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FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM INDEX NO. 000100-2021
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022
Andrea K. Bailey, County Clerk
Livingston County Government Center
6 Court Street, Room 201
Geneseo, New York 14454
(585) 243-7010 ~ Fax (585) 243-7928
Livingston County Clerk Recording Page
Received From: Return To:
SARA Z. BORISKIN SARA Z. BORISKIN
Document Type: CIVIL ACTION - MISC Document Desc: AFFIRMATION
Plaintiff Defendant
U.S. BANK NATIONAL ASSOCIATION JOHN DOE #1 through JOHN DOE #12,
the last twelve 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 Subject Property
described in the complaint,
SANDERS DAVID C.
Recorded Information:
State of New York
Index #: 000100-2021 County of Livingston
EFiling through NYSCEF
Livingston County Clerk
This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York
AKB
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF LIVINGSTON
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U.S. BANK NATIONAL ASSOCIATION,
INDEX NO.: 000100-2021
Plaintiff(s),
AFFIRMATION IN SUPPORT OF
vs. PLAINTIFF’S MOTION FOR A
DEFAULT JUDGMENT, ORDER OF
DAVID C. SANDERS, REFERENCE AND JUDGMENT OF
"John Doe #1" through "John Doe #12,” the last FORECLOSURE AND SALE
twelve names being fictitious and unknown to
plaintiff, the persons or parties intended being MORTGAGED PROPERTY:
the tenants, occupants, persons, or corporations, 7856 KELLOGG ROAD
if any, having or claiming interest in or lien upon SPRINGWATER, NY 14560
the premises, described in the complaint,
COUNTY: LIVINGSTON
Defendant(s)
SBL#: Section 151, Block 1, Lot 10
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Matthew Rothstein, 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 Robertson, Anschutz, Schneid, Crane &
Partners, PLLC 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. 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
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Affidavits of Service Exhibit J
Affidavit(s) of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit K
Affidavit of Merit and Amount Due Exhibit L
Affirmation of Regularity Exhibit M
Order of Reference N/A
Referee’s Oath and Report of Amount Due N/A
Notice of Entry of Order of Reference N/A
Attorney Fee Affirmation Exhibit Q
Power of Attorney Exhibit R-N/A
Legalback No. 2 - filed contemporaneously with this application
Costs and Disbursements of Plaintiff with Supporting Invoices
Legalback No. 3 - filed contemporaneously with this application
Proposed Judgment of Foreclosure and Sale
All applicable personal non-public information has been redacted from the attached
supporting documents.
3. This residential mortgage foreclosure action was commenced by filing the summons and
complaint in the Livingston County Clerk’s office on February 09, 2021, in the County
where the mortgaged property is located. The action was brought to foreclose a
residential mortgage executed by DAVID C. SANDERS on December 07, 2010 and
which was subsequently recorded on December 08, 2010.
4. On February 09, 2021, Plaintiff filed a notice of pendency in accordance with RPAPL
§1331 and CPLR Article 65, a copy of which is attached hereto as Exhibit “I”.
5. 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
requirements of RPAPL §1320, contains the required notice in boldface type and is in the
format required by statute. According to the affidavit of service, the summons was
served together with the complaint. Copies of the summons, complaint, notice of
pendency and affidavits of service are annexed hereto as Exhibits “H, I, & J”.
6. On February 09, 2021, Plaintiff was holder of the subject note. See affidavit of Shawna
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M. McGahey, attached hereto as Exhibit “L”.
7. The attorney affirmation required pursuant to Administrative Order 4311/11 was filed
and served together with supporting documents and is attached hereto as Exhibit “A”.
8. That, DAVID C. SANDERS (“Borrower”), executed a note dated December 07, 2010 in
the amount of $40,350.00 (“Note”). As security for the Note, DAVID C. SANDERS,
(“Mortgagor”) executed a mortgage in favor of MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. AS NOMINEE FOR HOME FUNDING FINDERS,
secured by the Premises, dated December 07, 2010 and recorded on December 08, 2010
in Liber 2732 at Page 0730 (“Mortgage”). A copy of the Note is annexed hereto as
Exhibit “B”. A copy of the Mortgage is annexed hereto as Exhibit “C”.
9. The Note was endorsed for the benefit of, and transferred to, Plaintiff. 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).
10. Prior to the commencement of this action the underlying mortgage was validly assigned
from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., AS NOMINEE
FOR HOME FUNDING FINDERS to U.S. BANK NATIONAL ASSOCIATION by
written instrument dated May 11, 2018 and recorded in the office of the County Clerk/
City Register on June 4, 2018 in book 2732, at page 730. A true and accurate copy of the
Assignments are annexed hereto as Exhibit ''D''.
11. The defendant(s)/mortgagor(s) is/are not resident(s) of the property subject to
foreclosure. See affidavit of Shawna M. McGahey, attached hereto as Exhibit “L”.
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12. According to the affidavits of service filed in the LIVINGSTON Clerk’s Office, the
summons was served with the complaint. The affidavits of service are attached hereto as
Exhibit “J”.
13. Defendant was served with the notice required by RPAPL §1303 printed on colored
paper together with the summons and complaint 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 its own separate page, together with the summons and
complaint.
14. Defendant was timely served with the 90-Day Pre-Foreclosure notice required by RPAPL
§1304. Plaintiff filed the name, address and telephone number of the Defendant, 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 Shawna M. McGahey, 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. Defendants captioned as “John Doe #1” through “John Doe #12” are not necessary
parties. Accordingly, the defendants captioned as “John Doe #1” through “John Doe #12”
were not served with copies of the summons and complaint. Plaintiff requests that the
“John Doe #1” through “John Doe #12” defendants be excised from the caption of the
action without prejudice to any of the proceedings herein.
17. The following defendant did not answer or appear and their time to answer has expired:
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DAVID C. SANDERS. Accordingly, these defendants are in default.
18. 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.
19. Plaintiff hereby waives any deficiency judgment pursuant to RPAPL §1371.
PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE.
20. Plaintiff requests that the court grant this judgment on default of defendant(s) DAVID C.
SANDERS 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.
21. RPAPL §1354(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 it an expense of sale, as that term is used in RPAPL §1354(1). Rather,
transfer tax is an expense of recording the deed.
22. Plaintiff is entitled to have the Judgment include reimbursement for its attorney fees for
this action in accordance with the terms of the note and mortgage. A detailed affirmation
regarding attorney fees is attached hereto as Exhibit “Q”.
23. Plaintiff is also entitled to have the Judgment include reimbursement for Plaintiff’s costs,
allowances, and disbursements made in this matter in accordance with the terms of the
note and mortgage and CPLR Article 83. A detailed statement of Plaintiff’s costs and
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disbursements with the supporting invoices has been filed contemporaneously with this
application.
24. 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. Directing the entry of a default judgment against all defendants;
B. Determining the amount due to Plaintiff in accordance with RPAPL §1321;
C. Granting a judgment of foreclosure and sale pursuant to RPAPL §1351;
D. Appointing a referee to conduct an auction sale pursuant to applicable law;
E. Granting such additional relief as the Court may deem just and proper.
F. Removing “John Doe #1” through “John Doe #12” as party defendants in this action
as no tenants reside at the property and amending the caption to reflect the removal of
“John Doe #1” through “John Doe #12” as party defendants as follows:
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U.S. BANK NATIONAL ASSOCIATION, INDEX NO.: 000100-2021
Plaintiff(s),
v.
DAVID C. SANDERS,
Defendant(s).
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And it is further
Dated: June 16, 2022
Westbury, New York
ROBERTSON, ANSCHUTZ, SCHNEID,
CRANE & PARTNERS, PLLC
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Matthew Rothstein
___________________________________
By: Matthew Rothstein, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, NY 11590
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ATTORNEY’S AFFIRMATION
Matthew Rothstein, 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 their 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).
Matthew Rothstein
___________________________________
Matthew Rothstein, Esq.
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Preview
FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM INDEX NO. 000100-2021 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 Andrea K. Bailey, County Clerk Livingston County Government Center 6 Court Street, Room 201 Geneseo, New York 14454 (585) 243-7010 ~ Fax (585) 243-7928 Livingston County Clerk Recording Page Received From: Return To: SARA Z. BORISKIN SARA Z. BORISKIN Document Type: CIVIL ACTION - MISC Document Desc: AFFIRMATION Plaintiff Defendant U.S. BANK NATIONAL ASSOCIATION JOHN DOE #1 through JOHN DOE #12, the last twelve 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 Subject Property described in the complaint, SANDERS DAVID C. Recorded Information: State of New York Index #: 000100-2021 County of Livingston EFiling through NYSCEF Livingston County Clerk This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York AKB Do Not1 ofDetach 9 IndexNO. INDEX # : 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF LIVINGSTON ----------------------------------------------------------------X U.S. BANK NATIONAL ASSOCIATION, INDEX NO.: 000100-2021 Plaintiff(s), AFFIRMATION IN SUPPORT OF vs. PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT, ORDER OF DAVID C. SANDERS, REFERENCE AND JUDGMENT OF "John Doe #1" through "John Doe #12,” the last FORECLOSURE AND SALE twelve names being fictitious and unknown to plaintiff, the persons or parties intended being MORTGAGED PROPERTY: the tenants, occupants, persons, or corporations, 7856 KELLOGG ROAD if any, having or claiming interest in or lien upon SPRINGWATER, NY 14560 the premises, described in the complaint, COUNTY: LIVINGSTON Defendant(s) SBL#: Section 151, Block 1, Lot 10 ----------------------------------------------------------------X Matthew Rothstein, 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 Robertson, Anschutz, Schneid, Crane & Partners, PLLC 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. 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 20-083296 - KiS 2 of 9 IndexNO. INDEX #: 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 Affidavits of Service Exhibit J Affidavit(s) of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit K Affidavit of Merit and Amount Due Exhibit L Affirmation of Regularity Exhibit M Order of Reference N/A Referee’s Oath and Report of Amount Due N/A Notice of Entry of Order of Reference N/A Attorney Fee Affirmation Exhibit Q Power of Attorney Exhibit R-N/A Legalback No. 2 - filed contemporaneously with this application Costs and Disbursements of Plaintiff with Supporting Invoices Legalback No. 3 - filed contemporaneously with this application Proposed Judgment of Foreclosure and Sale All applicable personal non-public information has been redacted from the attached supporting documents. 3. This residential mortgage foreclosure action was commenced by filing the summons and complaint in the Livingston County Clerk’s office on February 09, 2021, in the County where the mortgaged property is located. The action was brought to foreclose a residential mortgage executed by DAVID C. SANDERS on December 07, 2010 and which was subsequently recorded on December 08, 2010. 4. On February 09, 2021, Plaintiff filed a notice of pendency in accordance with RPAPL §1331 and CPLR Article 65, a copy of which is attached hereto as Exhibit “I”. 5. 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 requirements of RPAPL §1320, contains the required notice in boldface type and is in the format required by statute. According to the affidavit of service, the summons was served together with the complaint. Copies of the summons, complaint, notice of pendency and affidavits of service are annexed hereto as Exhibits “H, I, & J”. 6. On February 09, 2021, Plaintiff was holder of the subject note. See affidavit of Shawna 20-083296 - KiS 3 of 9 IndexNO. INDEX #: 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 M. McGahey, attached hereto as Exhibit “L”. 7. The attorney affirmation required pursuant to Administrative Order 4311/11 was filed and served together with supporting documents and is attached hereto as Exhibit “A”. 8. That, DAVID C. SANDERS (“Borrower”), executed a note dated December 07, 2010 in the amount of $40,350.00 (“Note”). As security for the Note, DAVID C. SANDERS, (“Mortgagor”) executed a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR HOME FUNDING FINDERS, secured by the Premises, dated December 07, 2010 and recorded on December 08, 2010 in Liber 2732 at Page 0730 (“Mortgage”). A copy of the Note is annexed hereto as Exhibit “B”. A copy of the Mortgage is annexed hereto as Exhibit “C”. 9. The Note was endorsed for the benefit of, and transferred to, Plaintiff. 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). 10. Prior to the commencement of this action the underlying mortgage was validly assigned from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., AS NOMINEE FOR HOME FUNDING FINDERS to U.S. BANK NATIONAL ASSOCIATION by written instrument dated May 11, 2018 and recorded in the office of the County Clerk/ City Register on June 4, 2018 in book 2732, at page 730. A true and accurate copy of the Assignments are annexed hereto as Exhibit ''D''. 11. The defendant(s)/mortgagor(s) is/are not resident(s) of the property subject to foreclosure. See affidavit of Shawna M. McGahey, attached hereto as Exhibit “L”. 20-083296 - KiS 4 of 9 IndexNO. INDEX #: 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 12. According to the affidavits of service filed in the LIVINGSTON Clerk’s Office, the summons was served with the complaint. The affidavits of service are attached hereto as Exhibit “J”. 13. Defendant was served with the notice required by RPAPL §1303 printed on colored paper together with the summons and complaint 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 its own separate page, together with the summons and complaint. 14. Defendant was timely served with the 90-Day Pre-Foreclosure notice required by RPAPL §1304. Plaintiff filed the name, address and telephone number of the Defendant, 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 Shawna M. McGahey, 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. Defendants captioned as “John Doe #1” through “John Doe #12” are not necessary parties. Accordingly, the defendants captioned as “John Doe #1” through “John Doe #12” were not served with copies of the summons and complaint. Plaintiff requests that the “John Doe #1” through “John Doe #12” defendants be excised from the caption of the action without prejudice to any of the proceedings herein. 17. The following defendant did not answer or appear and their time to answer has expired: 20-083296 - KiS 5 of 9 IndexNO. INDEX #: 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 DAVID C. SANDERS. Accordingly, these defendants are in default. 18. 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. 19. Plaintiff hereby waives any deficiency judgment pursuant to RPAPL §1371. PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE. 20. Plaintiff requests that the court grant this judgment on default of defendant(s) DAVID C. SANDERS 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. 21. RPAPL §1354(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 it an expense of sale, as that term is used in RPAPL §1354(1). Rather, transfer tax is an expense of recording the deed. 22. Plaintiff is entitled to have the Judgment include reimbursement for its attorney fees for this action in accordance with the terms of the note and mortgage. A detailed affirmation regarding attorney fees is attached hereto as Exhibit “Q”. 23. Plaintiff is also entitled to have the Judgment include reimbursement for Plaintiff’s costs, allowances, and disbursements made in this matter in accordance with the terms of the note and mortgage and CPLR Article 83. A detailed statement of Plaintiff’s costs and 20-083296 - KiS 6 of 9 IndexNO. INDEX #: 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 disbursements with the supporting invoices has been filed contemporaneously with this application. 24. 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. Directing the entry of a default judgment against all defendants; B. Determining the amount due to Plaintiff in accordance with RPAPL §1321; C. Granting a judgment of foreclosure and sale pursuant to RPAPL §1351; D. Appointing a referee to conduct an auction sale pursuant to applicable law; E. Granting such additional relief as the Court may deem just and proper. F. Removing “John Doe #1” through “John Doe #12” as party defendants in this action as no tenants reside at the property and amending the caption to reflect the removal of “John Doe #1” through “John Doe #12” as party defendants as follows: ------------------------------------------------------------------------X U.S. BANK NATIONAL ASSOCIATION, INDEX NO.: 000100-2021 Plaintiff(s), v. DAVID C. SANDERS, Defendant(s). ------------------------------------------------------------------------X And it is further Dated: June 16, 2022 Westbury, New York ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC 20-083296 - KiS 7 of 9 IndexNO. INDEX #: 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 Matthew Rothstein ___________________________________ By: Matthew Rothstein, Esq. Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, NY 11590 20-083296 - KiS 8 of 9 IndexNO. INDEX #: 000100-2021 000100-2021 FILED: LIVINGSTON COUNTY CLERK 06/29/2022 10:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/29/2022 ATTORNEY’S AFFIRMATION Matthew Rothstein, 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 their 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). Matthew Rothstein ___________________________________ Matthew Rothstein, Esq. 20-083296 - KiS 9 of 9