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FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688
NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONTGOMERY
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DEUTSCHE BANK NATIONAL TRUST INDEX NO.: E2015-688
COMPANY AS TRUSTEE FOR NOVASTAR
MORTGAGE FUNDING TRUST SERIES 2006- ATTORNEY AFFIRMATION IN
6 NOVASTAR HOME EQUITY LOAN ASSET- SUPPORT OF PLAINTIFF’S
BACKED CERTIFICATES SERIES 2006-6, MOTION FOR AN ORDER
CONFIRMING REFEREE REPORT
Plaintiff,
AND JUDGMENT OF
-against-
FORECLOSURE AND SALE
CURTISS A. CLEMENTS; BARBARA A.
CLEMENTS; CACH LLC; FORD MOTOR MORTGAGED PROPERTY: 145
CREDIT COMPANY LLC; CAPITAL ONE CLIZBE AVENUE AMSTERDAM, NY
BANK (USA), NATIONAL ASSOCIATION; ST. 12010
PETER'S HEALTH CARE SERVICES,
COUNTY: MONTGOMERY
Defendants.
SBL#: Section 40.14, Block 2, Lot 7
Servicer: PHH Mortgage Corporation
Servicer Telephone: (800) 330-0423
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Matthew Rothstein, Esq. pursuant to CPLR 2106 and under the penalties of perjury,
affirms as follows:
1. I am an attorney at law and an associate with Robertson, Anschutz, Schneid,
Crane & Partners, PLLC the attorneys of record for the Plaintiff. I am fully familiar with the
facts, court papers and proceedings of this action based upon a review of the file maintained by
my office.
2. This is a foreclosure action. The Plaintiff is moving the court to confirm the
Referee’s Report made in accordance with RPAPL §1321 and for a Judgment of Foreclosure and
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Sale pursuant to RPAPL §1351 that directs the distribution of the proceeds of sale in accordance
with RPAPL §1354.
3. True and accurate copies of the following documents are attached hereto:
Document Tab
Certificate of Merit & Supplemental Certificate of Merit Exhibit A
Note Exhibit B
Mortgage & Loan Modification Agreement Exhibit C
Assignment of Mortgage Exhibit D
Notice of Default Exhibit E
RPAPL §1304 90 Day Notice Exhibit F
Department of Defense Search results Exhibit G
Summons and Complaint Exhibit H
Notices of Pendency Exhibit I
Affidavits of Service Exhibit J
Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit K
Affidavit of Merit and Amount Due Exhibit L
Affirmation of Regularity Exhibit M
Order Granting Summary Judgment, Default Judgment,
Amending Caption & Appointing a Referee Exhibit N
Referee’s Oath and Report of Amount Due Exhibit O
Notice of Entry of Order of Reference Exhibit P
Attorney Fee Affirmation Exhibit Q
Power of Attorney Exhibit R
Decision and Order dated January 10, 2018 Exhibit S
Decision and Order dated May 24, 2018 Exhibit T
Decision and Order dated April 12, 2019 Exhibit U
Verified Answer Exhibit V
Legalback No. 2 - filed contemporaneously with this application
Costs and Disbursements of Plaintiff with Supporting Invoices
Legalback No. 3 - filed contemporaneously with this application
Proposed Judgment of Foreclosure and Sale
PROCEDURAL HISTORY
4. This residential mortgage foreclosure action was commenced by filing the
summons and complaint in the Montgomery County Clerk’s office on September 03, 2015, in the
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County where the mortgaged property is located. The action was brought to foreclose a
residential mortgage executed by CURTISS A. CLEMENTS AND BARBARA A. CLEMENTS
on October 31, 2006 and which was subsequently recorded on November 13, 2006.
5. That CURTISS A. CLEMENTS and BARBARA A. CLEMENTS (“Borrowers”)
executed a Note dated October 31, 2006 in the amount of $140,600.00 (“Note”). As security for
the Note, CURTISS A. CLEMENTS and BARBARA A. CLEMENTS, (“Mortgagors”) executed
a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS
NOMINEE FOR NOVASTAR MORTGAGE, INC., secured by the Premises, dated October 31,
2006 and recorded on November 13, 2006 in Liber 1476 at Page 145 (“Mortgage”). A copy of
the Note is annexed hereto as Exhibit “B”. A copy of the Mortgage is annexed hereto as
Exhibit “C”.
6. The Note was endorsed for the benefit of, and transferred to, Plaintiff. The
Mortgage transfers as incident to the Note. See Bank of NY v. Silverberg, 86 A.D. 3d 274, 926
N.Y.S.2d 532 (2nd Dep’t 2011).
7. The subject loan was modified by and through a Loan Modification Agreement
which adjusted the principal balance of the subject loan. A copy of the Loan Modification
Agreement is annexed hereto as Exhibit “C”.
8. On September 03, 2015, Plaintiff filed a notice of pendency in accordance with
RPAPL §1331 and CPLR Article 65. On April 19, 2022 Plaintiff re-filed the notice of pendency
in accordance with RPAPL §1331 and CPLR Article 65. Copies of the Notices of Pendency are
annexed hereto as Exhibit “I”.
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9. The summons, complaint and notice of pendency are in the form prescribed by
statute and contain all the particulars required by law. The summons complies with the
requirements of RPAPL §1320, contains the required notice in boldface type and is in the format
required by statute. Copies of the summons, complaint and notices of pendency are annexed
hereto as Exhibits “H & I”.
10. On September 03, 2015, Plaintiff was holder of the subject note. See affidavit of
Felix Rodriguez, attached hereto as Exhibit “L”.
11. The certificate of merit required pursuant to CPLR §3012-b was filed and served
together with supporting documents and is attached hereto as Exhibit “A”.
12. Prior to the commencement of this action the mortgage was validly assigned from
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR
NOVASTAR MORTGAGE, INC. to DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-6
NOVASTAR HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-6 by
written instrument dated December 20, 2012 and recorded in the office of the County Clerk on
January 7, 2013 at Instrument Number 2013-50377. A true and accurate copy of the Assignment
of Mortgage is annexed hereto as Exhibit ''D''.
13. According to the affidavit of service filed in the Montgomery Clerk’s Office, the
summons was served with the complaint. Copies of the affidavits of service are annexed hereto
as Exhibits “J”. Defendant(s) were served with the notice required by RPAPL §1303 printed
on colored paper together with the summons and complaint printed on white paper. The RPAPL
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§1303 notice complies with the requirements of that statute, with the title in bold, 20-point type
and with the text in bold, 14-point type. The RPAPL §1303 notice was delivered to the
mortgagors on its own separate page, together with the summons and complaint.
14. Defendant(s) were timely served with the 90-Day Pre-Foreclosure notice required
by RPAPL §1304. Plaintiff filed the name, address and telephone number of the Defendant(s),
the amount claimed to be due, and the type of loan at issue with the superintendent of banks
within three business days of the mailing of the 90-day Pre-Foreclosure notice as required by
RPAPL §1306. Copies of these notices are attached hereto as Exhibit “F”, see also the affidavit
of Felix Rodriguez, attached hereto as Exhibit “L”.
15. Plaintiff served defendants with copies of the summons in compliance with CPLR
§3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit “K”.
16. The following defendant(s) did not answer or appear and their time to answer has
expired: CACH LLC, FORD MOTOR CREDIT COMPANY LLC, CAPITAL ONE BANK
(USA) NA and ST. PETERS HEALTHCARE SERVICES. Accordingly, these defendants are in
default.
17. No defendant is an infant. No defendant is in the armed services of the United
States of America. Upon information and belief no defendant is incompetent.
18. No defendant answered nor appeared in response to the Complaint except for
CURTISS A. CLEMENTS and BARBARA A. CLEMENTS. A copy of the Verified Answer is
annexed hereto as Exhibit “V”.
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19. Plaintiff submitted an application for Summary Judgment on or about June 21,
2017. The application was denied per Decision and Order dated January 10, 2018, a copy of
which is annexed hereto as Exhibit “S”.
20. Thereafter, Defendants submitted an application for Summary Judgment on
Counterclaims on or about May 17, 2018 however, was denied per Decision and Order dated
May 24, 2018. A copy of the aforementioned is annexed hereto as Exhibit “T”.
21. On or about December 07, 2018, Plaintiff submitted an application for Summary
Judgment, Default Judgement, Appoint Referee and Amend the Caption. Per Decision and Order
dated April 12, 2019, the application was denied, a copy of which is annexed hereto as Exhibit
”U”.
22. Pursuant to CPLR §3408 the court held a mandatory settlement conference in this
action.
a. A settlement was not reached and the case was released from the settlement
conference part on January 07, 2021.
23. On November 16, 2020, the Plaintiff moved for an Order Granting Summary
Judgment, Default Judgment, Amending Caption and Appointing a Referee. Plaintiff’s motion
was granted by the Court by order dated February 07, 2022. A copy of the Order Granting
Summary Judgment, Default Judgment, Amending Caption and Appointing a Referee is attached
hereto as Exhibit “N”.
24. Plaintiff mailed Notice of Entry of the Order Granting Summary Judgment,
Default Judgment, Amending Caption and Appointing a Referee to Defendant(s) or their
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attorney(s) and the Notice of Entry was filed with the Montgomery County Clerk on March 11,
2022. A copy of the Notice of Entry is attached hereto as Exhibit “P”.
25. This court appointed Kyle Davis, Esq., as Referee to compute the amount due the
Plaintiff and to examine and report whether the mortgaged property can be sold in parcels.
26. On January 18, 2023, the Referee executed an Oath and Report of Amount Due
which computed the amount due the Plaintiff to be $376,246.97 as of November 08, 2022, and
determined that the property should be sold as one parcel. The Referee’s Oath and Report are
attached hereto as Exhibit “O”. Plaintiff is entitled to interest at the note rate until the Judgment
of Foreclosure and Sale is entered and at the statutory default rate thereafter.
27. No previous application for a Judgment of Foreclosure and Sale has been made.
PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE
28. In conjunction with the motion for an Order of Reference previously granted by
this Court, Plaintiff established all the required elements for a foreclosure. Plaintiff now requests
that the property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in
accordance with RPAPL §1354.
29. Plaintiff requests that the court grant this judgment on default of defendant(s)
CACH LLC, FORD MOTOR CREDIT COMPANY LLC, CAPITAL ONE BANK (USA) NA
and ST. PETERS HEALTHCARE SERVICES pursuant to RPAPL §1321, that the mortgaged
property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in
accordance with RPAPL §1354.
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30. RPAPL §1354(2) requires the Referee conducting the sale of the mortgaged
property to pay out of the proceeds all taxes, assessments and water rates that are liens upon the
property and to redeem the property from any sales for unpaid taxes, assessments, or water rates
that have not apparently become absolute. All expenses of recording the Referee’s Deed,
including real property transfer tax should be paid by the purchaser at the closing and not by the
Referee from sale proceeds since transfer tax is not a lien upon the property nor is it an expense
of sale, as that term is used in RPAPL §1354(1). Rather, transfer tax is an expense of recording
the deed.
31. Plaintiff is entitled to have the Judgment include reimbursement for its attorney
fees for this action in accordance with the terms of the note and mortgage. A detailed
affirmation regarding attorney fees is attached hereto as Exhibit “Q”.
32. Plaintiff is also entitled to have the Judgment include reimbursement for
Plaintiff’s costs, allowances, and disbursements made in this matter in accordance with the terms
of the note and mortgage and CPLR Article 83. A detailed statement of Plaintiff’s costs and
disbursements with the supporting invoices has been filed contemporaneously with this
application.
33. A proposed Judgment of Foreclosure and Sale is provided to the Court together
with this motion.
WHEREFORE, Plaintiff requests an order of this court:
A. Granting a Judgment of Foreclosure and Sale which appoints a Referee to sell the
property;
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B. Directing the distribution of the sale proceeds;
C. Deeming the refiled Notice of Pendency timely filed, nunc pro tunc; and
D. Granting such additional relief as the Court may deem just and proper.
DATED: March 8, 2023
Westbury, New York
Matthew Rothstein
__________________________________
Matthew Rothstein, Esq.
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ATTORNEY’S AFFIRMATION
Matthew Rothstein, Esq., an attorney at law licensed to practice in the State of New
York, and the attorney for Plaintiff in this action hereby certifies that, to the best of his/her
knowledge, information and belief, formed after an inquiry reasonable under the circumstances,
the presentation of this pleading, affidavit (or motion if applicable), or the contentions contained
herein are not frivolous as defined by 22 N.Y.C.R.R. 130-1.1(c).
Matthew Rothstein
___________________________________
Matthew Rothstein, Esq.
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WORD COUNT CERTIFICATION
The total number of words in the foregoing brief memorandum, affirmation or affidavit
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is _1937.
The document complies with the applicable word count limit and is based on the word
count of the word-processing system used to prepare the document.
Dated: March 8, 2023
Westbury, New York
Matthew Rothstein
________________________________________
Matthew Rothstein, Esq.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, NY 11590
516-280-7675
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FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONTGOMERY ----------------------------------------------------------------X DEUTSCHE BANK NATIONAL TRUST INDEX NO.: E2015-688 COMPANY AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST SERIES 2006- ATTORNEY AFFIRMATION IN 6 NOVASTAR HOME EQUITY LOAN ASSET- SUPPORT OF PLAINTIFF’S BACKED CERTIFICATES SERIES 2006-6, MOTION FOR AN ORDER CONFIRMING REFEREE REPORT Plaintiff, AND JUDGMENT OF -against- FORECLOSURE AND SALE CURTISS A. CLEMENTS; BARBARA A. CLEMENTS; CACH LLC; FORD MOTOR MORTGAGED PROPERTY: 145 CREDIT COMPANY LLC; CAPITAL ONE CLIZBE AVENUE AMSTERDAM, NY BANK (USA), NATIONAL ASSOCIATION; ST. 12010 PETER'S HEALTH CARE SERVICES, COUNTY: MONTGOMERY Defendants. SBL#: Section 40.14, Block 2, Lot 7 Servicer: PHH Mortgage Corporation Servicer Telephone: (800) 330-0423 ----------------------------------------------------------------X Matthew Rothstein, Esq. pursuant to CPLR 2106 and under the penalties of perjury, affirms as follows: 1. I am an attorney at law and an associate with Robertson, Anschutz, Schneid, Crane & Partners, PLLC the attorneys of record for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this action based upon a review of the file maintained by my office. 2. This is a foreclosure action. The Plaintiff is moving the court to confirm the Referee’s Report made in accordance with RPAPL §1321 and for a Judgment of Foreclosure and 15-031988 - DaR 1 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 Sale pursuant to RPAPL §1351 that directs the distribution of the proceeds of sale in accordance with RPAPL §1354. 3. True and accurate copies of the following documents are attached hereto: Document Tab Certificate of Merit & Supplemental Certificate of Merit Exhibit A Note Exhibit B Mortgage & Loan Modification Agreement Exhibit C Assignment of Mortgage Exhibit D Notice of Default Exhibit E RPAPL §1304 90 Day Notice Exhibit F Department of Defense Search results Exhibit G Summons and Complaint Exhibit H Notices of Pendency Exhibit I Affidavits of Service Exhibit J Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit K Affidavit of Merit and Amount Due Exhibit L Affirmation of Regularity Exhibit M Order Granting Summary Judgment, Default Judgment, Amending Caption & Appointing a Referee Exhibit N Referee’s Oath and Report of Amount Due Exhibit O Notice of Entry of Order of Reference Exhibit P Attorney Fee Affirmation Exhibit Q Power of Attorney Exhibit R Decision and Order dated January 10, 2018 Exhibit S Decision and Order dated May 24, 2018 Exhibit T Decision and Order dated April 12, 2019 Exhibit U Verified Answer Exhibit V Legalback No. 2 - filed contemporaneously with this application Costs and Disbursements of Plaintiff with Supporting Invoices Legalback No. 3 - filed contemporaneously with this application Proposed Judgment of Foreclosure and Sale PROCEDURAL HISTORY 4. This residential mortgage foreclosure action was commenced by filing the summons and complaint in the Montgomery County Clerk’s office on September 03, 2015, in the 15-031988 - DaR 2 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 County where the mortgaged property is located. The action was brought to foreclose a residential mortgage executed by CURTISS A. CLEMENTS AND BARBARA A. CLEMENTS on October 31, 2006 and which was subsequently recorded on November 13, 2006. 5. That CURTISS A. CLEMENTS and BARBARA A. CLEMENTS (“Borrowers”) executed a Note dated October 31, 2006 in the amount of $140,600.00 (“Note”). As security for the Note, CURTISS A. CLEMENTS and BARBARA A. CLEMENTS, (“Mortgagors”) executed a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR NOVASTAR MORTGAGE, INC., secured by the Premises, dated October 31, 2006 and recorded on November 13, 2006 in Liber 1476 at Page 145 (“Mortgage”). A copy of the Note is annexed hereto as Exhibit “B”. A copy of the Mortgage is annexed hereto as Exhibit “C”. 6. The Note was endorsed for the benefit of, and transferred to, Plaintiff. The Mortgage transfers as incident to the Note. See Bank of NY v. Silverberg, 86 A.D. 3d 274, 926 N.Y.S.2d 532 (2nd Dep’t 2011). 7. The subject loan was modified by and through a Loan Modification Agreement which adjusted the principal balance of the subject loan. A copy of the Loan Modification Agreement is annexed hereto as Exhibit “C”. 8. On September 03, 2015, Plaintiff filed a notice of pendency in accordance with RPAPL §1331 and CPLR Article 65. On April 19, 2022 Plaintiff re-filed the notice of pendency in accordance with RPAPL §1331 and CPLR Article 65. Copies of the Notices of Pendency are annexed hereto as Exhibit “I”. 15-031988 - DaR 3 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 9. The summons, complaint and notice of pendency are in the form prescribed by statute and contain all the particulars required by law. The summons complies with the requirements of RPAPL §1320, contains the required notice in boldface type and is in the format required by statute. Copies of the summons, complaint and notices of pendency are annexed hereto as Exhibits “H & I”. 10. On September 03, 2015, Plaintiff was holder of the subject note. See affidavit of Felix Rodriguez, attached hereto as Exhibit “L”. 11. The certificate of merit required pursuant to CPLR §3012-b was filed and served together with supporting documents and is attached hereto as Exhibit “A”. 12. Prior to the commencement of this action the mortgage was validly assigned from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR NOVASTAR MORTGAGE, INC. to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-6 NOVASTAR HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-6 by written instrument dated December 20, 2012 and recorded in the office of the County Clerk on January 7, 2013 at Instrument Number 2013-50377. A true and accurate copy of the Assignment of Mortgage is annexed hereto as Exhibit ''D''. 13. According to the affidavit of service filed in the Montgomery Clerk’s Office, the summons was served with the complaint. Copies of the affidavits of service are annexed hereto as Exhibits “J”. Defendant(s) were served with the notice required by RPAPL §1303 printed on colored paper together with the summons and complaint printed on white paper. The RPAPL 15-031988 - DaR 4 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 §1303 notice complies with the requirements of that statute, with the title in bold, 20-point type and with the text in bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on its own separate page, together with the summons and complaint. 14. Defendant(s) were timely served with the 90-Day Pre-Foreclosure notice required by RPAPL §1304. Plaintiff filed the name, address and telephone number of the Defendant(s), the amount claimed to be due, and the type of loan at issue with the superintendent of banks within three business days of the mailing of the 90-day Pre-Foreclosure notice as required by RPAPL §1306. Copies of these notices are attached hereto as Exhibit “F”, see also the affidavit of Felix Rodriguez, attached hereto as Exhibit “L”. 15. Plaintiff served defendants with copies of the summons in compliance with CPLR §3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit “K”. 16. The following defendant(s) did not answer or appear and their time to answer has expired: CACH LLC, FORD MOTOR CREDIT COMPANY LLC, CAPITAL ONE BANK (USA) NA and ST. PETERS HEALTHCARE SERVICES. Accordingly, these defendants are in default. 17. No defendant is an infant. No defendant is in the armed services of the United States of America. Upon information and belief no defendant is incompetent. 18. No defendant answered nor appeared in response to the Complaint except for CURTISS A. CLEMENTS and BARBARA A. CLEMENTS. A copy of the Verified Answer is annexed hereto as Exhibit “V”. 15-031988 - DaR 5 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 19. Plaintiff submitted an application for Summary Judgment on or about June 21, 2017. The application was denied per Decision and Order dated January 10, 2018, a copy of which is annexed hereto as Exhibit “S”. 20. Thereafter, Defendants submitted an application for Summary Judgment on Counterclaims on or about May 17, 2018 however, was denied per Decision and Order dated May 24, 2018. A copy of the aforementioned is annexed hereto as Exhibit “T”. 21. On or about December 07, 2018, Plaintiff submitted an application for Summary Judgment, Default Judgement, Appoint Referee and Amend the Caption. Per Decision and Order dated April 12, 2019, the application was denied, a copy of which is annexed hereto as Exhibit ”U”. 22. Pursuant to CPLR §3408 the court held a mandatory settlement conference in this action. a. A settlement was not reached and the case was released from the settlement conference part on January 07, 2021. 23. On November 16, 2020, the Plaintiff moved for an Order Granting Summary Judgment, Default Judgment, Amending Caption and Appointing a Referee. Plaintiff’s motion was granted by the Court by order dated February 07, 2022. A copy of the Order Granting Summary Judgment, Default Judgment, Amending Caption and Appointing a Referee is attached hereto as Exhibit “N”. 24. Plaintiff mailed Notice of Entry of the Order Granting Summary Judgment, Default Judgment, Amending Caption and Appointing a Referee to Defendant(s) or their 15-031988 - DaR 6 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 attorney(s) and the Notice of Entry was filed with the Montgomery County Clerk on March 11, 2022. A copy of the Notice of Entry is attached hereto as Exhibit “P”. 25. This court appointed Kyle Davis, Esq., as Referee to compute the amount due the Plaintiff and to examine and report whether the mortgaged property can be sold in parcels. 26. On January 18, 2023, the Referee executed an Oath and Report of Amount Due which computed the amount due the Plaintiff to be $376,246.97 as of November 08, 2022, and determined that the property should be sold as one parcel. The Referee’s Oath and Report are attached hereto as Exhibit “O”. Plaintiff is entitled to interest at the note rate until the Judgment of Foreclosure and Sale is entered and at the statutory default rate thereafter. 27. No previous application for a Judgment of Foreclosure and Sale has been made. PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE 28. In conjunction with the motion for an Order of Reference previously granted by this Court, Plaintiff established all the required elements for a foreclosure. Plaintiff now requests that the property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in accordance with RPAPL §1354. 29. Plaintiff requests that the court grant this judgment on default of defendant(s) CACH LLC, FORD MOTOR CREDIT COMPANY LLC, CAPITAL ONE BANK (USA) NA and ST. PETERS HEALTHCARE SERVICES pursuant to RPAPL §1321, that the mortgaged property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in accordance with RPAPL §1354. 15-031988 - DaR 7 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 30. RPAPL §1354(2) requires the Referee conducting the sale of the mortgaged property to pay out of the proceeds all taxes, assessments and water rates that are liens upon the property and to redeem the property from any sales for unpaid taxes, assessments, or water rates that have not apparently become absolute. All expenses of recording the Referee’s Deed, including real property transfer tax should be paid by the purchaser at the closing and not by the Referee from sale proceeds since transfer tax is not a lien upon the property nor is it an expense of sale, as that term is used in RPAPL §1354(1). Rather, transfer tax is an expense of recording the deed. 31. Plaintiff is entitled to have the Judgment include reimbursement for its attorney fees for this action in accordance with the terms of the note and mortgage. A detailed affirmation regarding attorney fees is attached hereto as Exhibit “Q”. 32. Plaintiff is also entitled to have the Judgment include reimbursement for Plaintiff’s costs, allowances, and disbursements made in this matter in accordance with the terms of the note and mortgage and CPLR Article 83. A detailed statement of Plaintiff’s costs and disbursements with the supporting invoices has been filed contemporaneously with this application. 33. A proposed Judgment of Foreclosure and Sale is provided to the Court together with this motion. WHEREFORE, Plaintiff requests an order of this court: A. Granting a Judgment of Foreclosure and Sale which appoints a Referee to sell the property; 15-031988 - DaR 8 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 B. Directing the distribution of the sale proceeds; C. Deeming the refiled Notice of Pendency timely filed, nunc pro tunc; and D. Granting such additional relief as the Court may deem just and proper. DATED: March 8, 2023 Westbury, New York Matthew Rothstein __________________________________ Matthew Rothstein, Esq. 15-031988 - DaR 9 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 ATTORNEY’S AFFIRMATION Matthew Rothstein, Esq., an attorney at law licensed to practice in the State of New York, and the attorney for Plaintiff in this action hereby certifies that, to the best of his/her knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this pleading, affidavit (or motion if applicable), or the contentions contained herein are not frivolous as defined by 22 N.Y.C.R.R. 130-1.1(c). Matthew Rothstein ___________________________________ Matthew Rothstein, Esq. 15-031988 - DaR 10 of 11 FILED: MONTGOMERY COUNTY CLERK 03/09/2023 09:35 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 03/09/2023 WORD COUNT CERTIFICATION The total number of words in the foregoing brief memorandum, affirmation or affidavit inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is _1937. The document complies with the applicable word count limit and is based on the word count of the word-processing system used to prepare the document. Dated: March 8, 2023 Westbury, New York Matthew Rothstein ________________________________________ Matthew Rothstein, Esq. Robertson, Anschutz, Schneid, Crane & Partners, PLLC Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, NY 11590 516-280-7675 11 of 11