Preview
FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF STEUBEN
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U.S. Bank National Association, not in its individual capacity but solely
as Trustee for the CIM Trust 2018-R5 Mortgage-Backed Notes,
Series 2018-R5,
Plaintiff, AMENDED
COMPLAINT
-against-
Leeanne Fitzsimmons a/k/a Leanne H Merchant, as Heir to the
Estate of Michelle M Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a
Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller, Lisa
Fitzsimmons a/k/a Lisa Heichel, as Heir to the Estate of Michelle M
Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a Michelle Marie
Fitzsimmons a/k/a Michelle Marie Miller, Peter Fitzsimmons, as
Heir to the Estate of Michelle M Fitzsimmons a/k/a Michelle
Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle
Marie Miller and Michelle M Fitzsimmons a/k/a Michelle
Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle
Marie Miller’s unknown heirs-at-law, next-of-kin, distributees,
executors, administrators, trustees, devisees, legatees, assignees,
lienors, creditors, and successors in interest and generally all
persons having or claiming under, by or through said defendant
who may be deceased, by purchase, inheritance, lien or otherwise,
any right, title or interest in the real property described in the
complaint herein, East Resources, Inc., LVNV Funding LLC,
Citibank South Dakota, NA, Donald Smith, DMD, PC, Discover
Bank, Ira Davenport Memorial Hospital, Inc., New York State
Department of Taxation and Finance, United States of America,
Capital One Bank (USA), N.A., Corning Hospital,
Defendants.
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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, U.S. Bank National Association, not in its individual capacity but solely
as Trustee for the CIM Trust 2018-R5 Mortgage-Backed Notes, Series 2018-R5, at all times
hereinafter mentioned was and still is a National Association organized under the laws of the
United States of America.
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2. On or about March 09, 2006, Michelle M. Fitzsimmons executed and delivered to
American General Home Equity, Inc. a Home Equity Line of Credit Agreement (hereinafter
"Agreement") dated March 09, 2006 whereby Michelle M. Fitzsimmons promised to pay the
principal sum of $53,000.00.
3. On or about March 09, 2006, Michelle M. Fitzsimmons executed and delivered to
American General Home Equity, Inc. a mortgage (hereinafter "mortgage") in the principal sum of
$53,000.00, with interest, mortgaging the premises known as 1105 Caton Bypass Road a/k/a
1105 Telephone Road, Corning, NY 14830 (hereinafter "premises") as collateral security for the
Agreement. 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 Steuben on
March 23, 2006 in Book 2591, Page 80 and the recording tax was duly paid. Thereafter, the loan
was modified pursuant to a Loan Modification Agreement dated February 1, 2013 and recorded
March 17, 2014 in Book 3785 at Page 23 which created a single lien in the amount of
$58,049.57.
5. That plaintiff is in possession of the original Agreement with a proper endorsement and/or
allonge and is therefore, the holder of both the Agreement and mortgage, which passes as incident
to the Agreement.
6. Pursuant to the modified loan, Michelle M. Fitzsimmons promised to make consecutive
monthly payments of principal and interest each month, in accordance with the terms of the loan
modification agreement, commencing February 01, 2013 and on the first day of each succeeding
month up to and including January 01, 2053 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. On August 1, 2019, Michelle M. Fitzsimmons passed away and thereafter, her Estate
failed to comply with the terms, covenants and conditions of said Agreement and mortgage by
failing and omitting to pay, to the plaintiff, payments due on August 01, 2019 and said default has
continued for a period in excess of fifteen (15) days.
10. Pursuant to the terms of the Agreement and mortgage, the plaintiff has elected and does
hereby elect to declare the entire principal balance to be due and owing.
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11. That there is now due and owing to the plaintiff under said Agreement and mortgage the
principal sum of $55,823.88 with interest thereon from June 12, 2019, plus late charges if
applicable pursuant to the terms of the Agreement 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 Agreement
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 Agreement 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.
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.
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 Agreement 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 Agreement or is the holder of the
Agreement and mortgage and has been delegated the authority to institute a mortgage foreclosure
action by the owner of the Agreement and mortgage.
19. If plaintiff is not the owner and holder of the subject Agreement 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 Agreement and mortgage.
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20. Plaintiff requests that the mortgaged premises be sold in one parcel and that if the
premises consists of more than one parcel, plaintiff respectfully requests that the judgment of
foreclosure provide for the parcels to be sold as one parcel.
21. 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.
22. 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
23. The plaintiff repeats and realleges each and every allegation contained in paragraphs
designated 1 through 22.
24. The mortgage provides that in the event of default, the plaintiff may recover all costs,
including 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
25. The plaintiff repeats and realleges each and every allegation contained in paragraphs
designated 1 through 24.
26. The subject mortgage describes the property to be encumbered by the lien of the subject
mortgage through reference to a legal description intended to be annexed to the subject mortgage.
27. The Plaintiff’s recorded copy of the subject mortgage contains a description that does not
properly describe the property.
28. On information and belief, the parties intended the mortgage to encumber the full extent
of the property owned by the mortgagor under the legal description annexed hereto as Exhibit
“A”.
29. On information and belief, the mortgage contains an incorrect legal description because
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of a mutual mistake of the parties or some other unknown error.
30. Reformation of the mortgage to add the correct legal description is necessary to ensure
the mortgage reflects the agreement the parties intended.
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 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 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;
g) That the legal description of the mortgaged premises, contained in the mortgage,
be amended to conform to the legal description of the mortgaged premises contained
herein;
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h) That plaintiff have such other and further relief in the mortgaged premises as may
be just and equitable.
Dated: Bay Shore, New York
March 22, 2021
Frenkel, Lambert, Weiss,
Weisman & Gordon, LLP
By: /s/
Linda P. Manfredi
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Our File No.: 01-093322-F00
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SCHEDULE A
Party Name Description
Leeanne Fitzsimmons a/k/a Leanne H Heir to the Estate of Michelle M Fitzsimmons
Merchant, as Heir to the Estate of Michelle a/k/a Michelle Fitzsimmons a/k/a Michelle Marie
M Fitzsimmons a/k/a Michelle Fitzsimmons Fitzsimmons a/k/a Michelle Marie Miller
a/k/a Michelle Marie Fitzsimmons a/k/a
Michelle Marie Miller
Lisa Fitzsimmons a/k/a Lisa Heichel, as Heir to the Estate of Michelle M Fitzsimmons
Heir to the Estate of Michelle M a/k/a Michelle Fitzsimmons a/k/a Michelle Marie
Fitzsimmons a/k/a Michelle Fitzsimmons Fitzsimmons a/k/a Michelle Marie Miller
a/k/a Michelle Marie Fitzsimmons a/k/a
Michelle Marie Miller
Peter Fitzsimmons, as Heir to the Estate of Heir to the Estate of Michelle M Fitzsimmons
Michelle M Fitzsimmons a/k/a Michelle a/k/a Michelle Fitzsimmons a/k/a Michelle Marie
Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller
Fitzsimmons a/k/a Michelle Marie Miller
East Resources, Inc. Judgment Creditor
LVNV Funding LLC Judgment Creditor
Citibank South Dakota, NA Judgment Creditor
Donald Smith, DMD, PC Judgment Creditor
Discover Bank Judgment Creditor
Ira Davenport Memorial Hospital, Inc. Judgment Creditor
New York State Department of Taxation By virtue of possible unpaid Estate Taxes
and Finance
United States of America By virtue of possible unpaid Estate Taxes
Capital One Bank (USA), N.A. Judgment Creditor
Corning Hospital Judgment Creditor
Unknown Heirs and Distributees of the By virtue of possible unknown Heirs and
Estate of Michelle M Fitzsimmons a/k/a Distributees of the Estate of Michelle M
Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a
Fitzsimmons a/k/a Michelle Marie Miller Michelle Marie Fitzsimmons a/k/a Michelle
Marie Miller
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NOTICE TO DEFENDANT
DURING THE CORONAVIRUS EMERGENCY, YOU
MIGHT BE ENTITLED BY LAW TO TAKE ADDITIONAL
DAYS OR WEEKS TO FILE AN ANSWER TO THIS
COMPLAINT.
PLEASE CONTACT YOUR ATTORNEY FOR MORE
INFORMATION.
IF YOU DON'T HAVE AN ATTORNEY,
PLEASE VISIT
http://ww2.nycourts.gov/admin/OPP/foreclosures.shtmi
OR
https://www.nycourts.gov/courthelp/Homes/foreclosures.shtml
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AVISO A DEMANDADO
DURANTE LA EMERGENCIA DEL CORONAVIRUS,
ES POSIBLE QUE USTED TENGA DERECHO POR LEY
A TOMAR DÍAS O SEMANAS ADICIONALES
PARA PRESENTAR UNA RESPUESTA
A ESTA PETIClÓN
POR FAVOR CONTACTE A SU ABOGADO PARA MAS
INFORMAClÓN.
SI USTED NO TIENE UN ABOGADO,
VISITE
http://ww2.nycourts.gov/admin/OPP/foreclosures.shtmi
O
https://www.nycourts.gov/courthelp/Homes/foreclosures.shtmi
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NYSCEF DOC. NO. 37 HELP FOR HOMEOWNERS IN FORECLOSURE
RECEIVED NYSCEF: 03/29/2021
New York State Law requires that we send you this notice about the foreclosure
process. Please read it carefully.
SUMMONS AND COMPLAINT
You are in danger of losing your home. If you fail to respond to the summons
and complaint in this foreclosure action, you may lose your home. Please read
the summons and complaint carefully. You should immediately contact an
attorney or your local legal aid office to obtain advice on how to protect
yourself.
SOURCES OF INFORMATION AND ASSISTANCE
The State encourages you to become informed about your options in
foreclosure. In addition to seeking assistance from an attorney or legal aid
office, there are government agencies and non-profit organizations that you
may contact for information about possible options, including trying to work
with your lender during this process.
To locate an entity near you, you may call the toll-free helpline maintained by
the New York State Department of Financial Services at 1-877-226-5697 or visit
the Department's website at http://www.dfs.ny.gov.
RIGHTS AND OBLIGATIONS
YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the
right to stay in your home during the foreclosure process. You are not required
to leave your home unless and until your property is sold at auction pursuant to
a judgment of foreclosure and sale.
Regardless of whether you choose to remain in your home, YOU ARE REQUIRED
TO TAKE CARE OF YOUR PROPERTY and pay property taxes in accordance with
state and local law.
FORECLOSURE RESCUE SCAMS
"save"
Be careful of people who approach you with offers to your home. There
are individuals who watch for notices of foreclosure actions in order to unfairly
profit from a homeowner's distress. You should be extremely careful about any
such promises and any suggestions that you pay them a fee or sign over your
deed. State law requires anyone offering such services for profit to enter into a
contract which fully describes the services they will perform and fees they will
charge, and which prohibits them from taking any money from you until they
have completed all such promised services.
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CERTIFICATION BY ATTORNEY
Linda P. Manfredi , an attorney duly admitted to practice law before the Courts of the
State of New York, an associate 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:
1. 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
March 22, 2021 Frenkel, Lambert, Weiss
Weisman & Gordon, LLP
/s/
Linda P. Manfredi
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, New York 11706
(631) 969-3100
Our File No.: 01-093322-F00
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Preview
FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF STEUBEN -------------------------------------------------------------------------------x U.S. Bank National Association, not in its individual capacity but solely as Trustee for the CIM Trust 2018-R5 Mortgage-Backed Notes, Series 2018-R5, Plaintiff, AMENDED COMPLAINT -against- Leeanne Fitzsimmons a/k/a Leanne H Merchant, as Heir to the Estate of Michelle M Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller, Lisa Fitzsimmons a/k/a Lisa Heichel, as Heir to the Estate of Michelle M Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller, Peter Fitzsimmons, as Heir to the Estate of Michelle M Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller and Michelle M Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller’s unknown heirs-at-law, next-of-kin, distributees, executors, administrators, trustees, devisees, legatees, assignees, lienors, creditors, and successors in interest and generally all persons having or claiming under, by or through said defendant who may be deceased, by purchase, inheritance, lien or otherwise, any right, title or interest in the real property described in the complaint herein, East Resources, Inc., LVNV Funding LLC, Citibank South Dakota, NA, Donald Smith, DMD, PC, Discover Bank, Ira Davenport Memorial Hospital, Inc., New York State Department of Taxation and Finance, United States of America, Capital One Bank (USA), N.A., Corning Hospital, Defendants. -----------------------------------------------------------------------------x 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, U.S. Bank National Association, not in its individual capacity but solely as Trustee for the CIM Trust 2018-R5 Mortgage-Backed Notes, Series 2018-R5, at all times hereinafter mentioned was and still is a National Association organized under the laws of the United States of America. 1 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 2. On or about March 09, 2006, Michelle M. Fitzsimmons executed and delivered to American General Home Equity, Inc. a Home Equity Line of Credit Agreement (hereinafter "Agreement") dated March 09, 2006 whereby Michelle M. Fitzsimmons promised to pay the principal sum of $53,000.00. 3. On or about March 09, 2006, Michelle M. Fitzsimmons executed and delivered to American General Home Equity, Inc. a mortgage (hereinafter "mortgage") in the principal sum of $53,000.00, with interest, mortgaging the premises known as 1105 Caton Bypass Road a/k/a 1105 Telephone Road, Corning, NY 14830 (hereinafter "premises") as collateral security for the Agreement. 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 Steuben on March 23, 2006 in Book 2591, Page 80 and the recording tax was duly paid. Thereafter, the loan was modified pursuant to a Loan Modification Agreement dated February 1, 2013 and recorded March 17, 2014 in Book 3785 at Page 23 which created a single lien in the amount of $58,049.57. 5. That plaintiff is in possession of the original Agreement with a proper endorsement and/or allonge and is therefore, the holder of both the Agreement and mortgage, which passes as incident to the Agreement. 6. Pursuant to the modified loan, Michelle M. Fitzsimmons promised to make consecutive monthly payments of principal and interest each month, in accordance with the terms of the loan modification agreement, commencing February 01, 2013 and on the first day of each succeeding month up to and including January 01, 2053 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. On August 1, 2019, Michelle M. Fitzsimmons passed away and thereafter, her Estate failed to comply with the terms, covenants and conditions of said Agreement and mortgage by failing and omitting to pay, to the plaintiff, payments due on August 01, 2019 and said default has continued for a period in excess of fifteen (15) days. 10. Pursuant to the terms of the Agreement and mortgage, the plaintiff has elected and does hereby elect to declare the entire principal balance to be due and owing. 2 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 11. That there is now due and owing to the plaintiff under said Agreement and mortgage the principal sum of $55,823.88 with interest thereon from June 12, 2019, plus late charges if applicable pursuant to the terms of the Agreement 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 Agreement 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 Agreement 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. 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. 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 Agreement 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 Agreement or is the holder of the Agreement and mortgage and has been delegated the authority to institute a mortgage foreclosure action by the owner of the Agreement and mortgage. 19. If plaintiff is not the owner and holder of the subject Agreement 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 Agreement and mortgage. 3 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 20. Plaintiff requests that the mortgaged premises be sold in one parcel and that if the premises consists of more than one parcel, plaintiff respectfully requests that the judgment of foreclosure provide for the parcels to be sold as one parcel. 21. 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. 22. 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 23. The plaintiff repeats and realleges each and every allegation contained in paragraphs designated 1 through 22. 24. The mortgage provides that in the event of default, the plaintiff may recover all costs, including 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 25. The plaintiff repeats and realleges each and every allegation contained in paragraphs designated 1 through 24. 26. The subject mortgage describes the property to be encumbered by the lien of the subject mortgage through reference to a legal description intended to be annexed to the subject mortgage. 27. The Plaintiff’s recorded copy of the subject mortgage contains a description that does not properly describe the property. 28. On information and belief, the parties intended the mortgage to encumber the full extent of the property owned by the mortgagor under the legal description annexed hereto as Exhibit “A”. 29. On information and belief, the mortgage contains an incorrect legal description because 4 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 of a mutual mistake of the parties or some other unknown error. 30. Reformation of the mortgage to add the correct legal description is necessary to ensure the mortgage reflects the agreement the parties intended. 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 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 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; g) That the legal description of the mortgaged premises, contained in the mortgage, be amended to conform to the legal description of the mortgaged premises contained herein; 5 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 h) That plaintiff have such other and further relief in the mortgaged premises as may be just and equitable. Dated: Bay Shore, New York March 22, 2021 Frenkel, Lambert, Weiss, Weisman & Gordon, LLP By: /s/ Linda P. Manfredi Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-093322-F00 6 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 SCHEDULE A Party Name Description Leeanne Fitzsimmons a/k/a Leanne H Heir to the Estate of Michelle M Fitzsimmons Merchant, as Heir to the Estate of Michelle a/k/a Michelle Fitzsimmons a/k/a Michelle Marie M Fitzsimmons a/k/a Michelle Fitzsimmons Fitzsimmons a/k/a Michelle Marie Miller a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller Lisa Fitzsimmons a/k/a Lisa Heichel, as Heir to the Estate of Michelle M Fitzsimmons Heir to the Estate of Michelle M a/k/a Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Fitzsimmons Fitzsimmons a/k/a Michelle Marie Miller a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller Peter Fitzsimmons, as Heir to the Estate of Heir to the Estate of Michelle M Fitzsimmons Michelle M Fitzsimmons a/k/a Michelle a/k/a Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller Fitzsimmons a/k/a Michelle Marie Miller East Resources, Inc. Judgment Creditor LVNV Funding LLC Judgment Creditor Citibank South Dakota, NA Judgment Creditor Donald Smith, DMD, PC Judgment Creditor Discover Bank Judgment Creditor Ira Davenport Memorial Hospital, Inc. Judgment Creditor New York State Department of Taxation By virtue of possible unpaid Estate Taxes and Finance United States of America By virtue of possible unpaid Estate Taxes Capital One Bank (USA), N.A. Judgment Creditor Corning Hospital Judgment Creditor Unknown Heirs and Distributees of the By virtue of possible unknown Heirs and Estate of Michelle M Fitzsimmons a/k/a Distributees of the Estate of Michelle M Michelle Fitzsimmons a/k/a Michelle Marie Fitzsimmons a/k/a Michelle Fitzsimmons a/k/a Fitzsimmons a/k/a Michelle Marie Miller Michelle Marie Fitzsimmons a/k/a Michelle Marie Miller 7 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 NOTICE TO DEFENDANT DURING THE CORONAVIRUS EMERGENCY, YOU MIGHT BE ENTITLED BY LAW TO TAKE ADDITIONAL DAYS OR WEEKS TO FILE AN ANSWER TO THIS COMPLAINT. PLEASE CONTACT YOUR ATTORNEY FOR MORE INFORMATION. IF YOU DON'T HAVE AN ATTORNEY, PLEASE VISIT http://ww2.nycourts.gov/admin/OPP/foreclosures.shtmi OR https://www.nycourts.gov/courthelp/Homes/foreclosures.shtml 8 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 AVISO A DEMANDADO DURANTE LA EMERGENCIA DEL CORONAVIRUS, ES POSIBLE QUE USTED TENGA DERECHO POR LEY A TOMAR DÍAS O SEMANAS ADICIONALES PARA PRESENTAR UNA RESPUESTA A ESTA PETIClÓN POR FAVOR CONTACTE A SU ABOGADO PARA MAS INFORMAClÓN. SI USTED NO TIENE UN ABOGADO, VISITE http://ww2.nycourts.gov/admin/OPP/foreclosures.shtmi O https://www.nycourts.gov/courthelp/Homes/foreclosures.shtmi 9 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 HELP FOR HOMEOWNERS IN FORECLOSURE RECEIVED NYSCEF: 03/29/2021 New York State Law requires that we send you this notice about the foreclosure process. Please read it carefully. SUMMONS AND COMPLAINT You are in danger of losing your home. If you fail to respond to the summons and complaint in this foreclosure action, you may lose your home. Please read the summons and complaint carefully. You should immediately contact an attorney or your local legal aid office to obtain advice on how to protect yourself. SOURCES OF INFORMATION AND ASSISTANCE The State encourages you to become informed about your options in foreclosure. In addition to seeking assistance from an attorney or legal aid office, there are government agencies and non-profit organizations that you may contact for information about possible options, including trying to work with your lender during this process. To locate an entity near you, you may call the toll-free helpline maintained by the New York State Department of Financial Services at 1-877-226-5697 or visit the Department's website at http://www.dfs.ny.gov. RIGHTS AND OBLIGATIONS YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the right to stay in your home during the foreclosure process. You are not required to leave your home unless and until your property is sold at auction pursuant to a judgment of foreclosure and sale. Regardless of whether you choose to remain in your home, YOU ARE REQUIRED TO TAKE CARE OF YOUR PROPERTY and pay property taxes in accordance with state and local law. FORECLOSURE RESCUE SCAMS "save" Be careful of people who approach you with offers to your home. There are individuals who watch for notices of foreclosure actions in order to unfairly profit from a homeowner's distress. You should be extremely careful about any such promises and any suggestions that you pay them a fee or sign over your deed. State law requires anyone offering such services for profit to enter into a contract which fully describes the services they will perform and fees they will charge, and which prohibits them from taking any money from you until they have completed all such promised services. 10 of 11 FILED: STEUBEN COUNTY CLERK 03/29/2021 01:11 PM INDEX NO. E2020-0349CV NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/29/2021 CERTIFICATION BY ATTORNEY Linda P. Manfredi , an attorney duly admitted to practice law before the Courts of the State of New York, an associate 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: 1. 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 March 22, 2021 Frenkel, Lambert, Weiss Weisman & Gordon, LLP /s/ Linda P. Manfredi Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-093322-F00 11 of 11