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"H"
Exhibit
FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
SUMMONS AND NOTICE
U.S. Bank National Association, as Trustee, for J.P.Morgan
Alternative Loan Trust 2006-A4, Mortgage Pass-Through
Index No.
Certificates,
Date Filed:
Plaintiff,
-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 B_ureau; City of New York Transit Adjudication
Bureau_,_''JOHN DOE", said name being fictitious, itbeing
the intention of Plaintiff to designate any and alloccupants of
premises being foreclosed herein, and any parties,
corporations or entities, ifany, having or claiming an interest
or lien upon the mortgaged premises,
Defendants.
PROPERTY ADDRESS: 32-52 106th Street, East Elmhust, NY 11369
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or a notice of appearance on theattorneys for the Plaintiff within thirty
(30) days after the service of this summons, exclusive of the day of service. The United States of
America, ifdesignated as a defendant in this action, may appear within sixty (60) days of service
hereof. In case of your failure to appear or answer, judgment will be taken agaiñst you by
default for the relief demanded in the complaint.
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NOTICE OF NATURE OF ACTION AND RELIEF SOUGHT THE OBJECT of
the above captioned action is to foreclose a Consolidation and/or Modified Mortgage and loan
modification agrccmcat (hereinafter "the Mortgagê") to secure $1,203,938.13 and interest,
covering premises known as 32-52 106th Street, East EL=±mt, NY 11369.
The reliefsought in the within action is a finaljudgment directing the sale of the premises
described above to satisfy the debt secured by the Mortgage described above.
Plaintiff designates Queens County as the place of trial Venue is based upon the County
in which the mortgaged premises is situated.
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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: a LY
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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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, ifany, 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 hereinâfter mentioned was and
stillis a duly authorized Corporation or Association and having an office at c/o 8950 Cypress
Waters Blyd, Coppell, Texas 75019.
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AS FOR THE FIRST CAUSE OF ACTION
PLAINTIFF FURTHER ALLEGES
UPON INFORMATION AND BELIEF
"A"
Second: The defcñdâñts set forth in Schedule reside or have a place
of business at theaddress set forth therein and are made defedanh in this action in the
capacities thercis alleged and for the purpose of foreclosing and extinguishing any other right,
titleor interest said defe=de=ts may have in the subject premises.
Third: The United States of America, The People of the State of New
York, The State Tax Com_ession of the State of New York, the Industrial Commiasioner of the
State of New York and all other agencies or instrumentalities of the Federal, State or local
government (by whatever name designated) ifmade parties to this action and if appearing in
"B"
Schadule "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, tors 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 Natioñstar 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, itssuccessors 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 seated, 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 cc =="±tion,
extemion and/or modification agreement, a copy of which is a*achad hereto and made a part
hereof. Said Loan Modification (hereinaner "the Mortgage") modified the mortgage(s) referred
"D"
to in Scheue hereof to form a single firstmortgage 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 foreciesure action
by the owner and holder of the subject mortgage and note. If Plaintiff isnot 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 raquisite mortgage tax attributed to
the Modification Agreemcat, if any, prior to Judgment of Foreclasure 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 montMy payments of principal, interest, taxes, asses:,ments,
water rates,
insn- 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 indchtedness 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 premisms, 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 amo'mt of which will altimately 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 plaintiffs
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.
Thirtcêñth: The Schedules, Exhibits and other items attached to this Complaint
are expressly incorporated and made a part of this Complaint for allpurposes with the same force
and effect as ifthey 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 Schedulc "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 foreclosee, 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, afterthe
date of the com-meñecinent 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
allpresent and future defaults under the Note and Mortgage and occurring prior to the
discontiñüañce of this action are fully paid and cured.
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Seventeeth: 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 fall within the prescribed
defliiition 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 corñplied with allthe provisions of
section five-hundred ninety-five of the New York State Banking Law and any rules and
regulations proiñülgated 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 Statemet issued by the
New York State Department of Financial Services f/k/aNew York State Banking Department; a
copy of the Proof of Filing Statemet is attached hereto and made a part hereof.
Twentieth; To the extent the original obligation was discharged in bañkmptcy
under Title 11 of the United States Code, this p¼d½g does not constimte an attempt to collect a
debt or to impose personal liability for such obligation. However, the secured party retains all
rights, and hereby exercises itsright to foreclose itslien, under itssecurity instrument.
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LLS AND FOR A SECOND CAUSE OF ACTIOly
Twenty-fir_st_;. The plaintiff repeats and re-alleges each and every allegation
contained in the foregoing paragraphs.
Twenty-second: That on or about June 30, 2006, for valuable c0ñsideration the
defendants Jose Marquina and Tomas Marquina acquired title to the real property referenced
"FIFTH" premises"
above in paragraph as the "acitgaged from defendant EMH Building Corp.
by virtue of a bargain and sale deed recorded in the Queens County Office of the City Register
on August 18, 2006 in CRFN 2006000467337 (hereinafter the "2006 Deed").
Twenty-third: The legal description co=+ained in 2006 Deed describes the
following parcels: [1] the parcel designated on the tax map of Queens County as Block 1700 Lot
32 and known as 32-52 106th East NY 11369 (hereinaRar "Tax Lot
commonly Street, hhnst,
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
on April 7, 2005 in CRFN 2005000199456 (hereinafter the "2005 Deed"). The 2005 Deed
contaiñêd the same legal description as the 2006 Deed, and was properly recorded and indexed
against Tax Lot 32 and Tax Lot 33.
Twenty-fourth: However, for reasons urisown to Plaintiff, the 2006 Deed
conveying titleto Jose Marquina and Tomas Marquina was only recorded and indexed Tax Lot
32.
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Twenty-fifkh; 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 enen.=½ed 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: That itwas the intentions of the parties that the afor=entioned
2006 Deed conveying titleto Jose Marquiña and Tomas Marquina, and the subject mortgage
being foreclosed upon herein be recorded and indexed against Block 1700 Lot 32 Block
gn.,d
1700 Lot 33.
Twenty-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 thisaction solely for the purposes of quieting title to its
outstanding ecord 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.
Twenty-eighth: Upon information and belief, the Defêñdâñts herein are
competent adult individual(s) or domestic corporation(s). Upon informatioñ and belief, a
judgment will not affect a person or persons not in being or ascertaiñêd at the commcñcement of
this action, who by any contingency --·*-imd 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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in this second cause of against the Defendants other than a Dw-da=+ who shall
made, action,
assert a claim adverse to the claim of Plaintiff set for in this Complaint.
Twonty-ninth; Plaintiff has no adequate remedy at law
WHEREFORE, plaintiff demands judgment for the relief as alleged in allcauses of
action:
(a) Adjudging and decrecing the amounts due the plaintiff for principal, interest,
costs, and reasonable attorney's fees, ifand as provided for in the said mortgage;
(b) That the defendants and allpersons claiming by, through or under them, or either
or any of them, subsequent to the commeñcement of this action and every other person or
corporation whose right, title conveyance or encumbrance is subsequent to or subsaquently
recorded, may be barred and forever foreclosed of all right, 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, allowâñces and
disbure-onts, 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 boñd/ñote 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
amosts from the dates of the respective payments and advances thereof, the costs and expenses
of this action, additional allowance, ifany, and reasonable attorney's fees, ifand 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 thisCourt 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 thisaction, 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 Prem-ises, of any kind or nature
whatsoever;
(j) That the United States of America shall have the right of redeption, if
applicable;
That the phintiff have such other or further relief, or both, in the premises as
(k) may
may be just and equitable.
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Plaintiff specifically reserves itsright to share in any surplus môñies arising from the sale
of subject premiscs by virtue of itsposition as a judgment or other lien creditor excluding the
mortgage being foreclosed herein.
Dated: 1 1l( P
bl E. Kolkmann, Esq.
Associate Attorney
SHAPIRO, DICARO & BARAK, LLC
Attomeys 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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FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/16/2018 "H" Exhibit FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF FILED DOC.: NO. 91 QUEENS COUNTY CLERK 03/27/2018 03 : 00 RECEIVED INDEXNYSCEF: NO. 10/16/2018 704620/2018 PS NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS SUMMONS AND NOTICE U.S. Bank National Association, as Trustee, for J.P.Morgan Alternative Loan Trust 2006-A4, Mortgage Pass-Through Index No. Certificates, Date Filed: Plaintiff, -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 B_ureau; City of New York Transit Adjudication Bureau_,_''JOHN DOE", said name being fictitious, itbeing the intention of Plaintiff to designate any and alloccupants of premises being foreclosed herein, and any parties, corporations or entities, ifany, having or claiming an interest or lien upon the mortgaged premises, Defendants. PROPERTY ADDRESS: 32-52 106th Street, East Elmhust, NY 11369 TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or a notice of appearance on theattorneys for the Plaintiff within thirty (30) days after the service of this summons, exclusive of the day of service. The United States of America, ifdesignated as a defendant in this action, may appear within sixty (60) days of service hereof. In case of your failure to appear or answer, judgment will be taken agaiñst you by default for the relief demanded in the complaint. 17-068437 Su==esandNotice Page1of3 1 of 3 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF INDEX NO. 4 62 0 / 2 0 18 7010/16/2018 FILED DOC.: NO. 91 QUEENS COUNTY CLERK 03/27/201S 03: 00 Ph RECEIVED NYSCEF: NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/27/2018 NOTICE OF NATURE OF ACTION AND RELIEF SOUGHT THE OBJECT of the above captioned action is to foreclose a Consolidation and/or Modified Mortgage and loan modification agrccmcat (hereinafter "the Mortgagê") to secure $1,203,938.13 and interest, covering premises known as 32-52 106th Street, East EL=±mt, NY 11369. The reliefsought in the within action is a finaljudgment directing the sale of the premises described above to satisfy the debt secured by the Mortgage described above. Plaintiff designates Queens County as the place of trial Venue is based upon the County in which the mortgaged premises is situated. 17-068437 G===== and Notice Page 2 of 3 2 of 3 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. 91 RECEIVED INDEX NO. NYSCEF: 70 4 62 0 /2 018 10/16/2018 (FILED : QUEENS COUNTY CLERK 03/27/2018 03: 00 P NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/27/2018 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: a LY 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 Summons and Notice Page 3 of 3 3 of 3 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF [FILED DOC.: NO. QUEENS 91 COUNTY CLERK 03 2 7 2 0 18 03 : 00 RECEIVED INDEXNYSCEF: NO. 70410/16/2018 620/2018 / / P14 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, ifany, 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 hereinâfter mentioned was and stillis a duly authorized Corporation or Association and having an office at c/o 8950 Cypress Waters Blyd, Coppell, Texas 75019. 17-068437 Mortgage Foreclosure Complaint Page 1 of12 1 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF FILED DOC. NO. QUEENS 91 COUNTY CLERK 03/27/2018 00 RECEIVED INDEXNYSCEF: NO . 7 010/16/2018 4 62 O / 2 O1 8 : 03: PH 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 defcñdâñts set forth in Schedule reside or have a place of business at theaddress set forth therein and are made defedanh in this action in the capacities thercis alleged and for the purpose of foreclosing and extinguishing any other right, titleor interest said defe=de=ts may have in the subject premises. Third: The United States of America, The People of the State of New York, The State Tax Com_ession of the State of New York, the Industrial Commiasioner of the State of New York and all other agencies or instrumentalities of the Federal, State or local government (by whatever name designated) ifmade parties to this action and if appearing in "B" Schadule "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, tors 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 Mcitgage Foreclosure Complaint Page 2 of 12 2 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF INDEX NO . 4 62 0 / 2 0 1 8 7 010/16/2018 |FILED DOC.: NO. 91 QUEENS COUNTY CLERK 03/27 / 201S 03 : 00 Pli RECEIVED NYSCEF: NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 of said sum or rights of Natioñstar 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, itssuccessors 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 seated, 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 cc =="±tion, extemion and/or modification agreement, a copy of which is a*achad hereto and made a part hereof. Said Loan Modification (hereinaner "the Mortgage") modified the mortgage(s) referred "D" to in Scheue hereof to form a single firstmortgage 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 foreciesure action by the owner and holder of the subject mortgage and note. If Plaintiff isnot 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 C-pkht Page 3 of 12 3 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF INDEX NO . 7 010/16/2018 4 62 0 / 2 0 1 8 FILED DOC.: NO. 91 QUEENS COUNTY CLERK 03/27 /2018 03 : 00 P14 RECEIVED NYSCEF: 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 raquisite mortgage tax attributed to the Modification Agreemcat, if any, prior to Judgment of Foreclasure 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 montMy payments of principal, interest, taxes, asses:,ments, water rates, insn- 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 indchtedness 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 premisms, 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 amo'mt of which will altimately be determined by the Court. 17-068437 Mortgage Foreclosure Comphkt Page 4 of 12 4 of 7 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF INDEXNYSCEF: NO. 7 010/16/2018 4 6 2 0 / 2 0 18 [FILED DOC.: NO. 91 QUEENS COUNTY CLERK 03/ 27) 2018 03: 00 _Ph| RECEIVED 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 plaintiffs 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. Thirtcêñth: The Schedules, Exhibits and other items attached to this Complaint are expressly incorporated and made a part of this Complaint for allpurposes with the same force and effect as ifthey 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 Schedulc "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 foreclosee, 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, afterthe date of the com-meñecinent 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 allpresent and future defaults under the Note and Mortgage and occurring prior to the discontiñüañce of this action are fully paid and cured. 17-068437 Mortgage Foreclosure Complaint Page 5 of 12 5 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF DOC.: NO. 91 RECEIVED INDEXNYSCEF: NO . 4 62 O / 2 0 1 8 7 010/16/2018 {F_ILED QÚEENS COUNTY CLERK 03/27/2018 03: 00 P14 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Seventeeth: 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 fall within the prescribed defliiition 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 corñplied with allthe provisions of section five-hundred ninety-five of the New York State Banking Law and any rules and regulations proiñülgated 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 Statemet issued by the New York State Department of Financial Services f/k/aNew York State Banking Department; a copy of the Proof of Filing Statemet is attached hereto and made a part hereof. Twentieth; To the extent the original obligation was discharged in bañkmptcy under Title 11 of the United States Code, this p¼d½g does not constimte an attempt to collect a debt or to impose personal liability for such obligation. However, the secured party retains all rights, and hereby exercises itsright to foreclose itslien, under itssecurity instrument. 17-068437 Mortgage Foreclosure Complaint Page 6 of 12 6 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF NO. INDEXNYSCEF: 4 6 2 0 / 2 O1 8 70 10/16/2018 FILED DOC. : NO. QUEENS91 COUNTY CLERK 03/27/2018 03: 00 PN RECEIVED NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 LLS AND FOR A SECOND CAUSE OF ACTIOly Twenty-fir_st_;. The plaintiff repeats and re-alleges each and every allegation contained in the foregoing paragraphs. Twenty-second: That on or about June 30, 2006, for valuable c0ñsideration the defendants Jose Marquina and Tomas Marquina acquired title to the real property referenced "FIFTH" premises" above in paragraph as the "acitgaged from defendant EMH Building Corp. by virtue of a bargain and sale deed recorded in the Queens County Office of the City Register on August 18, 2006 in CRFN 2006000467337 (hereinafter the "2006 Deed"). Twenty-third: The legal description co=+ained in 2006 Deed describes the following parcels: [1] the parcel designated on the tax map of Queens County as Block 1700 Lot 32 and known as 32-52 106th East NY 11369 (hereinaRar "Tax Lot commonly Street, hhnst, 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 on April 7, 2005 in CRFN 2005000199456 (hereinafter the "2005 Deed"). The 2005 Deed contaiñêd the same legal description as the 2006 Deed, and was properly recorded and indexed against Tax Lot 32 and Tax Lot 33. Twenty-fourth: However, for reasons urisown to Plaintiff, the 2006 Deed conveying titleto Jose Marquina and Tomas Marquina was only recorded and indexed Tax Lot 32. 17-068437 Mortgage Foreclosure Complaint Page 7 of 12 7 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF FILED DOC.: NO. 91 COUNTY CLERK 03 018 03 RECEIVED INDEXNYSCEF: NO . 7 010/16/2018 4 6 2 D / 2 O1 8 QUEENS / 2 7 / 2 : 0 0 PM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Twenty-fifkh; 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 enen.=½ed 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: That itwas the intentions of the parties that the afor=entioned 2006 Deed conveying titleto Jose Marquiña and Tomas Marquina, and the subject mortgage being foreclosed upon herein be recorded and indexed against Block 1700 Lot 32 Block gn.,d 1700 Lot 33. Twenty-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 thisaction solely for the purposes of quieting title to its outstanding ecord 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. Twenty-eighth: Upon information and belief, the Defêñdâñts herein are competent adult individual(s) or domestic corporation(s). Upon informatioñ and belief, a judgment will not affect a person or persons not in being or ascertaiñêd at the commcñcement of this action, who by any contingency --·*-imd 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 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF FILED DOC.: NO. 91 QUEENS COUNTY 03/27/2018 03: 00 RECEIVED INDEXNYSCEF: NO. 7 010/16/2018 4 62 O / 2 0 1 8 CLERK P1d NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 in this second cause of against the Defendants other than a Dw-da=+ who shall made, action, assert a claim adverse to the claim of Plaintiff set for in this Complaint. Twonty-ninth; Plaintiff has no adequate remedy at law WHEREFORE, plaintiff demands judgment for the relief as alleged in allcauses of action: (a) Adjudging and decrecing the amounts due the plaintiff for principal, interest, costs, and reasonable attorney's fees, ifand as provided for in the said mortgage; (b) That the defendants and allpersons claiming by, through or under them, or either or any of them, subsequent to the commeñcement of this action and every other person or corporation whose right, title conveyance or encumbrance is subsequent to or subsaquently recorded, may be barred and forever foreclosed of all right, 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, allowâñces and disbure-onts, 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 boñd/ñote 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 amosts from the dates of the respective payments and advances thereof, the costs and expenses of this action, additional allowance, ifany, and reasonable attorney's fees, ifand 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 Complakt Page 9 of 12 9 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF DOC.: NO. 91 RECEIVED INDEX NO. NYSCEF: 7 O462 0 / 2 0 18 10/16/2018 lFILED QUEENS COUNTY CLERK 03/27/2018 03: 00 P14 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 thisCourt 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 thisaction, 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 Prem-ises, of any kind or nature whatsoever; (j) That the United States of America shall have the right of redeption, if applicable; That the phintiff have such other or further relief, or both, in the premises as (k) may may be just and equitable. 17-068437 Mortgage Foreclosure Cer;±± Page 10 of12 10 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF DOC. NO. (EXLED_;__QUEENS 91 COUNTY CLERK 03/27/2018 03: 00 RECEIVED INDEXNYSCEF: NO. 10/16/2018 704 620/2018 PM| NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2018 Plaintiff specifically reserves itsright to share in any surplus môñies arising from the sale of subject premiscs by virtue of itsposition as a judgment or other lien creditor excluding the mortgage being foreclosed herein. Dated: 1 1l( P bl E. Kolkmann, Esq. Associate Attorney SHAPIRO, DICARO & BARAK, LLC Attomeys 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 C:=;':!ñt Page I1of 12 11 of 77 FILED: QUEENS COUNTY CLERK 10/16/2018 04:57 PM INDEX NO. 704620/2018 NYSCEF FILED DOC.: NO. 91 QUEENS COUNTY CLERK 03 / 2 7 /2 0