On July 06, 2015 a
Exhibit,Appendix
was filed
involving a dispute between
Nationstar Mortgage Llc D B A Champion Mortgage Company,
and
Drew Doe,
Helena Harte As Heir And Distributee To The Estate Of Waveney Harte, Any And All Persons Unknown To Plaintiff, Claiming, Or Who May Claim To Have An Interest In, Or General Or Specific Lien Upon The Real Property Described In This Action; Such Unknown Persons Being Herein Generally Described And Intended To Be Included In The Following Designation, Namely: The Wife, Widow,Husband,Widower,Heirs At Law,Next Of Kin,Descendants,Executors,Administrators,Devisees,Legatees,Creditors,Trustees,Committees,,
Helena Harte As Heir And Distributee To The Estate Of Waveney Harte, Any And All Persons Unknown To Plaintiff, Claiming, Or Who May Claim To Have An Interest In, Or General Or Specific Lien Upon The Real Property Described In This Action; Such Unknown
Persons Being Herein Generally Described And Intended To Be Included In The Following Designation, Namely: The Wife, Widow,Husband,Widower,Heirs At Law,Next Of Kin,Descendants,Executors,Administrators,Devisees,Legatees,Creditors,Trustees,Committees,,
Lienors,Andassigness Of Such Deceased,Any And All Persons Deriving Interest In Or Lien Upon,Or Title To Said Real Property By, Through Or Under Them, Or Either Of Them, And Their Respective Wives,Widows,Husbands,Widowers,Heirs At Law,Next Of Kin, Descendants,Executors,Administrators,Devisees,Legatees,Creditors,Trustees,Committees,Lienors And Assigns,All Of Whom And Whose Names, Except As Stated, Are Unknown To Plaintiff,
Lienors,Andassigness Of Such Deceased,Any And All Persons Deriving Interest In Or Lien Upon,Or Title To Said Real Property By, Through Or Under Them, Or Either Of Them, And Their Respective Wives,Widows,Husbands,Widowers,Heirs At Law,Next Of Kin,
Descendants,Executors,Administrators,Devisees,Legatees,Creditors,Trustees,Committees,Lienors And Assigns,All Of Whom And Whose Names, Except As Stated, Are Unknown To Plaintiff,
New York State Department Of Taxation And Finance,
Secretary Of Housing And Urban Development,
United States Of America,
Us Trust Company Of New York Corp. As Trustee Under The Pooling And Servicing Agreement Dated As Of 4 1 85 N K A Us Trust Corp.,
for Foreclosure (residential mortgage)
in the District Court of Queens County.
Preview
FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---------------------------- ------------------X
NATIONSTAR MORTGAGE LLC D/B/A INDEX NO.: 707021/2015
CHAMPION MORTGAGE COMPANY,
AFFIRMATION OF REGULARITY
Plaintiff,
MORTGAGED PROPERTY:
vs.
139-16 230TH PLACE
HELENA HARTE, AS HEIR AND DISTRIBUTEE
TO THE ESTATE OF WAVENEY HARTE; any COUNTY: QUEENS
and all persons unknown to plaintiff, claiming, or
who may claim to have an interest in, or general or
BL#: Block 13185, Lot 45
specific lien upon the real property described in this
action; such unknown persons being herein generally
described and intended to be included in the
following designation, namely: the wife, widow,
husband, widower, heirs at law, next of kin,
descendants, executors, administrators, devisees,
legatees, creditors, trustees, committees, lienors, and
assignees of such deceased, any and all persons
deriving interest in or lien upon, or title to said real
property by, through or under them, or either of them,
and their respective wives, widows, husbands,
widowers, heirs at law, next of kin, descendants,
executors, administrators, devisees, legatees,
creditors, trustees, committees, lienors and assigns
all of whom and whose names, except as stated, are
unknown to plaintiff; SECRETARY OF HOUSING
AND URBAN DEVELOPMENT; UNITED
STATES OF AMERICA; NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE;
US TRUST COMPANY OF NEW YORK CORP.
AS TRUSTEE UNDER THE POOLING AND
SERVICING AGREEMENT DATED AS OF 4/1/85
N/K/A US TRUST CORP.; DREW "DOE",
Defendant(s).
-------- --------------------X
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FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015
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Matthew Ingber, Esq. pursuant to CPLR 2106 and under the penalties of perjury, affinns
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 filemaintained by my office.
2. This residential mortgage foreclosure action was commenced by filing the
summons and complaint in the QUEENS County Clerk's office on July 06, 2015, in the County
where the mortgaged property is located. The action was brought to foreclose a residential
mortgage recorded on June 27, 2012 in City Register File Number 2012000253960.
3. On July 06, 2015, Plaintiff filed a notice of pendency, a copy of which is attached
hereto as Exhibit "I".
4. The summons, cornplaint 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 coniplaint. Copies of the summorm, complaint, notice of pendency and affidavits of service
are annexed hereto as Exhibits "H, I, & J".
5. That since the of the notice of pendency, the Comnlaint in this action has
filing
been amended, however, said amendment did not add new parties to this action nor affect other
property not described in the original Complaint, or so as to extend the claims of plaintiff as
against the mortgaged premises.
15-021547 - LaW
FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018
6. That WAVENEY HARTE ("Borrower") executed a Note and Home Equity
Conversion Loan Agreement dated January 26, 2012 in the amount of $562,500.00 ("Note"). As
security for the Note, WAVENEY HARTE, ("Mortgagor") executed a mortgage in favor of
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR
ASSOCIATED MORTGAGE BANKERS, INC. secured by the Premises, dated January 26,
2012 and recorded on June 27, 2012 in City Register File Number 2012000253960
("Mortgage"). A copy of the Note and Home Equity Conversion Loan Agreement is annexed
hereto as Exhibit "B". A copy of the Mortgage is annexed hereto as Exhibit "C".
7. 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).
8. The underlying note and mortgage were validly assigned from MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC. SOLELY AS NOMINEE FOR
ASSOCIATED MORTGAGE BANKERS, INC., ITS SUCCESSORS AND ASSIGNS to
CHAMPION MORTGAGE COMPANY by written instrument dated November 13, 2012 and
recorded in the office of the County Clerk/ City Register on Deceiiiber 7, 2012 at Instrument
Number 2012000480349. A true and accurate copy of the Assignments are annexed hereto as
Exhibit "D".
9. As set forth in the affidavit annexed hereto as Exhibit "L", Borrower
WAVENEY HARTE died on 1/19/2015. The Defendants defaulted upon the terms of the Note
15-021547 - LaW
FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018
and Mortgage by failing to pay the loan balance upon the death of the Borrower. A of the
copy
Death Certificate is annexed hereto as Exhibit "S".
10. Here, 90-day Pre-Foreclosure Notices were not required as the subject loan is not
Loan"
a "Home as defined by RPAPL § 1304(5). Therefore, a Step 1 filing was not required
pursuant to RPAPL § 1306.
11. Nevertheless, mailing of the 90 day notices is not jurisdictional and in the absence
of the defense being interposed by a Defendant, Plaintiff is not obligated to disprove the defense
as part of its prima facie case. US Bank v. Carey, 137 AD3d 894 (2d Dep't 2016); Flagstar
Bank, FSB v. Jambelli, 140 AD3d 829 (2d Dep't 2016).
12. Upon information and belief, that all of defendants are of full age; that none of
defendants are in the armed services of the United States of America.
13. That more than the legally required time period has elapsed since the due service
of the Summons and Complaint herein upon all of defendants.
14. The following defendants did not answer or appear and their time to answer has
expired: SECRETARY OF HOUSING AND URBAN DEVELOPMENT, NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE, US TRUST COMPANY OF NEW YORK
CORP. AS TRUSTEE UNDER THE POOLING AND SERVIClNG AGREEMENT DATED
"DOE"
AS OF 4/1/85 N/K/A US TRUST CORP, DREW and HELENA HARTE. Accordingly,
these defendants are in default.
15. The UNITED STATES OF AMERICA filed a notice of appearance.
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NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018
16. No defendant is an infant. No defendant is in the anned services of the United
States of America. Upon infonnation and belief no defendant is incompetent.
17. Due to Plaintiffs inability to serve THE UNKNOWN HEIRS OF THE ESTATE
OF WAVENEY HARTE by ordinary means, Plaintiff sought an order of this Court directing
service by publication pursuant to CPLR §316. On October 25, 2016, this Honorable Court
granted an Order directing service by publication, amending the complaiilt, and appointing a
guardian ad litem on behalf of those parties served by publication.
18. The court granted plaintiff's motion for default judgment and for an order of
reference on December 21, 2017.
19. That the proceedings herein have been regular and according to law.
20. No previous application for a Judgment of Foreclosure and Sale has been made.
21. The undersigned affirms hat the foregoing statements are true, under the penalties
of perjury.
DATED: August 31, 2018
Westbury, New York
Matt Ingber, Esq.
15-021547 - LaW
Preview
FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------- ------------------X NATIONSTAR MORTGAGE LLC D/B/A INDEX NO.: 707021/2015 CHAMPION MORTGAGE COMPANY, AFFIRMATION OF REGULARITY Plaintiff, MORTGAGED PROPERTY: vs. 139-16 230TH PLACE HELENA HARTE, AS HEIR AND DISTRIBUTEE TO THE ESTATE OF WAVENEY HARTE; any COUNTY: QUEENS and all persons unknown to plaintiff, claiming, or who may claim to have an interest in, or general or BL#: Block 13185, Lot 45 specific lien upon the real property described in this action; such unknown persons being herein generally described and intended to be included in the following designation, namely: the wife, widow, husband, widower, heirs at law, next of kin, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, and assignees of such deceased, any and all persons deriving interest in or lien upon, or title to said real property by, through or under them, or either of them, and their respective wives, widows, husbands, widowers, heirs at law, next of kin, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors and assigns all of whom and whose names, except as stated, are unknown to plaintiff; SECRETARY OF HOUSING AND URBAN DEVELOPMENT; UNITED STATES OF AMERICA; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; US TRUST COMPANY OF NEW YORK CORP. AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF 4/1/85 N/K/A US TRUST CORP.; DREW "DOE", Defendant(s). -------- --------------------X 15-021547 - LaW FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018 Matthew Ingber, Esq. pursuant to CPLR 2106 and under the penalties of perjury, affinns 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 filemaintained by my office. 2. This residential mortgage foreclosure action was commenced by filing the summons and complaint in the QUEENS County Clerk's office on July 06, 2015, in the County where the mortgaged property is located. The action was brought to foreclose a residential mortgage recorded on June 27, 2012 in City Register File Number 2012000253960. 3. On July 06, 2015, Plaintiff filed a notice of pendency, a copy of which is attached hereto as Exhibit "I". 4. The summons, cornplaint 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 coniplaint. Copies of the summorm, complaint, notice of pendency and affidavits of service are annexed hereto as Exhibits "H, I, & J". 5. That since the of the notice of pendency, the Comnlaint in this action has filing been amended, however, said amendment did not add new parties to this action nor affect other property not described in the original Complaint, or so as to extend the claims of plaintiff as against the mortgaged premises. 15-021547 - LaW FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018 6. That WAVENEY HARTE ("Borrower") executed a Note and Home Equity Conversion Loan Agreement dated January 26, 2012 in the amount of $562,500.00 ("Note"). As security for the Note, WAVENEY HARTE, ("Mortgagor") executed a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR ASSOCIATED MORTGAGE BANKERS, INC. secured by the Premises, dated January 26, 2012 and recorded on June 27, 2012 in City Register File Number 2012000253960 ("Mortgage"). A copy of the Note and Home Equity Conversion Loan Agreement is annexed hereto as Exhibit "B". A copy of the Mortgage is annexed hereto as Exhibit "C". 7. 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). 8. The underlying note and mortgage were validly assigned from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. SOLELY AS NOMINEE FOR ASSOCIATED MORTGAGE BANKERS, INC., ITS SUCCESSORS AND ASSIGNS to CHAMPION MORTGAGE COMPANY by written instrument dated November 13, 2012 and recorded in the office of the County Clerk/ City Register on Deceiiiber 7, 2012 at Instrument Number 2012000480349. A true and accurate copy of the Assignments are annexed hereto as Exhibit "D". 9. As set forth in the affidavit annexed hereto as Exhibit "L", Borrower WAVENEY HARTE died on 1/19/2015. The Defendants defaulted upon the terms of the Note 15-021547 - LaW FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018 and Mortgage by failing to pay the loan balance upon the death of the Borrower. A of the copy Death Certificate is annexed hereto as Exhibit "S". 10. Here, 90-day Pre-Foreclosure Notices were not required as the subject loan is not Loan" a "Home as defined by RPAPL § 1304(5). Therefore, a Step 1 filing was not required pursuant to RPAPL § 1306. 11. Nevertheless, mailing of the 90 day notices is not jurisdictional and in the absence of the defense being interposed by a Defendant, Plaintiff is not obligated to disprove the defense as part of its prima facie case. US Bank v. Carey, 137 AD3d 894 (2d Dep't 2016); Flagstar Bank, FSB v. Jambelli, 140 AD3d 829 (2d Dep't 2016). 12. Upon information and belief, that all of defendants are of full age; that none of defendants are in the armed services of the United States of America. 13. That more than the legally required time period has elapsed since the due service of the Summons and Complaint herein upon all of defendants. 14. The following defendants did not answer or appear and their time to answer has expired: SECRETARY OF HOUSING AND URBAN DEVELOPMENT, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, US TRUST COMPANY OF NEW YORK CORP. AS TRUSTEE UNDER THE POOLING AND SERVIClNG AGREEMENT DATED "DOE" AS OF 4/1/85 N/K/A US TRUST CORP, DREW and HELENA HARTE. Accordingly, these defendants are in default. 15. The UNITED STATES OF AMERICA filed a notice of appearance. 15-021547 - LaW FILED: QUEENS COUNTY CLERK 09/07/2018 03:04 PM INDEX NO. 707021/2015 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2018 16. No defendant is an infant. No defendant is in the anned services of the United States of America. Upon infonnation and belief no defendant is incompetent. 17. Due to Plaintiffs inability to serve THE UNKNOWN HEIRS OF THE ESTATE OF WAVENEY HARTE by ordinary means, Plaintiff sought an order of this Court directing service by publication pursuant to CPLR §316. On October 25, 2016, this Honorable Court granted an Order directing service by publication, amending the complaiilt, and appointing a guardian ad litem on behalf of those parties served by publication. 18. The court granted plaintiff's motion for default judgment and for an order of reference on December 21, 2017. 19. That the proceedings herein have been regular and according to law. 20. No previous application for a Judgment of Foreclosure and Sale has been made. 21. The undersigned affirms hat the foregoing statements are true, under the penalties of perjury. DATED: August 31, 2018 Westbury, New York Matt Ingber, Esq. 15-021547 - LaW