Preview
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CORTLAND
WELLS FARGO BANK, N.A., ATTORNEY AFFIRMATION
IN SUPPORT OF
Plaintiff, PLAINTIFF'S MOTION FOR
v. A DEFAULT JUDGMENT
AND ORDER OF
TIMOTHY J. STRAMBA, CITY OF CORTLAND, REFERENCE
JOHN DOE,
Index No.: EF22-400
Defendant.
Property Address:
15 Water Street
Cortland, NY 13045
COUNTY: CORTLAND
SBL No.: 86.80-02-42.000
Stuart P. Frame, Esq., pursuant to CPLR 2106 and under penalty of perjury, affinns as
follows:
1. I am an attorney at law and an Associate with Woods Oviatt Gilman LLP 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. True and accurate copies of the following supporting documents are attached
hereto:
Document Exhibit Tab
Certificate of Merit A
Note B
Mortgage C
Assignments D
Notice of Default E
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
- 2o233«m
Cortland County Supreme Court , Index #: EF22-400 2222-400
08/15/2023 12:35:43PM
Pages8
z beth kn ty lerk
1 of 8
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
RPAPL §1304 90 Day Notice F
Department of Defense Search results G
Summons and Complaint H
Notice of Pendency I
A5davits of Service J
A5davit of Service by Mail pursuant to CPLR 3215 (g)(3)(iii) K
A5davit of Merit and Amount Due with attached exhibits L
Affinnation of Regularity M
Power of Attorney with Pooling and Servicing Agreement N
Secretary's Certification O
Additional Exhibits P
Request for Judicial Intervention i
Settlement Conference Release order li
Legalback No. 2 - filed contemporaneous with this motion
Proposed Order of Reference
All personal non-public information has been redacted from the attached supporting
documents.
3. This residential mortgage foreclosure action was commenced by filing the
summons and complaint in the Cortland County Clerk's Office on September 16, 2022 in the
County where the mortgaged property is located. The action was brought to foreclose a
residential Mortgage from Robin L. Stramba (now deceased) and Timothy J. Stramba to Wells
Fargo Home Mortgage, Inc., dated February 13, 2004, in the original principal amount of
$57,350.00, and recorded in the Office of the Clerk of the County of Cortland on July 6, 2004 in
Instrument No. 1026027-001. Wells Fargo Bank, N.A. is successor by merger to Wells Fargo
Home Mortgage, Inc.
4. On September 16, 2022, Plaintiff filed a notice of pendency in accordance with
RPAPL §1331 and CPLR Article 65, a copy of which is attached hereto as exhibit I.
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
Cortland County Supreme Court , Index #: EF22-400
2 of 8
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
5. 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. According to the affidavit of service, the summons was served together with
the complaint. Copies of the summons, complaint, notice of pendency and affidavits of service
are attached hereto as exhibits H, I, and J.
6. Plaintiff is the owner and holder of the subject mortgage and note, or has been
delegated the authority to institute a mortgage foreclosure action by the owner and holder of the
subject mortgage and note.
7. The certificate of merit required pursuant to CPLR 3012-b was filed together with
supporting documents and is attached hereto as exhibit A.
8. Pursuant to CPLR 3408 the court held a mandatory settlement conference in this
action. Plaintiff attended a settlement conference on December 19, 2022 but the Defendant
mortgagor(s) failed to appear and the case was released from the settlement conference part.
9. 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
§1303 notice complies with the requirements of that statute, with the title in bold, 20-point type
and the text in old, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on
its own separate page, together with the summons and complaint. Defendant(s) were timely
served with the 90-Day Pre-Foreclosure notice required by RPAPL §1304. Plaintiff filed the
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
Cortland County Supreme Court , Index #: EF22-400
3 of 8
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
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 notices as required by RPAPL §1306. Copies of these notices and
affidavits of service are attached hereto as exhibits F and J.
10. Plaintiff served an additional copy of the summons in compliance with CPLR
3215(g)(3). The affidavit of service by mail is attached hereto as exhibit K.
Doe"
11. Defendants captioned as "John are not necessary parties. Accordingly, the
Doe"
Defendants captioned as "John were not served with copies of the summons and complaint.
Doe"
Plaintiff requests that the "John Defendants be excised from the caption of the action
without prejudice to any of the proceedings herein.
12. The following Defendant(s) did not answer or appear and their time to answer has
expired: TIMOTHY J. STRAMBA and CITY OF CORTLAND. Accordingly, these Defendants
are in default.
13. No Defendant is an infant. No Defendant is in the armed services of the United
States ofAmerica. Upon information and belief no defendant is incompetent.
14. Plaintiff has not made any previous motion for this or like relief.
15. Therefore, it is respectfully requested that the Court grant Plaintiffs motion for a
Default Judgment and Order of Reference in accordance with RPAPL §1321 and award such
other and further relief as the Court may deem just and proper.
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
Cortland County Supreme Court , Index #: EF22-400
4 of 8
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
WHEREFORE, Plaintiff requests an order from this Court:
A. Appointing a referee to compute the amount due Plaintiff and to examine whether
the mortgaged property known as 15 Water Street, Cortland, NY 13045 can be sold in
parcels, and make his/her computation and report with all convenient speed pursuant to
RPAPL § 1321;
Doe"
B. Removing "John as a party Defendant in this action as no tenants reside at
Doe"
the property and amending the caption to reflect the removal of "John as a party
Defendant;
C. Determining all non-appearing and non-answering Defendants to be in default;
D. Granting such additional relief as the Court may deem just and proper.
The undersigned affirms that the foregoing statements are true, under the penalties of perjury.
Stuart P. Frame, Esq.
Dated: June 19, 2023
Woods Oviatt Gilman LLP
Attorneys for Plaintiff
500 Bausch & Lomb Place
Rochester, NY 14604
Tel.: 855-227-5072
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
Cortland County Supreme Court , Index #: EF22-400
5 of 8
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
Stuart P. Frame, 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), and the contentions contained
herein are not frivolous as defined by 22 NYCRR 130.1.1(c).
Stuart P. Frame, Esq.
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
Cortland County Supreme Court , Index #: EF22-400
6 of 8
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
ATTORNEY'S AFFIRMATION
The undersigned, Stuart P. Frame, Esq., pursuant to CPLR 2106 and under penalties of perjury
affirms as follows:
That he/she is the attorney of record for Plaintiff in the above-captioned action, that the
foregoing disbursements have been incurred in this action and are reasonable in amount, and that
the copies of documents or papers charged for herein were actually and necessarily obtained.
Stuart P. Frame, Esq.
Dated: June 19, 2023
Woods Oviatt Gilman LLP
onroeCouny Attorneys for Plaintiff
Rochester, New York
500 Bausch & Lomb Place
Rochester, NY 14604
Tel.: 855-227-5072
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
Cortland County Supreme Court , Index #: EF22-400
7 of 8
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023
CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b(c)
1. I hereby certify that the foregoing Attorney Affirmation complies with the word count
limit pursuant to 22 NYCRR 202.8-b(a) as the total number of words in this AfHrmation
is 961 exclusive of the caption, signature block, affidavit of mailing, and this
certification.
16. In making this certification, I relied upon the word-processing system used to prepare this
document.
June 19, 2023, Esq.
Dated: June 19, 2023 Woods Oviatt Gilman LLP
Attorneys for Plaintiff
500 Bausch & Lomb Place
Rochester, NY 14604
Tel.: 855-227-5072
105334-1
Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al.
Cortland County Supreme Court , Index #: EF22-400
8 of 8
Preview
FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CORTLAND WELLS FARGO BANK, N.A., ATTORNEY AFFIRMATION IN SUPPORT OF Plaintiff, PLAINTIFF'S MOTION FOR v. A DEFAULT JUDGMENT AND ORDER OF TIMOTHY J. STRAMBA, CITY OF CORTLAND, REFERENCE JOHN DOE, Index No.: EF22-400 Defendant. Property Address: 15 Water Street Cortland, NY 13045 COUNTY: CORTLAND SBL No.: 86.80-02-42.000 Stuart P. Frame, Esq., pursuant to CPLR 2106 and under penalty of perjury, affinns as follows: 1. I am an attorney at law and an Associate with Woods Oviatt Gilman LLP 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. True and accurate copies of the following supporting documents are attached hereto: Document Exhibit Tab Certificate of Merit A Note B Mortgage C Assignments D Notice of Default E 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. - 2o233«m Cortland County Supreme Court , Index #: EF22-400 2222-400 08/15/2023 12:35:43PM Pages8 z beth kn ty lerk 1 of 8 FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 RPAPL §1304 90 Day Notice F Department of Defense Search results G Summons and Complaint H Notice of Pendency I A5davits of Service J A5davit of Service by Mail pursuant to CPLR 3215 (g)(3)(iii) K A5davit of Merit and Amount Due with attached exhibits L Affinnation of Regularity M Power of Attorney with Pooling and Servicing Agreement N Secretary's Certification O Additional Exhibits P Request for Judicial Intervention i Settlement Conference Release order li Legalback No. 2 - filed contemporaneous with this motion Proposed Order of Reference All personal non-public information has been redacted from the attached supporting documents. 3. This residential mortgage foreclosure action was commenced by filing the summons and complaint in the Cortland County Clerk's Office on September 16, 2022 in the County where the mortgaged property is located. The action was brought to foreclose a residential Mortgage from Robin L. Stramba (now deceased) and Timothy J. Stramba to Wells Fargo Home Mortgage, Inc., dated February 13, 2004, in the original principal amount of $57,350.00, and recorded in the Office of the Clerk of the County of Cortland on July 6, 2004 in Instrument No. 1026027-001. Wells Fargo Bank, N.A. is successor by merger to Wells Fargo Home Mortgage, Inc. 4. On September 16, 2022, Plaintiff filed a notice of pendency in accordance with RPAPL §1331 and CPLR Article 65, a copy of which is attached hereto as exhibit I. 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. Cortland County Supreme Court , Index #: EF22-400 2 of 8 FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 5. 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. According to the affidavit of service, the summons was served together with the complaint. Copies of the summons, complaint, notice of pendency and affidavits of service are attached hereto as exhibits H, I, and J. 6. Plaintiff is the owner and holder of the subject mortgage and note, or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note. 7. The certificate of merit required pursuant to CPLR 3012-b was filed together with supporting documents and is attached hereto as exhibit A. 8. Pursuant to CPLR 3408 the court held a mandatory settlement conference in this action. Plaintiff attended a settlement conference on December 19, 2022 but the Defendant mortgagor(s) failed to appear and the case was released from the settlement conference part. 9. 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 §1303 notice complies with the requirements of that statute, with the title in bold, 20-point type and the text in old, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on its own separate page, together with the summons and complaint. Defendant(s) were timely served with the 90-Day Pre-Foreclosure notice required by RPAPL §1304. Plaintiff filed the 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. Cortland County Supreme Court , Index #: EF22-400 3 of 8 FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 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 notices as required by RPAPL §1306. Copies of these notices and affidavits of service are attached hereto as exhibits F and J. 10. Plaintiff served an additional copy of the summons in compliance with CPLR 3215(g)(3). The affidavit of service by mail is attached hereto as exhibit K. Doe" 11. Defendants captioned as "John are not necessary parties. Accordingly, the Doe" Defendants captioned as "John were not served with copies of the summons and complaint. Doe" Plaintiff requests that the "John Defendants be excised from the caption of the action without prejudice to any of the proceedings herein. 12. The following Defendant(s) did not answer or appear and their time to answer has expired: TIMOTHY J. STRAMBA and CITY OF CORTLAND. Accordingly, these Defendants are in default. 13. No Defendant is an infant. No Defendant is in the armed services of the United States ofAmerica. Upon information and belief no defendant is incompetent. 14. Plaintiff has not made any previous motion for this or like relief. 15. Therefore, it is respectfully requested that the Court grant Plaintiffs motion for a Default Judgment and Order of Reference in accordance with RPAPL §1321 and award such other and further relief as the Court may deem just and proper. 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. Cortland County Supreme Court , Index #: EF22-400 4 of 8 FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 WHEREFORE, Plaintiff requests an order from this Court: A. Appointing a referee to compute the amount due Plaintiff and to examine whether the mortgaged property known as 15 Water Street, Cortland, NY 13045 can be sold in parcels, and make his/her computation and report with all convenient speed pursuant to RPAPL § 1321; Doe" B. Removing "John as a party Defendant in this action as no tenants reside at Doe" the property and amending the caption to reflect the removal of "John as a party Defendant; C. Determining all non-appearing and non-answering Defendants to be in default; D. Granting such additional relief as the Court may deem just and proper. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Stuart P. Frame, Esq. Dated: June 19, 2023 Woods Oviatt Gilman LLP Attorneys for Plaintiff 500 Bausch & Lomb Place Rochester, NY 14604 Tel.: 855-227-5072 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. Cortland County Supreme Court , Index #: EF22-400 5 of 8 FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 Stuart P. Frame, 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), and the contentions contained herein are not frivolous as defined by 22 NYCRR 130.1.1(c). Stuart P. Frame, Esq. 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. Cortland County Supreme Court , Index #: EF22-400 6 of 8 FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 ATTORNEY'S AFFIRMATION The undersigned, Stuart P. Frame, Esq., pursuant to CPLR 2106 and under penalties of perjury affirms as follows: That he/she is the attorney of record for Plaintiff in the above-captioned action, that the foregoing disbursements have been incurred in this action and are reasonable in amount, and that the copies of documents or papers charged for herein were actually and necessarily obtained. Stuart P. Frame, Esq. Dated: June 19, 2023 Woods Oviatt Gilman LLP onroeCouny Attorneys for Plaintiff Rochester, New York 500 Bausch & Lomb Place Rochester, NY 14604 Tel.: 855-227-5072 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. Cortland County Supreme Court , Index #: EF22-400 7 of 8 FILED: CORTLAND COUNTY CLERK 08/15/2023 12:35 PM INDEX NO. EF22-400 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/15/2023 CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b(c) 1. I hereby certify that the foregoing Attorney Affirmation complies with the word count limit pursuant to 22 NYCRR 202.8-b(a) as the total number of words in this AfHrmation is 961 exclusive of the caption, signature block, affidavit of mailing, and this certification. 16. In making this certification, I relied upon the word-processing system used to prepare this document. June 19, 2023, Esq. Dated: June 19, 2023 Woods Oviatt Gilman LLP Attorneys for Plaintiff 500 Bausch & Lomb Place Rochester, NY 14604 Tel.: 855-227-5072 105334-1 Wells Fargo Bank, N.A., etc. vs. Timothy J. Stramba, et al. Cortland County Supreme Court , Index #: EF22-400 8 of 8