On October 31, 2017 a
Exhibit,Appendix
was filed
involving a dispute between
Keybank, National Association Successor By Merger With First Niagara Bank, N.A.,
and
Allison M. Futch As Possible Heir And Distributee Of The Estate Of Janet M. Warner A K A Janet Marilyn Warner,
Amy L. Morrison As Executrix 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,
Chrysler Financial Services Americas Llc F K A Daimler Chrysler Financial Services Americas Llc,
Elizabeth A. Barker As Possible Heir And Distributee Of The Estate Of Janet M. Warner A K A Janet Marilyn Warner,
John Doe #1 Through John Doe #20, 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,
Marine Midland Bank, N.A.,
Molly J. Mathis As Possible Heir And Distributee Of The Estate Of Janet M. Warner A K A Janet Marilyn Warner,
People Of The State Of New York,
Robert A. Lyon As Possible Heir And Distributee Of The Estate Of Janet M. Warner A K A Janet Marilyn Warner,
Southern Chautauqua Federal Credit Union,
United States Of America,
for Real Property - Mortgage Foreclosure - Residential
in the District Court of Chautauqua County.
Preview
FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018
FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CHAUTAUQUA
- - - - - - - - - - - - - - - - - - - - -X INDEX NO.
KEYBANK, NATIONAL ASSOCIATION SUCCESSOR BY
MERGER WITH FIRST NIAGARA BANK, N.A.,
AFFIDAVIT IN
Plaintiff, SUPPORT OF ORDER
OF REFERENCE
-against-
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), PEOPLE OF THE STATE OF
NEW YORK, MARINE MIDLAND BANK, N.A.,
CHRYSLER FINANCIAL SERVICES AMERICAS LLC
F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES
AMERICAS LLC, 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
STATE OF 0k) VorK )
) SS.:
COUNTY OF ~<~ ~ )
r
C€(\A (bVS 6, , being duly sworn
deposes and says that:
FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018
1. I am the ( of KEYBANK, N.A. (hereafter
"Plaintiff"
"Plaintiff"). I am authorized to sign the affidavit on behalf of
Plaintiff. I have personal knowledge of the matters set forth herein
based on my review of the note, mortgage and other loan documents
related to this action and of business records of Plaintiff related
thereto, which records were made at or near the time of the event
described therein by, or from information transmitted by, a person
with knowledge of the event described therein. I am personally
familiar with Plaintiff'
Plaintiff's record practices and procedures.
keeping
Such business records are kept in the ordinary course of the regularly
conducted business activity of such person and/or Plaintiff, and it is
the regular practice of Plaintiff to make and keep such business
records.
2. I make this affidavit in support of Plaintiff's
application for an Order of Reference.
3. On the 20th day of November, 2012 Robert Warner and
Janet M. Warner, duly executed and delivered to FIRST NIAGARA.BANK,
N.A. their Ultra Flex Home Equity Line of Credit Account Agreement
("Agreement" the said wherein and promised
("Agreement") bearing date, whereby they
to repay to FIRST NIAGARA BANK, N.A. its successors or assigns, the
principal sum of $52,000.00 with interest as set forth in the note.
4. To secure the payment of the sum represented by the
Agreement, Robert James Warner and Janet Marilyn Warner, duly executed
and delivered to FIRST NIAGARA BANK, N.A. on the 20th day of November,
2012, their Ultra Flex Home Equity Line of Credit Account Mortgage
FILED: CHAUTAUQUA
. COUNTY CLERK 04/23/2018 . 12:59 PM INDEX NO. EK12017001406
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018
("Mortgage"
("Mortgage") dated and acknowledged on that day whereby they mortgaged
to FIRST NIAGARA BANK, N.A. its successors or assigns, the premises
located at 604 Big Tree SugarGrove Rd., Jamestown, NY 14701 (the
"Premises"
"Premises") and more fully described in the verified complaint.
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.
6. The Plaintiff is in physical possession of the
Agreement, having been physically delivered to Plaintiff on
C)-() . Plaintiff is the mortgagee of record and has the
authority to foreclose. See Exhibit "B".
7. Plaintiff has not assigned, transferred or sold the
note and mortgage.
8. Robert Warner and Janet Warner failed to comply with
the terms of the Agreement and Mortgage by defaulting in their monthly
payments due on September 15, 2016 and on the first day of each month
thereafter as set forth on the Agreement and Mortgage. (See Exhibit
"A").
9. In accordance with Real Property Actions and
Proceedings Law Section 1304, on April 12, 2017, Plaintiff forwarded a
ninety (90) day notice to the mortgagor(s) and obligor(s) by certified
and first class mail. The letter was not returned to Plaintiff as
undeliverable. Moreover, at no time did the mortgagor(s) and
obligor(s) inform Plaintiff of a change in address. (Copies of the
notices and proof of mailing are annexed as Exhibit F).
FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018
10. In accordance with RPAPL Section 1306, the requisite
information was filed with the Superintendent of Banks within three
(3) business days after the mailing of the ninety (90) day notice. (A
copy of the proof of filing statement is annexed as Exhibit F ).
11. By letter dated January 14, 2017
Plaintiff forwarded to the mortgagor(s) a thirty (30) day
notice advising the mortgagors of, inter alia, the default, the action
necessary to cure the default, the time within which to cure said
default, and that failure to do so may result in acceleration of the
'
mortgage obligation. The notice of default was sent to the
mortgagor(s) by first class mail to the mailing address pursuant to
the terms of the mortgage. The letter was not returned as
undeliverable. In addition, at no time did the mortgagor
inform Plaintiff of a change in address. (A copy of the letter is
annexed as Exhibit E).
12. As a result of the defendant's default, Plaintiff
declared the entire balance immediately due and payable. (See
paragraph 11 of complaint annexed as Exhibit "A").
13. There is now due and owing to Plaintiff the principal
sum of $47,668.30 with interest thereon from August 15, 2016. (See
Exhibit "A"). .
14. There have been no other proceedings for the recovery
of the sum secured by the note and mortgage or any part thereof (See
"A"
Exhibit ) .
FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018
15. THEREFORE, I request that Plaintiff's application for
the appointment of a referee to compute the amount due under the note
and mortgage be granted.
Swo n to before me this
Ith koMLO
'5~1'-<+
0$~
018
Yum0A ERIN A. MESMER
NOTARY PUBLIC State of New York
Notary Public,
No. 01ME6102743
Reg.
Qualified inErie County
Commission Expires December10, 2
My
State of )
County of ) ss.
On the day o in the year be f ore me,
20\
the undersigned, perso ally appeared
& , personally known to me or
proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is(are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity(ies), that by his/her/their signature(s) on
the instrument, the individual(s), or the person upon behalf of which
the individual(s) acted, executed the instrument; and that such
individual made such appearance before the undersigned in the
Arnberst ,
OM .
(insert the city and the state or country the acknowledgment was
taken)
Notary Signature
ERIN A. MESMER
Notary Public,State of New York
Reg. No. 01ME6102743
Qualified inErieCounty
My Commission ExpiresDecember 10,~~
Preview
FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018 FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CHAUTAUQUA - - - - - - - - - - - - - - - - - - - - -X INDEX NO. KEYBANK, NATIONAL ASSOCIATION SUCCESSOR BY MERGER WITH FIRST NIAGARA BANK, N.A., AFFIDAVIT IN Plaintiff, SUPPORT OF ORDER OF REFERENCE -against- 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), PEOPLE OF THE STATE OF NEW YORK, MARINE MIDLAND BANK, N.A., CHRYSLER FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS LLC, 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 STATE OF 0k) VorK ) ) SS.: COUNTY OF ~<~ ~ ) r C€(\A (bVS 6, , being duly sworn deposes and says that: FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018 1. I am the ( of KEYBANK, N.A. (hereafter "Plaintiff" "Plaintiff"). I am authorized to sign the affidavit on behalf of Plaintiff. I have personal knowledge of the matters set forth herein based on my review of the note, mortgage and other loan documents related to this action and of business records of Plaintiff related thereto, which records were made at or near the time of the event described therein by, or from information transmitted by, a person with knowledge of the event described therein. I am personally familiar with Plaintiff' Plaintiff's record practices and procedures. keeping Such business records are kept in the ordinary course of the regularly conducted business activity of such person and/or Plaintiff, and it is the regular practice of Plaintiff to make and keep such business records. 2. I make this affidavit in support of Plaintiff's application for an Order of Reference. 3. On the 20th day of November, 2012 Robert Warner and Janet M. Warner, duly executed and delivered to FIRST NIAGARA.BANK, N.A. their Ultra Flex Home Equity Line of Credit Account Agreement ("Agreement" the said wherein and promised ("Agreement") bearing date, whereby they to repay to FIRST NIAGARA BANK, N.A. its successors or assigns, the principal sum of $52,000.00 with interest as set forth in the note. 4. To secure the payment of the sum represented by the Agreement, Robert James Warner and Janet Marilyn Warner, duly executed and delivered to FIRST NIAGARA BANK, N.A. on the 20th day of November, 2012, their Ultra Flex Home Equity Line of Credit Account Mortgage FILED: CHAUTAUQUA . COUNTY CLERK 04/23/2018 . 12:59 PM INDEX NO. EK12017001406 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018 ("Mortgage" ("Mortgage") dated and acknowledged on that day whereby they mortgaged to FIRST NIAGARA BANK, N.A. its successors or assigns, the premises located at 604 Big Tree SugarGrove Rd., Jamestown, NY 14701 (the "Premises" "Premises") and more fully described in the verified complaint. 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. 6. The Plaintiff is in physical possession of the Agreement, having been physically delivered to Plaintiff on C)-() . Plaintiff is the mortgagee of record and has the authority to foreclose. See Exhibit "B". 7. Plaintiff has not assigned, transferred or sold the note and mortgage. 8. Robert Warner and Janet Warner failed to comply with the terms of the Agreement and Mortgage by defaulting in their monthly payments due on September 15, 2016 and on the first day of each month thereafter as set forth on the Agreement and Mortgage. (See Exhibit "A"). 9. In accordance with Real Property Actions and Proceedings Law Section 1304, on April 12, 2017, Plaintiff forwarded a ninety (90) day notice to the mortgagor(s) and obligor(s) by certified and first class mail. The letter was not returned to Plaintiff as undeliverable. Moreover, at no time did the mortgagor(s) and obligor(s) inform Plaintiff of a change in address. (Copies of the notices and proof of mailing are annexed as Exhibit F). FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018 10. In accordance with RPAPL Section 1306, the requisite information was filed with the Superintendent of Banks within three (3) business days after the mailing of the ninety (90) day notice. (A copy of the proof of filing statement is annexed as Exhibit F ). 11. By letter dated January 14, 2017 Plaintiff forwarded to the mortgagor(s) a thirty (30) day notice advising the mortgagors of, inter alia, the default, the action necessary to cure the default, the time within which to cure said default, and that failure to do so may result in acceleration of the ' mortgage obligation. The notice of default was sent to the mortgagor(s) by first class mail to the mailing address pursuant to the terms of the mortgage. The letter was not returned as undeliverable. In addition, at no time did the mortgagor inform Plaintiff of a change in address. (A copy of the letter is annexed as Exhibit E). 12. As a result of the defendant's default, Plaintiff declared the entire balance immediately due and payable. (See paragraph 11 of complaint annexed as Exhibit "A"). 13. There is now due and owing to Plaintiff the principal sum of $47,668.30 with interest thereon from August 15, 2016. (See Exhibit "A"). . 14. There have been no other proceedings for the recovery of the sum secured by the note and mortgage or any part thereof (See "A" Exhibit ) . FILED: CHAUTAUQUA COUNTY CLERK 04/23/2018 12:59 PM INDEX NO. EK12017001406 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/23/2018 15. THEREFORE, I request that Plaintiff's application for the appointment of a referee to compute the amount due under the note and mortgage be granted. Swo n to before me this Ith koMLO '5~1'-<+ 0$~ 018 Yum0A ERIN A. MESMER NOTARY PUBLIC State of New York Notary Public, No. 01ME6102743 Reg. Qualified inErie County Commission Expires December10, 2 My State of ) County of ) ss. On the day o in the year be f ore me, 20\ the undersigned, perso ally appeared & , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is(are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument; and that such individual made such appearance before the undersigned in the Arnberst , OM . (insert the city and the state or country the acknowledgment was taken) Notary Signature ERIN A. MESMER Notary Public,State of New York Reg. No. 01ME6102743 Qualified inErieCounty My Commission ExpiresDecember 10,~~