Preview
FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
M&T BANK, SUMMONS
FORECLOSURE ACTION
Plaintiff,
Index No.:
v.
Property Address:
CODY J. NICHOLS, MANUFACTURERS AND 8497 Heath Road
TRADERS TRUST COMPANY, JOHN DOE, Colden, NY 14033
Defendants. SBL No.: 243.03-3-23.11
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Complaint in the above action and
serve a copy of your Answer on the plaintiff's attorney within twenty (20) days after the service
of this Summons, exclusive of the day of service, or within thirty (30) days after completion of
service where service is made in any other manner than by personal delivery within the State.
The United States of America, if designated as a defendant in this action, may answer or appear
within sixty (60) days of service hereof. In case of your failure to appear or answer, judgment
will be taken against you by default for the relief demanded in the Complaint.
Erie County is designated as the place of trial. The basis of venue is the location of the
mortgaged premises.
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NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME
If you do not respond to this summons and complaint by serving a copy of the
answer on the attorney for the mortgage company who filed this foreclosure proceeding
against you and filing the answer with the court, a default judgment may be entered and
you can lose your home.
Speak to an attorney or go to the court where your case is pending for further
information on how to answer the summons and protect your property.
Sending a payment to your mortgage company will not stop this foreclosure action.
YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE
ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE
ANSWER WITH THE COURT.
Dated: May 5, 2022
Monroe County
Irondequoit, New York Brettanie L. Hart Saxton, Esq.
Woods Oviatt Gilman LLP
Attorneys for Plaintiff
500 Bausch & Lomb Place
Rochester, NY 14604
Tel.: 855-227-5072
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
M&T BANK, FORECLOSURE COMPLAINT
Plaintiff, Index No.:
v. Property Address:
8497 Heath Road
CODY J. NICHOLS, MANUFACTURERS AND Colden, NY 14033
TRADERS TRUST COMPANY, JOHN DOE,
SBL No.: 243.03-3-23.11
Defendants.
Plaintiff alleges:
1. Plaintiff is a corporation duly organized and existing under the laws of the State of
New York.
2. Upon information and belief, the Defendant(s) set forth above, hereinafter
collectively and individually referred to as "Defendant(s)", and as set forth in Exhibit "A" reside
at or have offices at the address set forth therein, and claim to have some interest in or lien upon
the real property covered by the Mortgage. All of the Defendant(s)' interests are subordinate to
the Plaintiff's interest, and are made parties to this action in the capacities as alleged in Exhibit A
and for the purpose of foreclosing and extinguishing any other right, title, or interest said
Defendant(s) have in the subject Premises.
3. All agencies or instrumentalities of Federal, State and local government (by
whatever name designated) that are named as Defendant(s) in this action, are made parties solely
by reason of the material set forth in Exhibit "A", and for no other reason.
AS FOR A FIRST CAUSE OF ACTION
4. On or about August 17, 2016, Cody J. Nichols, executed and delivered a certain
Note or Notes wherein Cody J. Nichols, promised to pay the sum of $77,900.00, plus interest, as
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more particularly described and set forth in Exhibit "B" annexed hereto and made a part hereof
(the Note or Notes set forth in Exhibit "B" are collectively hereinafter referred to as the "Note").
A copy of the Note or evidence thereof is attached hereto as Exhibit "B".
5. Plaintiff is in possession of the Note. The underlying Note was payable to the
Plaintiff or indorsed (specifically or in blank) and negotiated to the Plaintiff. Prior to the filing
of this Complaint, Plaintiff or Plaintiff's Agent was in possession and control of the original note
or evidence of ownership of the original note.
6. As security for repayment of the Note, Cody J. Nichols, executed a mortgage or
mortgages, as more particularly described and set forth in Exhibit "B" annexed hereto and made
a part hereof, as a lien upon real property commonly referred to as 8497 Heath Road, Colden,
NY 14033 (the "Premises") (the mortgage or mortgages set forth in Exhibit "B" are collectively
hereinafter referred to as the "Mortgage"). The Premises is more fully described in Exhibit "C"
attached to this Complaint. Upon information and belief, all applicable mortgage taxes were paid
at the time of recording the Mortgage.
7. The Mortgage was subsequently assigned as more particularly described and set
forth in Exhibit "B", annexed hereto and made a part hereof. A copy of the Assignment(s) of
Mortgage is attached hereto as Exhibit "B".
8. That the Defendant(s) Cody J. Nichols, have failed and neglected to comply with
the terms of said Note, Mortgage/Agreements, and/or said instruments secured by said Mortgage
by failing to repay the installment payments due on September 1, 2021 and subsequent
payments.
9. There is now due and owing on the Note and Mortgage a principal balance of
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$70,452.24 together with: accrued interest from August 1, 2021 at a rate of 3.875%, late charges,
monies advanced for taxes, assessments, insurance, inspection, maintenance and preservation of
the Premises, together with costs, allowances, expenses of sale, and reasonable attorney’s fees if
permitted by the terms of the Mortgage.
10. Plaintiff is the owner and holder of the subject Note and Mortgage, or has been
delegated the authority to institute a mortgage foreclosure action by the owner and holder of the
subject Note and Mortgage.
11. Plaintiff has sent notices as required by Real Property Actions and Proceedings
Law §1304, has complied with Real Property Actions and Proceeding Law §1306, unless exempt
from doing so, and the loan at issue in this action complied with the provisions of Banking Law
§§ 595-a, 6-l and 6-m, as applicable.
12. During the pendency of this action, the Plaintiff may be compelled to pay local
taxes, assessments, water rates, insurance premiums and other charges affecting the Premises. In
that event, the Plaintiff requests that such amounts with interest, should be added to the sum
secured by the Mortgage.
13. There are no other actions or pending proceedings at law to collect or enforce the
note and mortgage.
WHEREFORE, Plaintiff demands judgment:
(a) determining the amount due for principal, interest, taxes, insurance, costs,
reasonable attorneys' fees and other charges;
(b) declaring that the Defendants and all persons claiming an interest in the
property subsequent to the filing of the Notice of Pendency be foreclosed of any interest or
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equity of redemption in the mortgaged premises and fixtures;
(c) declaring that the mortgaged premises and fixtures be sold according to
law;
(d) awarding the sale proceeds to the Plaintiff to the extent determined under
(a) above;
(e) declaring that any of the parties to this action may become a purchaser
upon such sale;
(f) appointing a Receiver of the rents and profits of the mortgaged premises;
(g) adjudging the Defendant(s), to be liable to Plaintiff for any deficiency of
the indebtedness that may remain after applying the proceeds of the real property, fixtures, and
granting Plaintiff a money judgment for that amount, provided a motion for a deficiency
judgment shall be made as prescribed by Section 1371 of the Real Property Actions and
Proceedings Law within the time limited therein;
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(h) granting the Plaintiff such additional relief as is proper.
Plaintiff specifically reserves its rights to share in any surplus monies arising from
the sale of the mortgaged premises by virtue of its position as a lien creditor other than by the
Mortgage.
Dated: May 5, 2022
Monroe County
Irondequoit, New York Brettanie L. Hart Saxton, Esq.
Woods Oviatt Gilman LLP
Attorneys for Plaintiff
500 Bausch & Lomb Place
Rochester, NY 14604
Tel.: 855-227-5072
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Preview
FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE M&T BANK, SUMMONS FORECLOSURE ACTION Plaintiff, Index No.: v. Property Address: CODY J. NICHOLS, MANUFACTURERS AND 8497 Heath Road TRADERS TRUST COMPANY, JOHN DOE, Colden, NY 14033 Defendants. SBL No.: 243.03-3-23.11 TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in the above action and serve a copy of your Answer on the plaintiff's attorney within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after completion of service where service is made in any other manner than by personal delivery within the State. The United States of America, if designated as a defendant in this action, may answer or appear within sixty (60) days of service hereof. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Erie County is designated as the place of trial. The basis of venue is the location of the mortgaged premises. {8849894: }105180-1 1 of 7 FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022 NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, a default judgment may be entered and you can lose your home. Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property. Sending a payment to your mortgage company will not stop this foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. Dated: May 5, 2022 Monroe County Irondequoit, New York Brettanie L. Hart Saxton, Esq. Woods Oviatt Gilman LLP Attorneys for Plaintiff 500 Bausch & Lomb Place Rochester, NY 14604 Tel.: 855-227-5072 {8849894: }105180-1 2 of 7 FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE M&T BANK, FORECLOSURE COMPLAINT Plaintiff, Index No.: v. Property Address: 8497 Heath Road CODY J. NICHOLS, MANUFACTURERS AND Colden, NY 14033 TRADERS TRUST COMPANY, JOHN DOE, SBL No.: 243.03-3-23.11 Defendants. Plaintiff alleges: 1. Plaintiff is a corporation duly organized and existing under the laws of the State of New York. 2. Upon information and belief, the Defendant(s) set forth above, hereinafter collectively and individually referred to as "Defendant(s)", and as set forth in Exhibit "A" reside at or have offices at the address set forth therein, and claim to have some interest in or lien upon the real property covered by the Mortgage. All of the Defendant(s)' interests are subordinate to the Plaintiff's interest, and are made parties to this action in the capacities as alleged in Exhibit A and for the purpose of foreclosing and extinguishing any other right, title, or interest said Defendant(s) have in the subject Premises. 3. All agencies or instrumentalities of Federal, State and local government (by whatever name designated) that are named as Defendant(s) in this action, are made parties solely by reason of the material set forth in Exhibit "A", and for no other reason. AS FOR A FIRST CAUSE OF ACTION 4. On or about August 17, 2016, Cody J. Nichols, executed and delivered a certain Note or Notes wherein Cody J. Nichols, promised to pay the sum of $77,900.00, plus interest, as {8849894: }105180-1 3 of 7 FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022 more particularly described and set forth in Exhibit "B" annexed hereto and made a part hereof (the Note or Notes set forth in Exhibit "B" are collectively hereinafter referred to as the "Note"). A copy of the Note or evidence thereof is attached hereto as Exhibit "B". 5. Plaintiff is in possession of the Note. The underlying Note was payable to the Plaintiff or indorsed (specifically or in blank) and negotiated to the Plaintiff. Prior to the filing of this Complaint, Plaintiff or Plaintiff's Agent was in possession and control of the original note or evidence of ownership of the original note. 6. As security for repayment of the Note, Cody J. Nichols, executed a mortgage or mortgages, as more particularly described and set forth in Exhibit "B" annexed hereto and made a part hereof, as a lien upon real property commonly referred to as 8497 Heath Road, Colden, NY 14033 (the "Premises") (the mortgage or mortgages set forth in Exhibit "B" are collectively hereinafter referred to as the "Mortgage"). The Premises is more fully described in Exhibit "C" attached to this Complaint. Upon information and belief, all applicable mortgage taxes were paid at the time of recording the Mortgage. 7. The Mortgage was subsequently assigned as more particularly described and set forth in Exhibit "B", annexed hereto and made a part hereof. A copy of the Assignment(s) of Mortgage is attached hereto as Exhibit "B". 8. That the Defendant(s) Cody J. Nichols, have failed and neglected to comply with the terms of said Note, Mortgage/Agreements, and/or said instruments secured by said Mortgage by failing to repay the installment payments due on September 1, 2021 and subsequent payments. 9. There is now due and owing on the Note and Mortgage a principal balance of {8849894: }105180-1 4 of 7 FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022 $70,452.24 together with: accrued interest from August 1, 2021 at a rate of 3.875%, late charges, monies advanced for taxes, assessments, insurance, inspection, maintenance and preservation of the Premises, together with costs, allowances, expenses of sale, and reasonable attorney’s fees if permitted by the terms of the Mortgage. 10. Plaintiff is the owner and holder of the subject Note and Mortgage, or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject Note and Mortgage. 11. Plaintiff has sent notices as required by Real Property Actions and Proceedings Law §1304, has complied with Real Property Actions and Proceeding Law §1306, unless exempt from doing so, and the loan at issue in this action complied with the provisions of Banking Law §§ 595-a, 6-l and 6-m, as applicable. 12. During the pendency of this action, the Plaintiff may be compelled to pay local taxes, assessments, water rates, insurance premiums and other charges affecting the Premises. In that event, the Plaintiff requests that such amounts with interest, should be added to the sum secured by the Mortgage. 13. There are no other actions or pending proceedings at law to collect or enforce the note and mortgage. WHEREFORE, Plaintiff demands judgment: (a) determining the amount due for principal, interest, taxes, insurance, costs, reasonable attorneys' fees and other charges; (b) declaring that the Defendants and all persons claiming an interest in the property subsequent to the filing of the Notice of Pendency be foreclosed of any interest or {8849894: }105180-1 5 of 7 FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022 equity of redemption in the mortgaged premises and fixtures; (c) declaring that the mortgaged premises and fixtures be sold according to law; (d) awarding the sale proceeds to the Plaintiff to the extent determined under (a) above; (e) declaring that any of the parties to this action may become a purchaser upon such sale; (f) appointing a Receiver of the rents and profits of the mortgaged premises; (g) adjudging the Defendant(s), to be liable to Plaintiff for any deficiency of the indebtedness that may remain after applying the proceeds of the real property, fixtures, and granting Plaintiff a money judgment for that amount, provided a motion for a deficiency judgment shall be made as prescribed by Section 1371 of the Real Property Actions and Proceedings Law within the time limited therein; {8849894: }105180-1 6 of 7 FILED: ERIE COUNTY CLERK 05/17/2022 04:39 PM INDEX NO. 805833/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2022 (h) granting the Plaintiff such additional relief as is proper. Plaintiff specifically reserves its rights to share in any surplus monies arising from the sale of the mortgaged premises by virtue of its position as a lien creditor other than by the Mortgage. Dated: May 5, 2022 Monroe County Irondequoit, New York Brettanie L. Hart Saxton, Esq. Woods Oviatt Gilman LLP Attorneys for Plaintiff 500 Bausch & Lomb Place Rochester, NY 14604 Tel.: 855-227-5072 {8849894: }105180-1 7 of 7