Preview
FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018
SUPREME COURT OF THE STATE OF NEW YORK
C Y OF BRONX IA 20 X
DEUTSCHE BANK NATIONAL TRUST,
Index No: 32679/2017E
-against-
DECISION AND ORDER
MONTAGUE BENJAMIN,
Defendants Present:
X HON. KENNETH L. THOMPSON, JR.
The following papers numbered 1 to 1 read on this motion for an order of publication
No On Calendar of April 12, 2018 PAPERS NUMBER
Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed— 1
Answering Affidavit and Exhibits---
Replying Affidavit and Exhibits
Affidavit
Pleadings -- Exhibit
Memorandum of Law
Stipulation -- Referee's Report —Minutes
Filed papers
Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
Plaintiff's motion for an order permitting the filing and service of a
Supplemental Summons and Amended Complaint and for an order of publication
is granted on default on terms of the annexed signed order.
The foregoing constitutes the decision of the Court.
Dated:
KENNET L. THO SO J.S.C.
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At an IAS Part ao of the Supreme Court of
the State of New York, held in and for the
County of Bronx at the Courthouse thereof,
Supreme Court Building, 851 Grand
Concourse, Bronx NY on the Co2'day of
J vly 2018.
PRESENT:
Hon. Kenneth L. Thompson Jr.
SUPREME COURT THE STATE OF NEW YORK:
COUNTY OF BRONX
X
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS INDENTURE TRUSTEE UNDER THE Index No: 32679/2017E
INDENTURE RELATING TO IMH ASSETS CORP.,
COLLATERALIZED ASSET-BACKED BONDS,
SERIES 2005-7,
Plaintiff,
-against- ORDER OF PUBLICATION OF
SUPPLEMENTAL SUMMONS WITH
MONTAGUE BENJAMIN; NOTICE AND EXTENSION OF 120 DAY
BERNADETTE BENJAMIN A/IUA BERNADETTE SERVICE AND FILING REQUIREMENT
BENJAMIN CAMARA A/K/A BERNADETTE OF C P L R. § 306-B
CAMARA;
U.S. BANK N.A., IN ITS CAPACITY AS TRUSTEE MORTGAGED PREMISES:
FOR THE REGISTERED HOLDERS OF HOME 2957 PEARSALL AVENUE
EQUITY MORTGAGE TRUST, SERIES 2006-1, BRONX, NY 10469
HOME EQUITY MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-1; BL #: 4561 -39
NEW YORK CITY ENVIRONMENTAL CONTROL
BOARD;
and "JOHN DOE #1" to "JOHN DOE #10," the last 10
names being fictitious and unknown to plaintiff, the
persons or parties intended being the persons or parties,
if any, having or claiming an interest in or lien upon the
mortgaged premises described in the complaint,
Defendants.
X
UPON reading and filing the annexed Affirmation with exhibits of Melisa Zukic, Esq.,
the attorney for Plaintiff in the above entitled action, signed on March 16 , 2018, requesting
that the Court permit Plaintiff to serve and file the attached Supplemental Summons with Notice
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upon MONTAGUE BENJAMIN by Publication pursuant to C.P.L.R. §§ 316 and 308(5); that the
Court extend the 120-day service requirement of C.P.L.R. § 306-b and amend the caption; and
upon reading the Summons and Complaint herein duly filed with the Clerk of this Court, for the
foreclosure of a mortgage upon real property situate in Bronx County, which establishes a good
and sufficient cause of action against the above-captioned defendants and it appearing to the
satisfaction of the Court that the Plaintiff has been unable to serve the Summons and Complaint
herein upon MONTAGUE BENJAMIN by another prescribed method, and that the Plaintiff has
been unable to ascertain where the said defendant resides, is employed or to ascertain a place
where the defendant would probably receive mail;.
NOW on motion of McCabe, Weisberg & Conway, LLC, attorneys for Plaintiff, and the
Attorney Affirmation of Melisa Zulcic, Esq., it is
ORDERED, that service of the Supplemental Summons with Notice in this action upon
MONTAGUE BENJAMIN be accomplished pursuant to C.P.L.R. § 308(5) by publication of the
Supplemental Summons with Notice in two (2) newspapers, at least once every week for four
consecutive weeks, to give notice to MONTAGUE BENJAMIN together with a notice and brief
statement of the object of the action and a brief description of the property, at least one of which
r
shall be in the English language, to wit: lac Ne-0_,_1,,x_ actaCht.Arl___
and \k u1
/ Al4-441401-\
J5
ich are published in the County of Bronx; and it is further
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ORDERED, that a copy of the Supplemental Summons with Notice and Amended
Complaint be mailed to MONTAGUE BENJAMIN, by certified mail, at 2957 Pearsall Avenue,
Bronx, New York 10469; and it is further
ORDERED, that a copy of the Supplemental Summons with Notice and Amended
Complaint be served via regular mail upon all remaining defendants at their last known or
current address except new tenants who may occupy the mortgaged property, and it is further
ORDERED, that the date of entry of this Order with the County Clerk shall be and
hereby is deemed to be the date of granting this Order for the purpose of compliance with
C.P.L.R. § 316 and 306-b; and it is further
ORDERED, that the first publication be within sixty (60) days after the entry date of this
Order; and that although service is complete twenty-eight (28) days after the first publication, the
filing requirement of CPLR § 306-b be and is hereby extended for an additional one hundred
and twenty (120) days from the granted date of this Order; and it is further
ORDERED, that any service, occurring between the filing date of the Summons and
Complaint and the granted date of this Order be deemed effective, Nunc pro Tunc; and it is
further
ORDERED, that a Guardian Ad Litem is appointed, and it is further
ORDERED, that the Supplemental Summons with Notice and Amended Complaint
herein be delivered on behalf of MONTAGUE BENJAMIN, who may be served herein by
publication of this Order, on: Jo mph M. Allo4t4c-4 va
Post Rol S-t--e- 3 S-Sei S air; 4611)_ s'( IoS 3
) 25- 0 00 ,who is hereby authorized, empowered and
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designated to appear herein as Guardian Ad Litem and Military Attorney on behalf of any
individuals discovered to have an interest in the subject property who may be absentees, infants
or incompetents or unknown successors in interest of defendants who may be deceased, or
defendants who may be in military service, and to protect and defend the interests of said
defendants in the action upon filing his acknowledged consent and qualifying affidavit; and it is
further
ORDERED, that said Guardian Ad Litem and Military Attorney shall also act for said
individuals should they be in default or be in the military service of the United States of
America, and is hereby authorized and appointed for the purpose of representing them and
protecting their interest in this action pursuant to the provisions of the Service Members Relief
Act of 2003; and it is further
ORDERED, that the Plaintiff's motion for Order of Reference and Judgment of
Foreclosure and Sale be made on Notice to the Guardian Ad Litem; and it is further
ORDERED, that the Guardian Ad Litem and Military Attorney (if applicable), is
directed to execute his/her oath and that the same shall be filed with the Bronx County Clerk;
and it is further
ORDERED, that any appointee named herein shall comply with Section 35(a) of the
Judiciary Law [N.Y.C.L.S.] of the State of New York; and it is further
ORDERED, that the caption of this action be amended such that the Defendant named as
MONTAGUE BENJAMIN be amended, Nunc pro Tune, to reflect" MONTAGUE BENJAMIN,
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if living, and if dead, the respective heirs at law, next of kin, distributees, executors,
administrators, trustees, devisees, legatees, assignors, lienors, creditors and successors in interest,
and generally all persons having or claiming under, by or through said defendant who may be
deceased, by purchase, inheritance, lien or otherwise of any right, title or interest in and to the
premises described in the complaint herein, and their respective husbands, wives or widows, if
any, and each and every person not specifically named who may be entitled to or claim to have
any right, title or interest in the property described in the Complaint; all of whom and whose
names and places of residence unknown, and cannot after diligent inquiry be ascertained by the
Plaintiff," all without prejudice to all of the proceedings heretofore had herein; and it is further
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018
ORDERED, that the caption hereinafter shall read as follows:
SUPREME COURT OF THE STATE OF NEW YORK:
COUNTY OF BRONX
X
DEUTSCHE BANK NATIONAL TRUST INDEX NO.: 32679/2017E
COMPANY, AS INDENTURE TRUSTEE UNDER
THE INDENTURE RELATING TO IMH ASSETS MORTGAGED PREMISES:
CORP., COLLATERALIZED ASSET-BACKED 2957 PEARSALL AVENUE
BONDS, SERIES 2005-7, BRONX, NEW YORK 10469
Plaintiff,
-against- BL #: 4561 -39
MONTAGUE BENJAMIN, if living, and if dead, the
respective heirs at law, next of kin, distributees,
executors, administrators, trustees, devisees, legatees,
assignors, lienors, creditors and successors in interest
and generally all persons having or claiming under, by
or through said defendant who may be deceased, by
purchase, inheritance, lien or otherwise of any right,
title or interest in and to the premises described in the
complaint herein, and their respective husbands, wives
or window, if any, and each and every person not
specifically named who may be entitled to or claim to
have any right, title or interest in the property
described in the verified complaint; all of whom and
whose names and places of residence unknown, and
cannot after diligent inquiry be ascertained by the
Plaintiff, BERNADETTE BENJAMIN A/K/A
BERNADETTE BENJAMIN CAMARA A/K/A
BERNADETTE CAMARA, U.S. BANK NA., IN
ITS CAPACITY AS TRUSTEE FOR THE
REGISTERED HOLDERS OF HOME EQUITY
MORTGAGE TRUST, SERIES 2006-1, HOME
EQUITY MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-1, NEW YORK
CITY ENVIRONMENTAL CONTROL BOARD,
and "JOHN DOE #1" to ''JOHN DOE #12," the last
10 names being fictitious and unknown to plaintiff,
the persons or parties intended being the persons or
parties, if any, having or claiming an interest in or lien
upon the mortgaged premises described in the
complaint,
Defendants.
X
and it is further
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ORDERED, that Plaintiff be and hereby is granted leave to issue, file and serve the
annexed Supplemental Summons with Notice, Amended Complaint, and Amended Notice of
Pendency, and that the title of this action is hereby amended to conform with the caption on
those pleadings without prejudice to any of the proceedings heretofore had herein.
ENTER:
J. C.
Hon. Kenneth L. Thompson Jr.
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Preview
FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 SUPREME COURT OF THE STATE OF NEW YORK C Y OF BRONX IA 20 X DEUTSCHE BANK NATIONAL TRUST, Index No: 32679/2017E -against- DECISION AND ORDER MONTAGUE BENJAMIN, Defendants Present: X HON. KENNETH L. THOMPSON, JR. The following papers numbered 1 to 1 read on this motion for an order of publication No On Calendar of April 12, 2018 PAPERS NUMBER Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed— 1 Answering Affidavit and Exhibits--- Replying Affidavit and Exhibits Affidavit Pleadings -- Exhibit Memorandum of Law Stipulation -- Referee's Report —Minutes Filed papers Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows: Plaintiff's motion for an order permitting the filing and service of a Supplemental Summons and Amended Complaint and for an order of publication is granted on default on terms of the annexed signed order. The foregoing constitutes the decision of the Court. Dated: KENNET L. THO SO J.S.C. 1 of 8 FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 At an IAS Part ao of the Supreme Court of the State of New York, held in and for the County of Bronx at the Courthouse thereof, Supreme Court Building, 851 Grand Concourse, Bronx NY on the Co2'day of J vly 2018. PRESENT: Hon. Kenneth L. Thompson Jr. SUPREME COURT THE STATE OF NEW YORK: COUNTY OF BRONX X DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE UNDER THE Index No: 32679/2017E INDENTURE RELATING TO IMH ASSETS CORP., COLLATERALIZED ASSET-BACKED BONDS, SERIES 2005-7, Plaintiff, -against- ORDER OF PUBLICATION OF SUPPLEMENTAL SUMMONS WITH MONTAGUE BENJAMIN; NOTICE AND EXTENSION OF 120 DAY BERNADETTE BENJAMIN A/IUA BERNADETTE SERVICE AND FILING REQUIREMENT BENJAMIN CAMARA A/K/A BERNADETTE OF C P L R. § 306-B CAMARA; U.S. BANK N.A., IN ITS CAPACITY AS TRUSTEE MORTGAGED PREMISES: FOR THE REGISTERED HOLDERS OF HOME 2957 PEARSALL AVENUE EQUITY MORTGAGE TRUST, SERIES 2006-1, BRONX, NY 10469 HOME EQUITY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-1; BL #: 4561 -39 NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; and "JOHN DOE #1" to "JOHN DOE #10," the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants. X UPON reading and filing the annexed Affirmation with exhibits of Melisa Zukic, Esq., the attorney for Plaintiff in the above entitled action, signed on March 16 , 2018, requesting that the Court permit Plaintiff to serve and file the attached Supplemental Summons with Notice 2 of 8 FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 upon MONTAGUE BENJAMIN by Publication pursuant to C.P.L.R. §§ 316 and 308(5); that the Court extend the 120-day service requirement of C.P.L.R. § 306-b and amend the caption; and upon reading the Summons and Complaint herein duly filed with the Clerk of this Court, for the foreclosure of a mortgage upon real property situate in Bronx County, which establishes a good and sufficient cause of action against the above-captioned defendants and it appearing to the satisfaction of the Court that the Plaintiff has been unable to serve the Summons and Complaint herein upon MONTAGUE BENJAMIN by another prescribed method, and that the Plaintiff has been unable to ascertain where the said defendant resides, is employed or to ascertain a place where the defendant would probably receive mail;. NOW on motion of McCabe, Weisberg & Conway, LLC, attorneys for Plaintiff, and the Attorney Affirmation of Melisa Zulcic, Esq., it is ORDERED, that service of the Supplemental Summons with Notice in this action upon MONTAGUE BENJAMIN be accomplished pursuant to C.P.L.R. § 308(5) by publication of the Supplemental Summons with Notice in two (2) newspapers, at least once every week for four consecutive weeks, to give notice to MONTAGUE BENJAMIN together with a notice and brief statement of the object of the action and a brief description of the property, at least one of which r shall be in the English language, to wit: lac Ne-0_,_1,,x_ actaCht.Arl___ and \k u1 / Al4-441401-\ J5 ich are published in the County of Bronx; and it is further 3 of 8 FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 ORDERED, that a copy of the Supplemental Summons with Notice and Amended Complaint be mailed to MONTAGUE BENJAMIN, by certified mail, at 2957 Pearsall Avenue, Bronx, New York 10469; and it is further ORDERED, that a copy of the Supplemental Summons with Notice and Amended Complaint be served via regular mail upon all remaining defendants at their last known or current address except new tenants who may occupy the mortgaged property, and it is further ORDERED, that the date of entry of this Order with the County Clerk shall be and hereby is deemed to be the date of granting this Order for the purpose of compliance with C.P.L.R. § 316 and 306-b; and it is further ORDERED, that the first publication be within sixty (60) days after the entry date of this Order; and that although service is complete twenty-eight (28) days after the first publication, the filing requirement of CPLR § 306-b be and is hereby extended for an additional one hundred and twenty (120) days from the granted date of this Order; and it is further ORDERED, that any service, occurring between the filing date of the Summons and Complaint and the granted date of this Order be deemed effective, Nunc pro Tunc; and it is further ORDERED, that a Guardian Ad Litem is appointed, and it is further ORDERED, that the Supplemental Summons with Notice and Amended Complaint herein be delivered on behalf of MONTAGUE BENJAMIN, who may be served herein by publication of this Order, on: Jo mph M. Allo4t4c-4 va Post Rol S-t--e- 3 S-Sei S air; 4611)_ s'( IoS 3 ) 25- 0 00 ,who is hereby authorized, empowered and 4 of 8 FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 designated to appear herein as Guardian Ad Litem and Military Attorney on behalf of any individuals discovered to have an interest in the subject property who may be absentees, infants or incompetents or unknown successors in interest of defendants who may be deceased, or defendants who may be in military service, and to protect and defend the interests of said defendants in the action upon filing his acknowledged consent and qualifying affidavit; and it is further ORDERED, that said Guardian Ad Litem and Military Attorney shall also act for said individuals should they be in default or be in the military service of the United States of America, and is hereby authorized and appointed for the purpose of representing them and protecting their interest in this action pursuant to the provisions of the Service Members Relief Act of 2003; and it is further ORDERED, that the Plaintiff's motion for Order of Reference and Judgment of Foreclosure and Sale be made on Notice to the Guardian Ad Litem; and it is further ORDERED, that the Guardian Ad Litem and Military Attorney (if applicable), is directed to execute his/her oath and that the same shall be filed with the Bronx County Clerk; and it is further ORDERED, that any appointee named herein shall comply with Section 35(a) of the Judiciary Law [N.Y.C.L.S.] of the State of New York; and it is further ORDERED, that the caption of this action be amended such that the Defendant named as MONTAGUE BENJAMIN be amended, Nunc pro Tune, to reflect" MONTAGUE BENJAMIN, 5 of 8 FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 if living, and if dead, the respective heirs at law, next of kin, distributees, executors, administrators, trustees, devisees, legatees, assignors, lienors, creditors and successors in interest, and generally all persons having or claiming under, by or through said defendant who may be deceased, by purchase, inheritance, lien or otherwise of any right, title or interest in and to the premises described in the complaint herein, and their respective husbands, wives or widows, if any, and each and every person not specifically named who may be entitled to or claim to have any right, title or interest in the property described in the Complaint; all of whom and whose names and places of residence unknown, and cannot after diligent inquiry be ascertained by the Plaintiff," all without prejudice to all of the proceedings heretofore had herein; and it is further [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 6 of 8 FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 ORDERED, that the caption hereinafter shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF BRONX X DEUTSCHE BANK NATIONAL TRUST INDEX NO.: 32679/2017E COMPANY, AS INDENTURE TRUSTEE UNDER THE INDENTURE RELATING TO IMH ASSETS MORTGAGED PREMISES: CORP., COLLATERALIZED ASSET-BACKED 2957 PEARSALL AVENUE BONDS, SERIES 2005-7, BRONX, NEW YORK 10469 Plaintiff, -against- BL #: 4561 -39 MONTAGUE BENJAMIN, if living, and if dead, the respective heirs at law, next of kin, distributees, executors, administrators, trustees, devisees, legatees, assignors, lienors, creditors and successors in interest and generally all persons having or claiming under, by or through said defendant who may be deceased, by purchase, inheritance, lien or otherwise of any right, title or interest in and to the premises described in the complaint herein, and their respective husbands, wives or window, if any, and each and every person not specifically named who may be entitled to or claim to have any right, title or interest in the property described in the verified complaint; all of whom and whose names and places of residence unknown, and cannot after diligent inquiry be ascertained by the Plaintiff, BERNADETTE BENJAMIN A/K/A BERNADETTE BENJAMIN CAMARA A/K/A BERNADETTE CAMARA, U.S. BANK NA., IN ITS CAPACITY AS TRUSTEE FOR THE REGISTERED HOLDERS OF HOME EQUITY MORTGAGE TRUST, SERIES 2006-1, HOME EQUITY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-1, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, and "JOHN DOE #1" to ''JOHN DOE #12," the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants. X and it is further 7 of 8 FILED: BRONX COUNTY CLERK 07/10/2018 11:02 AM INDEX NO. 32679/2017E NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/10/2018 ORDERED, that Plaintiff be and hereby is granted leave to issue, file and serve the annexed Supplemental Summons with Notice, Amended Complaint, and Amended Notice of Pendency, and that the title of this action is hereby amended to conform with the caption on those pleadings without prejudice to any of the proceedings heretofore had herein. ENTER: J. C. Hon. Kenneth L. Thompson Jr. 8 of 8