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FILED: RENSSELAER COUNTY CLERK 08/12/2020 10:47 AM INDEX NO. EF2018-260483
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/18/2021
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EXHIBIT M
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FILED: RENSSELAER COUNTY CLERK 08/12/2020 10:47 AM INDEX NO. EF2018-260483
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/18/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
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NATIONSTAR MORTGAGE LLC D/B/A MR. INDEX NO.: 2018-260483
COOPER,
AFFIRMATION OF REGULARITY
Plaintiff(s),
MORTGAGED PROPERTY:
vs.
31 MADISON AVENUE
TROY, NY 12180
BARBARA J. JOHNSON; STEPHANIE V.
JOHNSON '
COUNTY: RENSSELAER
#1" #12," SBL#:
"JOHN DOE through "JOHN DOE the
last twelve names fictitious and unknown to Section 112.40,
being
plaintiff, the persons or parties intended the Block 3,
being
tenants, occupants, persons or corporations, if any, Lot 26
having or claiming an interest in or lien upon the a
premises, described in the complaint,
o 5 -<
Defendant(s).
----- ----------------- -------------X
I, Christina Bruderman, 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 RAS Boriskin, LLC the attorneys of
record for the PlaintifE 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 residential mortgage foreclosure action was commenced by filing the
summom and complaiñt in the RENSSELAER County Clerk's office on August 03, 2018, in the
County where the mortgaged property is located. The action was brought to foreclose a
residential mortgage recorded on November 08, 2007 in Liber 4382 and Page 76.
1. On August 03, 2018, Plaintiff filed a notice of pêñdeñcy, a copy of which is
attached hereto as Exhibit "I". On November 16, 2018 Plaintiff re-filed the notice of pedency
in accordañce with RPAPL §1331 and CPLR Article 65, a copy of which is annexed hereto as
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Exhibit "I".
3. 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 w===ons, complaint, notice of pendency and affidavits of service
are annexed hereto as Exhibits "H, I, & J".
4. That since the filing of the notice of pêñdency, the Complaiñt in this action has
not been amended by making new parties to this action, or so as to affect other property not
described in the original Complaint, or so as to extend the claims of plaintiff as against the
mortgaged premises.
5. That STEPHANIE V. JOHNSON AND BARBARA J. JOHNSON ("Borrowers")
executed a Note dated September 05, 2007 in the amount of $168,743.00 ("Note"). As security
for the Note, STEPHANIE V. JOHNSON AND BARBARA J. JOHNSON, ("Mortgagors")
executed a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC. AS NOMINEE FOR FIRST ALTERNATIVE MORTGAGE CORP, A NEW YORK
CORPORATION, secured by the Premises, dated September 05, 2007 and recorded on
November 08, 2007 in book 4382 at Page 76 ("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).
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7. Prior to the commencement of this action the mortgage was validly assigned from
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR FIRST
ALTERNATIVE MORTGAGE CORP to HSBC BANK USA, NA by written instrument dated
January 25, 2016 and recorded in the office of the County Clerk on February 2, 2016 in book
7725, at page 129. Then the Mortgage was assigñêd from HSBC BANK USA, NA to
NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER by written instrument dated July 20,
2018 and recorded in the office of the County Clerk on August 10, 2018 in book 8588, bc¡;irmin¿;
on page 203. A true and accurate copy of the Assignments are annexed hereto as Exhibit "D".
8. As set forth in the affidavit annexed hereto as Exhibit "L", Borrowers defaulted
on the loan by failing to make the November 01, 2015 payment and subsequent payments.
9. As a result of the default, Plaintiff served the Borrowers with a notice of default in
compliance with the terms of the mortgage. A copy of the notice of default is annexed as Exhibit
"E". CPLR §5015 requires the denial of performance of a contractual condition precedent to be
made specifically and with particularity, and the failure to interpose an answer raising such a
denial results in the waiver of the defense. First Northern Mortgagee Corp. v. Yatrakis, 154
A.D.2d 433 (2d Dep't 1989). Defendants were served with the Pre-
433, timely 90-Day
Foreclosure notice required by RPAPL §1304. Plaintiff filed the name, address and telephone
number of the Defendants, the amount claimed to be due, and the type of loan at issue with the
superintedet of banks within three business days of the mailing of the 90-day Pre-Foreclosure
notice as required by RPAPL §l306. Copies of these notices are attached hereto as Exhibit "F",
see also the affidavit of Connie Melendez, attached hereto as Exhibit "L".
10. Nevertheless, of the 90 notices is not jurisdictional and in the absence
mailing day
of the defense being interposed by a Defendant, Plaintiff is not obligated to disprove the defense
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as part of its prima facie case. US Bank v. Carey, 137 AD3d 894 (2d Dep't 2016); Flagstar
Bank, FSB v. Jambelli, 140 AD3d 829 (2d Dep't 2016).
11. Upon information and belief, that all of defendañts are of full age; that none of
defendants are in the armed services of the United States of America.
12. That more than the legally required time period has elapsed since the due service
of the Summons and Complaint herein upon all of defendants.
13. The following defendants did not answer or appear and their time to answer has
expired: STEPHANIE V. JOHNSON and BARBARA J. JOHNSON. Accordingly, these
defendants are in default.
14. 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.
15. That the proceedings herein have been regular and according to law.
16. On December 31, 2018, Plaintiff filed a motion seeking Default Judgment,
Judgment of Foreclosure and Sale and an Appointment of a Referee. The Court declined the
emotion pursuant to RPAPL §1321 and instructed that the Plaintiff file for an Order of
Reference/Appointment of a Referee by Order dated February 8, 2019. A copy of the Order is
attached hereto as Exhibit "O".
17. The undersigned affirms that the foregoing statemêñts are true, under the penalties
of perjury.
DATED: October 16, 2019
Westbury, New York
Christina Bru erman, Esq.
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Preview
FILED: RENSSELAER COUNTY CLERK 08/12/2020 10:47 AM INDEX NO. EF2018-260483 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/18/2021 O O EXHIBIT M 1 of 5 FILED: RENSSELAER COUNTY CLERK 08/12/2020 10:47 AM INDEX NO. EF2018-260483 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/18/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER ------------------------ -------------X NATIONSTAR MORTGAGE LLC D/B/A MR. INDEX NO.: 2018-260483 COOPER, AFFIRMATION OF REGULARITY Plaintiff(s), MORTGAGED PROPERTY: vs. 31 MADISON AVENUE TROY, NY 12180 BARBARA J. JOHNSON; STEPHANIE V. JOHNSON ' COUNTY: RENSSELAER #1" #12," SBL#: "JOHN DOE through "JOHN DOE the last twelve names fictitious and unknown to Section 112.40, being plaintiff, the persons or parties intended the Block 3, being tenants, occupants, persons or corporations, if any, Lot 26 having or claiming an interest in or lien upon the a premises, described in the complaint, o 5 -< Defendant(s). ----- ----------------- -------------X I, Christina Bruderman, 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 RAS Boriskin, LLC the attorneys of record for the PlaintifE 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 residential mortgage foreclosure action was commenced by filing the summom and complaiñt in the RENSSELAER County Clerk's office on August 03, 2018, in the County where the mortgaged property is located. The action was brought to foreclose a residential mortgage recorded on November 08, 2007 in Liber 4382 and Page 76. 1. On August 03, 2018, Plaintiff filed a notice of pêñdeñcy, a copy of which is attached hereto as Exhibit "I". On November 16, 2018 Plaintiff re-filed the notice of pedency in accordañce with RPAPL §1331 and CPLR Article 65, a copy of which is annexed hereto as 18-172756 - RoO 2 of 5 FILED: RENSSELAER COUNTY CLERK 08/12/2020 10:47 AM INDEX NO. EF2018-260483 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/18/2021 C O Exhibit "I". 3. 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 w===ons, complaint, notice of pendency and affidavits of service are annexed hereto as Exhibits "H, I, & J". 4. That since the filing of the notice of pêñdency, the Complaiñt in this action has not been amended by making new parties to this action, or so as to affect other property not described in the original Complaint, or so as to extend the claims of plaintiff as against the mortgaged premises. 5. That STEPHANIE V. JOHNSON AND BARBARA J. JOHNSON ("Borrowers") executed a Note dated September 05, 2007 in the amount of $168,743.00 ("Note"). As security for the Note, STEPHANIE V. JOHNSON AND BARBARA J. JOHNSON, ("Mortgagors") executed a mortgage in favor of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR FIRST ALTERNATIVE MORTGAGE CORP, A NEW YORK CORPORATION, secured by the Premises, dated September 05, 2007 and recorded on November 08, 2007 in book 4382 at Page 76 ("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). 18-172756 - RoO 3 of 5 FILED: RENSSELAER COUNTY CLERK 08/12/2020 10:47 AM INDEX NO. EF2018-260483 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/18/2021 C O 7. Prior to the commencement of this action the mortgage was validly assigned from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR FIRST ALTERNATIVE MORTGAGE CORP to HSBC BANK USA, NA by written instrument dated January 25, 2016 and recorded in the office of the County Clerk on February 2, 2016 in book 7725, at page 129. Then the Mortgage was assigñêd from HSBC BANK USA, NA to NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER by written instrument dated July 20, 2018 and recorded in the office of the County Clerk on August 10, 2018 in book 8588, bc¡;irmin¿; on page 203. A true and accurate copy of the Assignments are annexed hereto as Exhibit "D". 8. As set forth in the affidavit annexed hereto as Exhibit "L", Borrowers defaulted on the loan by failing to make the November 01, 2015 payment and subsequent payments. 9. As a result of the default, Plaintiff served the Borrowers with a notice of default in compliance with the terms of the mortgage. A copy of the notice of default is annexed as Exhibit "E". CPLR §5015 requires the denial of performance of a contractual condition precedent to be made specifically and with particularity, and the failure to interpose an answer raising such a denial results in the waiver of the defense. First Northern Mortgagee Corp. v. Yatrakis, 154 A.D.2d 433 (2d Dep't 1989). Defendants were served with the Pre- 433, timely 90-Day Foreclosure notice required by RPAPL §1304. Plaintiff filed the name, address and telephone number of the Defendants, the amount claimed to be due, and the type of loan at issue with the superintedet of banks within three business days of the mailing of the 90-day Pre-Foreclosure notice as required by RPAPL §l306. Copies of these notices are attached hereto as Exhibit "F", see also the affidavit of Connie Melendez, attached hereto as Exhibit "L". 10. Nevertheless, of the 90 notices is not jurisdictional and in the absence mailing day of the defense being interposed by a Defendant, Plaintiff is not obligated to disprove the defense 1 8-172756 - RoO 4 of 5 FILED: RENSSELAER COUNTY CLERK 08/12/2020 10:47 AM INDEX NO. EF2018-260483 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/18/2021 C O as part of its prima facie case. US Bank v. Carey, 137 AD3d 894 (2d Dep't 2016); Flagstar Bank, FSB v. Jambelli, 140 AD3d 829 (2d Dep't 2016). 11. Upon information and belief, that all of defendañts are of full age; that none of defendants are in the armed services of the United States of America. 12. That more than the legally required time period has elapsed since the due service of the Summons and Complaint herein upon all of defendants. 13. The following defendants did not answer or appear and their time to answer has expired: STEPHANIE V. JOHNSON and BARBARA J. JOHNSON. Accordingly, these defendants are in default. 14. 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. 15. That the proceedings herein have been regular and according to law. 16. On December 31, 2018, Plaintiff filed a motion seeking Default Judgment, Judgment of Foreclosure and Sale and an Appointment of a Referee. The Court declined the emotion pursuant to RPAPL §1321 and instructed that the Plaintiff file for an Order of Reference/Appointment of a Referee by Order dated February 8, 2019. A copy of the Order is attached hereto as Exhibit "O". 17. The undersigned affirms that the foregoing statemêñts are true, under the penalties of perjury. DATED: October 16, 2019 Westbury, New York Christina Bru erman, Esq. 18-172756 - RoO 5 of 5