugglinghomeownerwith DefendantRokosz andDefendantFishbein;

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DefendantFishbeinarranges the financing; DefendantRokoszissueshardmoney loansdirectly

to the homeowner or has the homeowner transfer title to asham corporationwhich thenbecomes

the borrower and thehomeowner is promisedhe or shewill he the sole shareholder andremain

“effectiveowner, andmustpersonally guarantee the hardmoney loan;DefendantRokoszemploys

associateDefendant Legurnto serve asthe attorney for the transaction and “escrow agen ” in

furtherance of the scheme; DefendantHurleyprovides legal services to the homeowner aspart of

the scheme; DefendantDefreitas arranges for significant proceeds to bepaid to apurported

construction company, Lockdeco, to performrepairs that are never actually completed, in

furtherance of the scheme; proceeds are also diverted to DefendantBettyJ.Hingle,who

notarizes closingdocuments; and one or more of the Defendants arranges for significant

proceeds to goto associateDefendantTelsey, who appears to accept significant proceeds

through two corporations, Royce LLCandJackie MarketingLLC, in furtherance of the scheme.

214. The Enterpriseengages in or affects interstate commerce. In addition to paying

offMs. Barker’s sister, who lives outside the State of NewYork, at least some of the activities of

the Enterprisewere conducted over electronicmail and telephone.

215. Defendants’ unlawful Enterprise in violation of RICOremains longstanding,

continuous, and open ended.

216. Defendantshaveutilizedtheir roleswithin the Enterpriseasameans to directiy

and indirectly conduct andparticipate in the coliection of unlawful debts by facilitating loans

issuedatusurious rates in the State of NewYork, aspart of afraudulent equity-strippingscheme

benefitingall defendants, by demandingpayment of said loans, andby suingMs. Barker. The

Subject Loan is an“unlawful debt” under 18U.S.C. § 1961(6) in that it is:

44


a. unenforceableunderNewYork state lawbecause the rate of interest is deemed

usurious;

b. incurred in connectionwith the business of lendingmoney atausurious rate; and

c. the usurious rateof at least 32.19 percent was at least twice the enforceable rate of

16percent.

217. Accordingly, the Defendantshavedirectly and indirectly conducted and

participated in the conduct of the affairs of the Enterprisethrough the collection of unlawful

debts in violation of 18U.S.C. § 1962(0).

218. As adirect and proximate result of Defendants’ violations of 18U.S.C. § 1962(c),

Ms. Barkerwas injured in her business andpropertyby the loss of all remainingequity that was

left in the SubjectProperty. Such injury to Ms. Barker was reasonably foreseeable or anticipated

asanatural consequence of the Enterprise’s equity‐strippingscheme.


against all Defendants,by:

a. prohibitingeachDefendant fi‘om continuing to engage in the same type of

endeavors allegedhereinasrelated to the Enterprise;

b. orderingDefendants to pay the following damages to Ms. Barker:

i. compensatory and treble damages in anamount to be determinedby this

Court;

i i. the costs of this action, together with reasonableattorney’s fees as

determined by this Court; and

c. orderingDefendants to disgorge all ill-gotten gains in order to deter them from

engaging in similar conduct in the future.

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PRAYERFORRELIEF

WHEREFORE, Plaintiffrequests the following reliefjointly and severally asagainst all

Defendants:

a. ajudgment declaring that Defendantshave committed the violations of law alleged in

this action;

b. anorder enjoiningDefendants from continuing to engage in the illegalpractices

described above;

0. anorder,pursuant to TILA and HOEPA, (i) declaring the Subject Loanrescinded; (ii)

voiding any lienand/or security interest obtainedby DefendantRokoszagainst the

Subject Property; and (iii)providingto Plaintiffactual, statutory and enhanced

damages, and attorney’s fees and costs asdeterminedby this Court;

(1. anorder, pursuant to NY BankingLaw §6-1, (1) declaring the Subject Loanrescinded

andvoid; (ii) declaring that DefendantRokoszhas no right to collect, receive,or

retainanyprincipal, interest,or other charges with respect to the Subject Loan; (iii)

declaring any security interest in the SubjectProperty created asaresult of the

Subject Loannull and void; (iv) providingthat DefendantRokosz returnto Ms.

Barker anypaymentsmade in connectionwith the Subject Loan; and (v)providingto

Plaintiffactual damages, statutory damages, and attorney’s fees and costs, to be

determinedby this Court;

e. anorder, pursuant toNewYork’s prohibitionagainst usury, (i) declaring the Subject

Loanvoid; and (ii) declaring that DefendantRokoszhas no right to collect, receive,

or retainanyprincipal, interest,or other charges with respect to the Subject Loan;

46


f. anorder, pursuant to NY GBL §349, (i) enjoiningthe GBLDefendants from

continuing to engage in practices that violateNY GBL §349; and (ii) providingto

Plaintiffactual and/or compensatory damages, statutory damages, treble damages,

and attorney’s fees and costs, to bedeterminedby this Court;

g. anorder, pursuant to RICO, (i) enjoiningDefendants from continuing to engage in

the same type of endeavors allegedhereinasrelatedto the Enterprise; (ii)providing

to Plaintiffcompensatory and treble damages and attorney’s fees and costs, to be

determinedby this Court; and (iii)providingthat Defendants disgorge all ill‐gotten

gains;

h. such other reliefand further reliefasmaybejust andproper.

JURY DEMAND

Plaintiffrequests ajury onall claims sotriable.

Dated: January 25, 2019NewYork, NewYork

Respectfully submitted,

MOBILIZATIONFORJUSTICE, INC.

By: /s/ BelindaLuuBelinda LuuCaroline ChenCarolynE. Coffey, of counsel toJeanette Zelhof, Esq.100Wiiliatn Street, 6th FloorNewYork,NY 10038(212)417‐[email protected]

AttorneysforPlaintifir

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