Preview
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NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/17/2023
Exhibit “A”
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
MidFirst Bank Index #:
Plaintiff, Filed:
-against- SUMMONS
Kathy J. Burke, Secretary of Housing and Urban Development, Plaintiff designates Erie
Credit Acceptance Corporation and "JOHN DOE #1" through County as the place of trial.
"JOHN DOE #10", the last ten names being fictitious and Venue is based upon the
unknown to the plaintiff, the person or parties intended being County in which the
the persons or parties, if any, having or claiming an interest in or mortgaged premises is
lien upon the mortgaged premises described in the Complaint, situated.
Defendants.
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a
copy of your Answer or, if the Complaint is not served with this Summons, to serve a Notice of
Appearance on the attorneys for the plaintiff within twenty (20) days after service of this Summons,
exclusive of the day of service; or within thirty (30) days after service is complete if this Summons
is not personally delivered to you within the State of New York; or within sixty (60) days if it is the
United States of America. In case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the Complaint.
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NOTICE
YOU ARE IN DANGER OF LOSING YOUR HOME
If you do not respond to this summons and complaint by serving a copy of the answer
on the attorney for the mortgage company who filed this foreclosure proceeding against you
and filing the answer with the court, a default judgment may be entered and you can lose your
home.
Speak to an attorney or go to the court where your case is pending for further
information on how to answer the summons and protect your property.
Sending a payment to 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: Bay Shore, New York FRENKEL, LAMBERT, WEISS,
January 23, 2023 WEISMAN & GORDON, LLP
BY: Deana Cheli
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Our File No.: 01-085903-F01
TO:
Kathy J. Burke
97 Columbia Pkwy
West Seneca, NY 14224-1801
Secretary of Housing and Urban Development
451 Seventh Street SW
Washington, DC 20410
Credit Acceptance Corporation
25505 West Twelve Mile Road
Southfield, MI 48034
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
MidFirst Bank
Plaintiff,
COMPLAINT
-against-
Kathy J. Burke, Secretary of Housing and Urban Development,
Credit Acceptance Corporation and "JOHN DOE #1" through
"JOHN DOE #10", the last ten names being fictitious and
unknown to the plaintiff, 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, Frenkel, 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, MidFirst Bank, at all times hereinafter mentioned was and still is a Federally
Chartered Savings Association chartered under the laws of the United States of America.
2. On or about June 20, 2006, KATHY J. BURKE executed and delivered to Devere Capital
Corporation a note dated June 20, 2006 whereby KATHY J. BURKE, promised to pay the principal
sum of $103,879.00.
3. On or about June 20, 2006, KATHY J. BURKE, executed and delivered to Mortgage
Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its
successors and assigns a mortgage (hereinafter "mortgage") in the principal sum of $103,879.00, with
interest, mortgaging the premises known as 97 Columbia Parkway, West Seneca, NY 14224
(hereinafter "premises") as collateral security for the note. The mortgaged premises is more fully
described in EXHIBIT "A" annexed hereto.
4. The mortgage was duly recorded in the Office of the Clerk of the County of Erie on June 20,
2006 in Book 13296, Page 5428 and the recording tax was duly paid. The loan was modified
pursuant to a Loan Modification Agreement dated July 6, 2011, and recorded June 2, 2015 in Book
13723, page 5197, which created a single lien in the amount of $113,758.00. The loan was further
modified pursuant to a Loan Modification Agreement dated February 11, 2015 and recorded October
5, 2015 in Book 13740, page 2196, which created a single lien in the amount of $115,772.66. The
loan was modified pursuant to a Loan Modification Agreement dated July 15, 2020 and recorded
August 25, 2020 in Book 13952, page 5682, which created a single lien in the amount of
$136,224.90. The loan was further modified pursuant to a Loan Modification Agreement dated April
14, 2022 and recorded May 27, 2022 in Book 11402, page 2887, which created a single lien in the
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amount of $116,087.32.
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 modified loan, KATHY J. BURKE, promised to make consecutive monthly
payments of principal and interest each month, in accordance with the terms of the loan modification
agreement, commencing May 01, 2022 and on the first day of each succeeding month up to and
including April 01, 2052 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. Kathy J. Burke failed to comply with the terms, covenants and conditions of said note and
mortgage by failing and omitting to pay, to the plaintiff, payments due on July 01, 2022 and all
subsequent payments due thereafter.
10. Pursuant to the terms of the note and mortgage, 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 $115,774.00 with interest thereon from June 01, 2022, 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
premises, and that the plaintiff be paid such sums, together with interest thereon, out of the proceeds
of the sale of the mortgaged premises.
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14. Upon information 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
forth in "Schedule A" that is attached to this complaint.
15. No prior action has been brought to recover part of the mortgage debt.
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 or unless exempt
from doing so.
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. 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, of record 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.
21. In the event that the plaintiff possesses any other lien(s) against the mortgaged premises either
by way of judgment, junior mortgage or otherwise, plaintiff requests that such other lien(s) not be
merged in plaintiff's 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.
AS AND FOR A SECOND CAUSE OF ACTION
22. The plaintiff repeats and realleges each and every allegation contained in paragraphs
designated 1 through 21.
23. The mortgage provides that in the event of default, the plaintiff may recover all costs,
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including reasonable attorneys' 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
24. The Plaintiff repeats and realleges each and every allegation contained in paragraphs
designated 1 through 23.
25. The Loan Modification Agreement recorded in Book 13740, Page 2196 fails to recite the
entire mortgage chain. Said agreement does not reference the assignments recorded in Book 13350,
page 8274, Book 13727, page 8474 and Book 13727, page 8477. Said Modification Agreement also
fails to recite the prior modification recorded in Book 13723, page 5197.
26. Reformation of the Loan Modification Agreement recorded in Book 13740, Page 2196 to
reference the assignments recorded in Book 13350, page 8274, Book 13727, page 8474 and Book
13727, page 8477, as well as the modification recorded in Book 13723, page 5197 is necessary.
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 of record, 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) That the monies received from the sale be brought into Court and that plaintiff be paid
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 of the property, together
with attorneys' 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 plaintiff have 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
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such deficiency.
g) That in the event plaintiff possesses 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;
h) That the Loan Modification Agreement recorded in Book 13740, Page 2196 be
amended to recite the entire mortgage chain;
i) That plaintiff have such other and further relief in the mortgaged premises as may be
just and equitable.
Dated: Bay Shore, New York
January 23, 2023
Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP
By:
Deana Cheli
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Our File No.: 01-085903-F01
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WebTitle File No.: Client File No.:
SCHEDULE A
DESCRIPTION OF MORTGAGED PREMISES
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of West Seneca, County of Erie and State of New
York, being part of Lot No. 33, Township 10, Range 7 of the Buffalo Creek Reservation and according to map filed in
Erie County Clerk's Office under Cover No. 1322, is known as Subdivision Lot Number Eighty-Nine (89) and the south
ten (10) feet of Subdivision Lot Number Ninety (90), situate on the southeast side of Columbia Parkway.
Premises: 97 Columbia Parkway, West Seneca, NY 14224
Tax Parcel ID No.: Section: 133.44 Block: 2 Lot: 56
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Schedule A
Party Name Description
KATHY J. BURKE Obligor/Mortgagor/Owner
SECRETARY OF HOUSING and Holder of a subordinate mortgage on the subject
URBAN DEVELOPMENT premises. Said mortgage recorded May 12,
2022, in Book 14052 at page 1975.
CREDIT ACCEPTANCE Judgment Creditor
CORPORATION
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CERTIFICATION BY ATTORNEY
Deana Cheli, an attorney duly admitted to practice law before the Courts of the State of New
York, an attorney with the firm of Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP, attorneys for
the Plaintiff herein, pursuant to Uniform Rule Section 130-1.1-a, states as follows:
I hereby certify, under the penalty of perjury and as an officer of the Court, that, to the best
of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances,
the presentation of the within paper or the contentions therein are not frivolous as defined in
subsection (c) of section 130-1.1, including that the substance of the factual statements therein are
not false.
Dated: Bay Shore, New York
January 23, 2023
Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP
Deana Cheli
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Our File No.: 01-085903-F01
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
MidFirst Bank Index #:
Plaintiff, Filed:
-against- NOTICE OF PENDENCY
OF ACTION
Kathy J. Burke, Secretary of Housing and Urban Development,
Credit Acceptance Corporation and "JOHN DOE #1" through Servicer as of January 23,
"JOHN DOE #10", the last ten names being fictitious and 2023:
unknown to the plaintiff, the person or parties intended being MidFirst Bank
the persons or parties, if any, having or claiming an interest in or 1-800-654-4566
lien upon the mortgaged premises described in the Complaint,
Defendants.
NOTICE IS HEREBY GIVEN, that an action has been commenced and is pending in this
Court upon a Complaint of the above named Plaintiff against the above named Defendants for the
foreclosure of a mortgage, dated June 20, 2006, executed by Kathy J. Burke, as mortgagor, to
Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital
Corporation, its successors and assigns, as mortgagee, to secure the sum of $103,879.00, and
recorded in the Office of the Clerk of the County of Erie on June 20, 2006 at Book 13296 , at Page
5428. Thereafter, an assignment of mortgage from Mortgage Electronic Registration Systems, Inc.,
as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns into
CitiMortgage, Inc. was dated April 30, 2007 and recorded May 17, 2007 in Book 13350, page 8274.
A GAP assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic Registration
Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns
was dated June 25, 2015 and recorded July 6, 2015 in Book 13727, page 8474. A corrective
assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic Registration Systems,
Inc., as mortgagee, as nominee for CitiMortgage, Inc., its successors and assigns was dated January
3, 2018 and recorded January 9, 2018 in Book 13842, page 541. The loan was modified pursuant
to a Loan Modification Agreement dated July 6, 2011, and recorded June 2, 2015 in Book 13723,
page 5197, which created a single lien in the amount of $113,758.00. Thereafter, an assignment of
mortgage from Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for
CitiMortgage, Inc., its successors and assigns into CitiMortgage, Inc. was dated June 25, 2015 and
recorded July 6, 2015 in Book 13727, page 8477. The loan was further modified pursuant to a Loan
Modification Agreement dated February 11, 2015 and recorded October 5, 2015 in Book 13740,
page 2196, which created a single lien in the amount of $115,772.66. Thereafter, an assignment of
mortgage from CitiMortgage, Inc. into MidFirst Bank, a federally chartered savings association was
dated August 27, 2018 and recorded September 5, 2018 in Book 13869, page 1225. The loan was
modified pursuant to a Loan Modification Agreement dated July 15, 2020 and recorded August 25,
2020 in Book 13952, page 5682, which created a single lien in the amount of $136,224.90. The loan
was further modified pursuant to a Loan Modification Agreement dated April 14, 2022 and recorded
May 27, 2022 in Book 11402, page 2887, which created a single lien in the amount of $116,087.32.
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NOTICE IS FURTHER GIVEN, that the mortgaged premises affected by said foreclosure
action, at the time of the commencement of said action and at the time of the filing of this notice, was
situated at 97 Columbia Parkway, West Seneca, NY 14224, County of Erie, State of New York at
Section 133.44, Block 2, Lot 56.
The Clerk of the County of Erie is directed to index this notice to the names of all of the
above defendants. The premises is known as 97 Columbia Parkway, West Seneca, NY 14224, in Erie
County, New York.
Dated: Bay Shore, New York
January 23, 2023
Yours, etc.,
Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP
SECTION 133.44 Deana Cheli
BLOCK 2 Attorneys for Plaintiff
LOT 56 53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Our File No.: 01-085903-F01
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WebTitle File No.: Client File No.:
SCHEDULE A
DESCRIPTION OF MORTGAGED PREMISES
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of West Seneca, County of Erie and State of New
York, being part of Lot No. 33, Township 10, Range 7 of the Buffalo Creek Reservation and according to map filed in
Erie County Clerk's Office under Cover No. 1322, is known as Subdivision Lot Number Eighty-Nine (89) and the south
ten (10) feet of Subdivision Lot Number Ninety (90), situate on the southeast side of Columbia Parkway.
Premises: 97 Columbia Parkway, West Seneca, NY 14224
Tax Parcel ID No.: Section: 133.44 Block: 2 Lot: 56
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
-------------------------------------------------------------------------x Index No.: 801197/2023
MidFirst Bank
Plaintiff, NOTICE OF PENDENCY
OF ACTION
-against-
Servicer as of August 30,
Kathy J. Burke, Secretary of Housing and Urban Development, 2023:
Credit Acceptance Corporation and "JOHN DOE #1" through MidFirst Bank
"JOHN DOE #10", the last ten names being fictitious and 1-800-654-4566
unknown to the plaintiff, 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.
-------------------------------------------------------------------------x
NOTICE IS HEREBY GIVEN, that an action has been commenced and is pending in this
Court upon a Complaint of the above named Plaintiff against the above named Defendants for the
foreclosure of a Mortgage, dated June 20, 2006, executed by Kathy J. Burke, as mortgagors, to
Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital
Corporation, its successors and assigns, as mortgagee, to secure the sum of $103,879.00, and
recorded in the Office of the Clerk of the County of Erie on June 20, 2006 at Book 13296, Page
5428. Thereafter, an assignment of mortgage from Mortgage Electronic Registration Systems,
Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns into
CitiMortgage, Inc. was dated April 30, 2007 and recorded May 17, 2007 in Book 13350, page
8274. A GAP assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic
Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its
successors and assigns was dated June 25, 2015 and recorded July 6, 2015 in Book 13727, page
8474. A corrective assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic
Registration Systems, Inc., as mortgagee, as nominee for CitiMortgage, Inc., its successors and
assigns was dated January 3, 2018 and recorded January 9, 2018 in Book 13842, page 541. The
loan was modified pursuant to a Loan Modification Agreement dated July 6, 2011, and recorded
June 2, 2015 in Book 13723, page 5197, which created a single lien in the amount of
$113,758.00. Thereafter, an assignment of mortgage from Mortgage Electronic Registration
Systems, Inc., as mortgagee, as nominee for CitiMortgage, Inc., its successors and assigns into
CitiMortgage, Inc. was dated June 25, 2015 and recorded July 6, 2015 in Book 13727, page
8477. The loan was further modified pursuant to a Loan Modification Agreement dated February
11, 2015 and recorded October 5, 2015 in Book 13740, page 2196, which created a single lien in
the amount of $115,772.66. Thereafter, an assignment of mortgage from CitiMortgage, Inc. into
MidFirst Bank, a federally chartered savings association was dated August 27, 2018 and recorded
September 5, 2018 in Book 13869, page 1225. The loan was modified pursuant to a Loan
Modification Agreement dated July 15, 2020 and recorded August 25, 2020 in Book 13952, page
5682, which created a single lien in the amount of $136,224.90. The loan was further modified
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pursuant to a Loan Modification Agreement dated April 14, 2022 and recorded May 27, 2022 in
Book 11402, page 2887, which created a single lien in the amount of $116,087.32.
NOTICE IS FURTHER GIVEN, that the mortgaged premises affected by said foreclosure
action, at the time of the commencement of said action and at the time of the filing of this notice,
was situated at 97 Columbia Parkway, West Seneca, NY 14224, County of Erie, State of New
York at Section 133.44, Block 2, Lot 56.
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The Clerk of the County of Erie is directed to index this notice to the names of all of the
above defendants. The premises known as 97 Columbia Parkway, West Seneca, NY 14224, in
Erie County, New York.
Dated: Bay Shore, New York
August 30, 2023
Yours, etc.,
SECTION 133.44 By: Deana Cheli, Esq.
BLOCK 2 Frenkel, Lambert, Weiss,
LOT 56 Weisman & Gordon, LLP
53 Gibson Street
Bay Shore, NY 11706
(631) 969-3100
Our File No.: 01-085903-F01
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FILED: ERIE COUNTY CLERK 10/17/2023
08/30/2023 02:22
12:50 PM INDEX NO. 801197/2023
NYSCEF DOC. NO. 21
12 RECEIVED NYSCEF: 10/17/2023
08/30/2023
WebTitle File No.: Client File No.:
SCHEDULE A
DESCRIPTION OF MORTGAGED PREMISES
ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of West Seneca, County of Erie and State of New
York, being part of Lot No. 33, Township 10, Range 7 of the Buffalo Creek Reservation and according to map filed in
Erie County Clerk's Office under Cover No. 1322, is known as Subdivision Lot Number Eighty-Nine (89) and the south
ten (10) feet of Subdivision Lot Number Ninety (90), situate on the southeast side of Columbia Parkway.
Premises: 97 Columbia Parkway, West Seneca, NY 14224
Tax Parcel ID No.: Section: 133.44 Block: 2 Lot: 56
v1.0 Page 3 of 13
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FILED: ERIE COUNTY CLERK 10/17/2023
08/30/2023 02:22
12:50 PM INDEX NO. 801197/2023
NYSCEF DOC. NO. 21
12 RECEIVED NYSCEF: 10/17/2023
08/30/2023
Index # 801197/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
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MidFirst Bank
Plaintiff,
- against -
Kathy J. Burke, Secretary of Housing and Urban Development, Credit Acceptance Corporation,
and "JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown
to the plaintiff, the person or parties intended being the persons or parties, if any, having or
claiming an interest in or lien upon the Mortgage premises described in the Complaint
Defendants.
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NOTICE OF PENDENCY OF ACTION
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Frenkel, Lambert, Weiss, Weisman & Gordon, LLP
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, NY 11706
(631)969-3100
Our File No.: 01-085903-F01
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To
Attorney(s) for
=====================================================================
Service of a copy of the within
is hereby admitted.
Dated,
Attorney(s) for
=====================================================================
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Preview
FILED: ERIE COUNTY CLERK 10/17/2023 02:22 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/17/2023 Exhibit “A” FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE MidFirst Bank Index #: Plaintiff, Filed: -against- SUMMONS Kathy J. Burke, Secretary of Housing and Urban Development, Plaintiff designates Erie Credit Acceptance Corporation and "JOHN DOE #1" through County as the place of trial. "JOHN DOE #10", the last ten names being fictitious and Venue is based upon the unknown to the plaintiff, the person or parties intended being County in which the the persons or parties, if any, having or claiming an interest in or mortgaged premises is lien upon the mortgaged premises described in the Complaint, situated. Defendants. TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer or, if the Complaint is not served with this Summons, to serve a Notice of Appearance on the attorneys for the plaintiff within twenty (20) days after service of this Summons, exclusive of the day of service; or within thirty (30) days after service is complete if this Summons is not personally delivered to you within the State of New York; or within sixty (60) days if it is the United States of America. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. 1 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 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: Bay Shore, New York FRENKEL, LAMBERT, WEISS, January 23, 2023 WEISMAN & GORDON, LLP BY: Deana Cheli Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-085903-F01 TO: Kathy J. Burke 97 Columbia Pkwy West Seneca, NY 14224-1801 Secretary of Housing and Urban Development 451 Seventh Street SW Washington, DC 20410 Credit Acceptance Corporation 25505 West Twelve Mile Road Southfield, MI 48034 2 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE MidFirst Bank Plaintiff, COMPLAINT -against- Kathy J. Burke, Secretary of Housing and Urban Development, Credit Acceptance Corporation and "JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the plaintiff, 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, Frenkel, 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, MidFirst Bank, at all times hereinafter mentioned was and still is a Federally Chartered Savings Association chartered under the laws of the United States of America. 2. On or about June 20, 2006, KATHY J. BURKE executed and delivered to Devere Capital Corporation a note dated June 20, 2006 whereby KATHY J. BURKE, promised to pay the principal sum of $103,879.00. 3. On or about June 20, 2006, KATHY J. BURKE, executed and delivered to Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns a mortgage (hereinafter "mortgage") in the principal sum of $103,879.00, with interest, mortgaging the premises known as 97 Columbia Parkway, West Seneca, NY 14224 (hereinafter "premises") as collateral security for the note. The mortgaged premises is more fully described in EXHIBIT "A" annexed hereto. 4. The mortgage was duly recorded in the Office of the Clerk of the County of Erie on June 20, 2006 in Book 13296, Page 5428 and the recording tax was duly paid. The loan was modified pursuant to a Loan Modification Agreement dated July 6, 2011, and recorded June 2, 2015 in Book 13723, page 5197, which created a single lien in the amount of $113,758.00. The loan was further modified pursuant to a Loan Modification Agreement dated February 11, 2015 and recorded October 5, 2015 in Book 13740, page 2196, which created a single lien in the amount of $115,772.66. The loan was modified pursuant to a Loan Modification Agreement dated July 15, 2020 and recorded August 25, 2020 in Book 13952, page 5682, which created a single lien in the amount of $136,224.90. The loan was further modified pursuant to a Loan Modification Agreement dated April 14, 2022 and recorded May 27, 2022 in Book 11402, page 2887, which created a single lien in the 3 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 amount of $116,087.32. 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 modified loan, KATHY J. BURKE, promised to make consecutive monthly payments of principal and interest each month, in accordance with the terms of the loan modification agreement, commencing May 01, 2022 and on the first day of each succeeding month up to and including April 01, 2052 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. Kathy J. Burke failed to comply with the terms, covenants and conditions of said note and mortgage by failing and omitting to pay, to the plaintiff, payments due on July 01, 2022 and all subsequent payments due thereafter. 10. Pursuant to the terms of the note and mortgage, 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 $115,774.00 with interest thereon from June 01, 2022, 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 premises, and that the plaintiff be paid such sums, together with interest thereon, out of the proceeds of the sale of the mortgaged premises. 4 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 14. Upon information 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 forth in "Schedule A" that is attached to this complaint. 15. No prior action has been brought to recover part of the mortgage debt. 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 or unless exempt from doing so. 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. 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, of record 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. 21. In the event that the plaintiff possesses any other lien(s) against the mortgaged premises either by way of judgment, junior mortgage or otherwise, plaintiff requests that such other lien(s) not be merged in plaintiff's 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. AS AND FOR A SECOND CAUSE OF ACTION 22. The plaintiff repeats and realleges each and every allegation contained in paragraphs designated 1 through 21. 23. The mortgage provides that in the event of default, the plaintiff may recover all costs, 5 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 including reasonable attorneys' 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 24. The Plaintiff repeats and realleges each and every allegation contained in paragraphs designated 1 through 23. 25. The Loan Modification Agreement recorded in Book 13740, Page 2196 fails to recite the entire mortgage chain. Said agreement does not reference the assignments recorded in Book 13350, page 8274, Book 13727, page 8474 and Book 13727, page 8477. Said Modification Agreement also fails to recite the prior modification recorded in Book 13723, page 5197. 26. Reformation of the Loan Modification Agreement recorded in Book 13740, Page 2196 to reference the assignments recorded in Book 13350, page 8274, Book 13727, page 8474 and Book 13727, page 8477, as well as the modification recorded in Book 13723, page 5197 is necessary. 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 of record, 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) That the monies received from the sale be brought into Court and that plaintiff be paid 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 of the property, together with attorneys' 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 plaintiff have 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 6 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 such deficiency. g) That in the event plaintiff possesses 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; h) That the Loan Modification Agreement recorded in Book 13740, Page 2196 be amended to recite the entire mortgage chain; i) That plaintiff have such other and further relief in the mortgaged premises as may be just and equitable. Dated: Bay Shore, New York January 23, 2023 Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP By: Deana Cheli Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-085903-F01 7 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 EXHIBIT A RECEIVED NYSCEF: 10/17/2023 01/24/2023 WebTitle File No.: Client File No.: SCHEDULE A DESCRIPTION OF MORTGAGED PREMISES ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of West Seneca, County of Erie and State of New York, being part of Lot No. 33, Township 10, Range 7 of the Buffalo Creek Reservation and according to map filed in Erie County Clerk's Office under Cover No. 1322, is known as Subdivision Lot Number Eighty-Nine (89) and the south ten (10) feet of Subdivision Lot Number Ninety (90), situate on the southeast side of Columbia Parkway. Premises: 97 Columbia Parkway, West Seneca, NY 14224 Tax Parcel ID No.: Section: 133.44 Block: 2 Lot: 56 v1.0 Page 3 of 13 8 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 Schedule A Party Name Description KATHY J. BURKE Obligor/Mortgagor/Owner SECRETARY OF HOUSING and Holder of a subordinate mortgage on the subject URBAN DEVELOPMENT premises. Said mortgage recorded May 12, 2022, in Book 14052 at page 1975. CREDIT ACCEPTANCE Judgment Creditor CORPORATION 9 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 10 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 1 RECEIVED NYSCEF: 10/17/2023 01/24/2023 CERTIFICATION BY ATTORNEY Deana Cheli, an attorney duly admitted to practice law before the Courts of the State of New York, an attorney with the firm of Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP, attorneys for the Plaintiff herein, pursuant to Uniform Rule Section 130-1.1-a, states as follows: I hereby certify, under the penalty of perjury and as an officer of the Court, that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the within paper or the contentions therein are not frivolous as defined in subsection (c) of section 130-1.1, including that the substance of the factual statements therein are not false. Dated: Bay Shore, New York January 23, 2023 Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP Deana Cheli Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-085903-F01 11 of 11 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 2 RECEIVED NYSCEF: 10/17/2023 01/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE MidFirst Bank Index #: Plaintiff, Filed: -against- NOTICE OF PENDENCY OF ACTION Kathy J. Burke, Secretary of Housing and Urban Development, Credit Acceptance Corporation and "JOHN DOE #1" through Servicer as of January 23, "JOHN DOE #10", the last ten names being fictitious and 2023: unknown to the plaintiff, the person or parties intended being MidFirst Bank the persons or parties, if any, having or claiming an interest in or 1-800-654-4566 lien upon the mortgaged premises described in the Complaint, Defendants. NOTICE IS HEREBY GIVEN, that an action has been commenced and is pending in this Court upon a Complaint of the above named Plaintiff against the above named Defendants for the foreclosure of a mortgage, dated June 20, 2006, executed by Kathy J. Burke, as mortgagor, to Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns, as mortgagee, to secure the sum of $103,879.00, and recorded in the Office of the Clerk of the County of Erie on June 20, 2006 at Book 13296 , at Page 5428. Thereafter, an assignment of mortgage from Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns into CitiMortgage, Inc. was dated April 30, 2007 and recorded May 17, 2007 in Book 13350, page 8274. A GAP assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns was dated June 25, 2015 and recorded July 6, 2015 in Book 13727, page 8474. A corrective assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for CitiMortgage, Inc., its successors and assigns was dated January 3, 2018 and recorded January 9, 2018 in Book 13842, page 541. The loan was modified pursuant to a Loan Modification Agreement dated July 6, 2011, and recorded June 2, 2015 in Book 13723, page 5197, which created a single lien in the amount of $113,758.00. Thereafter, an assignment of mortgage from Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for CitiMortgage, Inc., its successors and assigns into CitiMortgage, Inc. was dated June 25, 2015 and recorded July 6, 2015 in Book 13727, page 8477. The loan was further modified pursuant to a Loan Modification Agreement dated February 11, 2015 and recorded October 5, 2015 in Book 13740, page 2196, which created a single lien in the amount of $115,772.66. Thereafter, an assignment of mortgage from CitiMortgage, Inc. into MidFirst Bank, a federally chartered savings association was dated August 27, 2018 and recorded September 5, 2018 in Book 13869, page 1225. The loan was modified pursuant to a Loan Modification Agreement dated July 15, 2020 and recorded August 25, 2020 in Book 13952, page 5682, which created a single lien in the amount of $136,224.90. The loan was further modified pursuant to a Loan Modification Agreement dated April 14, 2022 and recorded May 27, 2022 in Book 11402, page 2887, which created a single lien in the amount of $116,087.32. 1 of 3 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 2 RECEIVED NYSCEF: 10/17/2023 01/24/2023 NOTICE IS FURTHER GIVEN, that the mortgaged premises affected by said foreclosure action, at the time of the commencement of said action and at the time of the filing of this notice, was situated at 97 Columbia Parkway, West Seneca, NY 14224, County of Erie, State of New York at Section 133.44, Block 2, Lot 56. The Clerk of the County of Erie is directed to index this notice to the names of all of the above defendants. The premises is known as 97 Columbia Parkway, West Seneca, NY 14224, in Erie County, New York. Dated: Bay Shore, New York January 23, 2023 Yours, etc., Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP SECTION 133.44 Deana Cheli BLOCK 2 Attorneys for Plaintiff LOT 56 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-085903-F01 2 of 3 FILED: ERIE COUNTY CLERK 10/17/2023 01/24/2023 02:22 01:17 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 2 EXHIBIT A RECEIVED NYSCEF: 10/17/2023 01/24/2023 WebTitle File No.: Client File No.: SCHEDULE A DESCRIPTION OF MORTGAGED PREMISES ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of West Seneca, County of Erie and State of New York, being part of Lot No. 33, Township 10, Range 7 of the Buffalo Creek Reservation and according to map filed in Erie County Clerk's Office under Cover No. 1322, is known as Subdivision Lot Number Eighty-Nine (89) and the south ten (10) feet of Subdivision Lot Number Ninety (90), situate on the southeast side of Columbia Parkway. Premises: 97 Columbia Parkway, West Seneca, NY 14224 Tax Parcel ID No.: Section: 133.44 Block: 2 Lot: 56 v1.0 Page 3 of 13 3 of 3 FILED: ERIE COUNTY CLERK 10/17/2023 08/30/2023 02:22 12:50 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 12 RECEIVED NYSCEF: 10/17/2023 08/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE -------------------------------------------------------------------------x Index No.: 801197/2023 MidFirst Bank Plaintiff, NOTICE OF PENDENCY OF ACTION -against- Servicer as of August 30, Kathy J. Burke, Secretary of Housing and Urban Development, 2023: Credit Acceptance Corporation and "JOHN DOE #1" through MidFirst Bank "JOHN DOE #10", the last ten names being fictitious and 1-800-654-4566 unknown to the plaintiff, 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. -------------------------------------------------------------------------x NOTICE IS HEREBY GIVEN, that an action has been commenced and is pending in this Court upon a Complaint of the above named Plaintiff against the above named Defendants for the foreclosure of a Mortgage, dated June 20, 2006, executed by Kathy J. Burke, as mortgagors, to Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns, as mortgagee, to secure the sum of $103,879.00, and recorded in the Office of the Clerk of the County of Erie on June 20, 2006 at Book 13296, Page 5428. Thereafter, an assignment of mortgage from Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns into CitiMortgage, Inc. was dated April 30, 2007 and recorded May 17, 2007 in Book 13350, page 8274. A GAP assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for Devere Capital Corporation, its successors and assigns was dated June 25, 2015 and recorded July 6, 2015 in Book 13727, page 8474. A corrective assignment of mortgage from CitiMortgage, Inc. into Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for CitiMortgage, Inc., its successors and assigns was dated January 3, 2018 and recorded January 9, 2018 in Book 13842, page 541. The loan was modified pursuant to a Loan Modification Agreement dated July 6, 2011, and recorded June 2, 2015 in Book 13723, page 5197, which created a single lien in the amount of $113,758.00. Thereafter, an assignment of mortgage from Mortgage Electronic Registration Systems, Inc., as mortgagee, as nominee for CitiMortgage, Inc., its successors and assigns into CitiMortgage, Inc. was dated June 25, 2015 and recorded July 6, 2015 in Book 13727, page 8477. The loan was further modified pursuant to a Loan Modification Agreement dated February 11, 2015 and recorded October 5, 2015 in Book 13740, page 2196, which created a single lien in the amount of $115,772.66. Thereafter, an assignment of mortgage from CitiMortgage, Inc. into MidFirst Bank, a federally chartered savings association was dated August 27, 2018 and recorded September 5, 2018 in Book 13869, page 1225. The loan was modified pursuant to a Loan Modification Agreement dated July 15, 2020 and recorded August 25, 2020 in Book 13952, page 5682, which created a single lien in the amount of $136,224.90. The loan was further modified 1 of 5 FILED: ERIE COUNTY CLERK 10/17/2023 08/30/2023 02:22 12:50 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 12 RECEIVED NYSCEF: 10/17/2023 08/30/2023 pursuant to a Loan Modification Agreement dated April 14, 2022 and recorded May 27, 2022 in Book 11402, page 2887, which created a single lien in the amount of $116,087.32. NOTICE IS FURTHER GIVEN, that the mortgaged premises affected by said foreclosure action, at the time of the commencement of said action and at the time of the filing of this notice, was situated at 97 Columbia Parkway, West Seneca, NY 14224, County of Erie, State of New York at Section 133.44, Block 2, Lot 56. 2 of 5 FILED: ERIE COUNTY CLERK 10/17/2023 08/30/2023 02:22 12:50 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 12 RECEIVED NYSCEF: 10/17/2023 08/30/2023 The Clerk of the County of Erie is directed to index this notice to the names of all of the above defendants. The premises known as 97 Columbia Parkway, West Seneca, NY 14224, in Erie County, New York. Dated: Bay Shore, New York August 30, 2023 Yours, etc., SECTION 133.44 By: Deana Cheli, Esq. BLOCK 2 Frenkel, Lambert, Weiss, LOT 56 Weisman & Gordon, LLP 53 Gibson Street Bay Shore, NY 11706 (631) 969-3100 Our File No.: 01-085903-F01 3 of 5 FILED: ERIE COUNTY CLERK 10/17/2023 08/30/2023 02:22 12:50 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 12 RECEIVED NYSCEF: 10/17/2023 08/30/2023 WebTitle File No.: Client File No.: SCHEDULE A DESCRIPTION OF MORTGAGED PREMISES ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of West Seneca, County of Erie and State of New York, being part of Lot No. 33, Township 10, Range 7 of the Buffalo Creek Reservation and according to map filed in Erie County Clerk's Office under Cover No. 1322, is known as Subdivision Lot Number Eighty-Nine (89) and the south ten (10) feet of Subdivision Lot Number Ninety (90), situate on the southeast side of Columbia Parkway. Premises: 97 Columbia Parkway, West Seneca, NY 14224 Tax Parcel ID No.: Section: 133.44 Block: 2 Lot: 56 v1.0 Page 3 of 13 4 of 5 FILED: ERIE COUNTY CLERK 10/17/2023 08/30/2023 02:22 12:50 PM INDEX NO. 801197/2023 NYSCEF DOC. NO. 21 12 RECEIVED NYSCEF: 10/17/2023 08/30/2023 Index # 801197/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE ===================================================================== MidFirst Bank Plaintiff, - against - Kathy J. Burke, Secretary of Housing and Urban Development, Credit Acceptance Corporation, and "JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the Mortgage premises described in the Complaint Defendants. ===================================================================== NOTICE OF PENDENCY OF ACTION ===================================================================== Frenkel, Lambert, Weiss, Weisman & Gordon, LLP Attorneys for Plaintiff 53 Gibson Street Bay Shore, NY 11706 (631)969-3100 Our File No.: 01-085903-F01 ===================================================================== To Attorney(s) for ===================================================================== Service of a copy of the within is hereby admitted. Dated, Attorney(s) for ===================================================================== 5 of 5