Preview
FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023
Exhibit “A”
FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023
SUPREME CC URT OF THE STATE OF NEW YORK
COUNTY OF OLUMBIA
Wells Fargo Bank, N.A., as Trustee, on behalf of the registered Index #: _
bolders of Mo gan ABS Capital I Inc. Trust 2005- Filed:
11358 17
Stanley
Mort ,age Pass-Through Series 2005-
WMC2, Certificates,
WMC2
Plaintiff, SUMMONS
-against- Plaintiff designates
Columbia County as the
place of trial Venue is
David T. Dusenbery a/k/a David Dusenbery a/k/a David T. based upon the County in
Dusenbury, Empire Merchants North, LLC Successor in which the mortgaged
Interest to Col & Wine The premises is situated.
>ny Liquor Distributors, LLC,
National Unio 1 Bank of Kinderhook, Woodvale Holdings LLC,
New York Sta e Department of Taxation and Finance and
" C1"
JOHN DOE through "JOHN DOE #10", the last ten narnes
fictitiot and unknown to the plaintiff, the person or
being
parties intend d being the persons or parties, if any, having or
claiming an in erest in or lien upon the mortgaged premises c ""
described
--
in ti e Complaint,
Defendants. O o [T]
TO THE ABOVE NAMED DEFENDANT(S); .
-< O
cn
YOU ALE HEREBY SUMMONED to answer the Complaint in this action and to serve a
of your A uswer if the Complaint is not served with this Summons, to serve a Notice of
copy or,
Appearance on he attorneys for the plaintiff within twenty (20) days after service of this Summons,
exclusive of the of service; or within days after service is complete if this Summons
day thirty (30)
delivered to you within the State of New York; or within days if it is the
is not personall sixty (60)
America. In case of your failure to appear or answer, judgment will be taken against
United States o
you default or the relief demanded in the Complaint.
by
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023
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 your mortgage company will not stop this 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: Williamsville, New York FRENKEL, LAMBERT, WEISS,
April 5, 2017 WEISMAN & GORDQ , LLP
BY: Kristin Bolduc
Attorneys for Plaintiff
Main Office - 53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Our File No.: 01-065457-F01
TO:
David T. Dusenbery a/k/a David Dusenbery a/k/a David T. Dusenbury
109 Joslen Boulevard
Hudson, NY 12534
Empire Merchants North, LLC Successor in Interest to Colony Liquor & Wine Distributors, LLC
16 Houghtaling Road
West Coxsackie, NY 12192
The National Union Bank of Kinderhook
1 Hudson Street
Kinderhook, NY 12106
Woodvale Holdings LLC
New York State Department of Taxation and Finance
W.A. Harriman State Campus Bldg. 9
Albany, NY 12227
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023
11858-17
..
r- F-
SUPREME CCURT OF THE STATE OF NEW YORK l'
1
COUNTY OF COLUMBIA F 1 L L
Wells Fargo B mk, N.A., as Trustee, on behalf of the registered
holders of Mo gan ABS Capital I Inc, Trust 2005- 10 l Î AN 13 P 2 05
Stanley
Mortgage Pass-Through Series 2005- C
WMC2, Certificates,
CLE8ifS OfflCE
Plaintiff,
F
-agair t-
David T. Dusenbery a/k/a David Dusenbery a/k/a David T.
Dusenbury, Empire Merchants North, LLC Successor in
Interest to Colony Liquor & Wine Distributors, LLC, The
National Union Bank of Kinderhook, Woodvale Holdings LLC,
New York State Department of Taxation and Finance and
#1"
"JOHN DOE through "JOHN DOE #10", the last ten names
being fictitious and unknown to the plaintift the person or
parties intended being the persons or parties, if any, having or
. claiming an interest in or lien upon the mortgaged premises
described in the Complaint,
Defendants.
The plaintiff, by its attorneys, Frankel, Lambert, Weiss, Weisman, & Gordon, LLP,
complaining of the defendants herein allege, upon information and belief, as follows:
AS A FIRST CAUSE OF ACTION
1. That the plaintiff, Wells Fargo N.A., as Trustee, on behalf of the registered holders of
Bank,
Morgan ABS Capital I Inc. Trust 2005-WMC2, Mortgage Pass-Through Certificates, Series
Stanley
at all times hereinafter mentioned was and still is a National Association organized
2005-WMC2,
under the laws of the United States of America.
On or about November David T. Dusenbery a/k/a David Dusenbery a/k/a David
2. 23, 2004,
T. Dusenburyand executed and delivered to WMC Mortgage Corp. a note datedNovember 23, 2004
David T. Dnsenbery a/k/a David a/k/a David T. Dusenbury, promised to pay
whereby Dusenbery
the principal sum of $147,000.00.
David T. Dusenbery a/k/a David a/k/a David
3. On or about November 23, 2004, Dusenbery
executed and delivered to Mortgage Electronic Registration Systems, Inc., asnominee
T. Dusenbury,
for WMC Mortgage Corp. a mortgage (hereinafter "mortgage") in the principal sum of $14'7,000.00,
with the premises known as 109 Joslen Boulevard, Hudson, NY 12534
interest, mortgaging
(hereinafter as collateral for the note. The mortgaged premises is more fully
"premises") security
"A"
described in EXH1BIT annexed hereto.
mortgage was recorded in the Offtee of the Clerk of the County of Columbia on
4. The duly
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023
December 31, 2004 in Book 525, Page 561 and the recording tax was duly paid. Thereafter, the loan
was modified pursuant to a Loan Modification Agreement dated May 1, 2015 which created a single
lien in the amount of $233,639.98.
5. That plaintiff is in possession of the original note with a proper endorsement and/or allonge
and is therefore, the holder of both the note and mortgage, which passes as incident to the note.
6. Pursuant to the Loan Modification, David T. Dusenbery a/k/a David Dusenbery a/k/a David
T. Dusenbury, promised to make consecutive monthly payments of principal and interest each
month, in accordance with the terms ofthe loan modification agreement, commencing June 01, 2015
and on the first day of each succeeding month up to and including January 01, 2035 when the entire
principal amount and accrued interest shall be due and payable.
7. Pursuant to the terms of the mortgage, in addition to principal and interest, the mortgagee
can collect and charge to the loan all amounts necessary to pay for taxes, assessments, leasehold
payments or ground rents (if any), hazard insurance and mortgage insurance.
8. The mortgage further provides that in case of default in the payment of any principal or
interest or any other terms, covenants or conditions of the mortgage, the holder of the mortgage
could declare the entire indebtedness secured by the mortgage immediately due and payable, and the
holder of the mortgage is empowered to sell the mortgaged premises according to law.
9. David T. Dusenbury failed to comply with the terms, covenants and conditions of said note,
mortgage and Loan Modification by failing and omitting to pay, to the plaintiff, payments due on
October 01, 2015 and said default has continued for a period in excess of fifteen (15) days.
10. Pursuant to the terms of the note, mortgage and Loan Modification, the plaintiff has elected
and does hereby elect to declare the entire principal balance to be due and owing.
11. That there is now due and owing to the plaintiff under said note and mortgage the principal
sum of $232,477.04, which includes a principal balance of $162,385.05 with interest thereon from
September 01, 2015, plus a non-interest bearing principal balance of $70,091.99 pursuant to the Loan
Modification Agreement herein referenced, plus late charges if applicable pursuant to the terms of
the note and advances made by the plaintiff on behalf of the defendant(s) and any other charges due
and owing pursuant to the terms of the note and mortgage.
12. Plaintiff shall not be deemed to have waived, altered, released or changed the election
hereinbefore made by reason of payment after the date of commencement of this action of any or all
of the defaults mentioned herein, and such election shall continue and remain effective.
13. In order to protect its security, the plaintiff may be compelled, during the pendency of this
action, to pay sums for premiums on insurance policies, real estate taxes, assessments, water charges
and sewer rents which are or may become liens on the mortgaged premises, and other charges which
may be necessary for the protection of the mortgaged premises, and the plaintiff prays that any sum
or sums so paid, together with interest from the date of payments, shall be added to the plaintiff s
claim and be deemed secured by said note and mortgage and adjudged a valid lien on the mortgaged
FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023
premises, and that the plaintiff be paid such sums, together with interest thereon, out of the proceeds
of the sale of the mortgaged premises.
14. Upon iIformation and belief all the defendants herein have or claim to have some interest
in or lien upon said mortgaged premises or some part thereof which interest or lien, if any, has
accrued subsequent to the lien of plaintiff s mortgage, or has been paid or equitably subordinated to
plaintiff s mortgage, or been duly subordinated thereto. The reason for naming said defendants is set
A"
forth in "Schedule that is attached to this complaint.
15. A prior action was brought to recover part of the mortgage debt, however none of the
mortgage debt was collected.
16. Plaintiff has complied with all of the provisions of Banking Law §595-a and any rules and
regulations promulgated thereunder, Banking Law §§6-1 and 6-m, if applicable.
17. Upon information and belief, plaintiff has complied with the provisions of Real Property
Actions and Proceedings Law §1304 and §1306 unless exempt from doing so.
18. That the plaintiff is now the owner and holder of the said note and mortgage securing the
same or has been delegated the authority to institute a mortgage foreclosure action by the owner and
holder of the subject mortgage and note or is the holder of the note and mortgage and has been
delegated the authority to institute a mortgage foreclosure action by the owner of the note and
mortgage.
19. If plaintiff is not the owner and holder of the subject note and mortgage, plaintiff has
been delegated the authority to institute a mortgage foreclosure action pursuant to statute and/or
delegation of authority by the owner of the subject note and mortgage.
20. Plaintiff requests that the mortgaged premises be sold in one parcel and that if the premises
consists of more than one parcel, plaintiff respectfully requests that the judgment of foreclosure
provide for the parcels to be sold as one parcel.
21. The sale of the mortgaged premises under foreclosure herein is subject to any state of facts
that an inspection of the premises would disclose, any state of facts an accurate survey would show,
and to covenants, restrictions and easements, if any, ofrecord affecting said mortgaged premises and
any violation thereof, any equity of redemption of the United States of America to redeem the
premises within 120 days from the date of sale, prior mortgages and liens of record, if any, any rights
of tenants or persons in possession of the subject premises, and to zoning regulations and ordinances
of the city, town or village in which said mortgaged premises lies and any violations thereof.
22. In the event that the plaintiff possesses any other lien(s) against the mortgaged premises
either by way ofjudgment, junior mortgage or otherwise, plaintiffrequests that such other lien(s)not
be merged in plaintiffs cause(s) of action set forth in this Complaint, but that plaintiff shall be
permitted to enforce said other lien(s) and/or seek determination of priority thereof in any
independent action(s) or proceeding(s), including, without limitation, any surplus money
proceedings.
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AS AND FOR A SECOND CAUSE OF ACTION
23. The plaintiff repeats and realleges each and every allegation contained in paragraphs
designated 1 through 22.
24. The mortgage provides that in the event of default, the plaintiff may recover all costs,
attorneys'
including reasonable fees, disbursements, and allowances provided by law in bringing any
action to protect its interest in the premises, including foreclosure of the mortgage.
AS AND FOR A THIRD CAUSE OF ACTION
25. The Plaintiff repeats and realleges each and every allegation contained in paragraphs
designated 1 through 24.
26. The subject mortgage describes the property to be encumbered by the lien of the subject
mortgage through reference to a legal description annexed to the subject mortgage.
27. The Plaintiff s recorded copy of the subject mortgage contains a description that does not
properly describe the property.
28. On information and belief, the parties intended the mortgage to encumber the full extent
of the property owned by the mortgagor(s) under the legal description in the vesting deed. A copy
of the correct legal description is annexed hereto at Exhibit "A".
29. On information and belief, the mortgage contains an incorrect legal description because of
a mutual mistake of the parties or some other unknown error.
30. Reformation of the mortgage to add the correct legal description is necessary to ensure
the mortgage reflects the agreement the parties intended.
WHEREFORE, the plaintiff demands judgment against the defendant(s) as follows:
a) That the defendants and all persons claiming under them or any of them, subsequent
to the commencement of this action and to the filing of the Notice of Pendency of this action, may
be barred and foreclosed of all right, title, claim, lien and equity of redemption in the mortgaged
premises;
b) That the mortgaged premises be sold in one parcel according to law subject to any
state of facts an accurate survey would show, any covenants, easements, encroachments,
reservations, and restrictions, violations and agreements ofrecord, zoning regulations and ordinances
of the city, town, or village; wherein the premises is located, any state of facts a physical inspection
will disclose, rights of tenants and other persons in possession of the mortgaged premises, prior
judgments, liens and mortgages of record and any and all rights of the United States of America to
redeem the subject premises;
c) That the premises be sold in accordance with Title 28, Section 2410 of the United
State Code preserving all rights of redemption, if any, of the United States of America;
d) Thatthe monies received from the sale be brought into Court and that plaintiff be paid
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023
the amount adjudged to be due it with interest thereon to the time of such payment, together with late
charges, any sums paid by the plaintiff for real estate taxes, assessments, water charges and sewer
rents, insurance premiums, sums expended for the protection or preservation ofthe property, together
attorneys'
with fees as demanded in the second cause of action, the costs and disbursements of this
action and any other necessary expenses to protect the lien of the mortgage to the extent that the
amount of such monies applicable thereto will pay the same;
e) That this Court, if requested, appoint a receiver of the rents and profits of said
premises, during the pendency of this action with the usual powers and duties;
f) That the defendant(s) obligated under the note be adjudged to pay any deficiency
which may remain after applying all of such monies as aforesaid in accordance with the law and
provided that plaintiffhave execution therefore, unless the debt has been discharged in a Bankruptcy
petition or that said defendant(s) obligated under the note have been relieved of responsibility for
any such deficiency.
g) That in the event plaintiffpossesses any other lien(s) against said mortgaged premises
either by way of judgment, junior mortgage or otherwise, plaintiff requests that such other lien(s)
shall not be merged in plaintiff s cause(s) of action(s) set forth in the Complaint but that plaintiff
shall be permitted to enforce said other lien(s) and/or seek determination or priority thereof in any
independent action(s) or proceeding(s), including, without limitation, any surplus money
proceedings;
Preview
FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 Exhibit “A” FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 SUPREME CC URT OF THE STATE OF NEW YORK COUNTY OF OLUMBIA Wells Fargo Bank, N.A., as Trustee, on behalf of the registered Index #: _ bolders of Mo gan ABS Capital I Inc. Trust 2005- Filed: 11358 17 Stanley Mort ,age Pass-Through Series 2005- WMC2, Certificates, WMC2 Plaintiff, SUMMONS -against- Plaintiff designates Columbia County as the place of trial Venue is David T. Dusenbery a/k/a David Dusenbery a/k/a David T. based upon the County in Dusenbury, Empire Merchants North, LLC Successor in which the mortgaged Interest to Col & Wine The premises is situated. >ny Liquor Distributors, LLC, National Unio 1 Bank of Kinderhook, Woodvale Holdings LLC, New York Sta e Department of Taxation and Finance and " C1" JOHN DOE through "JOHN DOE #10", the last ten narnes fictitiot and unknown to the plaintiff, the person or being parties intend d being the persons or parties, if any, having or claiming an in erest in or lien upon the mortgaged premises c "" described -- in ti e Complaint, Defendants. O o [T] TO THE ABOVE NAMED DEFENDANT(S); . -< O cn YOU ALE HEREBY SUMMONED to answer the Complaint in this action and to serve a of your A uswer if the Complaint is not served with this Summons, to serve a Notice of copy or, Appearance on he attorneys for the plaintiff within twenty (20) days after service of this Summons, exclusive of the of service; or within days after service is complete if this Summons day thirty (30) delivered to you within the State of New York; or within days if it is the is not personall sixty (60) America. In case of your failure to appear or answer, judgment will be taken against United States o you default or the relief demanded in the Complaint. by FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 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 your mortgage company will not stop this 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: Williamsville, New York FRENKEL, LAMBERT, WEISS, April 5, 2017 WEISMAN & GORDQ , LLP BY: Kristin Bolduc Attorneys for Plaintiff Main Office - 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-065457-F01 TO: David T. Dusenbery a/k/a David Dusenbery a/k/a David T. Dusenbury 109 Joslen Boulevard Hudson, NY 12534 Empire Merchants North, LLC Successor in Interest to Colony Liquor & Wine Distributors, LLC 16 Houghtaling Road West Coxsackie, NY 12192 The National Union Bank of Kinderhook 1 Hudson Street Kinderhook, NY 12106 Woodvale Holdings LLC New York State Department of Taxation and Finance W.A. Harriman State Campus Bldg. 9 Albany, NY 12227 FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 11858-17 .. r- F- SUPREME CCURT OF THE STATE OF NEW YORK l' 1 COUNTY OF COLUMBIA F 1 L L Wells Fargo B mk, N.A., as Trustee, on behalf of the registered holders of Mo gan ABS Capital I Inc, Trust 2005- 10 l Î AN 13 P 2 05 Stanley Mortgage Pass-Through Series 2005- C WMC2, Certificates, CLE8ifS OfflCE Plaintiff, F -agair t- David T. Dusenbery a/k/a David Dusenbery a/k/a David T. Dusenbury, Empire Merchants North, LLC Successor in Interest to Colony Liquor & Wine Distributors, LLC, The National Union Bank of Kinderhook, Woodvale Holdings LLC, New York State Department of Taxation and Finance and #1" "JOHN DOE through "JOHN DOE #10", the last ten names being fictitious and unknown to the plaintift the person or parties intended being the persons or parties, if any, having or . claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants. The plaintiff, by its attorneys, Frankel, Lambert, Weiss, Weisman, & Gordon, LLP, complaining of the defendants herein allege, upon information and belief, as follows: AS A FIRST CAUSE OF ACTION 1. That the plaintiff, Wells Fargo N.A., as Trustee, on behalf of the registered holders of Bank, Morgan ABS Capital I Inc. Trust 2005-WMC2, Mortgage Pass-Through Certificates, Series Stanley at all times hereinafter mentioned was and still is a National Association organized 2005-WMC2, under the laws of the United States of America. On or about November David T. Dusenbery a/k/a David Dusenbery a/k/a David 2. 23, 2004, T. Dusenburyand executed and delivered to WMC Mortgage Corp. a note datedNovember 23, 2004 David T. Dnsenbery a/k/a David a/k/a David T. Dusenbury, promised to pay whereby Dusenbery the principal sum of $147,000.00. David T. Dusenbery a/k/a David a/k/a David 3. On or about November 23, 2004, Dusenbery executed and delivered to Mortgage Electronic Registration Systems, Inc., asnominee T. Dusenbury, for WMC Mortgage Corp. a mortgage (hereinafter "mortgage") in the principal sum of $14'7,000.00, with the premises known as 109 Joslen Boulevard, Hudson, NY 12534 interest, mortgaging (hereinafter as collateral for the note. The mortgaged premises is more fully "premises") security "A" described in EXH1BIT annexed hereto. mortgage was recorded in the Offtee of the Clerk of the County of Columbia on 4. The duly FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 December 31, 2004 in Book 525, Page 561 and the recording tax was duly paid. Thereafter, the loan was modified pursuant to a Loan Modification Agreement dated May 1, 2015 which created a single lien in the amount of $233,639.98. 5. That plaintiff is in possession of the original note with a proper endorsement and/or allonge and is therefore, the holder of both the note and mortgage, which passes as incident to the note. 6. Pursuant to the Loan Modification, David T. Dusenbery a/k/a David Dusenbery a/k/a David T. Dusenbury, promised to make consecutive monthly payments of principal and interest each month, in accordance with the terms ofthe loan modification agreement, commencing June 01, 2015 and on the first day of each succeeding month up to and including January 01, 2035 when the entire principal amount and accrued interest shall be due and payable. 7. Pursuant to the terms of the mortgage, in addition to principal and interest, the mortgagee can collect and charge to the loan all amounts necessary to pay for taxes, assessments, leasehold payments or ground rents (if any), hazard insurance and mortgage insurance. 8. The mortgage further provides that in case of default in the payment of any principal or interest or any other terms, covenants or conditions of the mortgage, the holder of the mortgage could declare the entire indebtedness secured by the mortgage immediately due and payable, and the holder of the mortgage is empowered to sell the mortgaged premises according to law. 9. David T. Dusenbury failed to comply with the terms, covenants and conditions of said note, mortgage and Loan Modification by failing and omitting to pay, to the plaintiff, payments due on October 01, 2015 and said default has continued for a period in excess of fifteen (15) days. 10. Pursuant to the terms of the note, mortgage and Loan Modification, the plaintiff has elected and does hereby elect to declare the entire principal balance to be due and owing. 11. That there is now due and owing to the plaintiff under said note and mortgage the principal sum of $232,477.04, which includes a principal balance of $162,385.05 with interest thereon from September 01, 2015, plus a non-interest bearing principal balance of $70,091.99 pursuant to the Loan Modification Agreement herein referenced, plus late charges if applicable pursuant to the terms of the note and advances made by the plaintiff on behalf of the defendant(s) and any other charges due and owing pursuant to the terms of the note and mortgage. 12. Plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of payment after the date of commencement of this action of any or all of the defaults mentioned herein, and such election shall continue and remain effective. 13. In order to protect its security, the plaintiff may be compelled, during the pendency of this action, to pay sums for premiums on insurance policies, real estate taxes, assessments, water charges and sewer rents which are or may become liens on the mortgaged premises, and other charges which may be necessary for the protection of the mortgaged premises, and the plaintiff prays that any sum or sums so paid, together with interest from the date of payments, shall be added to the plaintiff s claim and be deemed secured by said note and mortgage and adjudged a valid lien on the mortgaged FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 premises, and that the plaintiff be paid such sums, together with interest thereon, out of the proceeds of the sale of the mortgaged premises. 14. Upon iIformation and belief all the defendants herein have or claim to have some interest in or lien upon said mortgaged premises or some part thereof which interest or lien, if any, has accrued subsequent to the lien of plaintiff s mortgage, or has been paid or equitably subordinated to plaintiff s mortgage, or been duly subordinated thereto. The reason for naming said defendants is set A" forth in "Schedule that is attached to this complaint. 15. A prior action was brought to recover part of the mortgage debt, however none of the mortgage debt was collected. 16. Plaintiff has complied with all of the provisions of Banking Law §595-a and any rules and regulations promulgated thereunder, Banking Law §§6-1 and 6-m, if applicable. 17. Upon information and belief, plaintiff has complied with the provisions of Real Property Actions and Proceedings Law §1304 and §1306 unless exempt from doing so. 18. That the plaintiff is now the owner and holder of the said note and mortgage securing the same or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note or is the holder of the note and mortgage and has been delegated the authority to institute a mortgage foreclosure action by the owner of the note and mortgage. 19. If plaintiff is not the owner and holder of the subject note and mortgage, plaintiff has been delegated the authority to institute a mortgage foreclosure action pursuant to statute and/or delegation of authority by the owner of the subject note and mortgage. 20. Plaintiff requests that the mortgaged premises be sold in one parcel and that if the premises consists of more than one parcel, plaintiff respectfully requests that the judgment of foreclosure provide for the parcels to be sold as one parcel. 21. The sale of the mortgaged premises under foreclosure herein is subject to any state of facts that an inspection of the premises would disclose, any state of facts an accurate survey would show, and to covenants, restrictions and easements, if any, ofrecord affecting said mortgaged premises and any violation thereof, any equity of redemption of the United States of America to redeem the premises within 120 days from the date of sale, prior mortgages and liens of record, if any, any rights of tenants or persons in possession of the subject premises, and to zoning regulations and ordinances of the city, town or village in which said mortgaged premises lies and any violations thereof. 22. In the event that the plaintiff possesses any other lien(s) against the mortgaged premises either by way ofjudgment, junior mortgage or otherwise, plaintiffrequests that such other lien(s)not be merged in plaintiffs cause(s) of action set forth in this Complaint, but that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of priority thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus money proceedings. FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 AS AND FOR A SECOND CAUSE OF ACTION 23. The plaintiff repeats and realleges each and every allegation contained in paragraphs designated 1 through 22. 24. The mortgage provides that in the event of default, the plaintiff may recover all costs, attorneys' including reasonable fees, disbursements, and allowances provided by law in bringing any action to protect its interest in the premises, including foreclosure of the mortgage. AS AND FOR A THIRD CAUSE OF ACTION 25. The Plaintiff repeats and realleges each and every allegation contained in paragraphs designated 1 through 24. 26. The subject mortgage describes the property to be encumbered by the lien of the subject mortgage through reference to a legal description annexed to the subject mortgage. 27. The Plaintiff s recorded copy of the subject mortgage contains a description that does not properly describe the property. 28. On information and belief, the parties intended the mortgage to encumber the full extent of the property owned by the mortgagor(s) under the legal description in the vesting deed. A copy of the correct legal description is annexed hereto at Exhibit "A". 29. On information and belief, the mortgage contains an incorrect legal description because of a mutual mistake of the parties or some other unknown error. 30. Reformation of the mortgage to add the correct legal description is necessary to ensure the mortgage reflects the agreement the parties intended. WHEREFORE, the plaintiff demands judgment against the defendant(s) as follows: a) That the defendants and all persons claiming under them or any of them, subsequent to the commencement of this action and to the filing of the Notice of Pendency of this action, may be barred and foreclosed of all right, title, claim, lien and equity of redemption in the mortgaged premises; b) That the mortgaged premises be sold in one parcel according to law subject to any state of facts an accurate survey would show, any covenants, easements, encroachments, reservations, and restrictions, violations and agreements ofrecord, zoning regulations and ordinances of the city, town, or village; wherein the premises is located, any state of facts a physical inspection will disclose, rights of tenants and other persons in possession of the mortgaged premises, prior judgments, liens and mortgages of record and any and all rights of the United States of America to redeem the subject premises; c) That the premises be sold in accordance with Title 28, Section 2410 of the United State Code preserving all rights of redemption, if any, of the United States of America; d) Thatthe monies received from the sale be brought into Court and that plaintiff be paid FILED: COLUMBIA COUNTY CLERK 02/02/2023 01:58 PM INDEX NO. E012017011358 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/02/2023 the amount adjudged to be due it with interest thereon to the time of such payment, together with late charges, any sums paid by the plaintiff for real estate taxes, assessments, water charges and sewer rents, insurance premiums, sums expended for the protection or preservation ofthe property, together attorneys' with fees as demanded in the second cause of action, the costs and disbursements of this action and any other necessary expenses to protect the lien of the mortgage to the extent that the amount of such monies applicable thereto will pay the same; e) That this Court, if requested, appoint a receiver of the rents and profits of said premises, during the pendency of this action with the usual powers and duties; f) That the defendant(s) obligated under the note be adjudged to pay any deficiency which may remain after applying all of such monies as aforesaid in accordance with the law and provided that plaintiffhave execution therefore, unless the debt has been discharged in a Bankruptcy petition or that said defendant(s) obligated under the note have been relieved of responsibility for any such deficiency. g) That in the event plaintiffpossesses any other lien(s) against said mortgaged premises either by way of judgment, junior mortgage or otherwise, plaintiff requests that such other lien(s) shall not be merged in plaintiff s cause(s) of action(s) set forth in the Complaint but that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination or priority thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus money proceedings;