Preview
FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
EXHIBITB
Affidavit of Robert L. Halpin,.Esq.
(Attached)
FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF YATES
JAMES EMMONS AND JANE EMMONS,
AFFIDAVIT OF MERIT AND AMOUNT
DUE
Plaintiffs,
Index No. 2020-5193
-vs-
RJI No.
MURRAY B. WHEELER,
Defendant.
STATE OF NEW YORK:
COUNTY OF SCHUYLER: SS:
Robert L. Halpin, being duly sworn, deposes and says:
L He is the attorney for plaintiff in this action, is fully familiar with all matters set forth
herein.
2. Deponent has reviewed the records provided by plaintiff, including the installment sale
contract between plaintiffs and defendant dated November 16, 2015 and confirms based on such
information that there is in fact a default under the terms of said agreement. Pursuant to said
agreement a balloon payment in the amount of $37,014.53 was due August 4, 2020. Defendant
has failed to make such payment in full. There is now due and owing to plaintiff the amounts as
set forth in plaintiff's computation affidavit dated June 27, 2022, a copy of which is attached
hereto as Exhibit A.
3. This action was brought to foreclose the above-referenced installment sale contract. A
copy of said agreement is attached to the Complaint in this action as Exhibit A. A copy of the
summons and Complaint in this action are attached hereto as Exhibit B.
4. Deponent confirms that the required notice of default has been sent, and that the same
was in proper form.
5. Plaintiff may advance, after the date of this affidavit, in order to protect plaintiff's
security interest, monies for the payment of taxes, insurance and maintenance of the premises,
which accrue and are expended by virtue of defendant's default. Said amounts will be provided
to the Referee and substantiated by appropriate evidence.
6. By Decision dated June 10, 2022 the Court awarded summary judgment in this action in
favor of plaintiffs, and by Order of Reference dated June 17, 2022 appointed Peter Baker, Esq. as
referee to compute the amount due plaintiffs.
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NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
7. Deponent has reviewed and is familiar with the legal description of the property and said
property consists of a single-family home on approximately one acre of land, and as such the
premises consist of a single parcel and should be sold as such.
8. Deponent makes this affidavit knowing that the Referee in this matter and the Court
appointing the same will rely on the truth and veracity of the statements contained herein.
DEPONENT HAS EXECUTED THIS AFFIDAVIT AS OF THE 3rd DAY OF JULY, 2022.
ROBERT L. HALPIN
3rd
Sworn before me this day of July, 2022.
Notary Publ
KrW1A. Pierce
Notany Public. Ste
of NewYork
Reg. No. (.JPi61351Nrf
Quanfied in Senu',wr County
My Commission axpres10/21/__
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NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
EXHIBIT A
Computation Affidavit
(Attached)
- w
FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
SUPREMECOURTOFTHESTATEOFNEW YORK
COUNTY OF YATES
COMPU SAMy 11ND JANE EMMONS,
Index Nc.: 2020-5193
Plaintiffs,
R.J.I. No.:
y3
MURRAY B. WHEELER,
Defendant.
STATE OF NEW YO K:
COUNTY OF n : SS:
James Emmons, being duly sworn, deposes and says:
1. He is over the age of 21 years and is the plaintiff in this action. He has in his possession
allrecords pertaining to the installment sale contract that is the subject of this action, and has
referred to such records as to payments made and defaults, and finds from such records the
following statement of facts:
Balance ofPrincipal Unpaid: $35.032.23
Interest to June 14, 2022 $654.91
Insurance: $602.00
Property Taxes: $2.017.88
Balance due as of June 14, 2022: $38,307.02
2. Deponent is familiar with the mortgaged premises and such premises consists of a single
family home and out buildings on less than one acre of land, which as such cannot be sold in
more than one parcel.
DEPONENT HAS EXECUTED THIS AFFIDAVIT AS OF THE 2 7 DAY OF ws. ,
2022.
James/kmmons
Sworn before me this2 -) th day of ..NL , 2022.
Public CHRISTINE M SUTHERLAND
Notary
noTARveusuc, STATEoF NEWYORK
Registration No. 01SU6231667
Qualified in YatesCounty
November 29, 2022
My Commission Expires
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NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
EXHIBIT B
Summons and Complaint
(Attached)
FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
STATE OF NEW YORK
SUPREME COURT: COUNTY OF YATES Index No.
2020-5t93
Plaintiff designates
JAMES EMMONS AND JANE EMMONS, YATES COUNTY
as the place of trial
Plaintiffs,
-vs-
SUMMONS
MURRAY B. WHEELER,
Defendant.
To the above named Defendant:
You are hereby summoned to answer the complaint in this action and to serve
a copy of your answer, or if the complaint is not served with this summons, to serve a notice of
Plaintiffs'
appearance, on the Attorney(s) within 20 days after the service of this summons,
exclusive ofthe day of service (or within 30 days after the service is complete if this summons
is not personally delivered to you within the State of New York); and in case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded in the
complaint.
Dated: December 14, 2020
dobert L. Halpm, Esq.
Attorney for Plaintiffs
Office and Post Office Address
4588 Route 224
Montour Falls, New York 14869
Tel. (607) 594-3786
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NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF YATES
JAMES EMMONS AND JANE COMPLAINT
EMMONS,
Index No.:
Plaintiffs, 4020-5/93
Vs. R.J.I. No.:
MURRAY B. WHEELER,
Defendant.
The Plaintiffs herein, as and for their complaint, alleges as follows:
respectfully
1. That this is an action pursuant to Real Property Actions and Proceedings Law Article
13 forthe foreclosure of a real estate installment sale contract.
2. That at alltimes hereinafter mentioned the Plaintiffs were and are the vendors in a
real estate installment sale contract with B. Wheeler and Elizabeth J. Wheeler, as vendees
Murray
("Wheelers"), bearing date of November 16, 2015 (the "Contract"), pursuant to which Plaintiffs
agreed to sell and Wheelers agreed to purchase the property described therein (the "Premises").
3. The Contract was recorded in the Yates County Clerk's Office in Volume 696 of
Deeds, page 45 on January 12, 2016, and a copy of the Contract isattached hereto marked Exhibit A.
4. That the Contract provided that Wheelers would pay to Plaintiffs as consideration for
conveyance of title to the Premises to Wheelers the sum of $51,663.00, with interest on the unpaid
balance at a rate of three percent per annum, to be paid in monthly installments of $355.75
commencing on September 3, 2015 and thereafter on the fourth day of ever calendar month until
August 4, 2020 for a total of sixty monthly payments, following which the unpaid balance would due
in full.
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5. The balance due to Plaintiffs pursuant to the Contract as of August 4, 2020 was
$37,014.53. Plaintiffs caused a notice to be sent to Defendant demanding payment of such amount,
a copy of which is attached hereto as Exhibit B, which Defendant has failed to pay.
6. Elizabeth J. Wheeler has forfeited her interest in the Premises and conveyed all
interest therein to Plaintiffs pursuant to deed dated August 31, 2020 and recorded in the Yates
County Clerk's Office on October 6, 2020 as Instrument No. 2020-2396.
7. Defendant is in default under the terms of the Contract and remains in possession of
the Premises.
8. The Contract provides that in the event of a foreclosure of the Contract Plaintiffs may
recover from Defendant the recording tax and recording fees paid by Plaintiffs upon recordation of
the Contract, attomey's fees and the costs and disbursements of this action.
9. That no other action has been had for the recovery of the said sum of money due
under the Contract or any part thereof.
WHEREFORE, Plaintiff demands judgment:
A. That the Defendant, subsequent to the filing of the Notice of Pendency of this action
in the office of the Clerk of the County of Yates in which the Premises are situated, and every person
whose conveyance or encumbrance is subsequently recorded be further barred and foreclosed of all
right, claim, lien and equity of redemption in the Premises.
B. That the said Premises may be decreed to be sold according to law.
C. That the amount due to the Plaintiffs pursuant to the terms of the Contract be
adjudged.
D. That the moneys from the sale may be brought into Court.
arising
E. That the Plaintiffs be paid the amount adjudged to be due to the Plaintiffs with
may
.
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NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
interest thereon to the time of such payment, together with the costs and expenses of this action, and
the expenses of the said sale, so far as the amount of such money applicable thereto will pay the
Same.
F. That ifthe proceeds of said sale of the Premises aforesaid be insufficient to pay the
amount found due to the Plaintiffs with interest and costs, the officer making the sale be required by
the judgment of sale herein to specify the amount of such deficiency in his report of sale so that
application may be made by Plaintiffs to this Court pursuant to Section 1371 of the Real Property
Actions and Proceedings Law for judgment against Defendant for any deficiency which may remain
after applying all such money as so applicable thereto.
G. The Plaintiffs may have such other and further relief as shall be just and equitable.
Dated: December 14, 2020
,/YtOBERTü HA1PIN, ESQ
Attorney for Plaintiff
Office & P.O. Address:
Che-Que-Gue Office Building
4588 Route 224
Montour Falls, NY 14865
Tel. (607) 594-3876
FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
VERIFICATION
STATE OF NEW YORK )
COUNTY OF SCHUYLER ) ss.:
Robert L. Halpin, being duly sworn, deposes and says that he is the attorney for is the Plaintiffs
in the foregoing complaint and that the foregoing complaint is true to his own knowledge, except
as to matters therein stated on information and belief and as to those matters he believes itto be
true. The reason this verification is not made by the Plaintiffs is because Plaintiffs are not within
the County of Schuyler where deponent has his office for the practice of his profession. The
sources of deponent's knowledge are statements furnished to deponent by Plaintiffs.
Sworn to before me this
IS Day of December, 2020.
Notary Pubhe
Kristi A. Pierce
Notary Public, State of New York
Reg. No. 01Pt6135987
Qualified
in Schuyler County
My Commission Expires10/81/._
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NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
EXHIBITA
(Attached)
a .
FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
Yates County
Lois E. Hall
Yates County Clerk
s0201scomms Volm-696 Pg-41
Instrument Number: 2016-00000079
As
lecorded On: January 12, 2016 Land Contract withRETT
Parties: EMMONS JAMES
To
WHEELER MURRAY B BillablePages: 5
Recorded By: STEWART E MCDIVITT Num Of Pages: 6
Gomment:
..
** Examined **
and Charged as Follows:
ind Contractwith RETT 65.00 Coversheet 5.00 TP-584 5.00
Recording Charge: 75.00
Consideration
Amount Amount RS#/CS#
ansfer Tax 208.00 52,000.00 RS498 Basic 0.00
STARKEY Local 0.00 SpecialAdditional 0.00
Additional 0.00 Transfer 208.00
Taxcharge: 208.00
** THIS **
PAGE IS PART OF THE INSTRUMENT
I hereby that the within
certify and foregoingwas recordedin the Clerk's
OfficeFor:Yates County,NY
FileInformation: Record and Return To:
Document Number 2016- 00000079 STEWART E MCDIVITT
ReceiptNumber: 139559 ROOTE 14 & AYERS STREET
Recorded Date/Time: January 12, 201609:40:35A PO BOX 359
.. Book-Vol/Pg:Bk-DE Vl-696 Pg-41 MONTOUR FALLS NY 14865
Cashier/ Station:
K kay / IndexingStation
1
Lois E. Hall
Yates County Clerk
FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
Yates County
Lois E. Hall
Yates County Clerk
soansacocooso
Instrument Number: 2016-00000080
As
tecorded On: January 12, 2016 Land Contract withMTGTax
Parties: WHEELER MURRAY B
To
EMMONS JAMES
Recorded By: STEWART E MCDIVITT Num Of Pages:
Comment:
" Examined Charged as Follows:**
and
md Contractwith MTGTax 0.00
Recording Charge: 0.00
Consideration
Amount Amount RS#/CS#
ortgageTax 387.00 51,633.00 OG684 Basic 258.00
STARKEY Local 129.00 SpecialAdditional 0.00
Additional 0.00 Transfer 0.00
Tax Charge: 387.00
" **
THIS PAGE IS PART OF THE INSTRUMENT
I hereby that the within
certify and foregoingwas recordedin the Clerk's
OfficeFor:Yates County,NY
Fileinformation: Record and Return To:
Document Number 2016-00000080 STEWART E MCDIVITT
ReceiptNumber 139559 ROUTE 14 & AYERS STREET
Recorded Date/Time: January 12, 2016 09:41:46A PO BOX 359
Book-Vol/Pg: MONTOUR FALLS NY 14865
Cashier/ Station:
K kay / Station
Indexing 1
Lois E. Hall
Yates County Clerk
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NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022
CONTRACT FOR THE SALE OF REAL PROPERTY
1. PARTIES: n Agreement made this ay of November, 20 5, between
JAMES EMMONS and JANE EMMON of 107 Fir Tree Point Road, Rock Stream, New
York 14878, hereinafter calledthe Sellers, and MURRAY B. WHEELER and ELIZABETH
J. WHEELER of 263 Rock Stream Road, Rock Stream, New York 14878, hereinafter
called the Buyers.
2. AGREEMENT TO SELL AND BUY: The Sellers, in consideration of the
covenants and agreements herein expressed, hereby agree to sellunto the Buyers, and
the said Buyers hereby agree to purchase from the said Sellers,the realproperty described
below.
3. PROPERTY DESCRIPTION: The saidreal property is describe as follows: ALL
THAT TRACT OR PARCEL OF LAND, situate in theTown of Starke , YatesCounty, New
York, bounded and described as follows:Beginning ata point in thecenterline of theRock
Stream Road, such pointbeing 145.65 feet easterlyof thecenterline intersection of theOld
Lake 82°44'53"
Road and Rock Stream Road; thence South East along the centerlineof
Rock 07°15'07"
Stream Road, 190.73 feetto a computed point;thence South West, 114.84
feet to an iron pin set in a northerly boundary of lands now or formerly of Stone
82°44' 53" 77°04'
(L332/P282); thence North West, 112.95 feetto an ironpin;thence North
5b" 10°18'08"
West, 43.01 feet toan iron pin;thence North West, 90.04 feetto an iron pin
set in the southerly limitof Rock Stream Road, allin accordance with the terms of a
Boundary Line Agreement executed December 28, 1990 by John A. & Kay E. Shepard and
Robert & Bertha DeBeradinis and William & Rosemarie Rushford, which Agreement was
filedin theYates County Clerk's Office on January 8,1991 inLiber 370 ofDeeds at Page
10°18' 08"
64; thence North West, 25.96 feetto a computed pointin thecenterline of Rock
Stream Road, which pointmarks the point or place of beginning. Containing an area of
0.453 acre.
TOGETHERWITH and intending toconvey to thePartiesof theSecond Part herein,
allofthe rights of the Partyof the FirstPart, as Lessors inand to any Oiland Gas Leases
granted by them or priorowners. Also, including all gas
oil, and mineral rights,applicable
to the premises herein conveyed.
SUBJECT TO any and alieasements, oiland gas leases, restrictionsand rightof
way of record, as the same may affect said premises.
BEING THÉ SAIWE PREMISES conveyed to James Emmons and Jane Emmons,
husband and wife, from Jeffrey R. Davis by Warranty Deed dated August 3, 2015 and
recorded inthe Yates County Clerk's Office on August 7, 2015 in Volume 689 Page 158.
4. PRICE: The purchase priceof the aforementioned real property is
FIFTY-ONE THOUSAND SIX HUNDRÉD SIXTY-THREE DOLLARS ($51,663.00). The
fifty-onethousand sixhundred sixty-threedollars($51,663.00) willbe financed by thisLand
Contract by the Sellers, with interestat the rateof 3 percent per annum to be amortized
over a fifteen(15) yearperiod, with equal monthly payments of principaland with
interest,
each monthly payment being in the amount of Three Hundred Fifty-fiveand 75/100ths
Dollars ($355.75) commencing on the 3rd Day of September , 2015 and thereafter on
the 4th day of each succeeding month fora totalof sixty(60) monthly payments, when
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. . -
Buyers willpay offthe balance witha balloon payment ofthe fullprincipleand interestthen
owing afterfive(5) years.
5. PRE-PAYMENT PRIVILEGE: The Buyers reserve the rightand pre-
privilege
to
pay allor part ofthe unpaid balance of the purchase price, without penalty.
6. DEED AND ABSTRACT: Upon the payment of saidpurchase price and interest
by the Buyers to the Sellers,and upon the performance of theterms of thisAgreement by
the Buyers, the Sellers shallexecute and deliverto theBuyers, or their a Warranty
assigns,
Deed, conveying good and marketable title
to said premises, free and clearof all
liens and
encumbrances except those caused by the Buyers, and except the easements and
utility
other easements of record,and at thatsaid time, the Sellers shallfumish and deliver to the
Buyers an Abstract of Title an original at leastfrom 1, 1970 to the.date and
being January
time of thedeed.
7. COVENANTS OF THE BUYERS: The Buyers further covenants:
A. Taxes: The Buyers shallpay alltaxes assessed against such premises the
by
due date from the date of thisAgreement untilsaid indebtedness shall be paid as
fully
aforesaid, and ifthe Buyers shall failto pay any of said taxes, the Sellers the
may pay
same and the amount of said taxes plus interestand penalty so paid the Sellers shall
by
be added to and become a part of the unpaid balance of the purchase and forthe
price,
purposes of this instrument, ·local and special assessments assessed against said
premises, ifany, for saidpremises, billed,but unpaid, shall be considered as taxes. If
Sellers pay the taxes because of Buyers default,the Buyers agree to reimburse the Sellers
in full
within thirty(30) days afterwritten demand the Sellers. Buyers without demand
by
by Sellers shallfurnish proof of timely
payment of all taxes,
assessments and sewer rentals
inthe form of a photocopy of the receipted bill
to the Sellers within fifteen days after
(15)
such payment.
B. Insurance: The Buyers shall,at theirown expense, maintain in force and pay
the premiums thereon, policies of insurance, insuringsaid premisesegainst fireand other
extended perilsin anamount equal to,or atleast,the unpaid balance of thepurchase price
untilsuch indebtedness shallbe fullypaid as aforesaid and said policiesofinsurance shall
insure theinterest of theSellers and the Buyers, the
listing Sellersas mortgage payee, and
if theBuyers shall failtopay any said premiums or shall failtoshow the Sellers proof of
insurance, the Sellers may pay the same and the amount of thesaid premiums so paid by
the Sellers shallbe added to and become a part of the unpaid balance of the purchase
price,or atthe option of the Sellers,shall be repaid to the Sellers withinthirty(30) days
afterwritten demand by the Sellersto the Buyers. Buyers, without demand, shallfurnish
proof ofthe timely payment of any such insurance premiums in theform of a photocopy of
the receipted bill
to the Sellers withinfifteen (15) days aftersuch payment.
C. Alterations and Mechanic's Liens: Ifand when improvements are made, the
Buyers shallnot alter,remove, or demolish any improvements situateupon said premises
at any time without the priorverbal consent of the Sellers. Buyers are responsible for all
upkeep, maintenance, and repairs, including material cost of the house and property.
Buyers also agree to keep the premises free ofgarbage, refuse, etc.The Buyers agree to
maintain the property in a good state of repair at alltimes,at theirown expense, except
during the reasonable periods of repair or alterationsas agreed upon by the parties, in
writing,untilsuch indebtedness shall be fullypaid as aforesaid. In the event that any
Mechanic's Liens are filedagainst said premises, made or caused to be made by the
Buyers, the Buyers shall cause said liensto be discharged of record within a reasonable
time, not exceeding sixty(60) days after demand by the Sellers, or immediately upon
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NYSCEF DOC. NO. 41 . Document t RECEIVED NYSCEF: 09/23/2022
olume: 00000079
696 Pm: 44
institutionof any foreclosure action foredlosing the Mechanic's Lien, whichever is sooner.
Sellers also shallhave, at their
option, the righttopay and discharge any Mechanic's Lien,
and any amount so paid shallbe added tothe unpaid balance ofthe purchase price,or the
Sellers, at their
option, may demand the Buyers to repay the amount so paid by the Sellers
to discharge a Mechanic's Lien, and theBuyers agree to repay the amount to the Sellers
within thirty(30) days afterdemand forpayment of the same by the Sellers.
D. Assignment: Buyers shall not assign theirinterest in this Agreement, or
encumber the property inany way withoutthe priorwritten consent of the Sellers.
E. Late Payments: The Buyers must pay a late charge of twenty dollars($20.00)
for each payment that ismore than ten (10) days late. This late charge isdue with the
monthly payment.
F. inspection: The Sellers, or theiragent, shall have the rightto inspect the
premises, including the real property and any improvements hereafter made, at any time
with twenty-four (24) hours notice to the Buyers. This rightof inspection shall end after
payment of the indebtedness as mentioned herein.
G. Defaults: Defaults shall consist of: The Buyers failingto pay any monthly
installmentof principaland interest in full
withinthirty(30) days after the due date, or shall
failto pay any taxes owing to the taxing authority by the due date, or if theSellers have
paid the taxes out of theirown monies, if theBuyers shallfailtorepay the Sellers within
thirty (30) days after demand for repayment of the same by the Sellers, or if theBuyers
shallassign his interest in thisAgreement, or encumber the property without the prior
writtenconsent of the Sellers,or if theBuyers shallfailto pay or maintain said policiesof
insurance or shall failto show proof of insurance, or to reimburse the Sellers for any
insurance premiums paid by the Sellers, or shallfailto maintain the premises in good
condition, ifand when improvements are made, or shall alter,dernolish or remove allor
part ofthe improvements hereinafterplaced th.ereon,without the prior written consent of
the Sellers,or shallfailtocause the discharge of any Mechanic's Lien as herein required,
or shall failto show proof of payment of taxes, or shall failto pay any latepayment
penalties, or shallbreach any of the other covenants or agreements contained herein,or
shallfailtoletthe Sellers, ortheir agents, inspect the premises.
SELLERS'
8. REMEDIES UPON DEFAULT BY BUYERS: In any ofthe events of
default,the Sellers shallimmediately have the right to declare this contract void and to
retain whatever may have been paid to them by the Buyers under the terms of this
Agreement, and to retain allimprovements which may have been made upon said
premises, and may consider and treatthe Buyers as their tenant holding over without
permission and may take immediate possession of the premises and remove the Buyers
therefrom and if theBuyers shall failtosurrender up possession of said preperty to the
Sellers immediately upon demand of the Sellers, Sellersmay commence the necessary
action or actions to recover possession of said premises.
Notwithstanding any remedy granted to theSellers herein,the Sellers may, at their
election,declare the entirebalance of theprincipalsum remaining then unpaid and accrued
interest,immediately due and payable, in the event that the Buyers shallhave defaulted
in any manner as stated above. In connection with thisparagraph, the Sellers may
commence an action of lawto recover the unpaid balance of thepurchase price,or attheir
election, commence an action to foreclose thisland contract, and in eitherevent, the
Sellers shallbe entitled to reasonable attorney'sfees as mentioned below, and furtherin
the event that the Sellers shallcommence an action to foreclose thisLand Contract, the
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lfrxuatent! 0000sXñ9
recording tax and the recording fees which the Sellers shallbe required to pay for the
purposes ofrecording thisInstrument, shall be part ofthe judgment granted to theSellers.
9. ATTORNEY'S FEES: If for
any reason, either party shallhave to secure the
services of an attomey, or have to go to Court to enforce any rightsgiven to them inthis
Agreement, caused by the breach ofthis contract by the otherparty, then eitherparty shall
be entitledto the recovery of theircosts and disbursements from the other party and the
defaulting partyshallbe responsible forthe reasonable attorney'sfees of thenon-defaulting
party.
10. POSSESSION: The Buyers shall have possession of the above described
premises from and afterthe date hereof.
15. LIENS CAUSED-BY SELLER: In theevent that during the tirneof thiscontract,
the Sellers shallcause a liento be placed upon thisproperty, the Buyers may apply allor
part of themortgage principaland interestpayment owing hereunder towards the payment
of the lien(s)caused by the Sellers and to pay the difference,if any,to the Sellers.
IN WITNESS WHEREOF the Sellers and the Buyers have hereto set theirsignatures on
the day and year firstwritteninthis Agreement.
J ES E MONS, SELLER
NE El(llMONS, SELLER
UR B. WHEELER,hER
ELIZ ETil J. .HEELER, BUYER
te ofNew York )
)C re.
County t
On thi day of November, 2015, before me personally appeared JAMES
EMMONS and MMONS, the subscribers tome known and known to me tobe the
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FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 EXHIBITB Affidavit of Robert L. Halpin,.Esq. (Attached) FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF YATES JAMES EMMONS AND JANE EMMONS, AFFIDAVIT OF MERIT AND AMOUNT DUE Plaintiffs, Index No. 2020-5193 -vs- RJI No. MURRAY B. WHEELER, Defendant. STATE OF NEW YORK: COUNTY OF SCHUYLER: SS: Robert L. Halpin, being duly sworn, deposes and says: L He is the attorney for plaintiff in this action, is fully familiar with all matters set forth herein. 2. Deponent has reviewed the records provided by plaintiff, including the installment sale contract between plaintiffs and defendant dated November 16, 2015 and confirms based on such information that there is in fact a default under the terms of said agreement. Pursuant to said agreement a balloon payment in the amount of $37,014.53 was due August 4, 2020. Defendant has failed to make such payment in full. There is now due and owing to plaintiff the amounts as set forth in plaintiff's computation affidavit dated June 27, 2022, a copy of which is attached hereto as Exhibit A. 3. This action was brought to foreclose the above-referenced installment sale contract. A copy of said agreement is attached to the Complaint in this action as Exhibit A. A copy of the summons and Complaint in this action are attached hereto as Exhibit B. 4. Deponent confirms that the required notice of default has been sent, and that the same was in proper form. 5. Plaintiff may advance, after the date of this affidavit, in order to protect plaintiff's security interest, monies for the payment of taxes, insurance and maintenance of the premises, which accrue and are expended by virtue of defendant's default. Said amounts will be provided to the Referee and substantiated by appropriate evidence. 6. By Decision dated June 10, 2022 the Court awarded summary judgment in this action in favor of plaintiffs, and by Order of Reference dated June 17, 2022 appointed Peter Baker, Esq. as referee to compute the amount due plaintiffs. FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 7. Deponent has reviewed and is familiar with the legal description of the property and said property consists of a single-family home on approximately one acre of land, and as such the premises consist of a single parcel and should be sold as such. 8. Deponent makes this affidavit knowing that the Referee in this matter and the Court appointing the same will rely on the truth and veracity of the statements contained herein. DEPONENT HAS EXECUTED THIS AFFIDAVIT AS OF THE 3rd DAY OF JULY, 2022. ROBERT L. HALPIN 3rd Sworn before me this day of July, 2022. Notary Publ KrW1A. Pierce Notany Public. Ste of NewYork Reg. No. (.JPi61351Nrf Quanfied in Senu',wr County My Commission axpres10/21/__ FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 EXHIBIT A Computation Affidavit (Attached) - w FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 SUPREMECOURTOFTHESTATEOFNEW YORK COUNTY OF YATES COMPU SAMy 11ND JANE EMMONS, Index Nc.: 2020-5193 Plaintiffs, R.J.I. No.: y3 MURRAY B. WHEELER, Defendant. STATE OF NEW YO K: COUNTY OF n : SS: James Emmons, being duly sworn, deposes and says: 1. He is over the age of 21 years and is the plaintiff in this action. He has in his possession allrecords pertaining to the installment sale contract that is the subject of this action, and has referred to such records as to payments made and defaults, and finds from such records the following statement of facts: Balance ofPrincipal Unpaid: $35.032.23 Interest to June 14, 2022 $654.91 Insurance: $602.00 Property Taxes: $2.017.88 Balance due as of June 14, 2022: $38,307.02 2. Deponent is familiar with the mortgaged premises and such premises consists of a single family home and out buildings on less than one acre of land, which as such cannot be sold in more than one parcel. DEPONENT HAS EXECUTED THIS AFFIDAVIT AS OF THE 2 7 DAY OF ws. , 2022. James/kmmons Sworn before me this2 -) th day of ..NL , 2022. Public CHRISTINE M SUTHERLAND Notary noTARveusuc, STATEoF NEWYORK Registration No. 01SU6231667 Qualified in YatesCounty November 29, 2022 My Commission Expires FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 EXHIBIT B Summons and Complaint (Attached) FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 STATE OF NEW YORK SUPREME COURT: COUNTY OF YATES Index No. 2020-5t93 Plaintiff designates JAMES EMMONS AND JANE EMMONS, YATES COUNTY as the place of trial Plaintiffs, -vs- SUMMONS MURRAY B. WHEELER, Defendant. To the above named Defendant: You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or if the complaint is not served with this summons, to serve a notice of Plaintiffs' appearance, on the Attorney(s) within 20 days after the service of this summons, exclusive ofthe day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: December 14, 2020 dobert L. Halpm, Esq. Attorney for Plaintiffs Office and Post Office Address 4588 Route 224 Montour Falls, New York 14869 Tel. (607) 594-3786 FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF YATES JAMES EMMONS AND JANE COMPLAINT EMMONS, Index No.: Plaintiffs, 4020-5/93 Vs. R.J.I. No.: MURRAY B. WHEELER, Defendant. The Plaintiffs herein, as and for their complaint, alleges as follows: respectfully 1. That this is an action pursuant to Real Property Actions and Proceedings Law Article 13 forthe foreclosure of a real estate installment sale contract. 2. That at alltimes hereinafter mentioned the Plaintiffs were and are the vendors in a real estate installment sale contract with B. Wheeler and Elizabeth J. Wheeler, as vendees Murray ("Wheelers"), bearing date of November 16, 2015 (the "Contract"), pursuant to which Plaintiffs agreed to sell and Wheelers agreed to purchase the property described therein (the "Premises"). 3. The Contract was recorded in the Yates County Clerk's Office in Volume 696 of Deeds, page 45 on January 12, 2016, and a copy of the Contract isattached hereto marked Exhibit A. 4. That the Contract provided that Wheelers would pay to Plaintiffs as consideration for conveyance of title to the Premises to Wheelers the sum of $51,663.00, with interest on the unpaid balance at a rate of three percent per annum, to be paid in monthly installments of $355.75 commencing on September 3, 2015 and thereafter on the fourth day of ever calendar month until August 4, 2020 for a total of sixty monthly payments, following which the unpaid balance would due in full. FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 5. The balance due to Plaintiffs pursuant to the Contract as of August 4, 2020 was $37,014.53. Plaintiffs caused a notice to be sent to Defendant demanding payment of such amount, a copy of which is attached hereto as Exhibit B, which Defendant has failed to pay. 6. Elizabeth J. Wheeler has forfeited her interest in the Premises and conveyed all interest therein to Plaintiffs pursuant to deed dated August 31, 2020 and recorded in the Yates County Clerk's Office on October 6, 2020 as Instrument No. 2020-2396. 7. Defendant is in default under the terms of the Contract and remains in possession of the Premises. 8. The Contract provides that in the event of a foreclosure of the Contract Plaintiffs may recover from Defendant the recording tax and recording fees paid by Plaintiffs upon recordation of the Contract, attomey's fees and the costs and disbursements of this action. 9. That no other action has been had for the recovery of the said sum of money due under the Contract or any part thereof. WHEREFORE, Plaintiff demands judgment: A. That the Defendant, subsequent to the filing of the Notice of Pendency of this action in the office of the Clerk of the County of Yates in which the Premises are situated, and every person whose conveyance or encumbrance is subsequently recorded be further barred and foreclosed of all right, claim, lien and equity of redemption in the Premises. B. That the said Premises may be decreed to be sold according to law. C. That the amount due to the Plaintiffs pursuant to the terms of the Contract be adjudged. D. That the moneys from the sale may be brought into Court. arising E. That the Plaintiffs be paid the amount adjudged to be due to the Plaintiffs with may . FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 interest thereon to the time of such payment, together with the costs and expenses of this action, and the expenses of the said sale, so far as the amount of such money applicable thereto will pay the Same. F. That ifthe proceeds of said sale of the Premises aforesaid be insufficient to pay the amount found due to the Plaintiffs with interest and costs, the officer making the sale be required by the judgment of sale herein to specify the amount of such deficiency in his report of sale so that application may be made by Plaintiffs to this Court pursuant to Section 1371 of the Real Property Actions and Proceedings Law for judgment against Defendant for any deficiency which may remain after applying all such money as so applicable thereto. G. The Plaintiffs may have such other and further relief as shall be just and equitable. Dated: December 14, 2020 ,/YtOBERTü HA1PIN, ESQ Attorney for Plaintiff Office & P.O. Address: Che-Que-Gue Office Building 4588 Route 224 Montour Falls, NY 14865 Tel. (607) 594-3876 FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 VERIFICATION STATE OF NEW YORK ) COUNTY OF SCHUYLER ) ss.: Robert L. Halpin, being duly sworn, deposes and says that he is the attorney for is the Plaintiffs in the foregoing complaint and that the foregoing complaint is true to his own knowledge, except as to matters therein stated on information and belief and as to those matters he believes itto be true. The reason this verification is not made by the Plaintiffs is because Plaintiffs are not within the County of Schuyler where deponent has his office for the practice of his profession. The sources of deponent's knowledge are statements furnished to deponent by Plaintiffs. Sworn to before me this IS Day of December, 2020. Notary Pubhe Kristi A. Pierce Notary Public, State of New York Reg. No. 01Pt6135987 Qualified in Schuyler County My Commission Expires10/81/._ FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 EXHIBITA (Attached) a . FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 Yates County Lois E. Hall Yates County Clerk s0201scomms Volm-696 Pg-41 Instrument Number: 2016-00000079 As lecorded On: January 12, 2016 Land Contract withRETT Parties: EMMONS JAMES To WHEELER MURRAY B BillablePages: 5 Recorded By: STEWART E MCDIVITT Num Of Pages: 6 Gomment: .. ** Examined ** and Charged as Follows: ind Contractwith RETT 65.00 Coversheet 5.00 TP-584 5.00 Recording Charge: 75.00 Consideration Amount Amount RS#/CS# ansfer Tax 208.00 52,000.00 RS498 Basic 0.00 STARKEY Local 0.00 SpecialAdditional 0.00 Additional 0.00 Transfer 208.00 Taxcharge: 208.00 ** THIS ** PAGE IS PART OF THE INSTRUMENT I hereby that the within certify and foregoingwas recordedin the Clerk's OfficeFor:Yates County,NY FileInformation: Record and Return To: Document Number 2016- 00000079 STEWART E MCDIVITT ReceiptNumber: 139559 ROOTE 14 & AYERS STREET Recorded Date/Time: January 12, 201609:40:35A PO BOX 359 .. Book-Vol/Pg:Bk-DE Vl-696 Pg-41 MONTOUR FALLS NY 14865 Cashier/ Station: K kay / IndexingStation 1 Lois E. Hall Yates County Clerk FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 Yates County Lois E. Hall Yates County Clerk soansacocooso Instrument Number: 2016-00000080 As tecorded On: January 12, 2016 Land Contract withMTGTax Parties: WHEELER MURRAY B To EMMONS JAMES Recorded By: STEWART E MCDIVITT Num Of Pages: Comment: " Examined Charged as Follows:** and md Contractwith MTGTax 0.00 Recording Charge: 0.00 Consideration Amount Amount RS#/CS# ortgageTax 387.00 51,633.00 OG684 Basic 258.00 STARKEY Local 129.00 SpecialAdditional 0.00 Additional 0.00 Transfer 0.00 Tax Charge: 387.00 " ** THIS PAGE IS PART OF THE INSTRUMENT I hereby that the within certify and foregoingwas recordedin the Clerk's OfficeFor:Yates County,NY Fileinformation: Record and Return To: Document Number 2016-00000080 STEWART E MCDIVITT ReceiptNumber 139559 ROUTE 14 & AYERS STREET Recorded Date/Time: January 12, 2016 09:41:46A PO BOX 359 Book-Vol/Pg: MONTOUR FALLS NY 14865 Cashier/ Station: K kay / Station Indexing 1 Lois E. Hall Yates County Clerk FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 CONTRACT FOR THE SALE OF REAL PROPERTY 1. PARTIES: n Agreement made this ay of November, 20 5, between JAMES EMMONS and JANE EMMON of 107 Fir Tree Point Road, Rock Stream, New York 14878, hereinafter calledthe Sellers, and MURRAY B. WHEELER and ELIZABETH J. WHEELER of 263 Rock Stream Road, Rock Stream, New York 14878, hereinafter called the Buyers. 2. AGREEMENT TO SELL AND BUY: The Sellers, in consideration of the covenants and agreements herein expressed, hereby agree to sellunto the Buyers, and the said Buyers hereby agree to purchase from the said Sellers,the realproperty described below. 3. PROPERTY DESCRIPTION: The saidreal property is describe as follows: ALL THAT TRACT OR PARCEL OF LAND, situate in theTown of Starke , YatesCounty, New York, bounded and described as follows:Beginning ata point in thecenterline of theRock Stream Road, such pointbeing 145.65 feet easterlyof thecenterline intersection of theOld Lake 82°44'53" Road and Rock Stream Road; thence South East along the centerlineof Rock 07°15'07" Stream Road, 190.73 feetto a computed point;thence South West, 114.84 feet to an iron pin set in a northerly boundary of lands now or formerly of Stone 82°44' 53" 77°04' (L332/P282); thence North West, 112.95 feetto an ironpin;thence North 5b" 10°18'08" West, 43.01 feet toan iron pin;thence North West, 90.04 feetto an iron pin set in the southerly limitof Rock Stream Road, allin accordance with the terms of a Boundary Line Agreement executed December 28, 1990 by John A. & Kay E. Shepard and Robert & Bertha DeBeradinis and William & Rosemarie Rushford, which Agreement was filedin theYates County Clerk's Office on January 8,1991 inLiber 370 ofDeeds at Page 10°18' 08" 64; thence North West, 25.96 feetto a computed pointin thecenterline of Rock Stream Road, which pointmarks the point or place of beginning. Containing an area of 0.453 acre. TOGETHERWITH and intending toconvey to thePartiesof theSecond Part herein, allofthe rights of the Partyof the FirstPart, as Lessors inand to any Oiland Gas Leases granted by them or priorowners. Also, including all gas oil, and mineral rights,applicable to the premises herein conveyed. SUBJECT TO any and alieasements, oiland gas leases, restrictionsand rightof way of record, as the same may affect said premises. BEING THÉ SAIWE PREMISES conveyed to James Emmons and Jane Emmons, husband and wife, from Jeffrey R. Davis by Warranty Deed dated August 3, 2015 and recorded inthe Yates County Clerk's Office on August 7, 2015 in Volume 689 Page 158. 4. PRICE: The purchase priceof the aforementioned real property is FIFTY-ONE THOUSAND SIX HUNDRÉD SIXTY-THREE DOLLARS ($51,663.00). The fifty-onethousand sixhundred sixty-threedollars($51,663.00) willbe financed by thisLand Contract by the Sellers, with interestat the rateof 3 percent per annum to be amortized over a fifteen(15) yearperiod, with equal monthly payments of principaland with interest, each monthly payment being in the amount of Three Hundred Fifty-fiveand 75/100ths Dollars ($355.75) commencing on the 3rd Day of September , 2015 and thereafter on the 4th day of each succeeding month fora totalof sixty(60) monthly payments, when FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 . . - Buyers willpay offthe balance witha balloon payment ofthe fullprincipleand interestthen owing afterfive(5) years. 5. PRE-PAYMENT PRIVILEGE: The Buyers reserve the rightand pre- privilege to pay allor part ofthe unpaid balance of the purchase price, without penalty. 6. DEED AND ABSTRACT: Upon the payment of saidpurchase price and interest by the Buyers to the Sellers,and upon the performance of theterms of thisAgreement by the Buyers, the Sellers shallexecute and deliverto theBuyers, or their a Warranty assigns, Deed, conveying good and marketable title to said premises, free and clearof all liens and encumbrances except those caused by the Buyers, and except the easements and utility other easements of record,and at thatsaid time, the Sellers shallfumish and deliver to the Buyers an Abstract of Title an original at leastfrom 1, 1970 to the.date and being January time of thedeed. 7. COVENANTS OF THE BUYERS: The Buyers further covenants: A. Taxes: The Buyers shallpay alltaxes assessed against such premises the by due date from the date of thisAgreement untilsaid indebtedness shall be paid as fully aforesaid, and ifthe Buyers shall failto pay any of said taxes, the Sellers the may pay same and the amount of said taxes plus interestand penalty so paid the Sellers shall by be added to and become a part of the unpaid balance of the purchase and forthe price, purposes of this instrument, ·local and special assessments assessed against said premises, ifany, for saidpremises, billed,but unpaid, shall be considered as taxes. If Sellers pay the taxes because of Buyers default,the Buyers agree to reimburse the Sellers in full within thirty(30) days afterwritten demand the Sellers. Buyers without demand by by Sellers shallfurnish proof of timely payment of all taxes, assessments and sewer rentals inthe form of a photocopy of the receipted bill to the Sellers within fifteen days after (15) such payment. B. Insurance: The Buyers shall,at theirown expense, maintain in force and pay the premiums thereon, policies of insurance, insuringsaid premisesegainst fireand other extended perilsin anamount equal to,or atleast,the unpaid balance of thepurchase price untilsuch indebtedness shallbe fullypaid as aforesaid and said policiesofinsurance shall insure theinterest of theSellers and the Buyers, the listing Sellersas mortgage payee, and if theBuyers shall failtopay any said premiums or shall failtoshow the Sellers proof of insurance, the Sellers may pay the same and the amount of thesaid premiums so paid by the Sellers shallbe added to and become a part of the unpaid balance of the purchase price,or atthe option of the Sellers,shall be repaid to the Sellers withinthirty(30) days afterwritten demand by the Sellersto the Buyers. Buyers, without demand, shallfurnish proof ofthe timely payment of any such insurance premiums in theform of a photocopy of the receipted bill to the Sellers withinfifteen (15) days aftersuch payment. C. Alterations and Mechanic's Liens: Ifand when improvements are made, the Buyers shallnot alter,remove, or demolish any improvements situateupon said premises at any time without the priorverbal consent of the Sellers. Buyers are responsible for all upkeep, maintenance, and repairs, including material cost of the house and property. Buyers also agree to keep the premises free ofgarbage, refuse, etc.The Buyers agree to maintain the property in a good state of repair at alltimes,at theirown expense, except during the reasonable periods of repair or alterationsas agreed upon by the parties, in writing,untilsuch indebtedness shall be fullypaid as aforesaid. In the event that any Mechanic's Liens are filedagainst said premises, made or caused to be made by the Buyers, the Buyers shall cause said liensto be discharged of record within a reasonable time, not exceeding sixty(60) days after demand by the Sellers, or immediately upon FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 . Document t RECEIVED NYSCEF: 09/23/2022 olume: 00000079 696 Pm: 44 institutionof any foreclosure action foredlosing the Mechanic's Lien, whichever is sooner. Sellers also shallhave, at their option, the righttopay and discharge any Mechanic's Lien, and any amount so paid shallbe added tothe unpaid balance ofthe purchase price,or the Sellers, at their option, may demand the Buyers to repay the amount so paid by the Sellers to discharge a Mechanic's Lien, and theBuyers agree to repay the amount to the Sellers within thirty(30) days afterdemand forpayment of the same by the Sellers. D. Assignment: Buyers shall not assign theirinterest in this Agreement, or encumber the property inany way withoutthe priorwritten consent of the Sellers. E. Late Payments: The Buyers must pay a late charge of twenty dollars($20.00) for each payment that ismore than ten (10) days late. This late charge isdue with the monthly payment. F. inspection: The Sellers, or theiragent, shall have the rightto inspect the premises, including the real property and any improvements hereafter made, at any time with twenty-four (24) hours notice to the Buyers. This rightof inspection shall end after payment of the indebtedness as mentioned herein. G. Defaults: Defaults shall consist of: The Buyers failingto pay any monthly installmentof principaland interest in full withinthirty(30) days after the due date, or shall failto pay any taxes owing to the taxing authority by the due date, or if theSellers have paid the taxes out of theirown monies, if theBuyers shallfailtorepay the Sellers within thirty (30) days after demand for repayment of the same by the Sellers, or if theBuyers shallassign his interest in thisAgreement, or encumber the property without the prior writtenconsent of the Sellers,or if theBuyers shallfailto pay or maintain said policiesof insurance or shall failto show proof of insurance, or to reimburse the Sellers for any insurance premiums paid by the Sellers, or shallfailto maintain the premises in good condition, ifand when improvements are made, or shall alter,dernolish or remove allor part ofthe improvements hereinafterplaced th.ereon,without the prior written consent of the Sellers,or shallfailtocause the discharge of any Mechanic's Lien as herein required, or shall failto show proof of payment of taxes, or shall failto pay any latepayment penalties, or shallbreach any of the other covenants or agreements contained herein,or shallfailtoletthe Sellers, ortheir agents, inspect the premises. SELLERS' 8. REMEDIES UPON DEFAULT BY BUYERS: In any ofthe events of default,the Sellers shallimmediately have the right to declare this contract void and to retain whatever may have been paid to them by the Buyers under the terms of this Agreement, and to retain allimprovements which may have been made upon said premises, and may consider and treatthe Buyers as their tenant holding over without permission and may take immediate possession of the premises and remove the Buyers therefrom and if theBuyers shall failtosurrender up possession of said preperty to the Sellers immediately upon demand of the Sellers, Sellersmay commence the necessary action or actions to recover possession of said premises. Notwithstanding any remedy granted to theSellers herein,the Sellers may, at their election,declare the entirebalance of theprincipalsum remaining then unpaid and accrued interest,immediately due and payable, in the event that the Buyers shallhave defaulted in any manner as stated above. In connection with thisparagraph, the Sellers may commence an action of lawto recover the unpaid balance of thepurchase price,or attheir election, commence an action to foreclose thisland contract, and in eitherevent, the Sellers shallbe entitled to reasonable attorney'sfees as mentioned below, and furtherin the event that the Sellers shallcommence an action to foreclose thisLand Contract, the FILED: YATES COUNTY CLERK 09/23/2022 12:03 PM INDEX NO. 2020-5193 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/23/2022 lfrxuatent! 0000sXñ9 recording tax and the recording fees which the Sellers shallbe required to pay for the purposes ofrecording thisInstrument, shall be part ofthe judgment granted to theSellers. 9. ATTORNEY'S FEES: If for any reason, either party shallhave to secure the services of an attomey, or have to go to Court to enforce any rightsgiven to them inthis Agreement, caused by the breach ofthis contract by the otherparty, then eitherparty shall be entitledto the recovery of theircosts and disbursements from the other party and the defaulting partyshallbe responsible forthe reasonable attorney'sfees of thenon-defaulting party. 10. POSSESSION: The Buyers shall have possession of the above described premises from and afterthe date hereof. 15. LIENS CAUSED-BY SELLER: In theevent that during the tirneof thiscontract, the Sellers shallcause a liento be placed upon thisproperty, the Buyers may apply allor part of themortgage principaland interestpayment owing hereunder towards the payment of the lien(s)caused by the Sellers and to pay the difference,if any,to the Sellers. IN WITNESS WHEREOF the Sellers and the Buyers have hereto set theirsignatures on the day and year firstwritteninthis Agreement. J ES E MONS, SELLER NE El(llMONS, SELLER UR B. WHEELER,hER ELIZ ETil J. .HEELER, BUYER te ofNew York ) )C re. County t On thi day of November, 2015, before me personally appeared JAMES EMMONS and MMONS, the subscribers tome known and known to me tobe the