Preview
FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DELAWARE
MORTGAGE ASSETS MANAGEMENT, LLC Index No.:
DATE FILED:
PLAINTIFF,
SUMMONS
V.
Plaintiff designates DELAWARE County as the
MARILYN A. COLLAR; “JOHN DOE #1” Place of Trial
through “JOHN DOE #12,” the last twelve
names being fictitious and unknown to Designation of Venue is based upon the situs of the
plaintiff, the persons or parties intended being Subject Property
the tenants, occupants, persons or
corporations, if any, having or claiming an Subject Property:
interest in or lien upon the Subject Property 477 IVANHOE ROAD
described in the Complaint,, SIDNEY CENTER, NY 13839
DEFENDANTS.
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 within twenty (20) days after the service of this Summons,
exclusive of the day of service (or within thirty (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 sixty (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.
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NOTICE
YOU ARE IN DANGER OF LOSING YOUR HOME
If 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 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: 01/27/2023
Iselin, NJ
Stern & Eisenberg, PC
____________________________________
By: Arsenio Rodriguez, Esq, (4761011)
Stacey A. Weisblatt, Esq. (2517886)
Attorneys for Plaintiff
1131 Route 55, Suite 1
Lagrangeville, NY 12540
Telephone: (516) 630-0288
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DELAWARE
MORTGAGE ASSETS MANAGEMENT, LLC Index No.:
DATE FILED:
PLAINTIFF,
COMPLAINT
V.
MARILYN A. COLLAR; “JOHN DOE #1” Subject Property:
through “JOHN DOE #12,” the last twelve 477 IVANHOE ROAD
names being fictitious and unknown to SIDNEY CENTER, NY 13839
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,,
DEFENDANTS.
The Complaint of the above-referenced Plaintiff, by its attorneys, Stern & Eisenberg, PC,
complains and alleges upon information and belief as follows:
NATURE OF THIS ACTION
1. This action is brought and pursuant to Article 13 of the Real Property and Proceedings
Law for foreclosure of the mortgage dated 01/22/2008 and recorded on 02/19/2008, at Book 1518,
Page Number 14 in the Public Records of the County of Delaware, State of New York (hereinafter
referred to as the “Subject Mortgage”). The Mortgage Tax was duly paid.
2. The premises which forms the subject of this action is fully described in Schedule “A”
attached hereto and is commonly known as 477 Ivanhoe Road, Sidney Center, NY 13839 and by
Section: 205. Block: 1 Lot: 2.1 (hereinafter referred to as “Subject Property”).
PARTIES
3. At all times hereinafter mentioned, Plaintiff was and remains, organized and existing
under the laws of the United States of America or of the State of its formation.
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4. Upon information and belief, Defendant(s) Marilyn A. Collar, at all relevant times,
maintain a residence within the State of New York and are the mortgagors pursuant to the Subject
Mortgage. The description and interest of the above-referenced Defendant(s) is more fully set forth in
Schedules “B” and “C”, respectively. See RPAPL §§§ 1311, 1312, and 1313.
5. Upon information and belief, the remaining Defendant(s), if any and not further set forth
hereinbelow, as identified in Schedule “B”, are named solely for the reasons set forth in Schedule
“C”. See RPAPL §§§ 1311, 1312, and 1313.
6. Defendants “JOHN DOE #1” through “JOHN DOE #12” are additional 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. See RPAPL §§§ 1311, 1312, and 1313.
RELEVANT FACTS
7. Marilyn A. Collar, duly executed, acknowledged, and delivered a note dated 01/22/2008
(“Subject Note”). Annexed hereto as Exhibit “A” is a copy of the Subject Note.
8. Plaintiff, directly or through an agent has complied with all applicable laws in an attempt
to establish ownership and/or possession of the Subject Note and the right to foreclosure of same.
Plaintiff has possession and control of the original Subject Note and Subject Mortgage, which Note is
secured by the Subject Mortgage and the Subject Note is either made payable to Plaintiff or is duly
indorsed in blank. To the extent that the original note or interim assignments of mortgage are lost or
unavailable, Plaintiff has the right to foreclose the Subject Note and Subject Mortgage pursuant to New
York law.
9. As collateral and to secure the repayment of the sum represented by the Subject Note,
Marilyn A. Collar, duly executed, acknowledged and delivered the Subject Mortgage. Said mortgage
was assigned to Plaintiff by assignment of mortgage duly executed on a date prior to the filing of the
complaint. A copy of the Subject Mortgage and assignment is annexed hereto as Exhibit “B”.
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10. The Subject Mortgage is secured by the Subject Property, together with all fixtures,
appurtenances, and articles of personal property annexed thereto, installed therein, or used in
connection with the in addition to all right, title, and interest of the Defendants in and to the land lying
in the streets and roads in front of adjoining said Subject Property.
11. Marilyn A. Collar also executed and delivered to plaintiff a Home Equity Conversion
Loan Agreement (“HECLA”). A copy of the HECLA is annexed hereto as Exhibit “C”.
12. Now, Plaintiff further complains and alleges upon information and belief as follows:
AS AND FOR A FIRST CAUSE OF ACTION
13. That Plaintiff repeats and realleges each and every allegation contained in paragraphs
“1” through paragraphs “12” above with the same force and effect as if set forth at length herein.
14. Plaintiff has complied with all conditions precedent contained in the Subject Mortgage,
if any, including but not limited to, sending a notice to cure default to the mortgagors as set forth in the
mortgage.
15. Plaintiff declares the full amount payable under the Subject Note and Subject Mortgage
to be now due.
16. Plaintiff alleges as the basis of default under the terms of the Subject Note, Subject
Mortgage and, if applicable, the HECLA.
___ A Borrower has died and the Property is not the principal residence of at least one
surviving Borrower.
____ All of a Borrower’s title in the Property (or his or her beneficial interest in a trust
owning all or part of the Property) has been sold or otherwise transferred and no other Borrower
retains (a) title to the Property in fee simple, (b) a leasehold under a lease for not less than 99
years which is renewable or a lease having a remaining period of not less than 50 years beyond
the date of the 100th birthday of the youngest Borrower, or (c) a life estate in the Property (or a
beneficial interest in a trust with such an interest in the Property)
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__ _ The Property has ceased to be the principal residence of Borrower for reasons other
than death, and the Property is not the principal residence of at least one other Borrower.
____ For a period of longer than twelve (12) consecutive months, a Borrower has failed
to physically occupy the Property because of physical or mental illness and the Property is not
the principal residence of at least one other Borrower.
____ The Borrower has failed to submit a required certificate of occupancy.
__x_ The Borrower has failed to make required payments for taxes, property insurance
and/or water/sewer charges.
____ The Borrower has failed to maintain the property.
____ The Borrower has failed to comply with an obligation under the Security as
follows:
___________________________________________________________________
___________________________________________________________________
17. To the extent applicable, Plaintiff has complied with RPAPL 1304 and RPAPL 1306.
18. To the extent applicable, Plaintiff has complied with Banking Law 9-x.
19. To the extent applicable, Plaintiff has complied with RPL 280-b and RPL 280-d.
20. To the extent applicable, Plaintiff has complied with all of the provisions of Banking
Law § 595 and any rules and regulations promulgated thereunder, Banking Law §§ 6-1 and 6-m.
21. Plaintiff is the owner and holder of said note and mortgage or has been delegated the
authority to institute a mortgage foreclosure action by the owner and holder of the said note and
mortgage.
22. The default has continued beyond the applicable grace period set forth in the mortgage,
and by reason thereof, plaintiff has elected and hereby elects to declare immediately due and payable
the entire unpaid balance of principal.
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23. As of 12/23/2022 there is due and owing to the plaintiff, the total sum of $139,816.83.
Pursuant to the terms of the Subject Mortgage, the amount due and owing is subject to change as the
sums as provided for in the Subject Note, Subject Mortgage and, if applicable, the HECLA are added to
and become part of the unpaid principal balance.
24. In order to obtain a current payoff quote, or reinstatement quote if the loan is eligible to
be reinstated, you may email your request to Stern & Eisenberg, PC at qc-ny@sterneisenberg.com or
call 215-572-8111.
25. That Plaintiff shall not be deemed to have waived, altered, released or changed the
election hereinbefore made by reason of the payment 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
Subject Note and Subject Mortgage, and occurring prior to the discontinuance of this action are fully
paid.
26. That to protect its security afforded by said bond or note and mortgage, it may be
necessary for the 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 bond or note 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.
27. That the plaintiff alleges that no other proceedings have been had for the recovery of the
mortgage indebtedness or if any such action is pending, a final judgment was not rendered in favor of
Plaintiff and such action is intended to be discontinued.
28. That 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.
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29. The terms of the Subject Mortgage provide that defendants shall be liable to plaintiff for
reasonable attorneys’ fees incurred by plaintiff to protect or enforce plaintiff's security interest in the
premises.
30. That the sale of the Subject Property and title thereto are subject to the state of facts an
accurate survey will show; all covenants, restrictions, easements, agreements and reservations, if any,
of record, and to any and all violations thereof; 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; any and all
orders or requirements issued by any governmental body having jurisdiction against or affecting said
premises and any violation of the same; the physical condition of any building or structure on the
premises as of the date of closing hereunder; rights of tenants in possession, if any; prior mortgages and
judgments, if any, now liens of record; right of Redemption of United States of America, if any; rights
of any defendants pursuant to CPLR §§§ 317, 2003, and 5015, if any; 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 other conditions as set
forth in the terms of sale more particularly to be announced at the sale.
THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY
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WHEREFORE, Plaintiff respectfully requests this Court grant judgment in favor of Plaintiff
and as against Defendants as follows:
I. On its First Cause of Action:
a) The Defendants and each of them, and all persons claiming under them, or any of them
subsequent to the commencement of this action and the filing of the Notice of Pendency
thereof, may be barred and foreclosed of all right, title, claim, lien and equity of redemption
in the Subject Property;
b) Said Subject Property be sold subject to the state of facts an accurate survey will show; all
covenants, restrictions, easements, agreements and reservations, if any, of record, and to any
and all violations thereof; 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; any and all orders or requirements issued by any governmental body having jurisdiction
against or affecting said premises and any violation of the same; the physical condition of
any building or structure on the premises as of the date of closing hereunder; rights of
tenants in possession, if any; prior mortgages and judgments, if any, now liens of record;
right of Redemption of United States of America, if any; rights of any defendants pursuant
to CPLR § 317, CPLR § 2003 and CPLR § 5015, if any; 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
other conditions as set forth in the terms of sale more particularly to be announced at the
sale.
c) Said Subject Property may be decreed to be sold in one parcel according to law subject to
the various items set forth in allegations of the complaint herein;
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d) The monies arising from the sale may be brought into court;
e) Plaintiff may be paid the amount due on said note and mortgage as alleged herein,
together with interest to the time of such payment, together with the sums expended by
plaintiff prior to and during the pendency of this action, and for thirty days after any sale
demanded herein for taxes, water rates, sewer rents, assessments, insurance premiums and
other necessary and essential charges or expenses in connection therewith to protect the
mortgage lien, plus any sums expended for the protection or preservation of the property
covered by said mortgage and note, and the amount secured thereby, with interest thereon
from the time of such payment and the costs and expenses of this action including reasonable
attorneys’ fees so far as the amount of such monies properly applicable thereto will pay the
same;
f) The plaintiff be decreed to be the owner of any and all personal property used in
connection with the said Subject Property, except if discharged in bankruptcy;
g) Awarding the relief requested in the additional causes of action stated in the complaint, if
any;
h) Plaintiff shall have such other and further relief or both, in the Subject Property as shall be
just and equitable.
Dated: 01/27/2023
Iselin, NJ
Stern & Eisenberg, PC
____________________________________
By: Arsenio Rodriguez, Esq, (4761011)
Stacey A. Weisblatt, Esq. (2517886)
Attorneys for Plaintiff
1131 Route 55, Suite 1
Lagrangeville, NY 12540
Telephone: (516) 630-0288
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Schedule A
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SCHEDULE A
DESCRIPTION OF MORTGAGED PREMISES
ALL that certain tract or parcel of land, situate, in the Town of Masonville, County of
Delaware and State of New York, being a part of the Easterly portion of the North half of
Lot No. 19 in Walton's Lower Patent and being more particularly bounded and described
as follows:
BEGINNING at a point in the center line of Ivanhoe Road where the center line of said
road would be intersected by an extension of the south side of the Randell Hill Road; and
RUNNING THENCE Southerly along the center line of Ivanhoe Road a distance of 600
feet to a point;
RUNNING THENCE Easterly in a straight line perpendicular to the east side of the tract
of land conveyed by William DeMott and wife to Peter DiGiosa and JoAnn DiGiosa, his
wife, by deed dated November 7, 1968 and recorded in the Delaware County Clerk's
Office on November 14, 1968 in Book 492 of Deeds at page 411;
RUNNING THENCE North 2 degrees West, along the east side of said tract conveyed by
DeMott to DiGiosa as aforesaid, to the southeast corner of a parcel of land conveyed by
Peter DiGiosa and JoAnn DiGiosa, his wife, to Calogero Tignatti and Louise J. Tignetti,
his wife, by deed dated July 27, 1973 and recorded in the Delaware County Clerk's Office
on July 31, 1973 in Book 538 of Deeds at page 1014;
RUNNING THENCE Westerly along the south line of said parcel heretofore conveyed to
Tignetti, a distance of 300 feet to a point;
RUNNING THENCE Northerly along the West side of said parcel heretofore conveyed to
Tignetti, to the south line of Randell Hill Road; and
RUNNING THENCE Southwesterly along the south line of Randell Hill Road, or an
extension thereof, to the point or place of BEGINNING.
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Schedule B
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The following identified below are made Defendants to this foreclosure action for any interest
each such Defendant may have in or against the Property due to itslien/subordinate interest in
the Property as more fully demonstrated in the abstract (provide Defendant detail with each
Defendant):
JOHN DOE Said name being fictitious to represent
unknown Tenants/Occupants of the subject
property and any other party or entity of any
kind, if any, having or claiming an interest
or lien upon the mortgaged property, whose
lien is subordinate to Plaintiff’s lien.
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Exhibit A
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ADJUSTABLE RATE NOTE
(HOME EQUITY CONVERSION)
JANUARY 22, 2008
477 IVANHOE ROAD, SIDNEY CENTER, NEW YORK non
[Property
Address]
1. DEFINITIONS
"Borrower" "Lender"
means each person signingat theend ofthisNote. means
EVERBANK REVERSE MORTGAGE LLC
"Secretary"
and itssuccessors and assigns. means the Secretary of Housing and Urban Development or his or her authorized
representatives.
2. BORROWER'S PROMISE TO PAY; INTEREST
In returnfor amounts to be advanced by Lender to orfor the benefitof Borrower under the terms of a Home Equity Conversion
Loan Agreement dated JANUARY 22, 2008 ("Loan Agreement"), Borrower promises to pay tothe order of Lender a principal
amount equal to thesum of allLoan Advances made under the Loan Agreement with interest.All amounts advanced by Lender, plus
if
interest, not due earlier,are due and payable on MAY 28 , 2088 . Interestwill be charged on unpaid principal at
the rateof FOUR AND 040/1000 percent ( 4.0400 %) per year untilthe fullamount of principal has been
paid. The interestrate may change in accordance with Paragraph 5 of this Note. Accrued interestshall be added to the principal
balance as a Loan Advance at theend of each month.
3. PROMISE TO PAY SECURED
Borrower's promise to pay issecured by a mortgage, deed of trustor similar securityinstrument that isdated the same date as
Instrument."
thisNote and called the "Security That Security Instrument protects the Lender from losses which might result if
Borrower defaultsunder thisNote.
4. MANNER OF PAYMENT
(A) Time
Borrower shall pay alloutstanding principal and accrued interestto Lender upon receiptof a notice by Lender requiring
immediate payment in as provided
full, in Paragraph 7 ofthisNote.
(B) Place
Payment shallbe made at
EVERBANK REVERSE MORTGAGE LLC,
700 CORPORATE BLVD
NEWBURGH NY 12550
, orany such other place as Lender
may designate in writingby notice to Borrower.
(C) Limitation of Liability
Borrower shallhave no personal liabilityfor payment of the debt. Lender shall enforce the debt only through sale of the
Property covered by the Security Instrument ("Property").If thisNote isassigned to the Secretary, the Borrower shall not be
liablefor any difference between the mortgage insurance benefitspaid to Lender and theoutstanding indebtedness, including
accrued owed
interest, by Borrower at thetime of theassignment.
5. INTEREST RATE CHANGES
(A) Change Date
The interestrate change on the first of APRIL, 2008 , and on that of eacH
may day day succeeding
Date"
year the first
day of each succeeding month. "Change means each date on which the interestratecould change.
(B) The Index
"Index"
Beginning with the firstChange Date, the interest
rate willbe based on an Index. means the weekly average yield
United States Treasury Securitiesadjusted toa constant maturity of one year, as made available by the Federal Reserve
Board.
Index"
"Current means the most recent Index figure available30 days before the Change Date. Ifthe Index (as defined above) is
no longer available,Lender will use as a new Index any index prescribed by the Secretary. Lender will give Borrower notice of
the new Index.
(C) Calculation of Interest Rate Changes
Before each Change Date, Lender will calculatea new interestrateby adding a margin of ONE AND 000/1000
percentage points( 1.00000 %) to the Current Index. Subject to thelimits statedin Paragraph 5(D) of thisNote, thisamount
will be the new interest
rateuntil the next Change Date.
(D) Limits on Interest Rate Changes
O The interestrate will never increase or decrease by more than two percentage points (2.0%) on any single Change
Date. The interestratewill never be more than five percentage points (5.0%) higher or lower than the initialinterestrate stated
inParagraph 2 of thisNote.
The interest
ratewill never increase above FOURTEEN AND 040/1000 percent 14.04000 %).
(
(E) Notice of Changes
Lender will give noticeto Borrower of any change in theinterest rate.The noticemust be given atleast 25 days before the
new interestratetakes effect,and must setforth(i)the dateof the notice,(ii)theChange Date, (iii)the old interest
rate,(iv) the
new interestrate,(v) theCurrent Index and the date itwas published, (vi) the method of calculatingthe adjusted interestrate,
and (vii)any other information which may be required by law from time to time.
30XA : 11/07 Page 1 of 3
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, (F)ˆffective Date of Changes
A new interestratecalculated in accordance with paragraphs 5(C) and 5(D) of thisNote will become effective on the Change
Date, unless the Change Date occurs lessthan 25 days afterLender has given the required notice. Ifthe interestrate calculated in
accordance with Paragraphs 5(C) and 5(D) of thisNote decreased, but Lender failed to give timely notice of the decrease and
applied a higher rate than the ratewhich should have been stated in a timely notice, then Lender shall recalculate the principal
balance owed under thisNote so itdoes not reflectany excessive interest. . ,
6. BORROWER'S RIGHT TO PREPAY
A Borrower has the right to pay the debt evidenced by this Note, in whole or in part,without charge or penalty. Any amount of
debt prepaid will first
be applied toreduce theprincipal balance of the Second Note described in Paragraph 11 of thisNote and then
to reduce the principalbalance of thisNote.
All prepayments of theprincipalbalance shallbe applied by Lender as follows:
First,to thatportionof theprincipal balance representing aggregate payments formortgage insurance premiums;
Second, to thatportion of theprincipal balance representing aggregate payments for servicing fees;
Third, to thatportionof theprincipal balance representingaccrued interestdue under theNote; and
Fourth, to theremaining portion of theprincipal balance. A Borrower may specify whether a prepayment isto be credited to
thatportion of the principalbalance representing monthly payments or the line of credit.If Borrower does not designate
which portion of the principalbalance is tobe prepaid, Lender shallapply any partialprepayments to an existing lineof
creditor createa new lineof credit.
7. IMMEDIATE PAYMENT IN FULL
(A) Death or Sale
Lender may requireimmediate payment infullof alloutstanding principal and accrued interestif:
(i) A Borrower dies and the Property is notthe principalresidence of atleastone surviving Borrower, or
(ii)All of a Borrower's titleinthe Property (orhis orher beneficial interestina trustowning allor part ofthe Property) issold
or otherwise transferredand no otherBorrower retains title
to theProperty infee simple or retainsa leasehold under a leasefor
not lessthan 99 years which is renewable ora lease having a remaining period of not lessthan 50 years beyond thedate of the
100th birthday of theyoungest Borrower or retainsa lifeestate(or retaininga beneficial interestina trustwith such an interest
in theProperty).
(B) Other Grounds
Lender may require immediate payment in fullof alloutstanding principal and accrued interest,upon approval by an
authorized representative of theSecretary, if:
(i)The Property ceases to be the principal residence of a Borrower for reasons other than death and theProperty is notthe
principalresidence of atleast one other Borrower;
(ii)For a period of longer than 12 consecutive months, a Borrower fails
to physically occupy the Property because of physical
or mental illnessand the Property is notthe principalresidence of atleastone other Borrower; or
(iii)An obligationof theBorrower under the Security Instrument is notperformed.
(C) Payment of Costs and Expenses
If Lender has required immediate payment in fullas described above, the debt enforced through sale of the Property may
attorneys'
include costs and expenses, including reasonable and customary fees,associated with enforcement of this Note to the
extent not prohibited by applicable law. Such feesand costs shallbear interest from the date of disbursement at the same rate as
the principalof thisNote.
(D) Trusts
Conveyance of a Borrower's interestin theProperty to a trust
which meets the requirements of the Secretary, or conveyance of
a trust'sinterestsin theProperty to a Borrower, shallnot be considered a conveyance for purposes of thisParagraph. A trustshall
not be considered an occupant or be considered as having a principalresidence forpurposes of thisParagraph.
8. WAIVERS ,,
"Presentment"
Borrower waives the rights ofpresentment and notice of dishonor. means the right to requireLender to demand
dishonor"
payment of amounts due. "Notice of means the rightto require Lender to give notice to other persons thatemounts due
have not been paid.
9. GIVING OF NOTICES
Unless applicable law requires a differentmethod, any notice that must be given to Borrower under thisNote will be given by
delivering itor by mailing itby firstclass mail toBorrower at theProperty Address ábove or at a differentaddress ifBorrower has
given Leader a noticeof Borrower's differentaddress.
Any notice that must be given to Lender under this Note will be given by firstclass mail to Lender at the address stated in
Paragraph 4(B) or ata differentaddress ifBorrower is givena notice of thatdifferentaddress.
10. OBLIGATIONS OF PERSONS UNDER THIS NOTE
Ifmore than one person signs thisNote, each person isfully obligated to keep allof the promises made in thisNote. Lender may
enforce itsrights under thisNote only through saleof the Property.
11. RELATIONSHIP TO SECOND NOTE
(A)Second Note
Because Borrower willbe required to repay amounts which the Secretary may make to or on behalf of Borrower pursuant to
Section 255(i)(1)(A) of theNational Housing Act and theLoan Agreement, the Secretary has required Borrower to grant a Second
Note to theSecretary.
(B) Relationship of Secretary Payments to thisNote
Payments made by the Secretary shallnot be included in thedebt due under thisNote unless:
(i) This Note isassigned to theSecretary; or
(ii) The Secretaryaccepts reimbursements by the Lender for allpayments made by the Secretary.
Ifthe circumstances described in (i)or(ii)occur, then allpayments by the Secretary, including intereston the payments, shall be
included inthe debt.
31XA : 06/07 Page 2 of 3
17 of 57
FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023
(C) Effect on Borrower
Where there isno assignment or reimbursement as described in (B)(i)or (ii),and the Secretary makes payments to [5orrower,
then Borrower shallnot:
(i) Be required to pay amounts owed under this Note untilthe Secretary has required payment in full of all outstanding
Preview
FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DELAWARE MORTGAGE ASSETS MANAGEMENT, LLC Index No.: DATE FILED: PLAINTIFF, SUMMONS V. Plaintiff designates DELAWARE County as the MARILYN A. COLLAR; “JOHN DOE #1” Place of Trial through “JOHN DOE #12,” the last twelve names being fictitious and unknown to Designation of Venue is based upon the situs of the plaintiff, the persons or parties intended being Subject Property the tenants, occupants, persons or corporations, if any, having or claiming an Subject Property: interest in or lien upon the Subject Property 477 IVANHOE ROAD described in the Complaint,, SIDNEY CENTER, NY 13839 DEFENDANTS. 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 within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (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 sixty (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. 1 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If 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 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: 01/27/2023 Iselin, NJ Stern & Eisenberg, PC ____________________________________ By: Arsenio Rodriguez, Esq, (4761011) Stacey A. Weisblatt, Esq. (2517886) Attorneys for Plaintiff 1131 Route 55, Suite 1 Lagrangeville, NY 12540 Telephone: (516) 630-0288 2 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DELAWARE MORTGAGE ASSETS MANAGEMENT, LLC Index No.: DATE FILED: PLAINTIFF, COMPLAINT V. MARILYN A. COLLAR; “JOHN DOE #1” Subject Property: through “JOHN DOE #12,” the last twelve 477 IVANHOE ROAD names being fictitious and unknown to SIDNEY CENTER, NY 13839 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,, DEFENDANTS. The Complaint of the above-referenced Plaintiff, by its attorneys, Stern & Eisenberg, PC, complains and alleges upon information and belief as follows: NATURE OF THIS ACTION 1. This action is brought and pursuant to Article 13 of the Real Property and Proceedings Law for foreclosure of the mortgage dated 01/22/2008 and recorded on 02/19/2008, at Book 1518, Page Number 14 in the Public Records of the County of Delaware, State of New York (hereinafter referred to as the “Subject Mortgage”). The Mortgage Tax was duly paid. 2. The premises which forms the subject of this action is fully described in Schedule “A” attached hereto and is commonly known as 477 Ivanhoe Road, Sidney Center, NY 13839 and by Section: 205. Block: 1 Lot: 2.1 (hereinafter referred to as “Subject Property”). PARTIES 3. At all times hereinafter mentioned, Plaintiff was and remains, organized and existing under the laws of the United States of America or of the State of its formation. 3 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 4. Upon information and belief, Defendant(s) Marilyn A. Collar, at all relevant times, maintain a residence within the State of New York and are the mortgagors pursuant to the Subject Mortgage. The description and interest of the above-referenced Defendant(s) is more fully set forth in Schedules “B” and “C”, respectively. See RPAPL §§§ 1311, 1312, and 1313. 5. Upon information and belief, the remaining Defendant(s), if any and not further set forth hereinbelow, as identified in Schedule “B”, are named solely for the reasons set forth in Schedule “C”. See RPAPL §§§ 1311, 1312, and 1313. 6. Defendants “JOHN DOE #1” through “JOHN DOE #12” are additional 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. See RPAPL §§§ 1311, 1312, and 1313. RELEVANT FACTS 7. Marilyn A. Collar, duly executed, acknowledged, and delivered a note dated 01/22/2008 (“Subject Note”). Annexed hereto as Exhibit “A” is a copy of the Subject Note. 8. Plaintiff, directly or through an agent has complied with all applicable laws in an attempt to establish ownership and/or possession of the Subject Note and the right to foreclosure of same. Plaintiff has possession and control of the original Subject Note and Subject Mortgage, which Note is secured by the Subject Mortgage and the Subject Note is either made payable to Plaintiff or is duly indorsed in blank. To the extent that the original note or interim assignments of mortgage are lost or unavailable, Plaintiff has the right to foreclose the Subject Note and Subject Mortgage pursuant to New York law. 9. As collateral and to secure the repayment of the sum represented by the Subject Note, Marilyn A. Collar, duly executed, acknowledged and delivered the Subject Mortgage. Said mortgage was assigned to Plaintiff by assignment of mortgage duly executed on a date prior to the filing of the complaint. A copy of the Subject Mortgage and assignment is annexed hereto as Exhibit “B”. 4 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 10. The Subject Mortgage is secured by the Subject Property, together with all fixtures, appurtenances, and articles of personal property annexed thereto, installed therein, or used in connection with the in addition to all right, title, and interest of the Defendants in and to the land lying in the streets and roads in front of adjoining said Subject Property. 11. Marilyn A. Collar also executed and delivered to plaintiff a Home Equity Conversion Loan Agreement (“HECLA”). A copy of the HECLA is annexed hereto as Exhibit “C”. 12. Now, Plaintiff further complains and alleges upon information and belief as follows: AS AND FOR A FIRST CAUSE OF ACTION 13. That Plaintiff repeats and realleges each and every allegation contained in paragraphs “1” through paragraphs “12” above with the same force and effect as if set forth at length herein. 14. Plaintiff has complied with all conditions precedent contained in the Subject Mortgage, if any, including but not limited to, sending a notice to cure default to the mortgagors as set forth in the mortgage. 15. Plaintiff declares the full amount payable under the Subject Note and Subject Mortgage to be now due. 16. Plaintiff alleges as the basis of default under the terms of the Subject Note, Subject Mortgage and, if applicable, the HECLA. ___ A Borrower has died and the Property is not the principal residence of at least one surviving Borrower. ____ All of a Borrower’s title in the Property (or his or her beneficial interest in a trust owning all or part of the Property) has been sold or otherwise transferred and no other Borrower retains (a) title to the Property in fee simple, (b) a leasehold under a lease for not less than 99 years which is renewable or a lease having a remaining period of not less than 50 years beyond the date of the 100th birthday of the youngest Borrower, or (c) a life estate in the Property (or a beneficial interest in a trust with such an interest in the Property) 5 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 __ _ The Property has ceased to be the principal residence of Borrower for reasons other than death, and the Property is not the principal residence of at least one other Borrower. ____ For a period of longer than twelve (12) consecutive months, a Borrower has failed to physically occupy the Property because of physical or mental illness and the Property is not the principal residence of at least one other Borrower. ____ The Borrower has failed to submit a required certificate of occupancy. __x_ The Borrower has failed to make required payments for taxes, property insurance and/or water/sewer charges. ____ The Borrower has failed to maintain the property. ____ The Borrower has failed to comply with an obligation under the Security as follows: ___________________________________________________________________ ___________________________________________________________________ 17. To the extent applicable, Plaintiff has complied with RPAPL 1304 and RPAPL 1306. 18. To the extent applicable, Plaintiff has complied with Banking Law 9-x. 19. To the extent applicable, Plaintiff has complied with RPL 280-b and RPL 280-d. 20. To the extent applicable, Plaintiff has complied with all of the provisions of Banking Law § 595 and any rules and regulations promulgated thereunder, Banking Law §§ 6-1 and 6-m. 21. Plaintiff is the owner and holder of said note and mortgage or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the said note and mortgage. 22. The default has continued beyond the applicable grace period set forth in the mortgage, and by reason thereof, plaintiff has elected and hereby elects to declare immediately due and payable the entire unpaid balance of principal. 6 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 23. As of 12/23/2022 there is due and owing to the plaintiff, the total sum of $139,816.83. Pursuant to the terms of the Subject Mortgage, the amount due and owing is subject to change as the sums as provided for in the Subject Note, Subject Mortgage and, if applicable, the HECLA are added to and become part of the unpaid principal balance. 24. In order to obtain a current payoff quote, or reinstatement quote if the loan is eligible to be reinstated, you may email your request to Stern & Eisenberg, PC at qc-ny@sterneisenberg.com or call 215-572-8111. 25. That Plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of the payment 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 Subject Note and Subject Mortgage, and occurring prior to the discontinuance of this action are fully paid. 26. That to protect its security afforded by said bond or note and mortgage, it may be necessary for the 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 bond or note 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. 27. That the plaintiff alleges that no other proceedings have been had for the recovery of the mortgage indebtedness or if any such action is pending, a final judgment was not rendered in favor of Plaintiff and such action is intended to be discontinued. 28. That 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. 7 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 29. The terms of the Subject Mortgage provide that defendants shall be liable to plaintiff for reasonable attorneys’ fees incurred by plaintiff to protect or enforce plaintiff's security interest in the premises. 30. That the sale of the Subject Property and title thereto are subject to the state of facts an accurate survey will show; all covenants, restrictions, easements, agreements and reservations, if any, of record, and to any and all violations thereof; 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; any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises and any violation of the same; the physical condition of any building or structure on the premises as of the date of closing hereunder; rights of tenants in possession, if any; prior mortgages and judgments, if any, now liens of record; right of Redemption of United States of America, if any; rights of any defendants pursuant to CPLR §§§ 317, 2003, and 5015, if any; 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 other conditions as set forth in the terms of sale more particularly to be announced at the sale. THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY 8 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 WHEREFORE, Plaintiff respectfully requests this Court grant judgment in favor of Plaintiff and as against Defendants as follows: I. On its First Cause of Action: a) The Defendants and each of them, and all persons claiming under them, or any of them subsequent to the commencement of this action and the filing of the Notice of Pendency thereof, may be barred and foreclosed of all right, title, claim, lien and equity of redemption in the Subject Property; b) Said Subject Property be sold subject to the state of facts an accurate survey will show; all covenants, restrictions, easements, agreements and reservations, if any, of record, and to any and all violations thereof; 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; any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises and any violation of the same; the physical condition of any building or structure on the premises as of the date of closing hereunder; rights of tenants in possession, if any; prior mortgages and judgments, if any, now liens of record; right of Redemption of United States of America, if any; rights of any defendants pursuant to CPLR § 317, CPLR § 2003 and CPLR § 5015, if any; 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 other conditions as set forth in the terms of sale more particularly to be announced at the sale. c) Said Subject Property may be decreed to be sold in one parcel according to law subject to the various items set forth in allegations of the complaint herein; 9 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 d) The monies arising from the sale may be brought into court; e) Plaintiff may be paid the amount due on said note and mortgage as alleged herein, together with interest to the time of such payment, together with the sums expended by plaintiff prior to and during the pendency of this action, and for thirty days after any sale demanded herein for taxes, water rates, sewer rents, assessments, insurance premiums and other necessary and essential charges or expenses in connection therewith to protect the mortgage lien, plus any sums expended for the protection or preservation of the property covered by said mortgage and note, and the amount secured thereby, with interest thereon from the time of such payment and the costs and expenses of this action including reasonable attorneys’ fees so far as the amount of such monies properly applicable thereto will pay the same; f) The plaintiff be decreed to be the owner of any and all personal property used in connection with the said Subject Property, except if discharged in bankruptcy; g) Awarding the relief requested in the additional causes of action stated in the complaint, if any; h) Plaintiff shall have such other and further relief or both, in the Subject Property as shall be just and equitable. Dated: 01/27/2023 Iselin, NJ Stern & Eisenberg, PC ____________________________________ By: Arsenio Rodriguez, Esq, (4761011) Stacey A. Weisblatt, Esq. (2517886) Attorneys for Plaintiff 1131 Route 55, Suite 1 Lagrangeville, NY 12540 Telephone: (516) 630-0288 10 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 Schedule A 11 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 SCHEDULE A DESCRIPTION OF MORTGAGED PREMISES ALL that certain tract or parcel of land, situate, in the Town of Masonville, County of Delaware and State of New York, being a part of the Easterly portion of the North half of Lot No. 19 in Walton's Lower Patent and being more particularly bounded and described as follows: BEGINNING at a point in the center line of Ivanhoe Road where the center line of said road would be intersected by an extension of the south side of the Randell Hill Road; and RUNNING THENCE Southerly along the center line of Ivanhoe Road a distance of 600 feet to a point; RUNNING THENCE Easterly in a straight line perpendicular to the east side of the tract of land conveyed by William DeMott and wife to Peter DiGiosa and JoAnn DiGiosa, his wife, by deed dated November 7, 1968 and recorded in the Delaware County Clerk's Office on November 14, 1968 in Book 492 of Deeds at page 411; RUNNING THENCE North 2 degrees West, along the east side of said tract conveyed by DeMott to DiGiosa as aforesaid, to the southeast corner of a parcel of land conveyed by Peter DiGiosa and JoAnn DiGiosa, his wife, to Calogero Tignatti and Louise J. Tignetti, his wife, by deed dated July 27, 1973 and recorded in the Delaware County Clerk's Office on July 31, 1973 in Book 538 of Deeds at page 1014; RUNNING THENCE Westerly along the south line of said parcel heretofore conveyed to Tignetti, a distance of 300 feet to a point; RUNNING THENCE Northerly along the West side of said parcel heretofore conveyed to Tignetti, to the south line of Randell Hill Road; and RUNNING THENCE Southwesterly along the south line of Randell Hill Road, or an extension thereof, to the point or place of BEGINNING. 12 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 Schedule B 13 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 The following identified below are made Defendants to this foreclosure action for any interest each such Defendant may have in or against the Property due to itslien/subordinate interest in the Property as more fully demonstrated in the abstract (provide Defendant detail with each Defendant): JOHN DOE Said name being fictitious to represent unknown Tenants/Occupants of the subject property and any other party or entity of any kind, if any, having or claiming an interest or lien upon the mortgaged property, whose lien is subordinate to Plaintiff’s lien. 14 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 Exhibit A 15 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 ADJUSTABLE RATE NOTE (HOME EQUITY CONVERSION) JANUARY 22, 2008 477 IVANHOE ROAD, SIDNEY CENTER, NEW YORK non [Property Address] 1. DEFINITIONS "Borrower" "Lender" means each person signingat theend ofthisNote. means EVERBANK REVERSE MORTGAGE LLC "Secretary" and itssuccessors and assigns. means the Secretary of Housing and Urban Development or his or her authorized representatives. 2. BORROWER'S PROMISE TO PAY; INTEREST In returnfor amounts to be advanced by Lender to orfor the benefitof Borrower under the terms of a Home Equity Conversion Loan Agreement dated JANUARY 22, 2008 ("Loan Agreement"), Borrower promises to pay tothe order of Lender a principal amount equal to thesum of allLoan Advances made under the Loan Agreement with interest.All amounts advanced by Lender, plus if interest, not due earlier,are due and payable on MAY 28 , 2088 . Interestwill be charged on unpaid principal at the rateof FOUR AND 040/1000 percent ( 4.0400 %) per year untilthe fullamount of principal has been paid. The interestrate may change in accordance with Paragraph 5 of this Note. Accrued interestshall be added to the principal balance as a Loan Advance at theend of each month. 3. PROMISE TO PAY SECURED Borrower's promise to pay issecured by a mortgage, deed of trustor similar securityinstrument that isdated the same date as Instrument." thisNote and called the "Security That Security Instrument protects the Lender from losses which might result if Borrower defaultsunder thisNote. 4. MANNER OF PAYMENT (A) Time Borrower shall pay alloutstanding principal and accrued interestto Lender upon receiptof a notice by Lender requiring immediate payment in as provided full, in Paragraph 7 ofthisNote. (B) Place Payment shallbe made at EVERBANK REVERSE MORTGAGE LLC, 700 CORPORATE BLVD NEWBURGH NY 12550 , orany such other place as Lender may designate in writingby notice to Borrower. (C) Limitation of Liability Borrower shallhave no personal liabilityfor payment of the debt. Lender shall enforce the debt only through sale of the Property covered by the Security Instrument ("Property").If thisNote isassigned to the Secretary, the Borrower shall not be liablefor any difference between the mortgage insurance benefitspaid to Lender and theoutstanding indebtedness, including accrued owed interest, by Borrower at thetime of theassignment. 5. INTEREST RATE CHANGES (A) Change Date The interestrate change on the first of APRIL, 2008 , and on that of eacH may day day succeeding Date" year the first day of each succeeding month. "Change means each date on which the interestratecould change. (B) The Index "Index" Beginning with the firstChange Date, the interest rate willbe based on an Index. means the weekly average yield United States Treasury Securitiesadjusted toa constant maturity of one year, as made available by the Federal Reserve Board. Index" "Current means the most recent Index figure available30 days before the Change Date. Ifthe Index (as defined above) is no longer available,Lender will use as a new Index any index prescribed by the Secretary. Lender will give Borrower notice of the new Index. (C) Calculation of Interest Rate Changes Before each Change Date, Lender will calculatea new interestrateby adding a margin of ONE AND 000/1000 percentage points( 1.00000 %) to the Current Index. Subject to thelimits statedin Paragraph 5(D) of thisNote, thisamount will be the new interest rateuntil the next Change Date. (D) Limits on Interest Rate Changes O The interestrate will never increase or decrease by more than two percentage points (2.0%) on any single Change Date. The interestratewill never be more than five percentage points (5.0%) higher or lower than the initialinterestrate stated inParagraph 2 of thisNote. The interest ratewill never increase above FOURTEEN AND 040/1000 percent 14.04000 %). ( (E) Notice of Changes Lender will give noticeto Borrower of any change in theinterest rate.The noticemust be given atleast 25 days before the new interestratetakes effect,and must setforth(i)the dateof the notice,(ii)theChange Date, (iii)the old interest rate,(iv) the new interestrate,(v) theCurrent Index and the date itwas published, (vi) the method of calculatingthe adjusted interestrate, and (vii)any other information which may be required by law from time to time. 30XA : 11/07 Page 1 of 3 16 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 , (F)ˆffective Date of Changes A new interestratecalculated in accordance with paragraphs 5(C) and 5(D) of thisNote will become effective on the Change Date, unless the Change Date occurs lessthan 25 days afterLender has given the required notice. Ifthe interestrate calculated in accordance with Paragraphs 5(C) and 5(D) of thisNote decreased, but Lender failed to give timely notice of the decrease and applied a higher rate than the ratewhich should have been stated in a timely notice, then Lender shall recalculate the principal balance owed under thisNote so itdoes not reflectany excessive interest. . , 6. BORROWER'S RIGHT TO PREPAY A Borrower has the right to pay the debt evidenced by this Note, in whole or in part,without charge or penalty. Any amount of debt prepaid will first be applied toreduce theprincipal balance of the Second Note described in Paragraph 11 of thisNote and then to reduce the principalbalance of thisNote. All prepayments of theprincipalbalance shallbe applied by Lender as follows: First,to thatportionof theprincipal balance representing aggregate payments formortgage insurance premiums; Second, to thatportion of theprincipal balance representing aggregate payments for servicing fees; Third, to thatportionof theprincipal balance representingaccrued interestdue under theNote; and Fourth, to theremaining portion of theprincipal balance. A Borrower may specify whether a prepayment isto be credited to thatportion of the principalbalance representing monthly payments or the line of credit.If Borrower does not designate which portion of the principalbalance is tobe prepaid, Lender shallapply any partialprepayments to an existing lineof creditor createa new lineof credit. 7. IMMEDIATE PAYMENT IN FULL (A) Death or Sale Lender may requireimmediate payment infullof alloutstanding principal and accrued interestif: (i) A Borrower dies and the Property is notthe principalresidence of atleastone surviving Borrower, or (ii)All of a Borrower's titleinthe Property (orhis orher beneficial interestina trustowning allor part ofthe Property) issold or otherwise transferredand no otherBorrower retains title to theProperty infee simple or retainsa leasehold under a leasefor not lessthan 99 years which is renewable ora lease having a remaining period of not lessthan 50 years beyond thedate of the 100th birthday of theyoungest Borrower or retainsa lifeestate(or retaininga beneficial interestina trustwith such an interest in theProperty). (B) Other Grounds Lender may require immediate payment in fullof alloutstanding principal and accrued interest,upon approval by an authorized representative of theSecretary, if: (i)The Property ceases to be the principal residence of a Borrower for reasons other than death and theProperty is notthe principalresidence of atleast one other Borrower; (ii)For a period of longer than 12 consecutive months, a Borrower fails to physically occupy the Property because of physical or mental illnessand the Property is notthe principalresidence of atleastone other Borrower; or (iii)An obligationof theBorrower under the Security Instrument is notperformed. (C) Payment of Costs and Expenses If Lender has required immediate payment in fullas described above, the debt enforced through sale of the Property may attorneys' include costs and expenses, including reasonable and customary fees,associated with enforcement of this Note to the extent not prohibited by applicable law. Such feesand costs shallbear interest from the date of disbursement at the same rate as the principalof thisNote. (D) Trusts Conveyance of a Borrower's interestin theProperty to a trust which meets the requirements of the Secretary, or conveyance of a trust'sinterestsin theProperty to a Borrower, shallnot be considered a conveyance for purposes of thisParagraph. A trustshall not be considered an occupant or be considered as having a principalresidence forpurposes of thisParagraph. 8. WAIVERS ,, "Presentment" Borrower waives the rights ofpresentment and notice of dishonor. means the right to requireLender to demand dishonor" payment of amounts due. "Notice of means the rightto require Lender to give notice to other persons thatemounts due have not been paid. 9. GIVING OF NOTICES Unless applicable law requires a differentmethod, any notice that must be given to Borrower under thisNote will be given by delivering itor by mailing itby firstclass mail toBorrower at theProperty Address ábove or at a differentaddress ifBorrower has given Leader a noticeof Borrower's differentaddress. Any notice that must be given to Lender under this Note will be given by firstclass mail to Lender at the address stated in Paragraph 4(B) or ata differentaddress ifBorrower is givena notice of thatdifferentaddress. 10. OBLIGATIONS OF PERSONS UNDER THIS NOTE Ifmore than one person signs thisNote, each person isfully obligated to keep allof the promises made in thisNote. Lender may enforce itsrights under thisNote only through saleof the Property. 11. RELATIONSHIP TO SECOND NOTE (A)Second Note Because Borrower willbe required to repay amounts which the Secretary may make to or on behalf of Borrower pursuant to Section 255(i)(1)(A) of theNational Housing Act and theLoan Agreement, the Secretary has required Borrower to grant a Second Note to theSecretary. (B) Relationship of Secretary Payments to thisNote Payments made by the Secretary shallnot be included in thedebt due under thisNote unless: (i) This Note isassigned to theSecretary; or (ii) The Secretaryaccepts reimbursements by the Lender for allpayments made by the Secretary. Ifthe circumstances described in (i)or(ii)occur, then allpayments by the Secretary, including intereston the payments, shall be included inthe debt. 31XA : 06/07 Page 2 of 3 17 of 57 FILED: DELAWARE COUNTY CLERK 01/27/2023 10:01 AM INDEX NO. EF2023-56 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/27/2023 (C) Effect on Borrower Where there isno assignment or reimbursement as described in (B)(i)or (ii),and the Secretary makes payments to [5orrower, then Borrower shallnot: (i) Be required to pay amounts owed under this Note untilthe Secretary has required payment in full of all outstanding