Preview
FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024
SUPREME COURT OF TFTE STATE OF NEW YORK INDEX NO.
COUNTY OF WESTCITESTER
TOWD POfNT MORTGAGE TRUST 2021-SJ1,
U.S. BANK NAT ONAL ASSOCIATION, AS
INDENTURE TRUSTEE,
Plaintiff designates WESTCHESTER as the
Plaintiff, place of trial situs of the real property
VS.
SUMMONS
THOMAS M. COLE; MAUREEN K. COLE; NEW
YORK STATE DEPARTMENT OF TAXATION
AND FINANCE,
#1" #12,"
"JOIIN DOE through "JOIIN DOE the Subject Property:
last twelve names being fictitious and unknown to 10 APPLE MILL LANE
plaintiff, the persons or parties intended being the NORTH SALEM, NY 10560
tenants, occupants, persons or corporations, if any,
having or claiming an interest in or lies upon the
premises, described in the complaint,
Defendants.
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
Plaintiffs 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) in the event the United States of America is rnade a party defendant, the time to answer
for the said United States of America shall not expire until (60) days after service of the Summons; and in
case of your failure to appear or answer, judgment will be taken against you by default for the relief
demanded in the complaint.
EllIllIIIIIllIIIIIllIllMIElIII ElllIIIllNIIIlllIllIIIlillIIIIIIIMIII IIIIIIIAgIIIIIIIIIIIIIllIII
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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 defanIt judgment may be entered and you can lose your homes
Speak to an attorney or go to the court wherz your case is pending for further information on how
to answer the summons and protect your property.
Sending a payrnent to the mortgage company will not stop the foreclosure action.
YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON T HE ATTORNEY FOR
THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT.
Please take further notice that any right you may have pursuant to the Fair Debt Collection Practices Act
to dispute the validity or amount of the debt does not change the time within which you must answer this
summons and complaint. You must follow the instructions contained in the summons even if you dispute
the validity or amount of the debt.
Dated: February 2, 2024
Robertson, Ansch hneld
Crane & Partn , PLLC
Attomey for mtiff
BY:
"
[ . BORIS SQ.
[ HONY CE CI, ESQ.
[ SCOTT R. WEISS, ESQ.
[ ] KELLY R. FABER, ESQ.
900 Merchants Concourse, Suite.310
Westbury, NY 11590
516-280-7675
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Help for Homeowners in Foreclosure
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 (enter number) or
visit the Department's website at (enter web address).
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.
Page 1 of 2
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024
Foreclosure rescue scams
Be careful of people who approach you with offers to “save” 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.
Page 2 of 2
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FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
INDEX NO.
TOWD PO1NT MORTGAGE TRUST 2021-811, U.S. BANK
NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE,
COMPLAINT
Plaintiff,
vs. Subject Property;
10 APPLE MILL LANE
NORTH SALEM, NY 10560
THOMAS M. COLE; MAUREEN K. COLE: NEW YORK
STATE DEPARTMENT OF TAXATION AND FINANCE,
#1" #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,
Defendants.
The complaint of the above-named plaintiff, by Robertson, Anschutz, Schneid, Crane & Partners,
PLLC, its attorneys, alleges upon information and belief as follows;
AS AND FOR A FIRST CAUSE OF ACTION
1. Plaintiff is organized under the laws of the United States of America or its state of formation.
2. On June 15, 2006, TIIOMAS M. COLE-AND MAUREEN K. COLE duly executed and delivered a
note whereby THOMAS M. COLE AND MAUREEN K. COLE promised to pay the sum of
$200,000,00 plus interest as set forth in said note. A copy of said note is annexed hereto.
3. Plaintiff, directly or through an agent has complied with all applicable laws in an attempt to
establish ownership and/or possession of the subject note and the right to foreclosure of same.
Plaintiff has possession and control of the original note and mortgage, which note is secured by the
mortgage-identified below, and the said note is either made payable to Plaintiff or is duly indorsed.
To the extent that the original note or interim assignments of mortgage are lost or unavailable,
PlaintifThas the right to foreclose.the subject note and mortgage pursuant to New York law.
E llIIllIIIIllIIIIIIIIMIEllII E11111111N11111111111111E1111111IIII IIIIIllgIIIIIIIlEIIIIIIIII
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4. That to secure the payment of the sum represented by said note, THOMAS M. COLE AND
MAUREEN K. COLE, duly executed and delivered a mortgage which was recorded as follows and
the mortgage tax thereon was duly paid:
Recording Date: Septernber 1.3, 2006
County: WESTCHESTER
Control Number 462400742
Said mortgage was assigned to Plaintiff by assignment of mortgage duly executed on a date prior to
the filing of the complaint. A copy of said mortgage is annexed hereto.
5. Said mortgage secured the real propert^ known as 10 APPLE MILL LANE, NORTH SALEM,
NEW YORK 10560 and by Section 14., Block 1689, Lot 209 together with all fixtures and articles
of personal property annexed to, installed in, or used in connection with the mortgaged premises, all
as is more fully set.forth in said mortgage. A copy of the legal description is set forth on Schedule
A annexed.
6, Said loan was modified, As evidence of the modification a Loan Modification Agreement was
recorded in the Office of the Clerk of the County of WESTCHESTER on December 6, 2007 in
Control Number 473330653.
7. Said loan was further modified. As evidence of the modification a Loan Modification Agreement
was recorded in the Office of the Clerk of the County of WESTCHESTER on September 8, 2016 in
Control Number 562503086.
8. Plaintiff is the owner and holder of said note and mortgage or has been delegated the authority to
institute a mortgage foreclosure action by the owner and holder of the said note and mortgage.
9. Plaintiff has complied with all conditions. precedent contained in the mortgage, if any.
10. To the extent applicable, Plaintiff has complied with RPAPL 1304 and RPAPL 1306.
11. To the extent applicable, Plaintiff has complied with all of the provisions of Banking Law section
595-a and any rules and regulations promulgated thereunder, Banking Law sections 6-1 and 6-m.
12. That Defendants failed to comply with the conditions of the note and mortgage by failing to make
the payment that-became due on January 25, 2022 and each subsequent payment thereafter.
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13. That by reason of such defaults, Plaintiff hereby declares the balance of the principal indebtedness
immediately due and payable.
14. That there is now due and owing to the plaintiff, the principal sum of $452,939.87 with interest
thereon from December 25, 2021 plus accumulated late.qharges together with any sums advanced
by the plaintiff on behalf of defendant.
15. That plaintiff shall not be deemed to have waived; altered, released or changed the election
hereinbefore made by reason of the payment after the date of the commencement of this action, of
any or all of the defaults mentioned herein; and such election shall.continue and remain effective
until the costs and disbursements of this action, and any and all future defaults under the aforesaid
bond or note and mortgage, and occurring prior to the discontinuance of this action are fully paid.
16. That to protect its security afforded by said note and mortgages it may be necessary for the plaintiff
to pay taxes, assessments, water rates and insurance premiums which are, or Inay become liens on
the mortgaged premises, and any other charges for the protection of the premises, and plaintiff
hereby demands that any amounts which may be so expended shall be added to the amount of the
principal sum secured by said note and mortgage, together with interest from the time of any such
payment, and that the same be paid to the plaintiff from the proceeds of the foreclosure sale herein.
17. That the plaintiff alleges that no other proceedings have been had for the recovery of the mortgage
indebtedness or if any such action is pending, a final judgment was not rendered in favor of Plaintiff
and such action is intended to be discontinued.
18. That plaintiff further alleges that all the defendants have, or may claim to have, some interest in, or
lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, is subject and
subordinate to the lien of the mortgage being foreclosed.
"B"
19. The description of each of the named party defendants interest is set out on Schedule annexed.
"C"
20, The interest or lien of each of the named party defendants, if any, is set forth in Schedule
annexed.
21. The terms of said mortgage provide that defendants shall be liable to plaintiff for reasonable
attorneys'
fees incurred by plaintiff to protect or enforce plaintiffs security interest in the premises.
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22. That the sale of the mortgaged premises and title thereto are subject to the state of facts an accurate
survey will show; all covenants, restrictions, easements, agreements and reservations, if any, of
record, and to any and all violations thereof; any and all building and zoning regulations,
restrictions and ordinances of the municipality in which said premises are situated, and to any
violations of the same, including, but not limited to, reapportionment of lot lines, and vault charges,
if any; any and all orders or requirements issued by any governmental body having jurisdiction
against or affecting said premises and any violation of the.same; the physical condition of any
building or structure on the premises as of the.date of closing hereunder; rights of tenants in
possession, if any; prior mortgages and judgments, if any, now liens of record including the first
mortgage recorded in the Office of the Clerk.of the County of Westchester on Pebruary 27 2004
recorded in Contml Number 440230857, which mortgage is senior to the mortgage being
foreclosed; right of Redemption of United States of America, if any; rights of any defendants
pursuant to CPLR Section 317, CPER Section 2003 and CPLR Section 5015, ifany; any and all
Hazardous Materials in the premises including, but not limited to, flammable explosives,
radioactive materials, hazardous wastes, asbestos or any material containing asbestos, and toxic
substances; and other conditions as set forth in the terms of sale more particularly to be announced
at the sale.
AS AND FOR A SECOND CAUSE OF ACTION
23. Plaintiff repeats and re-alleges each and every allegation contained in paragraph 1 through 22 as
though fully set forth herein.
24. By mutual mistake of the mortgagee and mortgagor the subject mortgage to be foreclosed, recorded
in the WESTCHESTER County Clerk's Ot ce on September 13, 2006 in Control Number
462400742, was recorded with a partially incorrect legal description, whereas the correct legal
description is set forth in the legal description attached hereto as "Schedule A",
A"
25. The legal description attached hereto at "Schedule contains the correct legal description.for the
subject property 10 APPLE MILL LANE, NORTH SALEM, NY 10560 and known as Section 14.,
Block 1689, Lot 209.
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26. The description contained in the said mortgage being foreclosed should be reformed to match the
A"
legal description recited in "Schedule annexed. Plaintiff demands judgment dimeting the Clerk
of WE.STCHESTER County to.reform its records to reflect that the mortgage contain the legal
description annexed hereto as "Schedule A".
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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WHEREFORE, plaintiff demands judgment against the defendants as follows:
On its first cause of action:
A. The defendants and each of them, and all persons claiming under them, or any of them
subsequent to the commencement of this action and the filing of the Notice of Pendency thereof,
may be barred and foreclosed of all right, title, claim, lien and equity of redemption in the
mortgaged premises;
B. Said mortgaged premises be sold subject to the state of facts an accurate survey will
show; all covenants, restrictions, easements, agreements and reservations, if any, of record, and
to any and all violations thereof; any and all building and zoning regulations, restrictions and
ordinances of the municipality in which said premises are situated, and to any violations of the
same, including, but not limited to, reapportionment of lot lines, and vault charges, if any; any
and all orders or requirements issued by any governmental body having jurisdiction against or
affecting said premises and any violation of the same; the physical condition of any building or
structure on the premises as of the date of closing hereunder; rights of tenants in possession, if
any; prior mortgages and judgments, if any, now liens of record; right of Redemption of United
States of America, if any; rights of any defendants pursuant to CPLR Section 3.17, CPLR Section
2003 and CPLR Section 5015, if any; any and all Hazardous Materials in the premises including,
but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or any
material containing asbestos, and toxic substances; and other conditions as set forth in the terms
of sale more particularly to be announced at the sale.
C. Said premises may be decreed to be sold in orie parcel according to law subject to the
various items set forth in allegations of the complaint herein;
D. The monies arising from the sale may be brought into court;
E. Plaintiff may be paid the amount due on said note and mortgage as alleged herein,
together with interest to the time of such payment, together with the sums expended by plaintiff
prior to and during the pendency of this action, and for thirty days after any.sale demanded herein
for taxes, water rates, sewer rents, assessments, insurance premiums and other necessary and
essential charges or expenses in connection therewith to protect the mortgage lien, plus any sums
expended for the protection or preservation of the property covered by said mortgage and note,
and the amount secured thereby, with interest thereon from the time of such payment and the
attorneys'
costs and expenses of this action including reasonable fees so far as the amount of
such monies properly applicable thereto will pay the same;
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F. The plaintiff be decreed to be the owner of any and all personal pmperty used in
connection with the said mortgaged premises, except ifdischarged in bankruptcy;
G. The obligors may be adjudged to pay any deficiency which rnay rernain after applying all
of said monies so spplicable thereto unless the obligors were discharged in bankmptcy;
H. awarding the relief requested in the additional causes of action stated in the complaint, if
any;
On its second cause of action:
plaintiff demands judgment reforming the mortgage being foreclosed to include the correct legal
description and directing the Clerk of WESTCHESTER County to reform its records to reflect
that the mortgage contain the correct legal description.annexed hereto as "Schedule A"; and that
plaintiff shall have such other and further relief or both, in the premises as shall be just and
equitable.
Dated: February 2, 2024
Robertson, utz, Sc eid,
Crane & ers, PL
Attorn or Plaintiff
[ ] SARA Z. BORISKIN, ESQ.
[X] ANTHONY CELLUCCI, ESQ.
[ ] SCOTT R. WEISS, ES.Q.
[ ] KELLY R. FABER,. ESQ.
900 Merchants Concourse, Suite 310
Westbury, NY 11590
516-280-7675
23-151418- NiA Drafter:Nicole ANen
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024
BANK OF AMERICA EQUITY MAXIMIZER AGREEMENT AND DISCLOSURE
STATEMENT
ACCOUNT NUMBER
Borrower: THOMAS M COLE Lentlert Bank of Americe, N.A.
MAUREEN K COLE 100 North Tryon street
10 APPLE Mii.L LN Charlotte, NC 28255
NORTH SALEM, NY 10550-1054
CREDIT UMIT: 4200,000,00 DATE OF AGREEMENT: June 15, 200
Introduction. This Bank of America Equity Maximizer Agreement and Disclosure Statement ("Agreement''I governs your line of credit I
Une" "Borrower," "you,"
"Credit or the "Credit Llng Account") Issued through Benk of Amerlce, N.A.. In tNs Agreement, the words "your,,.
"Applicant"
and mean each and every person who signs tNs Agreement, including 2N Borrowers named above. The words "wer "us/ "curN
"Lander"
and mean Bank of Americe, N.A” You agree to the fo#owing terms end conditions:
Promise to Pay. You promise to pay Bank of Americe N.A., or order, the total of ell credit advancesand FINANCE C@lARGES, together with a
"Mortgage"
costs and expenses for which you ere responsible under this Agreement or under the which secures your Credit Line. You wHI psy
your Credit Line according to the payment terms set forth below. If there la more than one Borrower, each 18 fuHy obilgated to keep all of your
promises and obligations contained In this Agreement. This means we can require eny Borrower to pay et emounts due under this Agreement,
including credit advances rnade to any Borrower. Each Barrower outhorizes any other Beerower, on his or her signature alone, to cancel the
Credit Line, to request and recalve oredit advances, and to do all other things necessary to carry out the terms of tNs Agreement.. We can
release any Borrower from responsibHity under this Agreement, and the others wig remain responsible.
Term. The term of your Credit Line will begin as of the date of tNs Agreement FOpening Date"I and wlH continue unts June 16, 2031
("Meturity Dete"L An indabledness under this Agréemant, If not eiready paid pursuant to the payment provisloon below, wHI be due end
payable upon maturity. The draw pedod of your Credit Line wiH begin on a date, ofter the Opening Cate, when the Agreement Is accepted by us
in the State of North Carolina, following the exphation of the right to cancel, the perfection of the Mortgage, the receipt of sII sequired
oertifl-cetas of nonconcellation, and the meeting of all of our other condidons and wHI continue as fonown: t 20 months. You may obtain predit
advances during this period POraw Period"1. After the Draw Period ends, the repayme
Preview
FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 SUPREME COURT OF TFTE STATE OF NEW YORK INDEX NO. COUNTY OF WESTCITESTER TOWD POfNT MORTGAGE TRUST 2021-SJ1, U.S. BANK NAT ONAL ASSOCIATION, AS INDENTURE TRUSTEE, Plaintiff designates WESTCHESTER as the Plaintiff, place of trial situs of the real property VS. SUMMONS THOMAS M. COLE; MAUREEN K. COLE; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, #1" #12," "JOIIN DOE through "JOIIN DOE the Subject Property: last twelve names being fictitious and unknown to 10 APPLE MILL LANE plaintiff, the persons or parties intended being the NORTH SALEM, NY 10560 tenants, occupants, persons or corporations, if any, having or claiming an interest in or lies upon the premises, described in the complaint, Defendants. 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 Plaintiffs 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) in the event the United States of America is rnade a party defendant, the time to answer for the said United States of America shall not expire until (60) days after service of the Summons; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. EllIllIIIIIllIIIIIllIllMIElIII ElllIIIllNIIIlllIllIIIlillIIIIIIIMIII IIIIIIIAgIIIIIIIIIIIIIllIII 23-1514t8-NIA Drafter:Nicole Allen 1 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 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 defanIt judgment may be entered and you can lose your homes Speak to an attorney or go to the court wherz your case is pending for further information on how to answer the summons and protect your property. Sending a payrnent to the mortgage company will not stop the foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON T HE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. Please take further notice that any right you may have pursuant to the Fair Debt Collection Practices Act to dispute the validity or amount of the debt does not change the time within which you must answer this summons and complaint. You must follow the instructions contained in the summons even if you dispute the validity or amount of the debt. Dated: February 2, 2024 Robertson, Ansch hneld Crane & Partn , PLLC Attomey for mtiff BY: " [ . BORIS SQ. [ HONY CE CI, ESQ. [ SCOTT R. WEISS, ESQ. [ ] KELLY R. FABER, ESQ. 900 Merchants Concourse, Suite.310 Westbury, NY 11590 516-280-7675 23-151418- NiA Drafter:Nicole Allen 2 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 Help for Homeowners in Foreclosure 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 (enter number) or visit the Department's website at (enter web address). 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. Page 1 of 2 3 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 Foreclosure rescue scams Be careful of people who approach you with offers to “save” 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. Page 2 of 2 4 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER INDEX NO. TOWD PO1NT MORTGAGE TRUST 2021-811, U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, COMPLAINT Plaintiff, vs. Subject Property; 10 APPLE MILL LANE NORTH SALEM, NY 10560 THOMAS M. COLE; MAUREEN K. COLE: NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, #1" #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, Defendants. The complaint of the above-named plaintiff, by Robertson, Anschutz, Schneid, Crane & Partners, PLLC, its attorneys, alleges upon information and belief as follows; AS AND FOR A FIRST CAUSE OF ACTION 1. Plaintiff is organized under the laws of the United States of America or its state of formation. 2. On June 15, 2006, TIIOMAS M. COLE-AND MAUREEN K. COLE duly executed and delivered a note whereby THOMAS M. COLE AND MAUREEN K. COLE promised to pay the sum of $200,000,00 plus interest as set forth in said note. A copy of said note is annexed hereto. 3. Plaintiff, directly or through an agent has complied with all applicable laws in an attempt to establish ownership and/or possession of the subject note and the right to foreclosure of same. Plaintiff has possession and control of the original note and mortgage, which note is secured by the mortgage-identified below, and the said note is either made payable to Plaintiff or is duly indorsed. To the extent that the original note or interim assignments of mortgage are lost or unavailable, PlaintifThas the right to foreclose.the subject note and mortgage pursuant to New York law. E llIIllIIIIllIIIIIIIIMIEllII E11111111N11111111111111E1111111IIII IIIIIllgIIIIIIIlEIIIIIIIII 23-1514t8 - NIA Drafter:Nicole Allen 5 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 4. That to secure the payment of the sum represented by said note, THOMAS M. COLE AND MAUREEN K. COLE, duly executed and delivered a mortgage which was recorded as follows and the mortgage tax thereon was duly paid: Recording Date: Septernber 1.3, 2006 County: WESTCHESTER Control Number 462400742 Said mortgage was assigned to Plaintiff by assignment of mortgage duly executed on a date prior to the filing of the complaint. A copy of said mortgage is annexed hereto. 5. Said mortgage secured the real propert^ known as 10 APPLE MILL LANE, NORTH SALEM, NEW YORK 10560 and by Section 14., Block 1689, Lot 209 together with all fixtures and articles of personal property annexed to, installed in, or used in connection with the mortgaged premises, all as is more fully set.forth in said mortgage. A copy of the legal description is set forth on Schedule A annexed. 6, Said loan was modified, As evidence of the modification a Loan Modification Agreement was recorded in the Office of the Clerk of the County of WESTCHESTER on December 6, 2007 in Control Number 473330653. 7. Said loan was further modified. As evidence of the modification a Loan Modification Agreement was recorded in the Office of the Clerk of the County of WESTCHESTER on September 8, 2016 in Control Number 562503086. 8. Plaintiff is the owner and holder of said note and mortgage or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the said note and mortgage. 9. Plaintiff has complied with all conditions. precedent contained in the mortgage, if any. 10. To the extent applicable, Plaintiff has complied with RPAPL 1304 and RPAPL 1306. 11. To the extent applicable, Plaintiff has complied with all of the provisions of Banking Law section 595-a and any rules and regulations promulgated thereunder, Banking Law sections 6-1 and 6-m. 12. That Defendants failed to comply with the conditions of the note and mortgage by failing to make the payment that-became due on January 25, 2022 and each subsequent payment thereafter. 23-1514t8 - NIA Drafter:Nicole Allen 6 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 13. That by reason of such defaults, Plaintiff hereby declares the balance of the principal indebtedness immediately due and payable. 14. That there is now due and owing to the plaintiff, the principal sum of $452,939.87 with interest thereon from December 25, 2021 plus accumulated late.qharges together with any sums advanced by the plaintiff on behalf of defendant. 15. That plaintiff shall not be deemed to have waived; altered, released or changed the election hereinbefore made by reason of the payment after the date of the commencement of this action, of any or all of the defaults mentioned herein; and such election shall.continue and remain effective until the costs and disbursements of this action, and any and all future defaults under the aforesaid bond or note and mortgage, and occurring prior to the discontinuance of this action are fully paid. 16. That to protect its security afforded by said note and mortgages it may be necessary for the plaintiff to pay taxes, assessments, water rates and insurance premiums which are, or Inay become liens on the mortgaged premises, and any other charges for the protection of the premises, and plaintiff hereby demands that any amounts which may be so expended shall be added to the amount of the principal sum secured by said note and mortgage, together with interest from the time of any such payment, and that the same be paid to the plaintiff from the proceeds of the foreclosure sale herein. 17. That the plaintiff alleges that no other proceedings have been had for the recovery of the mortgage indebtedness or if any such action is pending, a final judgment was not rendered in favor of Plaintiff and such action is intended to be discontinued. 18. That plaintiff further alleges that all the defendants have, or may claim to have, some interest in, or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, is subject and subordinate to the lien of the mortgage being foreclosed. "B" 19. The description of each of the named party defendants interest is set out on Schedule annexed. "C" 20, The interest or lien of each of the named party defendants, if any, is set forth in Schedule annexed. 21. The terms of said mortgage provide that defendants shall be liable to plaintiff for reasonable attorneys' fees incurred by plaintiff to protect or enforce plaintiffs security interest in the premises. 23-1514t8 - NIA Drafter:Nicole Allen 7 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 22. That the sale of the mortgaged premises and title thereto are subject to the state of facts an accurate survey will show; all covenants, restrictions, easements, agreements and reservations, if any, of record, and to any and all violations thereof; any and all building and zoning regulations, restrictions and ordinances of the municipality in which said premises are situated, and to any violations of the same, including, but not limited to, reapportionment of lot lines, and vault charges, if any; any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises and any violation of the.same; the physical condition of any building or structure on the premises as of the.date of closing hereunder; rights of tenants in possession, if any; prior mortgages and judgments, if any, now liens of record including the first mortgage recorded in the Office of the Clerk.of the County of Westchester on Pebruary 27 2004 recorded in Contml Number 440230857, which mortgage is senior to the mortgage being foreclosed; right of Redemption of United States of America, if any; rights of any defendants pursuant to CPLR Section 317, CPER Section 2003 and CPLR Section 5015, ifany; any and all Hazardous Materials in the premises including, but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or any material containing asbestos, and toxic substances; and other conditions as set forth in the terms of sale more particularly to be announced at the sale. AS AND FOR A SECOND CAUSE OF ACTION 23. Plaintiff repeats and re-alleges each and every allegation contained in paragraph 1 through 22 as though fully set forth herein. 24. By mutual mistake of the mortgagee and mortgagor the subject mortgage to be foreclosed, recorded in the WESTCHESTER County Clerk's Ot ce on September 13, 2006 in Control Number 462400742, was recorded with a partially incorrect legal description, whereas the correct legal description is set forth in the legal description attached hereto as "Schedule A", A" 25. The legal description attached hereto at "Schedule contains the correct legal description.for the subject property 10 APPLE MILL LANE, NORTH SALEM, NY 10560 and known as Section 14., Block 1689, Lot 209. 23-1514t8 - NIA Drafter:Nicole Allen 8 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 26. The description contained in the said mortgage being foreclosed should be reformed to match the A" legal description recited in "Schedule annexed. Plaintiff demands judgment dimeting the Clerk of WE.STCHESTER County to.reform its records to reflect that the mortgage contain the legal description annexed hereto as "Schedule A". THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK 23-1514t8 - NIA Drafter:Nicole Allen 9 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 WHEREFORE, plaintiff demands judgment against the defendants as follows: On its first cause of action: A. The defendants and each of them, and all persons claiming under them, or any of them subsequent to the commencement of this action and the filing of the Notice of Pendency thereof, may be barred and foreclosed of all right, title, claim, lien and equity of redemption in the mortgaged premises; B. Said mortgaged premises be sold subject to the state of facts an accurate survey will show; all covenants, restrictions, easements, agreements and reservations, if any, of record, and to any and all violations thereof; any and all building and zoning regulations, restrictions and ordinances of the municipality in which said premises are situated, and to any violations of the same, including, but not limited to, reapportionment of lot lines, and vault charges, if any; any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises and any violation of the same; the physical condition of any building or structure on the premises as of the date of closing hereunder; rights of tenants in possession, if any; prior mortgages and judgments, if any, now liens of record; right of Redemption of United States of America, if any; rights of any defendants pursuant to CPLR Section 3.17, CPLR Section 2003 and CPLR Section 5015, if any; any and all Hazardous Materials in the premises including, but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or any material containing asbestos, and toxic substances; and other conditions as set forth in the terms of sale more particularly to be announced at the sale. C. Said premises may be decreed to be sold in orie parcel according to law subject to the various items set forth in allegations of the complaint herein; D. The monies arising from the sale may be brought into court; E. Plaintiff may be paid the amount due on said note and mortgage as alleged herein, together with interest to the time of such payment, together with the sums expended by plaintiff prior to and during the pendency of this action, and for thirty days after any.sale demanded herein for taxes, water rates, sewer rents, assessments, insurance premiums and other necessary and essential charges or expenses in connection therewith to protect the mortgage lien, plus any sums expended for the protection or preservation of the property covered by said mortgage and note, and the amount secured thereby, with interest thereon from the time of such payment and the attorneys' costs and expenses of this action including reasonable fees so far as the amount of such monies properly applicable thereto will pay the same; 23-1514t8 - NIA Drafter:Nicole Allen 10 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 F. The plaintiff be decreed to be the owner of any and all personal pmperty used in connection with the said mortgaged premises, except ifdischarged in bankruptcy; G. The obligors may be adjudged to pay any deficiency which rnay rernain after applying all of said monies so spplicable thereto unless the obligors were discharged in bankmptcy; H. awarding the relief requested in the additional causes of action stated in the complaint, if any; On its second cause of action: plaintiff demands judgment reforming the mortgage being foreclosed to include the correct legal description and directing the Clerk of WESTCHESTER County to reform its records to reflect that the mortgage contain the correct legal description.annexed hereto as "Schedule A"; and that plaintiff shall have such other and further relief or both, in the premises as shall be just and equitable. Dated: February 2, 2024 Robertson, utz, Sc eid, Crane & ers, PL Attorn or Plaintiff [ ] SARA Z. BORISKIN, ESQ. [X] ANTHONY CELLUCCI, ESQ. [ ] SCOTT R. WEISS, ES.Q. [ ] KELLY R. FABER,. ESQ. 900 Merchants Concourse, Suite 310 Westbury, NY 11590 516-280-7675 23-151418- NiA Drafter:Nicole ANen 11 of 38 FILED: WESTCHESTER COUNTY CLERK 03/07/2024 02:33 PM INDEX NO. 58307/2024 e-- NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 BANK OF AMERICA EQUITY MAXIMIZER AGREEMENT AND DISCLOSURE STATEMENT ACCOUNT NUMBER Borrower: THOMAS M COLE Lentlert Bank of Americe, N.A. MAUREEN K COLE 100 North Tryon street 10 APPLE Mii.L LN Charlotte, NC 28255 NORTH SALEM, NY 10550-1054 CREDIT UMIT: 4200,000,00 DATE OF AGREEMENT: June 15, 200 Introduction. This Bank of America Equity Maximizer Agreement and Disclosure Statement ("Agreement''I governs your line of credit I Une" "Borrower," "you," "Credit or the "Credit Llng Account") Issued through Benk of Amerlce, N.A.. In tNs Agreement, the words "your,,. "Applicant" and mean each and every person who signs tNs Agreement, including 2N Borrowers named above. The words "wer "us/ "curN "Lander" and mean Bank of Americe, N.A” You agree to the fo#owing terms end conditions: Promise to Pay. You promise to pay Bank of Americe N.A., or order, the total of ell credit advancesand FINANCE C@lARGES, together with a "Mortgage" costs and expenses for which you ere responsible under this Agreement or under the which secures your Credit Line. You wHI psy your Credit Line according to the payment terms set forth below. If there la more than one Borrower, each 18 fuHy obilgated to keep all of your promises and obligations contained In this Agreement. This means we can require eny Borrower to pay et emounts due under this Agreement, including credit advances rnade to any Borrower. Each Barrower outhorizes any other Beerower, on his or her signature alone, to cancel the Credit Line, to request and recalve oredit advances, and to do all other things necessary to carry out the terms of tNs Agreement.. We can release any Borrower from responsibHity under this Agreement, and the others wig remain responsible. Term. The term of your Credit Line will begin as of the date of tNs Agreement FOpening Date"I and wlH continue unts June 16, 2031 ("Meturity Dete"L An indabledness under this Agréemant, If not eiready paid pursuant to the payment provisloon below, wHI be due end payable upon maturity. The draw pedod of your Credit Line wiH begin on a date, ofter the Opening Cate, when the Agreement Is accepted by us in the State of North Carolina, following the exphation of the right to cancel, the perfection of the Mortgage, the receipt of sII sequired oertifl-cetas of nonconcellation, and the meeting of all of our other condidons and wHI continue as fonown: t 20 months. You may obtain predit advances during this period POraw Period"1. After the Draw Period ends, the repayme