Preview
FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899
NYSCEF DOC. NO.COURT
SUPREME 1 OF THE STATE OF NEW YORK RECEIVED NYSCEF: 12/01/2023
COUNTY OF SULLIVAN
WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT Index#E2023-1899
IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS 12/01/2023
TRUSTEE FOR IOF III TRUST 2A
Plaintiff (s) , SUMMONS
-against-
Plaintiff designates
SULLIVAN County as the
NELSON CASTILLO place of trial
Premises:
15 WINTHROP AVENUE
LIBERTY, NY 12754
#1" #12,"
"JOHN DOE through "JOHN DOE the
last twelve names being fictitious and Venue is based upon
unknown to plaintiff, the persons or County in which the
parties intended being the tenants, premises are situated
occupants, persons or corporations, if
any, having or claiming an interest in or
lien upon the premises, described in the
complaint,
Defendant(s).
To the above named Defendants
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
Plaintiff's Attorney within 20 days after the service of this
summons, exclusive of the day of service (or within 30 days after
the service is complete if this summons is not personally delivered
to you within the State of New York); and in case of your failure
to appear or answer, judgment will be taken against you by default
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for the relief demanded in the complaint.
Dated: November 30, 2023
Syosset, New York
ROACH & LIN, P.C.
BY: Patrick G. Messina
Attorneys for Plaintiff
6851 Jericho Turnpike, Suite 185
Syosset, New York 11791
Telephone 516-938-3100
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SULLIVAN
- - - - - - - - - - - - - - - - - - - - - x
WILMINGTON SAVINGS FUND SOCIETY, ESB, NOT
IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS
TRUSTEE FOR IOE III TRUST 2A
Index# E2023-1899
12/01/2023
Plaintiff(s),
-against- COMPLAINT FOR
FORECLOSURE OF A
MORTGAGE
NELSON CASTILLO
ifl" #12,"
"JOHN DOE through "JOHN DOE the
last twelve names being fictitious and
unknown to plaintiff, the persons or
parties intended being the tenants,
occupants, persons or corporations, if
any, having or claiming an interest in or
lien upon the premises, described in the
complaint,
Defendant(s).
- - - - - - - - - - - - - - - - - - - - - x
Plaintiff(s) by its/their attorneys Roach & Lin, P.C , hereby
allege(s) upon information and belief:
1. On or about June 8, 2022, defendant NELSON CASTILLO
borrowed the sum of $114,750.00 from HOMETOWN EQUITY MORTGAGE,
LLC, and executed and delivered a certain note dated the same date.
A copy of the Note is annexed hereto as Exhibit "A".
2. Said note provided, among other things, that in the event
of default by the maker of the note, NELSON CASTILLO, in the
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payment of any of the above described payments, the entire balance
hereunder shall be immediately due and payable.
3. In order to collaterally secure the aforesaid obligation,
defendant NELSON CASTILLO, on the same day, duly executed,
acknowledged and delivered to the plaintiff or plaintiff's
assignor a mortgage, whereby said defendant mortgaged the
following real property with the appurtenances thereto, described
in the mortgage as follows:
- Description"
See Schedule A "Legal annexed hereto and made
a part hereof. Said premises being known as and by 15 WINTHROP
AVENUE, LIBERTY, NY 12754.
TOGETHER with all right, title and interest of the defendant
in and to the land lying in the streets and roads in front of and
adjoining said premises.
4. Said mortgage provided for the following:
a) In case of foreclosure sale said premises or so
much thereof as may be affected by this mortgage,
may be sold in one parcel.
b) That the mortgagor will pay all taxes,
assessments, sewer rents or water rates and in
default thereof, the mortgagee may pay the same.
c) That the whole of said principal sum and interest
shall become due at the option of the mortgagee
after default in the payment of any installment of
principal or of interest.
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5. That the said mortgage was duly recorded in Instrument #
2022-6438 of Mortgages in the Office of the CLERK of the County of
SULLIVAN on June 16, 2022, and the New York State recording tax
was duly paid thereon. A copy of the Mortgage is annexed hereto as
Exhibit "B".
6. The subject mortgage was assigned to WILMINGTON SAVINGS
FUND SOCIETY, FSB, NOT IN ITS INDIVIDUALr CAPACITY BUT SOLELY AS
TRUSTEE FOR IOF III TRUST 2A by Assignment of Mortgage dated April
11, 2023, and which was recorded in the Office of the CLERK of the
County of SULLIVAN in Instrument # 2023-3228 on April 19, 2023.
Plaintiff has standing to commence the within action by virtue of
being the Transferee of the original Note, heretofore validly
transferred and currently in its possession and is the current
holder of both the Note and the Mortgage it secures. A copy of the
Assignment is annexed hereto as Exhibit "C".
7. Defendant NELSON CASTILLO is the owner of the equity of
redemption herein foreclosed and is joined as necessary party
defendant to foreclose all of their rights, title, interest and
equity of redemption in the mortgaged premises. Said Defendant
will be liable for any deficiency judgment as may be directed by
this Court, unless said Defendant have received a discharge from
the United States Bankruptcy Court, in which case Plaintiff shall
not seek or be entitled to a deficiency judgment.
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8. Plaintiff verily believes that during the pendency of
this action, in order to protect the security of the within
mortgage, it may be compelled to make advances to prior mortgagees,
if any, for installments of principal and interest, taxes,
assessments, water rates, and/or fire insurance premiums that are
or may become due under said prior mortgage or to the receiver of
taxes, or to the fire insurance company, which advances are to be
included in the balance due to plaintiff, plus interest, as
provided for in the within mortgage foreclosed and deemed further
secured thereby.
9. NELSON CASTILLO has defaulted under their note for
$114,750.00 owing to Plaintiff by failing to make the required
payments when due. By virtue thereof, Plaintiff herein elects to
accelerate the entire principal balance of $114,069.80 to be
immediately due and payable under the mortgage herein foreclosed,
plus interest and any advances made or to be made to protect
Plaintiffs Mortgage, all to be computed by the Referee to be
appointed for the purpose, together with a reasonable sum
representing legal fees if same is authorized by the Note or
Mortgage to be awarded by the Court.
10. Plaintiff is still the owner and holder of the mortgage
herein foreclosed and of the note secured thereby. At the time the
proceeding was commenced, the plaintiff was the owner and holder
of the subject mortgage and note or has been delegated the
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authority to institute a foreclosure action by the owner and holder
of the note. Originals of the subject mortgage and note are in the
plaintiff's possession and control or that of the custodian.
11. Plaintiff is a TRUSTEE FOR IOF III TRUST 2A.
12. That no other action has been commenced for the recovery
of said sum secured by said note and mortgage.
13. That each and all of the defendants herein have or claim
to have some interest in, or lien upon the s aid mortgaged premises
or some part thereof, which interest or lien, if any, has accrued
subsequently to the lien of the said mortgage, and is subject and
subordinate thereto.
14. That Plaintiff shall not be deemed to have waived,
altered, released or changed the election hereinbefore made by
reason of any payment after the date of commencement of this
action.
15. The loan being foreclosed is a business purpose loan and
therefore the provisions of RPAPL 1304, RPAPL 1306 and CPLR 3408
do not apply to this action.
WHERE FORE, the plaintiff demands judgment that the defendant
herein and all persons claiming under them or any or either of
them subsequent to the commencement of this action may be forever
barred and foreclosed of all right, claim, lien and equity of
redemption in the s aid mortgaged premises; that the said premises
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is"
may be decreed to be sold according to law in "as physical
order and condition, subject to any covenants, easements,
restrictions and reservations of record; any violations of record;
any state of facts an accurate survey may show; any zoning
regulations or amendments thereto; rights of tenants or persons in
possession of the subject premises; any prior mortgage liens of
record; any prior lien of record; and any advances or arrears
thereunder; any equity of redemption of the UNITED STATES OF
AMERICA to redeem the premises within 120 days from date of sale;
that this Court forthwith appoint a receiver of the rents and
profits of said premises, during the pendency of this action with
the usual powers and duties; that monies arising from the sale may
be brought into court; that plaintiff may be paid the amount due
on said note and Mortgage with interest to the time of such
attorney'
payment, s fees, as set forth in the Mortgage, the costs
of this action and the expenses of said sale so far as the amount
of such monies properly applicable thereto will pay the same; and
that defendant NELSON CASTILLO may be adjudged to pay the whole
residue, or so much thereof as the Court may determine to be just
and equitable, of the debt remaining unsatisfied after the sale of
the mortgaged premises and the application of the proceeds pursuant
to the provisions contained in such judgment, the amount thereof
to be determined by the Court as provided in Section 1371 of the
Real Property and Proceedings Law; and
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That the plaintiff may have such other and further relief in
the premises as may be deemed just and equitable.
Dated: November 30, 2023
Syosset, New York
ROACH & LIN, P.C
BY: Patrick G. Messina
Attorneys for Plaintiff
6851 Jericho Turnpike, Suite 185
Syosset, New York 11791
Telephone 516-938-3100
9 of 9
Preview
FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO.COURT SUPREME 1 OF THE STATE OF NEW YORK RECEIVED NYSCEF: 12/01/2023 COUNTY OF SULLIVAN WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT Index#E2023-1899 IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS 12/01/2023 TRUSTEE FOR IOF III TRUST 2A Plaintiff (s) , SUMMONS -against- Plaintiff designates SULLIVAN County as the NELSON CASTILLO place of trial Premises: 15 WINTHROP AVENUE LIBERTY, NY 12754 #1" #12," "JOHN DOE through "JOHN DOE the last twelve names being fictitious and Venue is based upon unknown to plaintiff, the persons or County in which the parties intended being the tenants, premises are situated occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendant(s). To the above named Defendants 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 Plaintiff's Attorney within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default 1 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 for the relief demanded in the complaint. Dated: November 30, 2023 Syosset, New York ROACH & LIN, P.C. BY: Patrick G. Messina Attorneys for Plaintiff 6851 Jericho Turnpike, Suite 185 Syosset, New York 11791 Telephone 516-938-3100 2 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN - - - - - - - - - - - - - - - - - - - - - x WILMINGTON SAVINGS FUND SOCIETY, ESB, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR IOE III TRUST 2A Index# E2023-1899 12/01/2023 Plaintiff(s), -against- COMPLAINT FOR FORECLOSURE OF A MORTGAGE NELSON CASTILLO ifl" #12," "JOHN DOE through "JOHN DOE the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendant(s). - - - - - - - - - - - - - - - - - - - - - x Plaintiff(s) by its/their attorneys Roach & Lin, P.C , hereby allege(s) upon information and belief: 1. On or about June 8, 2022, defendant NELSON CASTILLO borrowed the sum of $114,750.00 from HOMETOWN EQUITY MORTGAGE, LLC, and executed and delivered a certain note dated the same date. A copy of the Note is annexed hereto as Exhibit "A". 2. Said note provided, among other things, that in the event of default by the maker of the note, NELSON CASTILLO, in the 3 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 payment of any of the above described payments, the entire balance hereunder shall be immediately due and payable. 3. In order to collaterally secure the aforesaid obligation, defendant NELSON CASTILLO, on the same day, duly executed, acknowledged and delivered to the plaintiff or plaintiff's assignor a mortgage, whereby said defendant mortgaged the following real property with the appurtenances thereto, described in the mortgage as follows: - Description" See Schedule A "Legal annexed hereto and made a part hereof. Said premises being known as and by 15 WINTHROP AVENUE, LIBERTY, NY 12754. TOGETHER with all right, title and interest of the defendant in and to the land lying in the streets and roads in front of and adjoining said premises. 4. Said mortgage provided for the following: a) In case of foreclosure sale said premises or so much thereof as may be affected by this mortgage, may be sold in one parcel. b) That the mortgagor will pay all taxes, assessments, sewer rents or water rates and in default thereof, the mortgagee may pay the same. c) That the whole of said principal sum and interest shall become due at the option of the mortgagee after default in the payment of any installment of principal or of interest. 4 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 5. That the said mortgage was duly recorded in Instrument # 2022-6438 of Mortgages in the Office of the CLERK of the County of SULLIVAN on June 16, 2022, and the New York State recording tax was duly paid thereon. A copy of the Mortgage is annexed hereto as Exhibit "B". 6. The subject mortgage was assigned to WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUALr CAPACITY BUT SOLELY AS TRUSTEE FOR IOF III TRUST 2A by Assignment of Mortgage dated April 11, 2023, and which was recorded in the Office of the CLERK of the County of SULLIVAN in Instrument # 2023-3228 on April 19, 2023. Plaintiff has standing to commence the within action by virtue of being the Transferee of the original Note, heretofore validly transferred and currently in its possession and is the current holder of both the Note and the Mortgage it secures. A copy of the Assignment is annexed hereto as Exhibit "C". 7. Defendant NELSON CASTILLO is the owner of the equity of redemption herein foreclosed and is joined as necessary party defendant to foreclose all of their rights, title, interest and equity of redemption in the mortgaged premises. Said Defendant will be liable for any deficiency judgment as may be directed by this Court, unless said Defendant have received a discharge from the United States Bankruptcy Court, in which case Plaintiff shall not seek or be entitled to a deficiency judgment. 5 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 8. Plaintiff verily believes that during the pendency of this action, in order to protect the security of the within mortgage, it may be compelled to make advances to prior mortgagees, if any, for installments of principal and interest, taxes, assessments, water rates, and/or fire insurance premiums that are or may become due under said prior mortgage or to the receiver of taxes, or to the fire insurance company, which advances are to be included in the balance due to plaintiff, plus interest, as provided for in the within mortgage foreclosed and deemed further secured thereby. 9. NELSON CASTILLO has defaulted under their note for $114,750.00 owing to Plaintiff by failing to make the required payments when due. By virtue thereof, Plaintiff herein elects to accelerate the entire principal balance of $114,069.80 to be immediately due and payable under the mortgage herein foreclosed, plus interest and any advances made or to be made to protect Plaintiffs Mortgage, all to be computed by the Referee to be appointed for the purpose, together with a reasonable sum representing legal fees if same is authorized by the Note or Mortgage to be awarded by the Court. 10. Plaintiff is still the owner and holder of the mortgage herein foreclosed and of the note secured thereby. At the time the proceeding was commenced, the plaintiff was the owner and holder of the subject mortgage and note or has been delegated the 6 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 authority to institute a foreclosure action by the owner and holder of the note. Originals of the subject mortgage and note are in the plaintiff's possession and control or that of the custodian. 11. Plaintiff is a TRUSTEE FOR IOF III TRUST 2A. 12. That no other action has been commenced for the recovery of said sum secured by said note and mortgage. 13. That each and all of the defendants herein have or claim to have some interest in, or lien upon the s aid mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage, and is subject and subordinate thereto. 14. That Plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of any payment after the date of commencement of this action. 15. The loan being foreclosed is a business purpose loan and therefore the provisions of RPAPL 1304, RPAPL 1306 and CPLR 3408 do not apply to this action. WHERE FORE, the plaintiff demands judgment that the defendant herein and all persons claiming under them or any or either of them subsequent to the commencement of this action may be forever barred and foreclosed of all right, claim, lien and equity of redemption in the s aid mortgaged premises; that the said premises 7 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 is" may be decreed to be sold according to law in "as physical order and condition, subject to any covenants, easements, restrictions and reservations of record; any violations of record; any state of facts an accurate survey may show; any zoning regulations or amendments thereto; rights of tenants or persons in possession of the subject premises; any prior mortgage liens of record; any prior lien of record; and any advances or arrears thereunder; any equity of redemption of the UNITED STATES OF AMERICA to redeem the premises within 120 days from date of sale; that this Court forthwith appoint a receiver of the rents and profits of said premises, during the pendency of this action with the usual powers and duties; that monies arising from the sale may be brought into court; that plaintiff may be paid the amount due on said note and Mortgage with interest to the time of such attorney' payment, s fees, as set forth in the Mortgage, the costs of this action and the expenses of said sale so far as the amount of such monies properly applicable thereto will pay the same; and that defendant NELSON CASTILLO may be adjudged to pay the whole residue, or so much thereof as the Court may determine to be just and equitable, of the debt remaining unsatisfied after the sale of the mortgaged premises and the application of the proceeds pursuant to the provisions contained in such judgment, the amount thereof to be determined by the Court as provided in Section 1371 of the Real Property and Proceedings Law; and 8 of 9 FILED: SULLIVAN COUNTY CLERK 12/01/2023 11:52 AM INDEX NO. E2023-1899 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/01/2023 That the plaintiff may have such other and further relief in the premises as may be deemed just and equitable. Dated: November 30, 2023 Syosset, New York ROACH & LIN, P.C BY: Patrick G. Messina Attorneys for Plaintiff 6851 Jericho Turnpike, Suite 185 Syosset, New York 11791 Telephone 516-938-3100 9 of 9