Preview
FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
------ ---------------------------------- -----¬- INDEX NO.: EF2021-269048
USTCO BANK ATTORNEY AFFIRMATION IN
SUPPORT OF PLAINTIFF'S
Plaintiff MOTION FOR DEFAULT
JUDGMENTANDORDEROF
- against - REFERENCE
ANNE M. CATHERINE A. and· MORTGAGED PROPERTY:
KUROLY; SCHWABE;
DOE,"
"JOHN (said name being fictitious, Itbeing 11 Rhode Island Ave
the intention of the plaintiff to designate any and all Rensselaer, NY 12144
persons in possession of the mortgaged COUNTY: Rensselaer
premises)
SBL #: 155.9-15-10
Defendant(s)
.___________.--... -------- __ --------
Melissa M. Tobrocke, pursuant to CPLR 2106 and under penalties of perjury, hereby
affirms as follows:
1. I am an attorney at law and a partner with the firm of Overton, Russell, Doerr &
Donovan, LLP, the attorneys of record for PlaintiffTrustco Bank. I am fullyfamiliar with the facts,
court papers, and proceedings of this action based upon a review of the file maintained by my
office.
2. True and accurate copies of the fallcwing documents are attached hereto:
Document Tab
Certificate of Merit Exhibit A
Note Exhibit B
Mortgage Exhibit C
Department of Defense Search results Exhibit D
Summons and Complaint Exhibit E ·
Notice of Pendency Exhibit F
Affidavits of Service Exhibit G
Affidavit of Service by Mail pursuant to CPLR 3215(g)(S)(iii) Exhibit H
Affidavit of Merit and Amount Due Exhibit I
Affirmation of Regularity Exhibit J
Legalback No. 2 - filed contemporaneous with this maticri
Proposed Order of Reference
All personal non-public information has been redacted from the attached supporting
documents.
Anne& Schwabe,Catherine\NOM-OOR(Default).doc
FMSM09.L!NDAlFORECLOSURES\TRUSTCOlKuroly,
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FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021
3. This residential mortgage foreclosure action was commenced by filing the
Summons and Complaint in the Renese!aer County Clerk's Office on June 10, 2021, the County
where the mortgaged prcpsity is !ocated. The action was brought to foreclose a residential
mortgage executed by Anne M. Kuroly and Catherine A. Schwabe on May 24, 2013 and
recorded on June 13, 2021 in Book No. 6813 Page 242.
4. On June 10, 2021, Plaintiff filed a Notice of Pendericy in accordance with RPAPL
"F"
§1331 and CPLR Article 65, a copy of which is attached hereto as Exhibit On July 8, 2021,
Piaintiff refiled the Notice of Pendency in accordance with RPAPL §1331 and CPLR Article 65.
5. The Summons, Complaint and Notice of Pendency are in the form prescribed by
statute and contain all of the particulars required by law. The Summons complies with the
requirements of RPAPL §1320, contains the required notice in boldface type and is in the format
required by statute. According to the Affidavit of Service, the Summune was served together
with the Complaint. Copies of the Summons, Complaint, Notice of Pendency and Affidavits of
"E," "F," "G."
Service are attached hereto as Exhibits and
6. On June 10, 2021, Plaintiff was Heider of the subject note. See Affidavit of Scot
Salvador, attached hereto as Exhibit "I".
7. The Certificate of Merit pursuant to CPLR 3012-b was filed together with
supporting documents and is attached hereto as Exhibit "A".
8. The Defendants/mortgagors are not residents of the property subject to
foreclosure. See Affidavit of Linda L. Donovan, attached hereto as Exhibit "J".
9. Defendant (s) were served with the notice required by RPAPL §1303 printed on
colored paper together with the Summons and Complaint printed on white paper. The RPAPL
§1303 notice complies with the requirements of that statute, with the titlein bold, 20-point type
and the text in bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors
on its own separate page, together with the Summons and Complaint. The 90-Day Foreclosure
notice required by RPAPL §1304 was not included because the mortgagors do not reside at the
mortgaged premises.
Anne& Schwabe,Catherine\NOM-OOR(Default}.doo
F:\ASDOCS\LINDA\FORECLOSURES\TRUSTCO\Kuroly,
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FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021
10. Plaintiff served an additional copy of the Summons in compliance with CPLR
3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit "H".
Doe"
11. Defendants captioned as "John are not necessary parties. Accordingly, the
Doe"
defendants captioned as "John were not served with copies of the summons and
Doe"
camplaint. Plaintiff requests that the "John defendants be excised from the caption of the
action without prejudice to any of the proceedings herein.
12. The following defendant(s) did not answer or appear and their time to answer has
expired: Anne M. Kuroly and Catherine A. Schwabe. Acccidingly, these defendants are in
default.
13. No Defendant is an infant. No Defendant is in the armed services of the United
States of America. Upon information and belief, no Defendant is incompetent. The following
Defendant(s) were served out of state: Anne M. Kuroly and Catherine A. Schwabs.
14. Plaintiff has not made any previous motion for this or like relief.
15. Therefore, itis respectfully requested that the Court grant Plaintiff's motica for a
Default Judgment and Order of Reference in accordance with RPAPL §1321 and award such
other and further relief as the Court may deem just and proper.
WHEREFORE, Plaintiff requests and Order from this Court:
A. Appointing a referee to compute the amount due Plaintiff and to examine whether
the mortgaged property known as 11 Rhode , New York can be sold in parcels,
and make his/her computation and report with allconvenient speed pursuant to
RPAPL §1321;
Doe"
B. Removing "John as a party Defendant to this action;
C. Determining all non-appearing and non-answering Defendants to be in default;
. .
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Anne& Schwabe,Cathc±oWOM-DO¤(DeMt).doo
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FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048
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D. Granting such additional reliefas the Court may deem just and proper.
DATED: November 1, 2021
Clifton Park, New York
Melissa M. Tobrocke, Esq.
OVERTON, RUSSELL, DOERR & DONOVAN, LLP
Attorneys for Plaintiff
19 Executive Park Drive
. Clifton Park, New York 12065
(518) 383-4000
Melissa M. Tobrocke, Esq., an attamey at law licensed to practice in the State of New York, and
the attorney for Plaintiff In this action hereby certifies that, to the best of her knowledge,
information and belief, formed after an inquiry reasünable under the circumstances, the
presentation of this pleading, affidavit (or motion ifapplicable), and the contentions contained
herein are not frivolous as defined by 22 NYCRR 130-1.1(c).
FMSDOCS\LINDA\FORECLOSURES\TRUSTCO\Ku
roty,Anne& Schwabe,Cather!r NOM-OOR(Default).dac
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FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021
ATTORNEY AFFIRMATION
The undersigned, Melissa M. Tobrocke, Esq., pursuant to CPLR 2106 and under
penalties of perfury affirms as follows:
That she is the attorney of recortl for the Plaintiffin the above-captioned action, that the
foregaing disburserñeñts have been incurred in this action and are reasonable in amount, and
that the copies of documents or papers charged for herein were actually and ñécesserily
obtained.
DATED: November 1, 2021
Clifton Park, New York .
Melissa M. Tobrocke, Esq.
OVERTON, RUSSELL, DOERR & DONOVAN, LLP
Attorneys for Plaintiff
19 Executive Park Drive
Clifton Park, New York 12065
(518) 383-4000
FMSD0OPL!NDAFORECLOSUREETRUSTCC Kuroly,Anne& Schwabe,Catherine\NOM-OOR(Default).doc
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FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021
ATTORNEY CERTIFICATION
I, Melissa M. Tobracke, an attorney, hereby certify, pursuant to Uniform Rule 202.8-b, under
penalty of perjury and as an officer of the court that to the best of my knowledge, information and
belief, formed after an inquiry reasoñabia under the circumstances, that this affidavit contains
814 words as calculated by the word processiñÿ program used to draft said affidavit.
Melissa M. Tobrocke, Esq.
OVERTON, RUSSELL, DOERR &
DONOVAN, LLP
Attomeys for Plaintiff
19 Executive Park Drive
.Clifton Park, New York 12065
(518) 383-4000
F:\AcMOS L!NDWORECLOSURES\TRUSTCOlKuroly,
Anne& Schwabe,CatherineWDM-MR(D-fa.u!0.doc
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Preview
FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER ------ ---------------------------------- -----¬- INDEX NO.: EF2021-269048 USTCO BANK ATTORNEY AFFIRMATION IN SUPPORT OF PLAINTIFF'S Plaintiff MOTION FOR DEFAULT JUDGMENTANDORDEROF - against - REFERENCE ANNE M. CATHERINE A. and· MORTGAGED PROPERTY: KUROLY; SCHWABE; DOE," "JOHN (said name being fictitious, Itbeing 11 Rhode Island Ave the intention of the plaintiff to designate any and all Rensselaer, NY 12144 persons in possession of the mortgaged COUNTY: Rensselaer premises) SBL #: 155.9-15-10 Defendant(s) .___________.--... -------- __ -------- Melissa M. Tobrocke, pursuant to CPLR 2106 and under penalties of perjury, hereby affirms as follows: 1. I am an attorney at law and a partner with the firm of Overton, Russell, Doerr & Donovan, LLP, the attorneys of record for PlaintiffTrustco Bank. I am fullyfamiliar with the facts, court papers, and proceedings of this action based upon a review of the file maintained by my office. 2. True and accurate copies of the fallcwing documents are attached hereto: Document Tab Certificate of Merit Exhibit A Note Exhibit B Mortgage Exhibit C Department of Defense Search results Exhibit D Summons and Complaint Exhibit E · Notice of Pendency Exhibit F Affidavits of Service Exhibit G Affidavit of Service by Mail pursuant to CPLR 3215(g)(S)(iii) Exhibit H Affidavit of Merit and Amount Due Exhibit I Affirmation of Regularity Exhibit J Legalback No. 2 - filed contemporaneous with this maticri Proposed Order of Reference All personal non-public information has been redacted from the attached supporting documents. Anne& Schwabe,Catherine\NOM-OOR(Default).doc FMSM09.L!NDAlFORECLOSURES\TRUSTCOlKuroly, 1 of 6 FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021 3. This residential mortgage foreclosure action was commenced by filing the Summons and Complaint in the Renese!aer County Clerk's Office on June 10, 2021, the County where the mortgaged prcpsity is !ocated. The action was brought to foreclose a residential mortgage executed by Anne M. Kuroly and Catherine A. Schwabe on May 24, 2013 and recorded on June 13, 2021 in Book No. 6813 Page 242. 4. On June 10, 2021, Plaintiff filed a Notice of Pendericy in accordance with RPAPL "F" §1331 and CPLR Article 65, a copy of which is attached hereto as Exhibit On July 8, 2021, Piaintiff refiled the Notice of Pendency in accordance with RPAPL §1331 and CPLR Article 65. 5. The Summons, Complaint and Notice of Pendency are in the form prescribed by statute and contain all of the particulars required by law. The Summons complies with the requirements of RPAPL §1320, contains the required notice in boldface type and is in the format required by statute. According to the Affidavit of Service, the Summune was served together with the Complaint. Copies of the Summons, Complaint, Notice of Pendency and Affidavits of "E," "F," "G." Service are attached hereto as Exhibits and 6. On June 10, 2021, Plaintiff was Heider of the subject note. See Affidavit of Scot Salvador, attached hereto as Exhibit "I". 7. The Certificate of Merit pursuant to CPLR 3012-b was filed together with supporting documents and is attached hereto as Exhibit "A". 8. The Defendants/mortgagors are not residents of the property subject to foreclosure. See Affidavit of Linda L. Donovan, attached hereto as Exhibit "J". 9. Defendant (s) were served with the notice required by RPAPL §1303 printed on colored paper together with the Summons and Complaint printed on white paper. The RPAPL §1303 notice complies with the requirements of that statute, with the titlein bold, 20-point type and the text in bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on its own separate page, together with the Summons and Complaint. The 90-Day Foreclosure notice required by RPAPL §1304 was not included because the mortgagors do not reside at the mortgaged premises. Anne& Schwabe,Catherine\NOM-OOR(Default}.doo F:\ASDOCS\LINDA\FORECLOSURES\TRUSTCO\Kuroly, 2 of 6 FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021 10. Plaintiff served an additional copy of the Summons in compliance with CPLR 3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit "H". Doe" 11. Defendants captioned as "John are not necessary parties. Accordingly, the Doe" defendants captioned as "John were not served with copies of the summons and Doe" camplaint. Plaintiff requests that the "John defendants be excised from the caption of the action without prejudice to any of the proceedings herein. 12. The following defendant(s) did not answer or appear and their time to answer has expired: Anne M. Kuroly and Catherine A. Schwabe. Acccidingly, these defendants are in default. 13. No Defendant is an infant. No Defendant is in the armed services of the United States of America. Upon information and belief, no Defendant is incompetent. The following Defendant(s) were served out of state: Anne M. Kuroly and Catherine A. Schwabs. 14. Plaintiff has not made any previous motion for this or like relief. 15. Therefore, itis respectfully requested that the Court grant Plaintiff's motica for a Default Judgment and Order of Reference in accordance with RPAPL §1321 and award such other and further relief as the Court may deem just and proper. WHEREFORE, Plaintiff requests and Order from this Court: A. Appointing a referee to compute the amount due Plaintiff and to examine whether the mortgaged property known as 11 Rhode , New York can be sold in parcels, and make his/her computation and report with allconvenient speed pursuant to RPAPL §1321; Doe" B. Removing "John as a party Defendant to this action; C. Determining all non-appearing and non-answering Defendants to be in default; . . [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] Anne& Schwabe,Cathc±oWOM-DO¤(DeMt).doo F:iASDOCS\LINDA\FORECLOSURES\TRUSTCO\Kuroly, 3 of 6 FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021 D. Granting such additional reliefas the Court may deem just and proper. DATED: November 1, 2021 Clifton Park, New York Melissa M. Tobrocke, Esq. OVERTON, RUSSELL, DOERR & DONOVAN, LLP Attorneys for Plaintiff 19 Executive Park Drive . Clifton Park, New York 12065 (518) 383-4000 Melissa M. Tobrocke, Esq., an attamey at law licensed to practice in the State of New York, and the attorney for Plaintiff In this action hereby certifies that, to the best of her knowledge, information and belief, formed after an inquiry reasünable under the circumstances, the presentation of this pleading, affidavit (or motion ifapplicable), and the contentions contained herein are not frivolous as defined by 22 NYCRR 130-1.1(c). FMSDOCS\LINDA\FORECLOSURES\TRUSTCO\Ku roty,Anne& Schwabe,Cather!r NOM-OOR(Default).dac 4 of 6 FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021 ATTORNEY AFFIRMATION The undersigned, Melissa M. Tobrocke, Esq., pursuant to CPLR 2106 and under penalties of perfury affirms as follows: That she is the attorney of recortl for the Plaintiffin the above-captioned action, that the foregaing disburserñeñts have been incurred in this action and are reasonable in amount, and that the copies of documents or papers charged for herein were actually and ñécesserily obtained. DATED: November 1, 2021 Clifton Park, New York . Melissa M. Tobrocke, Esq. OVERTON, RUSSELL, DOERR & DONOVAN, LLP Attorneys for Plaintiff 19 Executive Park Drive Clifton Park, New York 12065 (518) 383-4000 FMSD0OPL!NDAFORECLOSUREETRUSTCC Kuroly,Anne& Schwabe,Catherine\NOM-OOR(Default).doc 5 of 6 FILED: RENSSELAER COUNTY CLERK 11/01/2021 04:11 PM INDEX NO. EF2021-269048 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/01/2021 ATTORNEY CERTIFICATION I, Melissa M. Tobracke, an attorney, hereby certify, pursuant to Uniform Rule 202.8-b, under penalty of perjury and as an officer of the court that to the best of my knowledge, information and belief, formed after an inquiry reasoñabia under the circumstances, that this affidavit contains 814 words as calculated by the word processiñÿ program used to draft said affidavit. Melissa M. Tobrocke, Esq. OVERTON, RUSSELL, DOERR & DONOVAN, LLP Attomeys for Plaintiff 19 Executive Park Drive .Clifton Park, New York 12065 (518) 383-4000 F:\AcMOS L!NDWORECLOSURES\TRUSTCOlKuroly, Anne& Schwabe,CatherineWDM-MR(D-fa.u!0.doc 6 of 6