Preview
FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
MORTGAGE FORECLOSURE
U.S. Bank National Association, as Trustee, for J.P. Morgan COMPLAINT
Alternative Loan Trust 2006-A4, Mortgage Pass-Through
Certificates,
Index No.
Plaintiff,
Date Filed:
-against-
Jose Marquina; Tomas Marquina; EMH Building Corp.;
Capital One N.A., as successor in interest to North Fork
Bank; Equable Ascent Financial LLC; City of New York
Environmental Control Board; City of New York Parking
Violations Bureau; City of New York Transit Adjudication
Bureau, "JOHN DOE", said name being fictitious, itbeing
the intention of Plaintiff to designate any and all occupants of
premises being foreclosed herein, and any parties,
corporations or entities, if any, having or claiming an interest
or lien upon the mortgaged premises,
Defendants.
The Plaintiff herein, by itsAttorneys, Shapiro, DiCaro & Barak, LLC, complains of the
defendants above named, and for itscause of action, alleges that:
First: The Plaintiff herein, at all times hereinafter mentioned was and
stillis a duly authorized Corporation or Association and having an office at c/o 8950 Cypress
Waters Blvd, Coppell, Texas 75019.
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AS FOR THE FIRST CAUSE OF ACTION
PLAINTIFF FURTHER ALLEGES
UPON INFORMATION AND BELIEF
"A"
Second: The defendants set forth in Schedule reside or have a place
of business at the address set forth therein and are made defendants in this action in the
capacities therein alleged and for the purpose of foreclosing and extinguishing any other right,
title or interest said defendants may have in the subject premises.
Third: The United States of America, The People of the State of New
York, The State Tax Commission of the State of New York, the Industrial Commissioner of the
State of New York and all other agencies or instrumentalities of the Federal, State or local
government (by whatever name designated) if made parties to this action and if appearing in
"B"
Schedule "B", are made parties solely by reason of the interest set forth in Schedule and for
no other reason.
Fourth: Heretofore, the defendant(s), Jose Marquina and Tomas
Marquina, for the purpose of securing to Nationstar Mortgage LLC, as Loan Servicer for US
Bank National Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4,
Mortgage Pass-Through Certificates, its successors and assigns, the sum of $1,203,938.13, duly
made a certain bond, note, consolidation, extension, modification, recasting, or assumption
agreement, as the case may be, wherein and whereby they bound themselves, their heirs,
executors, administrators and assigns, and each and every one of them, jointly and severally, in
the amount of said sum of money, allas more fully appears together with the terms of repayment
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of said sum or rights of Nationstar Mortgage LLC, as Loan Servicer for US Bank National
Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through
Certificates, its successors and assigns, in said bond, note or other instrument, a copy of which is
attached hereto and made a part hereof.
Fifth: As security for the payment of said indebtedness, a
consolidation, extension and/or modification agreement was executed, acknowledged and
delivered to Nationstar Mortgage LLC, as Loan Servicer for US Bank National Association, as
trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates,
wherein and whereby the mortgagor(s) named therein mortgaged, bargained, granted an interest
in and/or sold to the mortgagee, its successors and assigns, the premises more particularly
described therein, hereinafter called "mortgaged premises", under certain conditions with rights,
duties and privileges between or among them as more fully appears in said consolidation,
extension and/or modification agreement, a copy of which is attached hereto and made a part
Mortgage"
hereof. Said Loan Modification (hereinafter "the Mortgage") modified the mortgage(s) referred
"D"
to in Schedule hereof to form a single first mortgage lien in the sum of $1,203,938.13.
Sixth: The Plaintiff is the current owner and holder of the subject
mortgage and note, or has been delegated the authority to institute a mortgage foreclosure action
by the owner and holder of the subject mortgage and note. If Plaintiff is not the original owner
and holder of the subject note and mortgage then information regarding the chain of title will be
contained in Schedule "D".
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Seventh: The said mortgages were duly recorded and the mortgage tax
due thereon was duly paid on the recorded instrument in the proper County Clerk's Office at the
place and time which appears thereon. Plaintiff shall pay the requisite mortgage tax attributed to
the Modification Agreement, if any, prior to Judgment of Foreclosure and Sale.
Eighth: The defendant(s), Jose Marquina and Tomas Marquina, so
named, have failed and neglected to comply with the conditions of said mortgage, bond or note
by omitting and failing to pay the monthly payments of principal, interest, taxes, assessments,
water rates, insurance premiums, escrow and/or other charges, and accordingly, the plaintiff has
duly elected and does hereby elect to call due the entire amount presently secured by the
"FIFTH"
mortgage described in paragraph hereof.
Ninth: Heretofore and prior to the commencement of this action, part
of the original principal sum may have been paid to apply on said indebtedness and there remains
due the amount set forth in Schedule "C".
Tenth: In order to protect its security, the plaintiff has paid, or will pay,
as may be compelled during the pendency of this action, local taxes, assessments, water rates,
insurance premiums, inspections and other charges affecting the mortgaged premises, and the
plaintiff requests that any sums thus paid by itfor said purposes (together with interests thereon)
should be added to the sum otherwise due and be deemed secured by the said mortgage and be
adjudged a valid lien on the mortgaged premises, the amount of which will ultimately be
determined by the Court.
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Eleventh: The defendants herein have, or claim to have, some interest in
or lien upon, said mortgaged premises or some part thereof, which interest or lien, if any, has
accrued subsequent to, has been paid, or is otherwise subordinate to, the lien of plaintiff's
mortgage.
Twelfth: There are no pending proceedings at law or otherwise to collect
or enforce said bond/note and mortgage and there is no other action pending which has been
brought to recover said mortgage debt or any part thereof.
Thirteenth: The Schedules, Exhibits and other items attached to this Complaint
are expressly incorporated and made a part of this Complaint for all purposes with the same force
and effect as if they were completely and fully set forth herein wherever reference has been made
to each or any of them.
Fourteenth: By reason of the foregoing, there is now due and owing to the
plaintiff upon said bond, note, assumption agreement, consolidation agreement, or recasting
agreement, the unpaid principal balance set forth in Schedule "C", and such other fees, costs, late
charges, and interest, the amount of which will be determined by the Court.
Fifteenth: The mortgage provides that, in the case of foreclosure, the
mortgaged premises may be sold in one parcel.
Sixteenth: The Plaintiff shall not be deemed to have waived, altered, released
or changed the election hereinbefore made by reason of the payment or performance, after the
date of the commencement of this action, of any or all of the defaults mentioned herein; and such
election shall continue and remain effective until the costs and disbursements of this action, and
all present and future defaults under the Note and Mortgage and occurring prior to the
discontinuance of this action are fully paid and cured.
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Seventeenth: Pursuant to the Fair Debt Collection Practices Act, this action may
be deemed to be an attempt to collect a debt, on behalf of Plaintiff. Any information obtained as
a result of this action will be used for that purpose.
Eighteenth: If the subject note and mortgage fallwithin the prescribed
definition of a subprime home loan or high-cost home loan as identified under section six-I or
six-m of the New York State Banking Law, then Plaintiff has complied with all the provisions of
section five-hundred ninety-five of the New York State Banking Law and any rules and
regulations promulgated thereunder, section six-I or six-m of the New York State Banking Law
and section thirteen hundred four of New York State Real Property Actions and Proceedings
Law (RPAPL).
Nineteenth: Plaintiff has complied with the provisions of RPAPL § 1306, by
filing the form required by the superintendent of financial services within three business days of
mailing the RPAPL § 1304 notice, as evinced by the Proof of Filing Statement issued by the
New York State Department of Financial Services f/k/a New York State Banking Department; a
copy of the Proof of Filing Statement is attached hereto and made a part hereof.
Twentieth: To the extent the original obligation was discharged in bankruptcy
under Title 11 of the United States Code, this pleading does not constitute an attempt to collect a
debt or to impose personal liability for such obligation. However, the secured party retains all
rights, and hereby exercises its right to foreclose its lien, under its security instrument.
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AS AND FOR A SECOND CAUSE OF ACTION
Twenty-first:-first: The plaintiff repeats and re-alleges each and every allegation
contained in the foregoing paragraphs.
Twenty-second:
-second: That on or about June 30, 2006, for valuable consideration the
defendants Jose Marquina and Tomas Marquina acquired titleto the real property referenced
"FIFTH" premises"
above in paragraph as the "mortgaged from defendant EMH Building Corp.
by virtue of a bargain and sale deed recorded in the Queens County Office of the City Register
Deed"
on August 18, 2006 in CRFN 2006000467337 (hereinafter the "2006 Deed").
Twenty-third:
-third: The legal description contained in 2006 Deed describes the
following parcels: [1] the parcel designated on the tax map of Queens County as Block 1700 Lot
32 and commonly known as 32-52 106th Street, East Elmhust, NY 11369 (hereinafter "Tax Lot
32"); and [2] the parcel designated on the tax map of Queens County as Block 1700 Lot 33 and
commonly known as 32-54 106th Street, East Elmhust, NY 11369 (hereinafter "Tax Lot 33").
Moreover, itis recited in the 2006 Deed that the intention of the parties was to convey to Jose
Marquina and Tomas Marquina the same premises that were conveyed to EMH Building Corp in
the deed dated January 27, 2005 and recorded in the Queens County Office of the City Register
Deed"
on April 7, 2005 in CRFN 2005000199456 (hereinafter the "2005 Deed"). The 2005 Deed
contained the same legal description as the 2006 Deed, and was properly recorded and indexed
against Tax Lot 32 and Tax Lot 33.
Twenty-fourth:
-fourth: However, for reasons unknown to Plaintiff, the 2006 Deed
conveying title to Jose Marquina and Tomas Marquina was only recorded and indexed Tax Lot
32.
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Twenty-fifth:-fifth: The proceeds of loan secured the mortgage being foreclosed upon
herein were used to finance Jose Marquina and Tomas Marquina's acquisition of the mortgaged
premises, and to satisfy pre-existing liens that encumbered both Tax Lot 32 and Tax Lot 33. The
legal description of the mortgaged premises contained in the subject mortgage describes both
Tax Lot 32 and Tax Lot 33, but for reasons unknown to Plaintiff, said mortgage was similarly
mis-indexed against Tax Lot 32 only.
Twenty-sixth:
-sixth: That itwas the intentions of the parties that the aforementioned
2006 Deed conveying title to Jose Marquina and Tomas Marquina, and the subject mortgage
being foreclosed upon herein be recorded and indexed against Block 1700 Lot 32 and Block
1700 Lot 33.
Twenty-seventh:
-seventh: That due to the aforementioned recording errors, EMH Building
Corp. appears in the land records of Queens County as the titleowner of Tax Lot 33. EMH
Building Corp. is made a defendant in this action solely for the purposes of quieting titleto its
outstanding record interest in Tax Lot 33, and to obtain an order of the Court directing the
Queens County Office of the City Register to re-index the Deed recorded on August 18, 2006 in
CRFN 2006000467337, and the Mortgage recorded on August 18, 2006 in CRFN
2006000467338 against Block 1700 Lot 32 and Block 1700 Lot 33.
-ei
Twenty-eighth: Upon information and belief, the Defendants herein are
competent adult individual(s) or domestic corporation(s). Upon information and belief, a
judgment will not affect a person or persons not in being or ascertained at the commencement of
this action, who by any contingency contained in a devise or grant or otherwise, could afterward
become entitled to a beneficial estate or interest in the property involved. No personal claim is
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made, in this second cause of action, against the Defendants other than a Defendant who shall
assert a claim adverse to the claim of Plaintiff set for in this Complaint.
Twenty-ninth:
-ninth: Plaintiff has no adequate remedy at law
WHEREFORE, plaintiff demands judgment for the relief as alleged in all causes of
action:
(a) Adjudging and decreeing the amounts due the plaintiff for principal, interest,
costs, and reasonable attorney's fees, if and as provided for in the said mortgage;
(b) That the defendants and all persons claiming by, through or under them, or either
or any of them, subsequent to the commencement of this action and every other person or
corporation whose right, titleconveyance or encumbrance is subsequent to or subsequently
recorded, may be barred and forever foreclosed of allright, claim, lien, or interest, or equity of
redemption in and to said mortgaged premises;
(c) That the said mortgaged premises, or such part thereof as may be necessary to
raise the amounts then due for principal, interest, costs, reasonable attorney's fees, allowances and
disbursements, together with any monies advanced and paid, may be decreed to be sold according
to law;
(d) That out of the monies arising from the sale thereof, the plaintiff may be paid the
amounts then due on said bond/note and mortgage and any sum which may have been paid by the
plaintiff to protect the lien of plaintiffs mortgage as herein set forth, with interest upon said
amounts from the dates of the respective payments and advances thereof, the costs and expenses
of this action, additional allowance, if any, and reasonable attorney's fees, if and as provided for in
the mortgage, rider or other agreement, so far as the amount of such money properly applicable
thereto will pay the same;
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(e) That either or any of the parties to this action may become a purchaser upon such
sale;
(f) That this Court forthwith appoint a Receiver of the rents and profits of said
premises with the usual powers and duties;
(g) That the defendant(s), Jose Marquina and Tomas Marquina, unless discharged in
bankruptcy may be adjudged to pay any deficiency that may remain after applying allof said
monies so applicable thereto;
(h) On Plaintiff's Second Cause of Action, for an order directing the Clerk of the
Queens County Office of the City Register to re-index the Deed recorded August 18, 2006 in
CRFN 2006000467337 and the Mortgage recorded on August 18, 2006 in CRFN 2006000467338
against Block: 1700 Lots: 32 and 33;
(i) Further, for an order declaring that the Defendant EMH Building Corp., it
successors and assigns, and every person or entity claiming titleaccruing after the filing of the
judgment roll, or of the Notice of Pendency in this action, as prescribed by law, be and the same
hereby are forever barred and precluded from asserting such claim, the invalidity of which is
established by this action, to an estate or interest in the Mortgaged Premises, of any kind or nature
whatsoever;
(j) That the United States of America shall have the right of redemption, if
applicable;
(k) That the plaintiff may have such other or further relief, or both, in the premises as
may be just and equitable.
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Plaintiff specifically reserves its right to share in any surplus monies arising from the sale
of subject premises by virtue of itsposition as a judgment or other lien creditor excluding the
mortgage being foreclosed herein.
Dated: 111}( P
Karl E. Kolkmann, Esq.
Associate Attorney
SHAPIRO, DICARO & BARAK, LLC
Attorneys for Plaintiff
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
Fax: (585) 247-7380
Our File No. 17-068437
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SCHEDULE A - DEFENDANTS
DEFENDANTS CAPACITY
Jose Marquina Owner of record and Obligor by virtue of the
32-52 106th Street Consolidation and/or Modiñcation Agreement
East Elmhust, NY 11369 referred to in Schedule D attached hereto.
Tomas Marquina Owner of record and Obligor by virtue of the
32-52 106th Street Consolidation and/or Modiñcation Agreement
East Elmhust, NY 11369 referred to in Schedule D attached hereto.
EMH Building Corp. To quiet titleand cut off any outstanding
106*
32-54 106th Street interest in the premises assessed as 32/54 106
East Elmhurst, NY 11369 Street, East Elmhurst, New York and as Block
1700 Lot 33.
Capital One N.A., as successor in interest to Judgment creditor by virtue of a Queens
North Fork Bank County Court judgment filed on June 17, 2010
201 Street Charles Ave, 26th Floor for $81,807.59 vs. EMH Building Corp.
New Orleans, LA 70170 Attorney: Abrams Garfinkel Margolis
Bergson, LLP
Equable Ascent Financial LLC Judgment creditor by virtue of a Queens
1120 West Lake Cook Road, Suite B County Court judgment filed on February 7,
Buffalo Grove, IL 60089 2012 for $3,208.40 vs. Tomas Marquina.
Attorney: Rubin & Rothman, LLC
DOE"
"JOHN Said name being fictitious, itbeing the
intention of Plaintiff to designate any and all
occupants, tenants, persons or corporations, if
any, having or claiming an interest in or lien
upon the premises being foreclosed herein.
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SCHEDULE B - DEFENDANTS
DEFENDANTS CAPACITY
City of New York Environmental Control To cut off any possible liens filed by the
Board Environmental Control Board with the Clerk of
100 Church Street Queens County.
New York, NY 10007
City of New York Parking Violations Bureau To cut off any possible liens filed by the New
100 Church Street York City Parking Violations Bureau with the
New York, NY 10007 Clerk of Queens County.
City of New York Transit Adjudication Bureau To cut off any possible liens filed by the
130 Livingston Street Transit Adjudication Bureau with the Clerk of
Brooklyn, NY 11201 Queens County.
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SCHEDULE C
MORTGAGE INFORMATION
1. Original Amount of Bond/Note/
Consolidation or Modification Agreement $1,203,938.13
a) Interest bearing principal $972,559.28
b) Deferred principal $231,338.85
2. Last installment due and paid June 1, 2017
3. Date of firstunpaid installment/
default date July 1, 2017
AMOUNT DUE
4. Principal balance owing
a) Principal balance owing $956,906.86
(Interest bearing principal balance under Loan Modification Agreement)
b) Principal balance owing $231,338.85
(Deferred principal balance under Loan Modification Agreement)
5. *Interest @ 2%
from June 1, 2017 To Be Calculated at Judgment
6. Late charges as per the terms of the Note To Be Calculated at Judgment
7. Taxes Advanced by Plaintiff To Be Calculated at Judgment
8. Escrow Advances To Be Calculated at Judgment
*
Interest will continue to accrue at the contract bond/note/loan agreement rate, until a
Judgment of Foreclosure and Sale has been entered in the proper County Clerk's Off ice,at
which time the interest rate will be calculated at the legal rate of 9.00%.
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SCHEDULE D
The instrument being foreclosed herein is a Consolidated and /or Modified Mortgage dated July
15, 2016, executed by Jose Marquina and Tomas Marquina, as Mortgagor(s) to Nationstar
Mortgage LLC, as Loan Servicer for US Bank National Association, as trustee for J.P. Morgan
Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates, to secure the sum of
$1,203,938.13.
The foregoing instrument consolidated and/or modified the following mortgage(s): The
Mortgage given by Jose Marquina and Tomas Marquina to Mortgage Electronic Registration
Systems, Inc., as nominee for Countrywide Home Loans, Inc. to secure the sum of $873,440.00
dated June 30, 2006 and recorded on August 18, 2006 in CRFN 2006000467338. The Note and
Mortgage were transferred to Bank of America, N.A., successor by merger to BAC Home Loans
Servicing LP f/k/a Countrywide Home Loans Servicing LP and said transfer was memorialized
by an Assignment of Mortgage dated August 30, 2011 and recorded on November 28, 2011 in
CRFN 2011000413295. The Note and Mortgage were transferred to U.S. Bank National
Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through
Certificates and said transfer was memorialized by an Assignment of Mortgage dated October
20, 2014 and recorded on May 4, 2015 in CRFN 2015000149090.
In addition, the underlying Note was indorsed by the original lender or its agent, successor, or
assign, and was delivered to Plaintiff prior to the commencement of this action.
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NYC DEPARTMENT OF FINANCE
OFFICE OF THE CITY REGISTER
This page is part
of the instrmnent.
The City
Registerwillrelyon theinfonnation provided
by you on this pageforpurposes ofindexing
thisinstrument.The informationon this page
willcontrolforindexing purposesin the event
ol' ol'
of any conflict
with the rest of
the document.
2005030301947001001E45B4
RECORDING AND ENDORSEMENT COVER PAGE PAG E 1 OF 5
Document ID: 2005030301947001 Document Date:01-27-2005 Preparation Date: 03-03-2005
Document Type: DEED, OTIIER
Document Page Count: 3
PRESENTER: RETURN TO:
ALLSTAR ABSTRACT ASAli DROR ESQ.
31 STEWART STREET 1 HOLLAND AVENUE
WSAT-3493Q liLORAL PARK, NY 11001
ULORAL PARK, NY 11001
516-358-0505
MB
PROPERTY DATA
Borough Block Lot Unit Address
QUEENS 1700 32 Entire Lot 32-52 106TH ST
Property Type: RESIDENTIAL VACANT LAND
Borough Block Lot Unit Address
QUEENS 1700 33 Entire Lot 32-54 106TH STREET
Property Type: RESIDENTIAL VACANT LAND
CRFN or Document ID
CROSS
or _ REFERENCE
Year___
DATA
Reel ____ Page ____ or FileNumber
PARTIES
GRANTOR: GRANTEE:
VAS1L1OS DIMOPOULOS EMH BUILDING CORP.
32-50 106TH STREET 147-31 71ST RD
EAST ELMHURST, NY 11369 ULUSHING, NY 11367
x Additional Parties Listedon Continuation Page
FEES AND TAXES
Mortgage Recording Fee: $ 55.00
Mortgage Amount; $ 0.00 A flidavitFee: $ 0.00
Taxable Mortgage Amount: $ 0.00 NYC Real Property Transfer Tax Filing Fee:
Exemption: $ 165.00
TAXES: County (Basic): $ 0.00 NYS Real Estate Transfer Tax:
City (Additional): $ 0.00 $ 1,460.00
Spec (Additional): $ 0.00 RECORDED OR FILED IN THE OFFICE
TASU: $ 0.00 OF THE CITY REGISTER OF THE
MTA: $ 0.00 !':::4 CITY OF NEW YORK
NYCTA: $ 0.00 Recorded/Filed 04-07-200511:11
Additional MRT: $ 0.00 CityRegisterFileNo.(CRFN):
TOTAL: $ 0.00 2005000199456
NYC IIPD Affidavit inLieu of RegistrationStaterr
City Register Official Si gnature
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. NYC DEPARTMENT OF FINANCE -- -- .. ..
Preview
FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS MORTGAGE FORECLOSURE U.S. Bank National Association, as Trustee, for J.P. Morgan COMPLAINT Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates, Index No. Plaintiff, Date Filed: -against- Jose Marquina; Tomas Marquina; EMH Building Corp.; Capital One N.A., as successor in interest to North Fork Bank; Equable Ascent Financial LLC; City of New York Environmental Control Board; City of New York Parking Violations Bureau; City of New York Transit Adjudication Bureau, "JOHN DOE", said name being fictitious, itbeing the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants. The Plaintiff herein, by itsAttorneys, Shapiro, DiCaro & Barak, LLC, complains of the defendants above named, and for itscause of action, alleges that: First: The Plaintiff herein, at all times hereinafter mentioned was and stillis a duly authorized Corporation or Association and having an office at c/o 8950 Cypress Waters Blvd, Coppell, Texas 75019. 17-068437 Mortgage Foreclosure Complaint Page 1 of12 1 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 AS FOR THE FIRST CAUSE OF ACTION PLAINTIFF FURTHER ALLEGES UPON INFORMATION AND BELIEF "A" Second: The defendants set forth in Schedule reside or have a place of business at the address set forth therein and are made defendants in this action in the capacities therein alleged and for the purpose of foreclosing and extinguishing any other right, title or interest said defendants may have in the subject premises. Third: The United States of America, The People of the State of New York, The State Tax Commission of the State of New York, the Industrial Commissioner of the State of New York and all other agencies or instrumentalities of the Federal, State or local government (by whatever name designated) if made parties to this action and if appearing in "B" Schedule "B", are made parties solely by reason of the interest set forth in Schedule and for no other reason. Fourth: Heretofore, the defendant(s), Jose Marquina and Tomas Marquina, for the purpose of securing to Nationstar Mortgage LLC, as Loan Servicer for US Bank National Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates, its successors and assigns, the sum of $1,203,938.13, duly made a certain bond, note, consolidation, extension, modification, recasting, or assumption agreement, as the case may be, wherein and whereby they bound themselves, their heirs, executors, administrators and assigns, and each and every one of them, jointly and severally, in the amount of said sum of money, allas more fully appears together with the terms of repayment 17-068437 Mortgage Foreclosure Complaint Page 2 of 12 2 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 of said sum or rights of Nationstar Mortgage LLC, as Loan Servicer for US Bank National Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates, its successors and assigns, in said bond, note or other instrument, a copy of which is attached hereto and made a part hereof. Fifth: As security for the payment of said indebtedness, a consolidation, extension and/or modification agreement was executed, acknowledged and delivered to Nationstar Mortgage LLC, as Loan Servicer for US Bank National Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates, wherein and whereby the mortgagor(s) named therein mortgaged, bargained, granted an interest in and/or sold to the mortgagee, its successors and assigns, the premises more particularly described therein, hereinafter called "mortgaged premises", under certain conditions with rights, duties and privileges between or among them as more fully appears in said consolidation, extension and/or modification agreement, a copy of which is attached hereto and made a part Mortgage" hereof. Said Loan Modification (hereinafter "the Mortgage") modified the mortgage(s) referred "D" to in Schedule hereof to form a single first mortgage lien in the sum of $1,203,938.13. Sixth: The Plaintiff is the current owner and holder of the subject mortgage and note, or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note. If Plaintiff is not the original owner and holder of the subject note and mortgage then information regarding the chain of title will be contained in Schedule "D". 17-068437 Mortgage Foreclosure Complaint Page 3 of12 3 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Seventh: The said mortgages were duly recorded and the mortgage tax due thereon was duly paid on the recorded instrument in the proper County Clerk's Office at the place and time which appears thereon. Plaintiff shall pay the requisite mortgage tax attributed to the Modification Agreement, if any, prior to Judgment of Foreclosure and Sale. Eighth: The defendant(s), Jose Marquina and Tomas Marquina, so named, have failed and neglected to comply with the conditions of said mortgage, bond or note by omitting and failing to pay the monthly payments of principal, interest, taxes, assessments, water rates, insurance premiums, escrow and/or other charges, and accordingly, the plaintiff has duly elected and does hereby elect to call due the entire amount presently secured by the "FIFTH" mortgage described in paragraph hereof. Ninth: Heretofore and prior to the commencement of this action, part of the original principal sum may have been paid to apply on said indebtedness and there remains due the amount set forth in Schedule "C". Tenth: In order to protect its security, the plaintiff has paid, or will pay, as may be compelled during the pendency of this action, local taxes, assessments, water rates, insurance premiums, inspections and other charges affecting the mortgaged premises, and the plaintiff requests that any sums thus paid by itfor said purposes (together with interests thereon) should be added to the sum otherwise due and be deemed secured by the said mortgage and be adjudged a valid lien on the mortgaged premises, the amount of which will ultimately be determined by the Court. 17-068437 Mortgage Foreclosure Complaint Page 4 of 12 4 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Eleventh: The defendants herein have, or claim to have, some interest in or lien upon, said mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequent to, has been paid, or is otherwise subordinate to, the lien of plaintiff's mortgage. Twelfth: There are no pending proceedings at law or otherwise to collect or enforce said bond/note and mortgage and there is no other action pending which has been brought to recover said mortgage debt or any part thereof. Thirteenth: The Schedules, Exhibits and other items attached to this Complaint are expressly incorporated and made a part of this Complaint for all purposes with the same force and effect as if they were completely and fully set forth herein wherever reference has been made to each or any of them. Fourteenth: By reason of the foregoing, there is now due and owing to the plaintiff upon said bond, note, assumption agreement, consolidation agreement, or recasting agreement, the unpaid principal balance set forth in Schedule "C", and such other fees, costs, late charges, and interest, the amount of which will be determined by the Court. Fifteenth: The mortgage provides that, in the case of foreclosure, the mortgaged premises may be sold in one parcel. Sixteenth: The Plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of the payment or performance, after the date of the commencement of this action, of any or all of the defaults mentioned herein; and such election shall continue and remain effective until the costs and disbursements of this action, and all present and future defaults under the Note and Mortgage and occurring prior to the discontinuance of this action are fully paid and cured. 17-068437 Mortgage Foreclosure Complaint Page 5 of12 5 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Seventeenth: Pursuant to the Fair Debt Collection Practices Act, this action may be deemed to be an attempt to collect a debt, on behalf of Plaintiff. Any information obtained as a result of this action will be used for that purpose. Eighteenth: If the subject note and mortgage fallwithin the prescribed definition of a subprime home loan or high-cost home loan as identified under section six-I or six-m of the New York State Banking Law, then Plaintiff has complied with all the provisions of section five-hundred ninety-five of the New York State Banking Law and any rules and regulations promulgated thereunder, section six-I or six-m of the New York State Banking Law and section thirteen hundred four of New York State Real Property Actions and Proceedings Law (RPAPL). Nineteenth: Plaintiff has complied with the provisions of RPAPL § 1306, by filing the form required by the superintendent of financial services within three business days of mailing the RPAPL § 1304 notice, as evinced by the Proof of Filing Statement issued by the New York State Department of Financial Services f/k/a New York State Banking Department; a copy of the Proof of Filing Statement is attached hereto and made a part hereof. Twentieth: To the extent the original obligation was discharged in bankruptcy under Title 11 of the United States Code, this pleading does not constitute an attempt to collect a debt or to impose personal liability for such obligation. However, the secured party retains all rights, and hereby exercises its right to foreclose its lien, under its security instrument. 17-068437 Mortgage Foreclosure Complaint Page 6 of12 6 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 AS AND FOR A SECOND CAUSE OF ACTION Twenty-first:-first: The plaintiff repeats and re-alleges each and every allegation contained in the foregoing paragraphs. Twenty-second: -second: That on or about June 30, 2006, for valuable consideration the defendants Jose Marquina and Tomas Marquina acquired titleto the real property referenced "FIFTH" premises" above in paragraph as the "mortgaged from defendant EMH Building Corp. by virtue of a bargain and sale deed recorded in the Queens County Office of the City Register Deed" on August 18, 2006 in CRFN 2006000467337 (hereinafter the "2006 Deed"). Twenty-third: -third: The legal description contained in 2006 Deed describes the following parcels: [1] the parcel designated on the tax map of Queens County as Block 1700 Lot 32 and commonly known as 32-52 106th Street, East Elmhust, NY 11369 (hereinafter "Tax Lot 32"); and [2] the parcel designated on the tax map of Queens County as Block 1700 Lot 33 and commonly known as 32-54 106th Street, East Elmhust, NY 11369 (hereinafter "Tax Lot 33"). Moreover, itis recited in the 2006 Deed that the intention of the parties was to convey to Jose Marquina and Tomas Marquina the same premises that were conveyed to EMH Building Corp in the deed dated January 27, 2005 and recorded in the Queens County Office of the City Register Deed" on April 7, 2005 in CRFN 2005000199456 (hereinafter the "2005 Deed"). The 2005 Deed contained the same legal description as the 2006 Deed, and was properly recorded and indexed against Tax Lot 32 and Tax Lot 33. Twenty-fourth: -fourth: However, for reasons unknown to Plaintiff, the 2006 Deed conveying title to Jose Marquina and Tomas Marquina was only recorded and indexed Tax Lot 32. 17-068437 Mortgage Foreclosure Complaint Page 7 of12 7 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Twenty-fifth:-fifth: The proceeds of loan secured the mortgage being foreclosed upon herein were used to finance Jose Marquina and Tomas Marquina's acquisition of the mortgaged premises, and to satisfy pre-existing liens that encumbered both Tax Lot 32 and Tax Lot 33. The legal description of the mortgaged premises contained in the subject mortgage describes both Tax Lot 32 and Tax Lot 33, but for reasons unknown to Plaintiff, said mortgage was similarly mis-indexed against Tax Lot 32 only. Twenty-sixth: -sixth: That itwas the intentions of the parties that the aforementioned 2006 Deed conveying title to Jose Marquina and Tomas Marquina, and the subject mortgage being foreclosed upon herein be recorded and indexed against Block 1700 Lot 32 and Block 1700 Lot 33. Twenty-seventh: -seventh: That due to the aforementioned recording errors, EMH Building Corp. appears in the land records of Queens County as the titleowner of Tax Lot 33. EMH Building Corp. is made a defendant in this action solely for the purposes of quieting titleto its outstanding record interest in Tax Lot 33, and to obtain an order of the Court directing the Queens County Office of the City Register to re-index the Deed recorded on August 18, 2006 in CRFN 2006000467337, and the Mortgage recorded on August 18, 2006 in CRFN 2006000467338 against Block 1700 Lot 32 and Block 1700 Lot 33. -ei Twenty-eighth: Upon information and belief, the Defendants herein are competent adult individual(s) or domestic corporation(s). Upon information and belief, a judgment will not affect a person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the property involved. No personal claim is 17-068437 Mortgage Foreclosure Complaint Page 8 of12 8 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 made, in this second cause of action, against the Defendants other than a Defendant who shall assert a claim adverse to the claim of Plaintiff set for in this Complaint. Twenty-ninth: -ninth: Plaintiff has no adequate remedy at law WHEREFORE, plaintiff demands judgment for the relief as alleged in all causes of action: (a) Adjudging and decreeing the amounts due the plaintiff for principal, interest, costs, and reasonable attorney's fees, if and as provided for in the said mortgage; (b) That the defendants and all persons claiming by, through or under them, or either or any of them, subsequent to the commencement of this action and every other person or corporation whose right, titleconveyance or encumbrance is subsequent to or subsequently recorded, may be barred and forever foreclosed of allright, claim, lien, or interest, or equity of redemption in and to said mortgaged premises; (c) That the said mortgaged premises, or such part thereof as may be necessary to raise the amounts then due for principal, interest, costs, reasonable attorney's fees, allowances and disbursements, together with any monies advanced and paid, may be decreed to be sold according to law; (d) That out of the monies arising from the sale thereof, the plaintiff may be paid the amounts then due on said bond/note and mortgage and any sum which may have been paid by the plaintiff to protect the lien of plaintiffs mortgage as herein set forth, with interest upon said amounts from the dates of the respective payments and advances thereof, the costs and expenses of this action, additional allowance, if any, and reasonable attorney's fees, if and as provided for in the mortgage, rider or other agreement, so far as the amount of such money properly applicable thereto will pay the same; 17-068437 Mortgage Foreclosure Complaint Page 9 of12 9 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 (e) That either or any of the parties to this action may become a purchaser upon such sale; (f) That this Court forthwith appoint a Receiver of the rents and profits of said premises with the usual powers and duties; (g) That the defendant(s), Jose Marquina and Tomas Marquina, unless discharged in bankruptcy may be adjudged to pay any deficiency that may remain after applying allof said monies so applicable thereto; (h) On Plaintiff's Second Cause of Action, for an order directing the Clerk of the Queens County Office of the City Register to re-index the Deed recorded August 18, 2006 in CRFN 2006000467337 and the Mortgage recorded on August 18, 2006 in CRFN 2006000467338 against Block: 1700 Lots: 32 and 33; (i) Further, for an order declaring that the Defendant EMH Building Corp., it successors and assigns, and every person or entity claiming titleaccruing after the filing of the judgment roll, or of the Notice of Pendency in this action, as prescribed by law, be and the same hereby are forever barred and precluded from asserting such claim, the invalidity of which is established by this action, to an estate or interest in the Mortgaged Premises, of any kind or nature whatsoever; (j) That the United States of America shall have the right of redemption, if applicable; (k) That the plaintiff may have such other or further relief, or both, in the premises as may be just and equitable. 17-068437 Mortgage Foreclosure Complaint Page 10 of 12 10 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Plaintiff specifically reserves its right to share in any surplus monies arising from the sale of subject premises by virtue of itsposition as a judgment or other lien creditor excluding the mortgage being foreclosed herein. Dated: 111}( P Karl E. Kolkmann, Esq. Associate Attorney SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 Fax: (585) 247-7380 Our File No. 17-068437 17-068437 Mortgage Foreclosure Complaint Page 11 of 12 11 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 SCHEDULE A - DEFENDANTS DEFENDANTS CAPACITY Jose Marquina Owner of record and Obligor by virtue of the 32-52 106th Street Consolidation and/or Modiñcation Agreement East Elmhust, NY 11369 referred to in Schedule D attached hereto. Tomas Marquina Owner of record and Obligor by virtue of the 32-52 106th Street Consolidation and/or Modiñcation Agreement East Elmhust, NY 11369 referred to in Schedule D attached hereto. EMH Building Corp. To quiet titleand cut off any outstanding 106* 32-54 106th Street interest in the premises assessed as 32/54 106 East Elmhurst, NY 11369 Street, East Elmhurst, New York and as Block 1700 Lot 33. Capital One N.A., as successor in interest to Judgment creditor by virtue of a Queens North Fork Bank County Court judgment filed on June 17, 2010 201 Street Charles Ave, 26th Floor for $81,807.59 vs. EMH Building Corp. New Orleans, LA 70170 Attorney: Abrams Garfinkel Margolis Bergson, LLP Equable Ascent Financial LLC Judgment creditor by virtue of a Queens 1120 West Lake Cook Road, Suite B County Court judgment filed on February 7, Buffalo Grove, IL 60089 2012 for $3,208.40 vs. Tomas Marquina. Attorney: Rubin & Rothman, LLC DOE" "JOHN Said name being fictitious, itbeing the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein. 17-068437 12 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 SCHEDULE B - DEFENDANTS DEFENDANTS CAPACITY City of New York Environmental Control To cut off any possible liens filed by the Board Environmental Control Board with the Clerk of 100 Church Street Queens County. New York, NY 10007 City of New York Parking Violations Bureau To cut off any possible liens filed by the New 100 Church Street York City Parking Violations Bureau with the New York, NY 10007 Clerk of Queens County. City of New York Transit Adjudication Bureau To cut off any possible liens filed by the 130 Livingston Street Transit Adjudication Bureau with the Clerk of Brooklyn, NY 11201 Queens County. 17-068437 13 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 SCHEDULE C MORTGAGE INFORMATION 1. Original Amount of Bond/Note/ Consolidation or Modification Agreement $1,203,938.13 a) Interest bearing principal $972,559.28 b) Deferred principal $231,338.85 2. Last installment due and paid June 1, 2017 3. Date of firstunpaid installment/ default date July 1, 2017 AMOUNT DUE 4. Principal balance owing a) Principal balance owing $956,906.86 (Interest bearing principal balance under Loan Modification Agreement) b) Principal balance owing $231,338.85 (Deferred principal balance under Loan Modification Agreement) 5. *Interest @ 2% from June 1, 2017 To Be Calculated at Judgment 6. Late charges as per the terms of the Note To Be Calculated at Judgment 7. Taxes Advanced by Plaintiff To Be Calculated at Judgment 8. Escrow Advances To Be Calculated at Judgment * Interest will continue to accrue at the contract bond/note/loan agreement rate, until a Judgment of Foreclosure and Sale has been entered in the proper County Clerk's Off ice,at which time the interest rate will be calculated at the legal rate of 9.00%. 17-068437 14 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 SCHEDULE D The instrument being foreclosed herein is a Consolidated and /or Modified Mortgage dated July 15, 2016, executed by Jose Marquina and Tomas Marquina, as Mortgagor(s) to Nationstar Mortgage LLC, as Loan Servicer for US Bank National Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates, to secure the sum of $1,203,938.13. The foregoing instrument consolidated and/or modified the following mortgage(s): The Mortgage given by Jose Marquina and Tomas Marquina to Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Home Loans, Inc. to secure the sum of $873,440.00 dated June 30, 2006 and recorded on August 18, 2006 in CRFN 2006000467338. The Note and Mortgage were transferred to Bank of America, N.A., successor by merger to BAC Home Loans Servicing LP f/k/a Countrywide Home Loans Servicing LP and said transfer was memorialized by an Assignment of Mortgage dated August 30, 2011 and recorded on November 28, 2011 in CRFN 2011000413295. The Note and Mortgage were transferred to U.S. Bank National Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through Certificates and said transfer was memorialized by an Assignment of Mortgage dated October 20, 2014 and recorded on May 4, 2015 in CRFN 2015000149090. In addition, the underlying Note was indorsed by the original lender or its agent, successor, or assign, and was delivered to Plaintiff prior to the commencement of this action. 17-068437 15 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 NYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER This page is part of the instrmnent. The City Registerwillrelyon theinfonnation provided by you on this pageforpurposes ofindexing thisinstrument.The informationon this page willcontrolforindexing purposesin the event ol' ol' of any conflict with the rest of the document. 2005030301947001001E45B4 RECORDING AND ENDORSEMENT COVER PAGE PAG E 1 OF 5 Document ID: 2005030301947001 Document Date:01-27-2005 Preparation Date: 03-03-2005 Document Type: DEED, OTIIER Document Page Count: 3 PRESENTER: RETURN TO: ALLSTAR ABSTRACT ASAli DROR ESQ. 31 STEWART STREET 1 HOLLAND AVENUE WSAT-3493Q liLORAL PARK, NY 11001 ULORAL PARK, NY 11001 516-358-0505 MB PROPERTY DATA Borough Block Lot Unit Address QUEENS 1700 32 Entire Lot 32-52 106TH ST Property Type: RESIDENTIAL VACANT LAND Borough Block Lot Unit Address QUEENS 1700 33 Entire Lot 32-54 106TH STREET Property Type: RESIDENTIAL VACANT LAND CRFN or Document ID CROSS or _ REFERENCE Year___ DATA Reel ____ Page ____ or FileNumber PARTIES GRANTOR: GRANTEE: VAS1L1OS DIMOPOULOS EMH BUILDING CORP. 32-50 106TH STREET 147-31 71ST RD EAST ELMHURST, NY 11369 ULUSHING, NY 11367 x Additional Parties Listedon Continuation Page FEES AND TAXES Mortgage Recording Fee: $ 55.00 Mortgage Amount; $ 0.00 A flidavitFee: $ 0.00 Taxable Mortgage Amount: $ 0.00 NYC Real Property Transfer Tax Filing Fee: Exemption: $ 165.00 TAXES: County (Basic): $ 0.00 NYS Real Estate Transfer Tax: City (Additional): $ 0.00 $ 1,460.00 Spec (Additional): $ 0.00 RECORDED OR FILED IN THE OFFICE TASU: $ 0.00 OF THE CITY REGISTER OF THE MTA: $ 0.00 !':::4 CITY OF NEW YORK NYCTA: $ 0.00 Recorded/Filed 04-07-200511:11 Additional MRT: $ 0.00 CityRegisterFileNo.(CRFN): TOTAL: $ 0.00 2005000199456 NYC IIPD Affidavit inLieu of RegistrationStaterr City Register Official Si gnature 16 of 77 FILED: QUEENS COUNTY CLERK 03/27/2018 03:00 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 . NYC DEPARTMENT OF FINANCE -- -- .. ..