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FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
..----------------- --------¬--------X
DEUTSCHE BANK NATIONAL TRUST INDEX NO.: 51431/2017
COMPANY, AS TRUSTEE FOR NOVASTAR
MORTGAGE FUNDING 2007-
TRUST, SERIES ATTORNEY AFFIRMATION IN
1 NOVASTAR HOME EQUITY LOAN ASSET-
SUPPORT OF PLAINTIFF'S
BACKED CERTIFICATES, SERIES 2007-1, MOTION FOR AN ORDER
CONFIRMING REFEREE REPORT
Plaintiff'
AND JUDGMENT OF
FORECLOSURE AND SALE
DIANE UNITED STATES OF MORTGAGED PROPERTY:
SAMPSON;
AMERICA - REVENUE 16 SIDNEY LANE
INTERNAL SERVICE,
WAPPINGERS FALLS, NY 12590
#1" #12,"
"JOHN DOE through "JOHN DOE the
COUNTY: DUTCHESS
last twelve names being fictitious and unknown to
plaintiff, the persons or parties intended being the
SBL#: Section 6357,
tenants, occupants, persons or corporations, if any,
or an interest in or lien upon the Block 01, Lot 311710
having claiming
premises described in the Complaint,
Defendant(s).
---------------- ---------------------X
Christopher Santoro, Esq. pursuant to CPLR 2106 and under the penalties of perjury,
affirms as follows:
1. I am an attorney at law and an associate with RAS Boriskin, LLC the attorneys of
record for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this
action based upon a review of the file maintained by my office.
2. This is a foreclosure action. The Plaintiff is moving the court to confirm the
Referee's Report made in accordance with RPAPL §1321 and for a Judgment of Foreclosure and
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Sale pursuant to RPAPL §1351 that directs the distribution of the proceeds of sale in accordance
with RPAPL §1354.
3. True and accurate copies of the following documents are attached hereto:
Document Tab
Certificate of Merit Exhibit A
Note Exhibit B
Mortgage Exhibit C
Assignments Exhibit D
Notice of Default Exhibit E
RPAPL §1304 90 Day Notice Exhibit F
Department of Defense Search results Exhibit G
Summons and Complaint Exhibit H
Notice of Pendency Exhibit I
Affidavits of Service Exhibit J
Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit K
Affidavit of Indebtedness Exhibit L
Affirmation of Regularity Exhibit M
Order of Reference Exhibit N
Referee's Oath and Report of Amount Due Exhibit O
Notice of Entry of Order of Reference Exhibit P
Attorney Fee Affirmation Exhibit Q
Power of Attorney Exhibit R
Notice of Appearance Exhibit S
Legalback No. 2 - filed with this application
contemporaneously
Costs and Disbursements of Plaintiff with Supporting Invoices
Legalback No. 3 - filed with this application
contemporaneously
Proposed Judgment of Foreclosure and Sale
PROCEDURAL HISTORY
4. This residential mortgage foreclosure action was commenced by filing the
summons and complaint in the Dutchess County Clerk's office on June 15, 2017, in the County
where the mortgaged property is located. The action was brought to foreclose a residential
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mortgage executed by DIANE SAMPSON on December 22, 2006 and which was subsequently
recorded on December 28, 2006.
5. That DIANE SAMPSON ("Borrower") executed a Note dated December 22, 2006
in the amount of $382,500.00 ("Note"). As security for the Note, DIANE SAMPSON,
("Mortgagor") executed a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC. AS NOMINEE FOR NOVASTAR MORTGAGE, INC., CORPORATION,
secured by the Premises, dated December 22, 2006 and recorded on December 28, 2006 at
Document ID: 01 2006 21031 ("Mortgage"). A copy of the Note is annexed hereto as Exhibit
"B". A copy of the Mortgage is annexed hereto as Exhibit "C".
6. The subject loan was modified by and through the Loan Modification Agreements
dated July 10, 2007 and May 6, 2016, which adjusted the principal balance of the subject loan.
A copy of the Loan Modification Agreement is annexed hereto as Exhibit "B".
7. The Note was endorsed for the benefit of, and transferred to, Paintiff The
Mortgage transfers as incident to the Note. See Bank of NY v. Silverberg, 86 A.D. 3d 274, 926
N.Y.S.2d 532 (2nd Dep't 2011).
8. Prior to the commencement of this action the note and mortgage were validly
assigned from NOVASTAR MORTGAGE, INC. to DEUTSCHE BANK NATIONAL TRUST
COMPANY AS TRUSTEE UNDER NOVASTAR MORTGAGE FUNDING TRUST SERIES
2007-1 by written instrument dated June 24, 2008 and recorded in the office of the County Clerk
on July 23, 2008 at Document Number 01-2008-1259A. Then the Mortgage was assigned from
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR
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NOVASTAR MORTGAGE, INC. to NOVASTAR MORTGAGE, INC. by written instrument
dated February 19, 2009 and recorded in the office of the County Clerk on March 26, 2009 at
Document Number 01-2009-662A. Then the Mortgage was assigned from NOVASTAR
MORTGAGE, INC. to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2007-1 NOVASTAR HOME
EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1 by written instrument
dated.May 21, 2015 and recorded in the office of the County Clerk on July 9, 2015 at Document
Number 01-2015-1439A. Tue and accurate copies of the Assignments are annexed hereto as
Exhibit "D".
9. On June 15, 2017, Plaintiff filed a notice of pendency in accordance with RPAPL
§l331 and CPLR Article 65, a copy of which is attached hereto as Exhibit "I".
10. The summons, complaint and notice of pendency are in the form prescribed by
statute and contain all the particulars required by law. The summons complies with the
requireiñents of RPAPL §1320, contains the required notice in boldface type and is in the format
required by statute. Copies of the summons, coroplaint, notice of pendency are annexed hereto as
Exhibits "H & I".
11. On June 15, 2017, Plaintiff was the holder of the subject note. See affidavit of
Daniel Delpesche, attached hereto as Exhibit "L".
12. The certificate of merit required pursuant to CPLR §3012-b was filed and served
together with supporting documents and is attached hereto as Exhibit "A".
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13. According to the affidavit of service filed in the Dutchess Clerk's Office, the
summons was served with the complaint. Copies of the affidavits of service are annexed hereto
as Exhibits "J". Defendants were served with the notice required by RPAPL §1303 printed on
colored paper together with the summons and complaiiit printed on white paper. The RPAPL
§1303 notice complies with the requirements of that statute, with the title in bold, 20-point type
and with the text in bold, 14-point type. The RPAPL §1303 notice was delivered to the
mortgagors on itsown separate page, together with the summons and complaint.
14. Borrower was timely served with the 90-Day Pre-Foreclosure notice required by
RPAPL §1304. Plaintiff filed the name, address and tclcphone number of the Borrower, the
amount claimed to be due, and the type of loan at issue with the superintendent of banks within
three business days of the mailing of the 90-day Pre-Foreclosure notice as required by RPAPL
§1306. Copies of these notices are attached hereto as Exhibit "F", see also the affidavit of
Daniel Delpesche, attached hereto as Exhibit "L".
15. Plaintiff served defendants with copies of the summons in compliance with CPLR
§3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit "K".
16. No defendant is an infant. No defendant is in the armed services of the United
States of America. Upon information and belief no defendant is incompetent.
17. Defendant UNITED STATES OF AMERICA - INTERNAL REVENUE
SERVICE has appeared through a Notice of Appearance but waived notice of this motion. A
copy is attached hereto as Exhibit "S".
18. The following defendant did not answer or appear and her time to answer has
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expired: DIANE SAMPSON. Accordingly, this defendant is in default.
19, Pursuant to CPLR §3408 the court held a mandatory settlement conference in this
action. Plaintiff attended a settlement conference on July 24, 2018 but the defendant mortgagor
failed to appear and the case was released from the settlement conference part.
20. On October 18, 2018, the Plaintiff moved for an Order of Reference. Plaintiff's
motion was granted by the Court by order dated June 10, 2019. A copy of the Order of
Reference is attached hereto as Exhibit "N".
21. Plaintiff mailed Notice of Entry of the Order of Reference to Defendants or their
attorneys on July 25, 2019 and filed the Notice of Entry with the Dutchess Clerk on July 25,
2019. A copy of the Notice of Entry is attached hereto as Exhibit "P".
22. This court appointed Jacqueline Martin, Esq. as Referee to compute the amount
due the Plaintiff and to examine and report whether the mortgaged property can be sold in
parcels.
23. On August 22, 2019, the Referee executed an Oath and Report of Amount Due
which computed the amount due the Plaintiff to be $299,283.16 as of September 03, 2018, and
determined that the property should be sold as one parcel. The Referee's Oath and Report are
attached hereto as Exhibit "O". Plaintiff is entitled to interest at the note rate until the Judgment
of Foreclosure and Sale is entered and at the statutory default rate thereafter.
24. No previous application for a Judgment of Foreclosure and Sale has been made.
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PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE
25. In conjunction with the motion for an Order of Reference previously granted by
this Court, Plaintiff established all the required elements for a foreclosure. Plaintiff now requests
that the property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in
accordance with RPAPL §1354.
26. Plaintiff requests that the court grant this judgment on default of defendant(s)
pursuant to RPAPL §1321, that the mortgaged property be sold pursuant to RPAPL §1351 and
that the sale proceeds be distributed in accordance with RPAPL §1354.
27. RPAPL §l354(2) requires the Referee conducting the sale of the mortgaged
property to pay out of the proceeds all taxes, assessments and water rates that are liens upon the
property and to redeem the property from any sales for unpaid taxes, assessments, or water rates
that have not apparently become absolute. All expenses of recording the Referee's Deed,
including real property transfer tax should be paid by the purchaser at the closing and not by the
Referee from sale proceeds since transfer tax is not a lien upon the property nor is itan expense
of sale, as that term is used in RPAPL §l354(1). Rather, transfer tax is an expense of recording
the deed.
28. Plaintiff is entitled to have the Judgment include reimbursement for its attorney
fees for this action in accordãñce with the terms of the note and mortgage. A detailed affirmation
regarding attorney fees is attached hereto as Exhibit "Q".
29. Plaintiff is also entitled to have the Judgment include reirnbursement for
Plaintiff's costs, allowances, and disbursements made in this matter in accordance with the terms
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of the note and mortgage and CPLR Article 83. A detailed statement of Plaintiff's costs and
disbursements with the supporting invoices has been filed contemporaneously with this
application.
THE CAPTION SHOULD BE AMENDED TO REFLECT THE PROPER
PARTIES
30. Plaintiff is entitled to an amendment of the caption herein to reflect those parties
who have, since the filing of the Summons and Complaint, been identified as having a potential
interest in the Subject Premises.
31. In a mortgage foreclosure action, Plaintiff is entitled to amend the caption to
Does" Does"
delete and/or substitute those Defendants sued therein as "John and "Jane upon the
findings and discovery of those parties the Subject Premises. See Wells Fargo Bank,
occupying
NA v. Sergey Ambrosov, 120 A.D.3d 1225 (2nd Dept. 2014), citing, Flagstar Bank v. Bellaflore,
94 A.D.3d at 1046, 943 N.Y.S.2d 551; US Bank, N.A. v. Boyce, 93 A.D.3d at 783, 940 N.Y.S.2d
656; Neighborhood Hous. Servs. of N.Y City, Inc. v. Meltzer, 67 A.D.3d 872, 873-874, 889
N.Y.S.2d 627.
32. As stated previously hereiñabove and as it appears by the Affidavits of Service,
allnecessary Defendants were served with copies of the Summons and Complaint. Additionally,
as set forth in the Affidavits of Service, the mortgagors, homeowners and obligors were served
with the foreclosure notice as prescribed in RPAPL § 1303.
33. Therefore, the Caption herein should be amended to reflect those holders of
subordinate liens and/or parties maintaining an interest in the Subject Premises, and dropping
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those fictitiously named Defêñdâñts that are neither necessary, nor proper party Defendants
herein.
#1" #12"
34. Defendants captioned as "John Doe through "John Doe are not
#1"
necessary parties. Accordingly, the defendants captioned as "John Doe through "John Doe
#12"
were not served with copies of the summnm and complaint. Plaintiff requests that the
#1" #12"
"John Doe through "John Doe defendants be removed from the caption of the action
without prejudice to any of the proceedings herein.
35. A proposed Judgment of Foreclosure and Sale is provided to the Court together
with this motion.
WHEREFORE, Plaintiff requests an order of this court:
A. Confirming the Referee's Report;
B. Granting a Judgment of Foreclosure and Sale which appoints a Referee to sell the
property;
C. Directing the distribution of the sale proceeds;
#1" #12"
D. Amending the caption to drop "John Doe through "John Doe as follows as
#1"
"JOHN DOE through "JOHN DOE #12", not having been served with copies of the
Summons and Complaint, are neither necessary nor proper party defendants and their names are
hereby stricken from the caption of this action;
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--------- ---------------- -------- X
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR NOVASTAR MORTGAGE
FUNDING TRUST, SERIES 2007-1 NOVASTAR
HOME EQUITY LOAN ASSET-BACKED
CERTIFICATES, SERIES 2007-1,
Plaintiff,
v.
DIANE SAMPSON; UNITED STATES OF AMERICA
- INTERNAL REVENUE SERVICE,
Defendant(s).
-------------------------- -----------X
E. Granting such additional relief as the Court may deem just and proper.
DATED: September 3 , 2019
Westbury, New York
Christopher Santoro, Esq.
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ATTORNEY'S AFFIRMATION
Christopher Santoro, Esq., an attorney at law licensed to practice in the State of New
York, and the attorney for Plaintiff in this action hereby certifies that, to the best of his
knowledge, information and belief, formed after an inquiry reasonable under the circumstances,
the presentation of this pleading, affidavit (or motion if applicable), or the contentions contained
herein are not frivolous as defined by 22 N.Y.C.R.R. 130-1.1(c).
Christopher Santoro, Esq.
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FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ..----------------- --------¬--------X DEUTSCHE BANK NATIONAL TRUST INDEX NO.: 51431/2017 COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING 2007- TRUST, SERIES ATTORNEY AFFIRMATION IN 1 NOVASTAR HOME EQUITY LOAN ASSET- SUPPORT OF PLAINTIFF'S BACKED CERTIFICATES, SERIES 2007-1, MOTION FOR AN ORDER CONFIRMING REFEREE REPORT Plaintiff' AND JUDGMENT OF FORECLOSURE AND SALE DIANE UNITED STATES OF MORTGAGED PROPERTY: SAMPSON; AMERICA - REVENUE 16 SIDNEY LANE INTERNAL SERVICE, WAPPINGERS FALLS, NY 12590 #1" #12," "JOHN DOE through "JOHN DOE the COUNTY: DUTCHESS last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the SBL#: Section 6357, tenants, occupants, persons or corporations, if any, or an interest in or lien upon the Block 01, Lot 311710 having claiming premises described in the Complaint, Defendant(s). ---------------- ---------------------X Christopher Santoro, Esq. pursuant to CPLR 2106 and under the penalties of perjury, affirms as follows: 1. I am an attorney at law and an associate with RAS Boriskin, LLC the attorneys of record for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this action based upon a review of the file maintained by my office. 2. This is a foreclosure action. The Plaintiff is moving the court to confirm the Referee's Report made in accordance with RPAPL §1321 and for a Judgment of Foreclosure and 17-044305 - KiS 1 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 Sale pursuant to RPAPL §1351 that directs the distribution of the proceeds of sale in accordance with RPAPL §1354. 3. True and accurate copies of the following documents are attached hereto: Document Tab Certificate of Merit Exhibit A Note Exhibit B Mortgage Exhibit C Assignments Exhibit D Notice of Default Exhibit E RPAPL §1304 90 Day Notice Exhibit F Department of Defense Search results Exhibit G Summons and Complaint Exhibit H Notice of Pendency Exhibit I Affidavits of Service Exhibit J Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit K Affidavit of Indebtedness Exhibit L Affirmation of Regularity Exhibit M Order of Reference Exhibit N Referee's Oath and Report of Amount Due Exhibit O Notice of Entry of Order of Reference Exhibit P Attorney Fee Affirmation Exhibit Q Power of Attorney Exhibit R Notice of Appearance Exhibit S Legalback No. 2 - filed with this application contemporaneously Costs and Disbursements of Plaintiff with Supporting Invoices Legalback No. 3 - filed with this application contemporaneously Proposed Judgment of Foreclosure and Sale PROCEDURAL HISTORY 4. This residential mortgage foreclosure action was commenced by filing the summons and complaint in the Dutchess County Clerk's office on June 15, 2017, in the County where the mortgaged property is located. The action was brought to foreclose a residential 17-044305 - KiS 2 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 mortgage executed by DIANE SAMPSON on December 22, 2006 and which was subsequently recorded on December 28, 2006. 5. That DIANE SAMPSON ("Borrower") executed a Note dated December 22, 2006 in the amount of $382,500.00 ("Note"). As security for the Note, DIANE SAMPSON, ("Mortgagor") executed a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR NOVASTAR MORTGAGE, INC., CORPORATION, secured by the Premises, dated December 22, 2006 and recorded on December 28, 2006 at Document ID: 01 2006 21031 ("Mortgage"). A copy of the Note is annexed hereto as Exhibit "B". A copy of the Mortgage is annexed hereto as Exhibit "C". 6. The subject loan was modified by and through the Loan Modification Agreements dated July 10, 2007 and May 6, 2016, which adjusted the principal balance of the subject loan. A copy of the Loan Modification Agreement is annexed hereto as Exhibit "B". 7. The Note was endorsed for the benefit of, and transferred to, Paintiff The Mortgage transfers as incident to the Note. See Bank of NY v. Silverberg, 86 A.D. 3d 274, 926 N.Y.S.2d 532 (2nd Dep't 2011). 8. Prior to the commencement of this action the note and mortgage were validly assigned from NOVASTAR MORTGAGE, INC. to DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER NOVASTAR MORTGAGE FUNDING TRUST SERIES 2007-1 by written instrument dated June 24, 2008 and recorded in the office of the County Clerk on July 23, 2008 at Document Number 01-2008-1259A. Then the Mortgage was assigned from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR 17-044305 - KiS 3 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 . . NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 NOVASTAR MORTGAGE, INC. to NOVASTAR MORTGAGE, INC. by written instrument dated February 19, 2009 and recorded in the office of the County Clerk on March 26, 2009 at Document Number 01-2009-662A. Then the Mortgage was assigned from NOVASTAR MORTGAGE, INC. to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2007-1 NOVASTAR HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1 by written instrument dated.May 21, 2015 and recorded in the office of the County Clerk on July 9, 2015 at Document Number 01-2015-1439A. Tue and accurate copies of the Assignments are annexed hereto as Exhibit "D". 9. On June 15, 2017, Plaintiff filed a notice of pendency in accordance with RPAPL §l331 and CPLR Article 65, a copy of which is attached hereto as Exhibit "I". 10. The summons, complaint and notice of pendency are in the form prescribed by statute and contain all the particulars required by law. The summons complies with the requireiñents of RPAPL §1320, contains the required notice in boldface type and is in the format required by statute. Copies of the summons, coroplaint, notice of pendency are annexed hereto as Exhibits "H & I". 11. On June 15, 2017, Plaintiff was the holder of the subject note. See affidavit of Daniel Delpesche, attached hereto as Exhibit "L". 12. The certificate of merit required pursuant to CPLR §3012-b was filed and served together with supporting documents and is attached hereto as Exhibit "A". 17-044305 - KiS 4 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 13. According to the affidavit of service filed in the Dutchess Clerk's Office, the summons was served with the complaint. Copies of the affidavits of service are annexed hereto as Exhibits "J". Defendants were served with the notice required by RPAPL §1303 printed on colored paper together with the summons and complaiiit printed on white paper. The RPAPL §1303 notice complies with the requirements of that statute, with the title in bold, 20-point type and with the text in bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on itsown separate page, together with the summons and complaint. 14. Borrower was timely served with the 90-Day Pre-Foreclosure notice required by RPAPL §1304. Plaintiff filed the name, address and tclcphone number of the Borrower, the amount claimed to be due, and the type of loan at issue with the superintendent of banks within three business days of the mailing of the 90-day Pre-Foreclosure notice as required by RPAPL §1306. Copies of these notices are attached hereto as Exhibit "F", see also the affidavit of Daniel Delpesche, attached hereto as Exhibit "L". 15. Plaintiff served defendants with copies of the summons in compliance with CPLR §3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit "K". 16. No defendant is an infant. No defendant is in the armed services of the United States of America. Upon information and belief no defendant is incompetent. 17. Defendant UNITED STATES OF AMERICA - INTERNAL REVENUE SERVICE has appeared through a Notice of Appearance but waived notice of this motion. A copy is attached hereto as Exhibit "S". 18. The following defendant did not answer or appear and her time to answer has 17-044305 - KiS 5 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 expired: DIANE SAMPSON. Accordingly, this defendant is in default. 19, Pursuant to CPLR §3408 the court held a mandatory settlement conference in this action. Plaintiff attended a settlement conference on July 24, 2018 but the defendant mortgagor failed to appear and the case was released from the settlement conference part. 20. On October 18, 2018, the Plaintiff moved for an Order of Reference. Plaintiff's motion was granted by the Court by order dated June 10, 2019. A copy of the Order of Reference is attached hereto as Exhibit "N". 21. Plaintiff mailed Notice of Entry of the Order of Reference to Defendants or their attorneys on July 25, 2019 and filed the Notice of Entry with the Dutchess Clerk on July 25, 2019. A copy of the Notice of Entry is attached hereto as Exhibit "P". 22. This court appointed Jacqueline Martin, Esq. as Referee to compute the amount due the Plaintiff and to examine and report whether the mortgaged property can be sold in parcels. 23. On August 22, 2019, the Referee executed an Oath and Report of Amount Due which computed the amount due the Plaintiff to be $299,283.16 as of September 03, 2018, and determined that the property should be sold as one parcel. The Referee's Oath and Report are attached hereto as Exhibit "O". Plaintiff is entitled to interest at the note rate until the Judgment of Foreclosure and Sale is entered and at the statutory default rate thereafter. 24. No previous application for a Judgment of Foreclosure and Sale has been made. 17-044305 - KiS 6 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE 25. In conjunction with the motion for an Order of Reference previously granted by this Court, Plaintiff established all the required elements for a foreclosure. Plaintiff now requests that the property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in accordance with RPAPL §1354. 26. Plaintiff requests that the court grant this judgment on default of defendant(s) pursuant to RPAPL §1321, that the mortgaged property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in accordance with RPAPL §1354. 27. RPAPL §l354(2) requires the Referee conducting the sale of the mortgaged property to pay out of the proceeds all taxes, assessments and water rates that are liens upon the property and to redeem the property from any sales for unpaid taxes, assessments, or water rates that have not apparently become absolute. All expenses of recording the Referee's Deed, including real property transfer tax should be paid by the purchaser at the closing and not by the Referee from sale proceeds since transfer tax is not a lien upon the property nor is itan expense of sale, as that term is used in RPAPL §l354(1). Rather, transfer tax is an expense of recording the deed. 28. Plaintiff is entitled to have the Judgment include reimbursement for its attorney fees for this action in accordãñce with the terms of the note and mortgage. A detailed affirmation regarding attorney fees is attached hereto as Exhibit "Q". 29. Plaintiff is also entitled to have the Judgment include reirnbursement for Plaintiff's costs, allowances, and disbursements made in this matter in accordance with the terms 17-044305 - KiS 7 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 of the note and mortgage and CPLR Article 83. A detailed statement of Plaintiff's costs and disbursements with the supporting invoices has been filed contemporaneously with this application. THE CAPTION SHOULD BE AMENDED TO REFLECT THE PROPER PARTIES 30. Plaintiff is entitled to an amendment of the caption herein to reflect those parties who have, since the filing of the Summons and Complaint, been identified as having a potential interest in the Subject Premises. 31. In a mortgage foreclosure action, Plaintiff is entitled to amend the caption to Does" Does" delete and/or substitute those Defendants sued therein as "John and "Jane upon the findings and discovery of those parties the Subject Premises. See Wells Fargo Bank, occupying NA v. Sergey Ambrosov, 120 A.D.3d 1225 (2nd Dept. 2014), citing, Flagstar Bank v. Bellaflore, 94 A.D.3d at 1046, 943 N.Y.S.2d 551; US Bank, N.A. v. Boyce, 93 A.D.3d at 783, 940 N.Y.S.2d 656; Neighborhood Hous. Servs. of N.Y City, Inc. v. Meltzer, 67 A.D.3d 872, 873-874, 889 N.Y.S.2d 627. 32. As stated previously hereiñabove and as it appears by the Affidavits of Service, allnecessary Defendants were served with copies of the Summons and Complaint. Additionally, as set forth in the Affidavits of Service, the mortgagors, homeowners and obligors were served with the foreclosure notice as prescribed in RPAPL § 1303. 33. Therefore, the Caption herein should be amended to reflect those holders of subordinate liens and/or parties maintaining an interest in the Subject Premises, and dropping 17-044305 - KiS 8 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 those fictitiously named Defêñdâñts that are neither necessary, nor proper party Defendants herein. #1" #12" 34. Defendants captioned as "John Doe through "John Doe are not #1" necessary parties. Accordingly, the defendants captioned as "John Doe through "John Doe #12" were not served with copies of the summnm and complaint. Plaintiff requests that the #1" #12" "John Doe through "John Doe defendants be removed from the caption of the action without prejudice to any of the proceedings herein. 35. A proposed Judgment of Foreclosure and Sale is provided to the Court together with this motion. WHEREFORE, Plaintiff requests an order of this court: A. Confirming the Referee's Report; B. Granting a Judgment of Foreclosure and Sale which appoints a Referee to sell the property; C. Directing the distribution of the sale proceeds; #1" #12" D. Amending the caption to drop "John Doe through "John Doe as follows as #1" "JOHN DOE through "JOHN DOE #12", not having been served with copies of the Summons and Complaint, are neither necessary nor proper party defendants and their names are hereby stricken from the caption of this action; 17-044305 - KiS 9 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 --------- ---------------- -------- X DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2007-1 NOVASTAR HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1, Plaintiff, v. DIANE SAMPSON; UNITED STATES OF AMERICA - INTERNAL REVENUE SERVICE, Defendant(s). -------------------------- -----------X E. Granting such additional relief as the Court may deem just and proper. DATED: September 3 , 2019 Westbury, New York Christopher Santoro, Esq. 17-044305 - KiS 10 of 11 FILED: DUTCHESS COUNTY CLERK 09/13/2019 04:54 PM INDEX NO. 2017-51431 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/13/2019 ATTORNEY'S AFFIRMATION Christopher Santoro, Esq., an attorney at law licensed to practice in the State of New York, and the attorney for Plaintiff in this action hereby certifies that, to the best of his knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this pleading, affidavit (or motion if applicable), or the contentions contained herein are not frivolous as defined by 22 N.Y.C.R.R. 130-1.1(c). Christopher Santoro, Esq. 17-044305 - KiS 11 of 11