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NYSCEF
FILED DOC.
: CHAUTAUQUA
NO. 36 COUNTY CLERK 10 /31/2 017 0 4 : 17 PM| RECEIVED NYSCEF: 04/23/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017
SUPREME COURT OF THE STATE OF NEW YORK INDEX NO.
COUNTY OF CHAUTAUQUA
- - - - - - - - - - - - - - - - - - - - - - -X
KEYBANK, NATIONAL ASSOCIATION SUCCESSOR BY MERGER
WITH FIRST NIAGARA BANK, N.A.,
Plaintiff designates
Plaintiff, CHAUTAUQUA County as
the place of trial.
The basis of venue is
the situs of the real
property.
-against-
SUMMONS
AMY L. MORRISON AS EXECUTRIX OF THE ESTATE OF JANET
M. WARNER A/K/A JANET MARILYN WARNER, ALLISON M.
FUTCH AS POSSIBLE HEIR AND DISTRIBUTEE OF THE
ESTATE OF JANET M. WARNER A/K/A JANET MARILYN
WARNER, MOLLY J. MATHIS AS POSSIBLE HEIR AND
DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A
JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE
HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M.
WARNER A/K/A JANET MARILYN.WARNER, ELIZABETH A.
BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE
ESTATE OF JANET M. WARNER A/K/A JANET MARILYN
WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND
DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A
JANET MARILYN WARNER, UNITED STATES OF AMERICA
(WESTERN DISTRICT), PEOPLÈ OF THE STATE OF NEW
YORK, MARINE MIDLAND BANK, N.A., i CHRYSLER FINANCIAL
SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER
FINANCIAL SERVICES AMERICAS LLC, SOUTHERN
CHAUTAUQUA FEDERAL CREDIT UNION,
#1" #20,"
"JOHN ISOE through "JOHN DOE g20, the last
twenty names being fictitious and unknown to
plaintiff, the persons or parties intended being
the tenants, occupants, persons or corporations, if
any, having or claiming an interest in or lien upon
the premises, described in the complaint,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - X
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, if the complaint is not served with
this summons, to serve a notice of appearance on the Plaintiff's attorney
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â€
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within 20 days after the service of this summons, exclusive of the 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) in the event
the United States of America is made a party defendant, the time to answer
for the said United States of America shall not expire until (60) days
after service of the summons; 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.
Commencement of this lawsuit does not affect your rights as set forth
in the validation notice.
NOTICE
YOU ARE IN DANGER OF LOSING YOUR HOME
I f 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
.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 the mortgage company will not stop the 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: October 31, 2017
STAGG, i TERENZI, i CONFUSIONE & WABNIK, i LLP
Attorneyp for Plaintiff
BY:
Kath een Crean Maher
401 Fra in Avenue, Suite 300
Garden City, NY 11530
(516) 812-4500
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NYSCEFLED DOC.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CHAUTAUQUA
- - - - - - - - - - - - - - - - - - - - - - -X INDEX NO.
KEYBANK, i NATIONAL ASSOCIATION SUCCESSOR BY MERGER
WITH FIRST NIAGARA BANK, N.A.,
VERIFIED COMPLAINT
Plaintiff,
-against-
AMY L. MORRISON AS EXECUTRIX OF THE ESTATE OF JANET
M. WARNER A/K/A JANET MARILYN WARNER, f ALLISON M.
FUTCH AS POSSIBLE HEIR AND DISTRIBUTEE OF THE
ESTATE OF JANET M. WARNER A/K/A JANET MARILYN
WARNER, MOLLY J. MATHIS AS POSSIBLE HEIR AND
DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A
JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE
HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M.
WARNER A/K/A JANET MARILYN WARNER, ELIZABETH A.
BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE
ESTATE OF JANET M. WARNER A/K/A JANET MARILYN
WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND
DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A
JANET MARILYN WARNER, f UNITED STATES OF AMERICA
(WESTERN DISTRICT), PEOPLE OF THE STATE OF NEW
YORK, MARINE MIDLAND BANK, i N.A., f CHRYSLER FINANCIAL
SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER
FINANCIAL SERVICES AMERICAS LLC, 1 SOUTHERN
CHAUTAUQUA FEDERAL CREDIT UNION,
#1" #20,"
"JOHN DOE through "JOHN DOE the last
twenty names being fictitious and unknown to
plaintiff, the persons or parties intended being
the tenants, occupants, persons or corporations, if
any, having or claiming. an interest in or lien upon
the premises, described in the complaint,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - X
The complaint of the above-named plaintiff, by STAGG, TERENZI,
CONFUSIONE & WABNIK, LLP, its attorneys, alleges:
'
FOR A FIRST CAUSE OF ACTION
1. That at all times hereinafter mentioned, plaintiff was and
still is a national banking association, formed and existing under the laws
of the State of Ohio having its principal place of business at 127 Public
3 Qf 21
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Square, Cleveland, Ohio 44114 and is authorized to do business in the State
of New York.
2. On the 20th day of November, 2012 Robert Warner and Janet
Warner, duly executed and delivered to FIRST NIAGARA BANK, N.A. their Ultra
("Agreement"
Flex Home Equity Line of Credit Account Agreement ("Agreement") bearing the
said date, wherein and whereby they promised to repay to FIRST NIAGARA
BANK, N.A., its successors or assigns, the principal sum of $52,000.00 with
interest at the initial rate as set forth in the note.
3. The Agreement contained a clause that the mortgage dated the
same day as the Agreement protects the note holder from possible losses
which might result from failure to keep the promises made in the Agreement.
The Agreement also provides for the payment of late charges in the event
any payment becomes overdue for a period in excess of fifteen (15) days.
4. To secure the payment of the sum represented by the
Agreement, Robert James Warner and Janet Marilyn Warner duly executed and
i
delivered to FIRST NIAGARA BANK, N.A., on the 20th day of November, 2012
("
their Ultra Flex Home Equity Line of Credit Account Mortgage ("Mortgage").
dated and acknowledged on that day whereby they mortgaged to FIRST NIAGARA
BANK, N.A., its successors or assigns, the premises therein described as
set forth more fully on Schedule A annexed.
TOGETHER with. all fixtures and articles of personal property annexed to,
installed in, or used in connection with the mortgaged premises, all as is
more fully set forth in said mortgage.
5. The Mortgage was recorded in the office of the Clerk of the
County of CHAUTAUQUA on the 4th day of January, 2013 in Instrument #:
MT2013001046 and the mortgage recording tax thereon was duly paid.
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6. The Mortgage accompanying the Agreement provided for monthly
installment payments for taxes, etc., as set forth in the mortgage.
7. The Mortgage provided, among other things, that the total
indebtedness shall become due at the option of the holder of the said
mortgage after failure to keep any promise .or
or agreement in the Mortgage
including the promise to pay when due the amounts owed to the lender under
the Agreement and under the mortgage.
8. Plaintiff is in physical possession of the Agreement, the
mortgagee of record and has the authority to foreclose.
9. Copies of the loan documents are annexed collectively as
"1"
Exhibit and made a part hereof.
10. Defendant failed to comply with the terms, covenants and
conditions of the Agreement and Mortgage by defaulting in their monthly
payments due September 15, 2016 and monthly thereafter as set forth in
the Agreement and Mortgage.
!
11. By reason of such defaults, the plaintiff, KeyBank, N.A.,
as successor by merger to FIRST NIAGARA BANK, N.A., does hereby elect to
declares the balance of the principal indebtedness .immediately due and
payable.
12. There is now due and owing to the plaintiff, the principal
sum of $47,668.30 with interest thereon from the 15th day of August, 2016
plus accumulated late charges, together with any sums advanced by the
plaintiff on behalf of defendant.
13. Plaintiff has complied with all conditions precedent
contained in.the mortgage, if any, including but not limited to, sending a
notice to the mortgagor to cure the default.
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14. Pursuant to Real Property Actions and Proceedings Law
("RPAPL") Section 1304, by notice dated April 12, 2017, plaintiff sent
defendant a ninety (90) day notice.
15. As of the commencement of this action, plaintiff has complied
with Section 1306 of the RPAPL.
16. To protect its security afforded by the note and mortgage, it
may be necessary for plaintiff to pay taxes, assessments and water rates
which are, or may become liens on the mortgaged premises, and any other
charges for the protection of the premises, and plaintiff hereby demands
that any amounts which may be so expended shall be added to the amount of
the principal sum secured by said Agreement and Mortgage, together with
interest from the time of any such payment, and that the same be paid to
the plaintiff from the proceeds of the foreclosure sale herein.
17. The Plaintiff alleges that no other proceedings have been
had for the recovery of the sum secured by the Agreement and Mortgage or
any part thereof.
18. The premises and title thereto are subject to the
following:
a) The state of facts an accurate survey will show;
b) All covenants, restrictions, easements, agreements and reservations,
if any, of record, and to any and all violations thereof;
c) Any and all building and zoning regulations, restrictions and
ordinances of the municipality in which said premises are situated,
and to any violations of the same, including, but not limited to,
reapportionment of lot lines, and vault charges, if any;
d) Any and all orders or requirements issued by any governmental body
having jurisdiction against or affecting said premises and any
violation of the same,
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e) The physical condition of the premises, including any building or
structure on the premises as of the date of closing hereunder;
f) Rights of tenants in possession, if any;
g) Prior mortgages and judgments, if any, now liens of record, including
but not limited to mortgage recorded on in ;
h) Right of Redemption of United States of America, if any;
i) Rights of any defendants pursuant to CPLR Section 317, CPLR Section
2003 and CPLR Section 5015, if any;
j) Rights afforded to tenants pursuant to RPAPL Section 1303 and 1305,
if any;
k) Any and all Hazardous Materials in the premises including, but not
limited to, flammable explosives, radioactive materials, hazardous
wastes, asbestos or any material containing asbestos, and toxic
substances; and
1) Other conditions as set forth in the terms of sale more particularly
to be announced at the sale.
19. The Plaintiff further alleges that all the defendants have,
or may claim to have, some interest in, or lien upon the mortgaged
premises, or some part thereof, which interest or lien, if any, is subject
and subordinate to the lien of the mortgage being foreclosed.
20. Plaintiff shall not be deemed to have waived, altered,
released or changed the election to accelerate the debt by reason of any
the'
. payment made after the date of the commencement 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 any
and all future defaults under the Agreement and Mortgage, and occurring
prior to the discontinuance of this action are fully paid.
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21. The terms of the mortgage provide that defendants shall be
liable to plaintiff for reasonable attorney's fees incurred by plaintiff to
protect or enforce plaintiff's security interest in the premises.
22. The UNI TED STATES OF AMERICA is named a party defendant
herein to bar it from any right, title, claim or interest it may have in
the premises being foreclosed by virtue of federal estate taxes due and
owing from THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER whose
th
date of death was the 8 september, 2016, which taxes, if any, are subject
and subordinate to lien of plaintiff's mortgage being foreclosed and by
virtue of the federal tax lien on the real property described below:
SEE COPY OF LIEN ANNEXED HERETO
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CHAUTAUQUACOUNTY-STATEOFNEW - YORK
9
SANDRAK.SOPAKCOUNTY CLERK
1 NorthErieSt,POBox170,MayvUIe,NewYork14757
COUNTYCLERK'SRECORDINGPAGE
***THISPAGEISPARTOFTHEDOCUMENT-DONOTDETACH"*
THE DOCUMENT --DO
PAGE
PAQE IS PART
lS OF DOCLlWST DO NOT DETACH
Recording:
Federal Tax Lien 40.00
I
Total: 40.00
**** NOTICE: THIS IS NOT A BILL ****
INSTRUMENT #: 302013003224
Receipt#: 201306080563
clerk: KAS
-- Rec Date: 05/07/2013 12:35:00 PM -
Doc Grp: 3
Descrip: FEDERAL TX LIEN
Num Pgs: 2
'
Rec d Frm: IRS
Party1: INTERNAL REVENUE SERVICE
Party2: WARNER ROBERT M
WARNING***
I hereby certify
that the within
and foregoing was
recorded in the Chautauqua County Clet's
Record and Return To: Of&ce,StateofNewYork.
This sheetconstitutestheClerks endorsement
required by Section 316 of the Real Property Law
of the State of New Yo&
Sandra K Sopsk
Chaubuulua County
Clurutauqus Clerk Qi
'1
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11874
Department of theTreasury - Internal
Revenue Service
Fona 668 (Y)(c)
(Rev.February2004) Notice of Federal Tax Lten
..
Area: SerialNurnber For OptionalUse by RecorOffice
SMALL BUSINESB/SELF EMPLOYED AREA #2
Lien Unit Phone: (800) 913-60S0 935578013
As provided by section 6321, 6322, and 6323 of the Internal Revenue
Code, we aregiving a notke that taxes (including interestand penakies)
have been assessed against the foBowing-nanged taxpayer. Wehave made
a demand for payment of this but
liability, k remains anpaid. brefore, gg
there isa lienin favor of the United States on all property and rights to G c
property belonging to thistaxpayer for the aemount of these taxes, and
additional penakles, laterest,and costs that may acaue. --c
l
Narne of Taxpayer ROBERT M WARNER ---s o
oPl
i
Residence 327 WILLARD STREET
JAMESTOWN, NY 14701 d
IMPORTANT RELEASE.INFORMATIONt For each assessmentlisted
below,
unlessnoticeof the'lien by the date given
is refiled in column(e), this
noticeshall,
on the day followingsuch date, operateas of
a cettificate release as defined
in IRC 6325(a).
Tax Period Date of Last Say for U Balance
Kind of Tax Ending IdentifyingNumber Assessment of Assessnaent
(a) (b) (c) (d) (e) (f)
940 12/31/2010 25-1888678 11/12/2012 12/12/2022 1419.70
941 03/31/2010 25-1888678 11/05/2012 12/05/2022 2094.48
941 06/30/2010 25-1888678 11/05/2012 12/05/2022 2260.92
941 12/31/2010 25-1888678 . 11/19/2012 12/19/2022 407.46
L
Place ofFiling
COUNTY CLERK
.CLERK
CHAUTAUQUA COURT HSE Total $ 6182 . 56
MAYVILLE, NY 14757
This noticewas prepared and signed at
MANHAmN , M . , onthis,
24th APril 2013
the day of
Signature Title
REVENUE OFFICER 22-06-2122
g for JENNY STIERHEIM (814) 453-4615
(NOTEt Certificate of officer authortrad by taw to take acknowledgment is not essential to the validity of Nodce of FederalTax lien
1977 - 2 C.B. 4061
Rev, flut. 71-466.
Farm468 (c) v 2 )
Part I - f(aec ® nscasd)ae Ofnc
CAT. a(O60025X
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23. The PEOPLE OF THE STATE OF NEW YORK is named a party
defendant herein to bar it from any right, title, claim or interest it may
have in the premises being foreclosed by reason of the fact that there may
be outstanding New York State Estate Taxes due and owing from the ESTATE OF
th
JANET M. WARNER A/K/A JANET MARILYN WARNER whose date of death was the 8
September, 2016, and for no other reason.
AS AND FOR A SECOND CAUSE OF ACTION
24. Plaintiff repeats and realleges each and every allegation
contained in the paragraphs 1 through 23.
25. This action is brought pursuant to Article 15 of the New
York Real Property Actions and Proceedings Law ("RPAPL") to bar defendant
MARINE MIDLAND BANK, N.A. from any right, title or interest in and to the
premises commonly known as 604 Big Tree Sugar Grove Road, Jamestown, New
York, and also known by Section: 436; Block: 1, and Lot 41.
26. Plaintiff is the holder of the Ultra Flex Home Equity Line
("Agreement"
of Credit Account Agreement ("Agreement") and the Ultra Flex Home Equity
("Mortgage"
Line of Credit Account Mortgage ("Mortgage") referenced in paragraphs 2 and
4 above.
27. Upon review of a foreclosure search it was determined that
MARINE MIDLAND BANK, N.A. has interests or claims in the real property
which cannot be extinguished in the foreclosure action.
28. MARINE MIDLAND BANK, N.A. is named a party defendant by
virtue of the fact that it holds two prior mortgages which are adverse to
Plaintiff's interest and which remain open of record:
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I. Mortgage Dated: May, 29, 1981; Recorded: June 11, 1981 in the Office
of'
of the Clerk of the County of Chautauqua at Liber: 1558 Page: 286;
and
II. Mortgage Dated: May, 29, 1981; Recorded: June 24, 1981 in the Office
of the Clerk of the County of Chautauqua at Liber: 1559 Page: 202.
29. Upon information and belief, all of the defendants are
known, and none of them are infants, mentally retarded, mentally ill or
alcohol abusers.
30. Upon information and belief, there are no persons not in
being or ascertained at the commencement of this action who by any
contingency contained in a devise or otherwise, could afterward become
entitled to a beneficial estate or interest in the property involved in
this action, and any judgment rendered herein will not and may not affect
any such person not in being or not ascertained at the time of the
commencement of this action.
31. The senior mortgages of Defendant MIDLAND BANK, N.A appear
to be prior and adverse to the mortgage being foreclosed and are subject to
be declared invalid and extinguished
Preview
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WARNER A/K/A JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN.WARNER, ELIZABETH A. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, UNITED STATES OF AMERICA (WESTERN DISTRICT), PEOPLÈ OF THE STATE OF NEW YORK, MARINE MIDLAND BANK, N.A., i CHRYSLER FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS LLC, SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION, #1" #20," "JOHN ISOE through "JOHN DOE g20, the last twenty names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants. - - - - - - - - - - - - - - - - - - - - - - X 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, if the complaint is not served with this summons, to serve a notice of appearance on the Plaintiff's attorney 1 of 21 †FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO. EK12017001406 FILED: NYSCEF DOC. CHAUTAUQUA NO. 36 COUNTY CLERK 10/31/2017 04:17 PM) RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 within 20 days after the service of this summons, exclusive of the 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) in the event the United States of America is made a party defendant, the time to answer for the said United States of America shall not expire until (60) days after service of the summons; 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. Commencement of this lawsuit does not affect your rights as set forth in the validation notice. NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME I f 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 .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 the mortgage company will not stop the 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: October 31, 2017 STAGG, i TERENZI, i CONFUSIONE & WABNIK, i LLP Attorneyp for Plaintiff BY: Kath een Crean Maher 401 Fra in Avenue, Suite 300 Garden City, NY 11530 (516) 812-4500 2 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO. EKl2017001406 FI NYSCEFLED DOC. : CHAUTAUQUA NO. 36 COUNTY CLERK 10 /31/2 017 0 4 : 17 PM| RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CHAUTAUQUA - - - - - - - - - - - - - - - - - - - - - - -X INDEX NO. KEYBANK, i NATIONAL ASSOCIATION SUCCESSOR BY MERGER WITH FIRST NIAGARA BANK, N.A., VERIFIED COMPLAINT Plaintiff, -against- AMY L. MORRISON AS EXECUTRIX OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, f ALLISON M. FUTCH AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, MOLLY J. MATHIS AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ELIZABETH A. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, f UNITED STATES OF AMERICA (WESTERN DISTRICT), PEOPLE OF THE STATE OF NEW YORK, MARINE MIDLAND BANK, i N.A., f CHRYSLER FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS LLC, 1 SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION, #1" #20," "JOHN DOE through "JOHN DOE the last twenty names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming. an interest in or lien upon the premises, described in the complaint, Defendants. - - - - - - - - - - - - - - - - - - - - - - X The complaint of the above-named plaintiff, by STAGG, TERENZI, CONFUSIONE & WABNIK, LLP, its attorneys, alleges: ' FOR A FIRST CAUSE OF ACTION 1. That at all times hereinafter mentioned, plaintiff was and still is a national banking association, formed and existing under the laws of the State of Ohio having its principal place of business at 127 Public 3 Qf 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO. EKl2 017001406 NYSCEF FILED DOC. : CHAUTAUQUA NO. 36 COUNTY CLERK 10 /31/2 017 04 : 17 PM) RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 Square, Cleveland, Ohio 44114 and is authorized to do business in the State of New York. 2. On the 20th day of November, 2012 Robert Warner and Janet Warner, duly executed and delivered to FIRST NIAGARA BANK, N.A. their Ultra ("Agreement" Flex Home Equity Line of Credit Account Agreement ("Agreement") bearing the said date, wherein and whereby they promised to repay to FIRST NIAGARA BANK, N.A., its successors or assigns, the principal sum of $52,000.00 with interest at the initial rate as set forth in the note. 3. The Agreement contained a clause that the mortgage dated the same day as the Agreement protects the note holder from possible losses which might result from failure to keep the promises made in the Agreement. The Agreement also provides for the payment of late charges in the event any payment becomes overdue for a period in excess of fifteen (15) days. 4. To secure the payment of the sum represented by the Agreement, Robert James Warner and Janet Marilyn Warner duly executed and i delivered to FIRST NIAGARA BANK, N.A., on the 20th day of November, 2012 (" their Ultra Flex Home Equity Line of Credit Account Mortgage ("Mortgage"). dated and acknowledged on that day whereby they mortgaged to FIRST NIAGARA BANK, N.A., its successors or assigns, the premises therein described as set forth more fully on Schedule A annexed. TOGETHER with. all fixtures and articles of personal property annexed to, installed in, or used in connection with the mortgaged premises, all as is more fully set forth in said mortgage. 5. The Mortgage was recorded in the office of the Clerk of the County of CHAUTAUQUA on the 4th day of January, 2013 in Instrument #: MT2013001046 and the mortgage recording tax thereon was duly paid. 4 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX EKl2017001406 NYSCEF FILED: DOC. CHAUTAUQUA NO. 36 COUNTY CLERK 10/31/2017 04:17 PM| RECEIVED NO. NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 6. The Mortgage accompanying the Agreement provided for monthly installment payments for taxes, etc., as set forth in the mortgage. 7. The Mortgage provided, among other things, that the total indebtedness shall become due at the option of the holder of the said mortgage after failure to keep any promise .or or agreement in the Mortgage including the promise to pay when due the amounts owed to the lender under the Agreement and under the mortgage. 8. Plaintiff is in physical possession of the Agreement, the mortgagee of record and has the authority to foreclose. 9. Copies of the loan documents are annexed collectively as "1" Exhibit and made a part hereof. 10. Defendant failed to comply with the terms, covenants and conditions of the Agreement and Mortgage by defaulting in their monthly payments due September 15, 2016 and monthly thereafter as set forth in the Agreement and Mortgage. ! 11. By reason of such defaults, the plaintiff, KeyBank, N.A., as successor by merger to FIRST NIAGARA BANK, N.A., does hereby elect to declares the balance of the principal indebtedness .immediately due and payable. 12. There is now due and owing to the plaintiff, the principal sum of $47,668.30 with interest thereon from the 15th day of August, 2016 plus accumulated late charges, together with any sums advanced by the plaintiff on behalf of defendant. 13. Plaintiff has complied with all conditions precedent contained in.the mortgage, if any, including but not limited to, sending a notice to the mortgagor to cure the default. 5 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO. EKl2017001406 NYSCEF [FILED: DOC. CHAUTAUQUA NO. 36 COUNTY CLERK 10/31/2017 04:17 PM RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 14. Pursuant to Real Property Actions and Proceedings Law ("RPAPL") Section 1304, by notice dated April 12, 2017, plaintiff sent defendant a ninety (90) day notice. 15. As of the commencement of this action, plaintiff has complied with Section 1306 of the RPAPL. 16. To protect its security afforded by the note and mortgage, it may be necessary for plaintiff to pay taxes, assessments and water rates which are, or may become liens on the mortgaged premises, and any other charges for the protection of the premises, and plaintiff hereby demands that any amounts which may be so expended shall be added to the amount of the principal sum secured by said Agreement and Mortgage, together with interest from the time of any such payment, and that the same be paid to the plaintiff from the proceeds of the foreclosure sale herein. 17. The Plaintiff alleges that no other proceedings have been had for the recovery of the sum secured by the Agreement and Mortgage or any part thereof. 18. The premises and title thereto are subject to the following: a) The state of facts an accurate survey will show; b) All covenants, restrictions, easements, agreements and reservations, if any, of record, and to any and all violations thereof; c) Any and all building and zoning regulations, restrictions and ordinances of the municipality in which said premises are situated, and to any violations of the same, including, but not limited to, reapportionment of lot lines, and vault charges, if any; d) Any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises and any violation of the same, 6 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO. EKl2017001406 FILED : CHAUTAUQUA COUNTY CLERK 10 /31/2 017 0 4 : 17 PM| NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 e) The physical condition of the premises, including any building or structure on the premises as of the date of closing hereunder; f) Rights of tenants in possession, if any; g) Prior mortgages and judgments, if any, now liens of record, including but not limited to mortgage recorded on in ; h) Right of Redemption of United States of America, if any; i) Rights of any defendants pursuant to CPLR Section 317, CPLR Section 2003 and CPLR Section 5015, if any; j) Rights afforded to tenants pursuant to RPAPL Section 1303 and 1305, if any; k) Any and all Hazardous Materials in the premises including, but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or any material containing asbestos, and toxic substances; and 1) Other conditions as set forth in the terms of sale more particularly to be announced at the sale. 19. The Plaintiff further alleges that all the defendants have, or may claim to have, some interest in, or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, is subject and subordinate to the lien of the mortgage being foreclosed. 20. Plaintiff shall not be deemed to have waived, altered, released or changed the election to accelerate the debt by reason of any the' . payment made after the date of the commencement 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 any and all future defaults under the Agreement and Mortgage, and occurring prior to the discontinuance of this action are fully paid. 7 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO . EKl2 0170 014 06 FILED: NYSCEF DOC. CHAUTAUQUA NO. 36 COUNTY CLERK 10/31/2017 04:17 PM) RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 21. The terms of the mortgage provide that defendants shall be liable to plaintiff for reasonable attorney's fees incurred by plaintiff to protect or enforce plaintiff's security interest in the premises. 22. The UNI TED STATES OF AMERICA is named a party defendant herein to bar it from any right, title, claim or interest it may have in the premises being foreclosed by virtue of federal estate taxes due and owing from THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER whose th date of death was the 8 september, 2016, which taxes, if any, are subject and subordinate to lien of plaintiff's mortgage being foreclosed and by virtue of the federal tax lien on the real property described below: SEE COPY OF LIEN ANNEXED HERETO 8 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 I ND EX NO . E Kl2 0 1 7 OO1 4 O6 FILED: NYSCEF DOC. CHAUTAUQUA NO. 36 COUNTY CLERK 10 /31/2 017 0 4 : 17 PM| RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 CHAUTAUQUACOUNTY-STATEOFNEW - YORK 9 SANDRAK.SOPAKCOUNTY CLERK 1 NorthErieSt,POBox170,MayvUIe,NewYork14757 COUNTYCLERK'SRECORDINGPAGE ***THISPAGEISPARTOFTHEDOCUMENT-DONOTDETACH"* THE DOCUMENT --DO PAGE PAQE IS PART lS OF DOCLlWST DO NOT DETACH Recording: Federal Tax Lien 40.00 I Total: 40.00 **** NOTICE: THIS IS NOT A BILL **** INSTRUMENT #: 302013003224 Receipt#: 201306080563 clerk: KAS -- Rec Date: 05/07/2013 12:35:00 PM - Doc Grp: 3 Descrip: FEDERAL TX LIEN Num Pgs: 2 ' Rec d Frm: IRS Party1: INTERNAL REVENUE SERVICE Party2: WARNER ROBERT M WARNING*** I hereby certify that the within and foregoing was recorded in the Chautauqua County Clet's Record and Return To: Of&ce,StateofNewYork. This sheetconstitutestheClerks endorsement required by Section 316 of the Real Property Law of the State of New Yo& Sandra K Sopsk Chaubuulua County Clurutauqus Clerk Qi '1 9 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 F ILED : CHAUTAUQUA COUNTY CLERK 10 /3 1/2 0 17 04 : 17 INDEX. NO. EK12 0170014 O6 NYSCEF DOC. NO. 36 PM) RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 11874 Department of theTreasury - Internal Revenue Service Fona 668 (Y)(c) (Rev.February2004) Notice of Federal Tax Lten .. Area: SerialNurnber For OptionalUse by RecorOffice SMALL BUSINESB/SELF EMPLOYED AREA #2 Lien Unit Phone: (800) 913-60S0 935578013 As provided by section 6321, 6322, and 6323 of the Internal Revenue Code, we aregiving a notke that taxes (including interestand penakies) have been assessed against the foBowing-nanged taxpayer. Wehave made a demand for payment of this but liability, k remains anpaid. brefore, gg there isa lienin favor of the United States on all property and rights to G c property belonging to thistaxpayer for the aemount of these taxes, and additional penakles, laterest,and costs that may acaue. --c l Narne of Taxpayer ROBERT M WARNER ---s o oPl i Residence 327 WILLARD STREET JAMESTOWN, NY 14701 d IMPORTANT RELEASE.INFORMATIONt For each assessmentlisted below, unlessnoticeof the'lien by the date given is refiled in column(e), this noticeshall, on the day followingsuch date, operateas of a cettificate release as defined in IRC 6325(a). Tax Period Date of Last Say for U Balance Kind of Tax Ending IdentifyingNumber Assessment of Assessnaent (a) (b) (c) (d) (e) (f) 940 12/31/2010 25-1888678 11/12/2012 12/12/2022 1419.70 941 03/31/2010 25-1888678 11/05/2012 12/05/2022 2094.48 941 06/30/2010 25-1888678 11/05/2012 12/05/2022 2260.92 941 12/31/2010 25-1888678 . 11/19/2012 12/19/2022 407.46 L Place ofFiling COUNTY CLERK .CLERK CHAUTAUQUA COURT HSE Total $ 6182 . 56 MAYVILLE, NY 14757 This noticewas prepared and signed at MANHAmN , M . , onthis, 24th APril 2013 the day of Signature Title REVENUE OFFICER 22-06-2122 g for JENNY STIERHEIM (814) 453-4615 (NOTEt Certificate of officer authortrad by taw to take acknowledgment is not essential to the validity of Nodce of FederalTax lien 1977 - 2 C.B. 4061 Rev, flut. 71-466. Farm468 (c) v 2 ) Part I - f(aec ® nscasd)ae Ofnc CAT. a(O60025X 10 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO. EKl2017001406 FILED: NYSCEF DOC. CHAUTAUQUA NO. 36 COUNTY CLERK 10/31/2017 04:17 PM| RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 23. The PEOPLE OF THE STATE OF NEW YORK is named a party defendant herein to bar it from any right, title, claim or interest it may have in the premises being foreclosed by reason of the fact that there may be outstanding New York State Estate Taxes due and owing from the ESTATE OF th JANET M. WARNER A/K/A JANET MARILYN WARNER whose date of death was the 8 September, 2016, and for no other reason. AS AND FOR A SECOND CAUSE OF ACTION 24. Plaintiff repeats and realleges each and every allegation contained in the paragraphs 1 through 23. 25. This action is brought pursuant to Article 15 of the New York Real Property Actions and Proceedings Law ("RPAPL") to bar defendant MARINE MIDLAND BANK, N.A. from any right, title or interest in and to the premises commonly known as 604 Big Tree Sugar Grove Road, Jamestown, New York, and also known by Section: 436; Block: 1, and Lot 41. 26. Plaintiff is the holder of the Ultra Flex Home Equity Line ("Agreement" of Credit Account Agreement ("Agreement") and the Ultra Flex Home Equity ("Mortgage" Line of Credit Account Mortgage ("Mortgage") referenced in paragraphs 2 and 4 above. 27. Upon review of a foreclosure search it was determined that MARINE MIDLAND BANK, N.A. has interests or claims in the real property which cannot be extinguished in the foreclosure action. 28. MARINE MIDLAND BANK, N.A. is named a party defendant by virtue of the fact that it holds two prior mortgages which are adverse to Plaintiff's interest and which remain open of record: 11 of 21 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 INDEX NO. EKl2 017 0 0140 6 FILED: CHAUTAUQUA COUNTY CLERK 10/31/2017 04:17 PM| NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/23/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017 I. Mortgage Dated: May, 29, 1981; Recorded: June 11, 1981 in the Office of' of the Clerk of the County of Chautauqua at Liber: 1558 Page: 286; and II. Mortgage Dated: May, 29, 1981; Recorded: June 24, 1981 in the Office of the Clerk of the County of Chautauqua at Liber: 1559 Page: 202. 29. Upon information and belief, all of the defendants are known, and none of them are infants, mentally retarded, mentally ill or alcohol abusers. 30. Upon information and belief, there are no persons not in being or ascertained at the commencement of this action who by any contingency contained in a devise or otherwise, could afterward become entitled to a beneficial estate or interest in the property involved in this action, and any judgment rendered herein will not and may not affect any such person not in being or not ascertained at the time of the commencement of this action. 31. The senior mortgages of Defendant MIDLAND BANK, N.A appear to be prior and adverse to the mortgage being foreclosed and are subject to be declared invalid and extinguished