Preview
FILED: NASSAU COUNTY CLERK 02/13/2023 03:01 PM INDEX NO. 007455/2014
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
EXHIBIT H
FILED: NASSAU COUNTY CLERK 02/13/2023 03:01 PM INDEX NO. 007455/2014
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
)
CITIMORTGAGE, INC., )
) INDEX NO. 007455/2014
Plaintiff, )
) AFFIDAVIT IN SUPPORT
-against-
) OF MOTION FOR
) SUMMARY JUDGMENT
EDUARDO CASTRO, PAOLA CASTRO AND
Doe"
MARLON CASTRO, and "John and/or "Jane
) Property Address:
Doe"
# 1-10 inclusive, the last ten names being
) 26 Archer Road
fictitious and unknown to plaintiff, the persons or 11552-
) West Hempstead, NY
parties intended being the tenants, occupants, persons
1730
or corporations, if any, having or claiming an interest
in or lien upon the premises described in the complaint,
Defendants.
STATE OF KENTUCKY )
)SS.
BOONE COUNTY )
Vikki Sunderhaus, being first duly sworn on oath, deposes and states as follows:
1. I am employed as a Vice President - Document Control of
(VPDC) CitiMortgage,
Inc., Plaintiff.
2. I am authorized to execute this Affidavit and to make the representations contained herein
on behalf of CitiMortgage, Inc. The statements made in this Affidavit are based on my personal
knowledge and review of CitiMortgage, Inc.'s business records, as described in Paragraph 4 of this
Affidavit.
3. For convenience, the following party or parties are referred to herein as "Borrowers":
EDUARDO CASTRO, PAOLA CASTRO and MARLON CASTRO.
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
4. In as a Vice President - Document Control I have access to
my capacity (VPDC),
CitiMortgage, Inc.'s business records, including the business records for and relating to the
Borrowers'
loan. I make this Affidavit based upon my review of those records relating to the
Borrowers'
loan and from my own personal knowledge of how they are kept and maintained. The
loan records for the Borrowers are maintained by CitiMortgage, Inc. in the course of its regularly
conducted business activities and are made at or near the time of the event, by or from information
transmitted by a person with knowledge. It is the regular practice to keep such records in the
ordinary course of a regularly conducted business activity.
5. Borrowers, EDUARDO CASTRO, PAOLA CASTRO and MARLON CASTRO
executed a Note (the "Note") dated October 2, 2007, for $368,191.00 secured by a mortgage (the
"Mortgage") executed by EDUARDO CASTRO, PAOLA CASTRO and MARLON CASTRO
encumbering the property located at 26 ARCHER ROAD, WEST HEMPSTEAD, COUNTY OF
NASSAU, STATE OF NEW YORK 11552-1730 (the "Premises"). The Mortgage was recorded
on October 11, 2007 in Liber M 32407, Page 393 in the Office of the Nassau County Clerk, State of
New York. The Mortgage was assigned to CitiMortgage, Inc. as memorialized by an Assignment
of Mortgage dated June 29, 2010 and recorded on July 6, 2010 in Liber M 34955, Page 800 in the
Office of the Nassau County Clerk, State of New York. True and correct copies of the Note,
Mortgage and Assignment of Mortgage are annexed hereto as Exhibit A.
6. The Note bears an endorsement in blank from CitiMortgage, Inc. and the Note has
not been transferred, sold or assigned. See a true and correct copy of the Note annexed hereto as
Exhibit A.
7. CitiMortgage, Inc. has the right to foreclose based on the following: At the date of
commencement of this action:
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
CitiMortgage, Inc. was the holder of the Note.
/A CitiMortgage, Inc. had possession of the Note and is enforcing the Note as
transferee in possession.
A CitiMortgage, Inc. had the right to possess the Note but was unable to locate the
Note in its files; therefore, CitiMortgage, Inc. is enforcing the Note using a lost note affidavit.
8. CitiMortgage, Inc. continues to hold the original Note which can be made
available for review upon order of the court.
9. The Borrowem defaulted under the terms of the Note and Mortgage by failing to
Borrowers'
tender payment for the monthly installment due for February 1, 2010. The default has
not been cured, and the loan balance has been accelerated making the entire balance due and owing
pursuant to the terms of the loan documents.
Borrowers' Borrowers'
10. As a result of the default, the unpaid principal balance as of
January 14, 2015 is $358,924.67.
11. A demand for payment of the mortgage arream was made by correspondence dated
April 14, 2010. The notice demanded payment by May 15, 2010 (or the next business day if May
15, 2010, was a Saturday, Sunday or Federal Holiday), which was at least 30 days after the date in
Borrowers'
which the notice was mailed to the Borrowers by first class mail at the last known
address. A true and correct copy of the demand letter is annexed hereto as Exhibit B.
12. My review of the records of CitiMortgage, Inc. shows that CitiMortgage, Inc. did not
receive a dispute of the arrears demanded within thirty (30) days of its issuance.
13. My review of records maintained by CitiMortgage, Inc., reveals that a ninety (90)
daypre-foreclosure notice ("90 Day Notice") was sent to EDUARDO CASTRO on December 20,
2013, to the address of the property, at 26 Archer Road, W Hempstead, New York 11552-1730, and
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FILED: NASSAU COUNTY CLERK 02/13/2023 03:01 PM INDEX NO. 007455/2014
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
to the Borrower's last known address which is also, 26 Archer Road, W Hempstead, New York
11552-1730, by certified and first class mail. True and correct copies of the 90 Day Notices are
annexed hereto as Exhibit B.
14. My review of records maintained by CitiMortgage, Inc., reveals that a ninety (90)
day pre-foreclosure notice ("90 Day Notice") was sent to MARLON CASTRO on December 20,
2013, to the address of the property, at 26 Archer Road, W Hempstead, New York 11552-1730, and
to the Borrower's last known address which is also, 26 Archer Road, W Hempstead, New York
11552-1730, by certified and first class mail. True and correct copies of the 90 Day Notices are
annexed hereto as Exhibit B.
15. My review of records maintained by CitiMortgage, Inc., reveals that a ninety (90)
day pre-foreclosure notice ("90 Day Notice") was sent to PAOLA CASTRO on December 20,
2013, to the address of the property, at 26 Archer Road, W Hempstead, New York 11552-1730, and
to the Borrower's last known address which is also, 26 Archer Road, W Hempstead, New York
11552-1730, by certified and first class mail. True and correct copies of the 90 Day Notices are
annexed hereto as Exhibit B.
16. The title of the 90 Day Notice is typed in at least fourteen (14) point font. The text
following the title of the 90 Day Notice is typed in at least fourteen (14) point font.
17. After the 90 Day Notice was mailed, it was recorded in a Correspondence Log.
This log shows that the 90 Day Notice was sent to the Borrowers on December 20, 2013 by
certified mail and on December 20, 2013 by first class regular mail. A true and correct copy of
the Correspondence Log is attached hereto as Exhibit B.
18. It is CitiMortgage, Inc.'s standard business procedure regarding all Notices to the
Borrowers, to enter the mailing information of such Notices in a Correspondence Log
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
contemporaneously with the mailing of said Notices. As a result, the information found in
CitiMortgage, Inc.'s Correspondence Log is maintained in its computer records as a business
record.
19. In accordance with the practice and procedure of CitiMortgage, Inc. in the
regular course of business to enter the date that the 90 Day Notices were served on the
Borrower(s), the Correspondence Log shows that the entry in the log was made
contemporaneously with both the making of the 90 Day Notice and the mailing of said 90 Day
Notice. As aforesaid, the information shown in the Correspondence Log is made and maintained
by CitiMortgage, Inc. in the regular course of business.
20. CitiMortgage, Inc. respectfully requests that the Court accept the Correspondence
Log as evidence of the act or acts establishing that the 90 day Notices were duly served on the
Borrowers.
21. All notices were mailed to the property address or last known residence provided to
the Plaintiff by the Borrowers. Upon information and belief, the Borrowers are known to be
residents of the property in foreclosure. Where applicable, this loan has been reviewed for possible
loan modification pursuant to Federal legislation.
22. The plaintiff, assignee or mortgage loan servicer has timely filed with the
Superintendent of the New York State Banking Department the name, address, last known
telephone number of the Borrowers and the amount claimed as due and owing on the mortgage. A
copy of the Proof of Filing Statement is annexed hereto as Exhibit B.
23. I have reviewed the summons and complaint and affidavit of service of same as
provided by Plaintiffs counsel, the defendants received copies of the summons and complaint from
the process server who executed the affidavits of service. The Court is respectfully referred to
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
copies of the filed summons and complaint and affidavits of service annexed hereto
respectively as Exhibits C and D.
24. I have checked the records of CitiMortgage, Inc., which are kept in the regular
course of business, and confirm that the default date and amount stated in the Complaint to be due
and owing to the Plaintiff are correct. The Borrowers EDUARDO CASTRO, PAOLA CASTRO
and MARLON CASTRO defaulted under the terms of the Note and Mortgage by failing to tender
payment for the monthly installment due for February 1, 2010. There is due and owing a principal
balance of $358,924.67, plus interest at the rate of 6.5000% from January 1, 2010. All payments
Borrowers'
made were properly applied to account. A true and correct copy of the payment
history is annexed hereto as Exhibit G. This payment history is a business record of
CitiMortgage, Inc. and is kept in the ordinary course of business in accordance with the business
practices stated above. It is CitiMortgage, Inc.'s normal business practice that when a payment is
received the person who has personal knowledge of the receipt to record its receipt and amount into
CitiMortgage, Inc.'s business records, and to update the payment history accordingly.
25. In conjunction with this loan, the Borrowers were provided with pertinent mortgage
closing documents, including the Good Faith Estimate-RESPA, Initial Escrow Account Disclosure
Statement, Truth in Lending Disclosure, Loan Application, and HUD-1 Uniform Settlement
Statement, which clearly set forth the financial charges and interest rate for the loan. These
documents were signed by the Borrowers EDUARDO CASTRO, PAOLA CASTRO and
MARLON CASTRO on or before October 2, 2007. True and correct copies of the loan
origination documents are annexed hereto as Exhibit H.
26. In their loan application for the aforesaid mortgage, the Borrowers, EDUARDO
CASTRO, PAOLA CASTRO and MARLON CASTRO stated that their gross monthly income
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/13/2023
was $4,790.58. Pursuant to the Note for the subject mortgage, the monthly payment was $2,327.22.
See, a true and correct copy of the loan application annexed hereto as Exhibit H.
27. My review of records indicate that the Borrowers were previously denied for loss
mitigation in accordance with FHA guidelines. Further, the Borrowers are seeking the non-retention
option of a short sale, but a complete application has not been received.
AFFIANT
Name: Vikki Sunderhaus
-
Date: 4I6
Subscribed and sworn before me this
day of Sp ylyy , 201_1
Notary Public in an for the
State of \dJtf\ L} Q MINEAR
CYNTHIA
County of ID No. 472487
Notary Public,
Notary Signature (h f\ t K nt k
x\y S at at
STATE OF )C )
) ss.
COUNTY OF GOT )
On the day of CJ'\UGT in the year 20j5before me, the undersigned, a Notary Public in
and for said State, personally appeared S\JMET uR , personally known to me or proved
to me on the basis of satisfactory evidence to be the individual(s) whos name(s) is (are) subscribed to the within
instrument and acknowledged to me that he ey executed same in hi e their capacity(ies), and that by his eftheir
signature(s) on the instrument, the individual(s) or the person upon behal of which e individual(s) acted, executed the
instrument, and that such individual made such appearance before the undersigned in \Oft(\C£ \
3
Personally Known OR
Produced Identification
Type of Identification Produced: pl
CYNTHIA
1/A \ ff fiA, .
Notary Public,
MINEAR
ID No. 472487
No Public State at Large, Kentuc
My Commission Expires August 9, 016
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