Motion-Secondary: Jpmorgan Chase Bank Na, Chase Home Finance Llc, Chase Manhattan Mortgage Corporation v. China Ewing, Estate Of Curtis Ewing, Curtis Ewing, Frederica Ewing, Fredericka Ewing, Unifund Ccr Partners, New York State Department Of Taxation & Finance, United States Of America Internal Revenue Service

On December 18, 2015 a Motion-Secondary was filed involving a dispute between Chase Home Finance Llc, Chase Manhattan Mortgage Corporation, Jpmorgan Chase Bank Na, and China Ewing, Curtis Ewing, Estate Of Curtis Ewing, Frederica Ewing, Fredericka Ewing, New York State Department Of Taxation & Finance, Unifund Ccr Partners, United States Of America Internal Revenue Service, for Real Property - Mortgage Foreclosure - Residential in the District Court of Niagara County.

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FILED: NIAGARA COUNTY CLERK 03/09/2018 04:16 PM INDEX NO. E157551/2015
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/09/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
___..____________.._________________________________.·---X

JPMORGAN CHASE BANK, N.A. S/B/M
CHASE HOME FINANCE, LLC, S/B/M
TO CHASE MANHATTAN MORTGAGE Index No.: El57551/2015
CORPORATION
Plaintiff, ATTORNEY AFFIRMATION IN

SUPPORT OF PLAINTIFF'S
MOTION TO CONFlRM REFEREE
REPORT AND FOR A
JUDGMENT OF FORECLOSURE
AND SALE

MORTGAGEDPROPERTY:
1206 Vanderbilt Avenue, Niagara Falls,
NY 14305

COUNTY:NIAGARA
SBL#:130.63/1/27

v.
CIllNA EWING INDIVIDUALLY AND AS ADMINSTRATRIX OF
THE ESTATE OF CURTIS EWING, FREDERICA EWING A/K/A
FREDERICKA EWING AS HEIR OF THE ESTATE OF CURTIS
EWING, UNIFUND CCR PARTNERS, NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE, UNITED STATES
OF AMERICA- INTERNAL REVENUE SERVICE
Defendant(s).
______________________--------··--------------X

Craig K. Beideman, Esq., pursuant to CPLR 2106 and under penalties of perjury,
hereby affirms as follows:

1. I am an attorney at law associated withthelawfirmof Fein, Such and Crane,

LLP, the attorneys ofrecord for Plaintiff JPMorgan
.1PMorgan Chase Bank, N.A., S/B/M Chase Home

Financial, LLC, S/B/M to Chase Manhattan Mortgage Corporation. I am fully familiar with

the facts, court papers, and proceedings of this action based upon a review of the file

maintained by my office.

2. This is a foreclosure action. The Plaintiff is moving the court to confirm

of'
the Referee's Report made in accordance with RPAPL §l321 and for a Judgment of

Foreclosure and Sale pursuant to RPAPL §l351 that directs the distribution ofthe

proceeds of sale inaccordance with RPAPL (1354.
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3. True and accurate copies ofthe following documents are attached hereto:

Document Tab
Certificate of Merit pursuant to CPLR § 3012-b A
..................................................................Exhibit
B
Note...........................................................................................................................
Exhibit
Exhibit
...................................,.........,...................................................C
Mortgage...................................................................................................................

..................... Exhibit D
Assignments..............................................................................................................
Notice of Default.......................................................................................................
Exhibit E
RPAPL §l304 90-DayNotice....................................................................................
Exhibit F
Department of Defense Search Exhibit G
Results.....................................................................

Summons and H
Complaint..........................................................................................
Exhibit
Notice of Pendency ...................................................................................................
Exhibit I
Affidavits of Service.................................................................................................
.........Exhibit J
Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit
.............................. K
Affidavit of Amount Due..........................................................................................
Exhibit
.......... L
Affirmation of Regularity M
.........................................................................................
Exhibit
Order of N
Reference....................................................................................................
Exhibit
Notice of Entry of Order of Exhibit 0
Reference......................................................................
Referee's Oath and Report of Amount Due ..............................................................
Exhibit P

Attorney Fee Affirmation..........................................................................................
Exhibit Q
Notice of R
Appearance................................................................................................
Exhibit

Legalback No. 2 - filed with this
contemporaneously
application Costs and Disbursements of Plaintiff with

Supporting Invoices

Legalback No. 3 - filed with this
contemporaneously
application Proposed Judgment of Foreclosure and Sale

PROCEDURAL H I STORY

4. This residential mortgage foreclosure action was commenced by filing

the summons and complaint in the NIAGARA County Clerk's Office on December 18,

2015, the County where the mortgaged property is located. The action was brought to

foreclose a residential mortgage executed by CURTIS EWING and ELNOR J. EWING

and recorded in the Office of the Clerk of the County of Niagara on June l 9, 1998 in

Liber 3666, Page 347. A copy of the Mortgage is annexed hereto as Exhibit "C". Said

Mortgage was assigned by First Priority Mortgage Inc. to M&T Mortgage Corporation

by virtue of an Assignment of Mortgage recorded in the Office of the Clerk of the

County of Niagara on June 19, 1998 in Liber 1096, Page 154. Said Mortgage was

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assigned by M&T Mortgage Corporation to Chase Manhattan Mortgage Corporation, a

New Jersey Corporation by virtue of an Assignment of Mortgage recorded in the Office

of the Clerk of the County of Niagara on April 8, 1999 in Liber 1178, Page 343 Copies

of allreferenced documents are included within Exhibit "D".

5. On December 18, 201 5, Plaintiff filed a notice of pendency in accordance

with RPAPL §l331 and CPLR Article 65, a copy of which is attached hereto as exhibit

"I".

6. The summons, complaint, and notice of pendency are in the form prescribed

by statute and contain all of the particulars required by law. The summons complies with

the requirements of RPAPL §l320, contains the required notice in boldface type and is in

the format required by statute.

7. On December 18, 2015, Plaintiff was HOLDER of the subject note. See

Affidavit of Abicye A. Oyenuga attached hereto as exhibit "L". The certificate of merit

pursuant to CPLR 3012-b was filed with supporting documents and is attached hereto as

exhibit "A".

Clerk'
8. According to the affidavit of service filed in the NIAGARA County Clerk's

Office, the summons was served with the complaint. Defendant(s) were served with the

notice required by RPAPL §1303 printed on colored paper together with the summons and

complaint printed on white paper. The RPAPL § l 303 notice complies with the

requirements ofthat with the title in 20-point type and the text in 14-
statute, bold, bold,

point type. The RPAPL § 1303 notice was delivered to the mortgagors on its own separate

page, together with the summons and complaint. Defendant(s) were timely served with the

90-Day Pre-Foreclosure notice required by RPAPL § 1304. Plaintiff filed the name, address

and telephone number of the Defendant(s), the amount claimed to be due, and the type of

loan at issue with the superintendent of banks within three business days of the mailing of

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the 90-day Pre-Foreclosure notice as required by RPAPL 1306. Copies of these notices and

"F"
affidavits of service are attached hereto as exhibits and "J".

9. Plaintiff served defendants with copies ofthe summons in compliance with

CPLR 3215(g)(3). The affidavit of service by mail pursuant to CPLR §3215(g)(3) is

attached hereto as exhibit "K". Plaintiff served defendants with an additional copy ofthe

summons in compliance with CPLR 3215(g)(3)(iii). Copies ofthe affidavits of service and

"J"
mailing are attached hereto as exhibits and "K".

10. No defendant is an infant. No defendant is in the armed services of the United

States of America. Upon information and belief, no defendant is incompetent. The following

defendants were served out of state: Unifund CCR Partners.

11. Per this Court's Order of Reference, defendant(s) were deemed to be in default.

12. Pursuant to CPLR 3408 the court held a mandatory settlement conference in this

action:

a. A settlement was not reached and the case was released from the

settlement conference part on January 26, 2017.

13. On December 13, 2017, the Plaintiff moved for an Order of Reference. Plaintiffs

motion was granted by the Court by order dated January 31, 2018. A copy of the Order of

Reference is attached hereto as exhibit "N".

14. Plaintiff mailed Notice of Entry ofthe Order of Reference to defendant(s) or their

attorney(s) on March 1, 2018 and filed the Notice ofEntry with the NIAGARA County Clerk on

March 1, 2018. A copy of the Notice of Entry is attached hereto as exhibit "O".

l 5. This court appointed David M. Manz, Esq. as Referee to compute the amount

due the Plaintiff and to examine and report whether the mortgaged property can be sold in

parcels.

l 6. On February 10, 2018, the Referee executed an Oath and Report of Amount
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16. On February 10, 2018, the Referee executed an Oath and Report of Amount

Due which computed the amount due the Plaintiff to be $55,508.43 as of November 6,

2017, and determined that the property should be sold as one parcel. The Referee's Oath and

Report are attached hereto as exhibit "P". Plaintiff is entitled to interest at the note rate until

the Judgment of Foreclosure and Sale is entered and at the statutory default rate thereafter.

17. No previous motion for a Judgment of Foreclosure and Sale has been made.

PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE.

18. In conjunction with the motion for an Order of Reference previously granted by

this Court, Plaintiff established all the required elements for a foreclosure. Plaintiff now

requests that the property be sold pursuant to RPAPL §l351 and that the sale proceeds be

distributed in accordance with RPAPL §l354.

19. RPAPL §1354(2) requires the Referee conducting the sale to pay out of the

proceeds all taxes, assessments, and water rates that are liens upon the property and to redeem

the property from any sales for unpaid taxes, assessments, or water rates that have not become

absolute. At the time of sale, transfer tax is not a lien upon the property nor is itan expense of

sale, as that term is used in RPAPL §l354(1). Rather, transfer tax is an expense of recording the

deed. All expenses of recording the Referee's Deed, including real property transfer tax should

be paid by the purchaser at the closing and not by the Referee from sale proceeds.

20. Plaintiff is entitled to a Judgment that includes reimbursement for Plaintiffs

attorney fees for this action inaccordance with the terms ofthe note and mortgage. A

detailed affirmation regarding attorney fees is attached hereto as exhibit "Q".

21. Plaintiff is also entitled to a Judgment that include reimbursement for

Plaintiffs costs, allowances, and disbursements in this matter in accordance with the terms

of the note and mortgage and CPLR Article 83. A detailed statement of Plaintiffs costs and

disbursements with the supporting invoices was filed contemporaneously with this motion.

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22. A proposed Judgment of Foreclosure and Sale has been provided to the Court

together with this motion.

WHEREFORE, Plaintiff requests an order from this Court:

A. Confirming the Referce's Report;

B. Granting a Judgment of Foreclosure and Sale which appoints a Referee to

sellthe property;

C. Directing the distribution of the sale proceeds;

D. Such additional relief as this court may deem just and proper.

Dated: March , 2018
Monroe New York ---
County,
'
Cr . eideman, Esq.

Craig K. Beideman, Esq., an attorney at law licensed to practice in the State of New York,

and the attorney for Plaintiff in this action hereby certifies that, to the best ofhis/her

knowledge, information and belief, formed after an inquiry reasonable under the

circumstances, the presentation of this pleading, affidavit (or motion if applicable}, and

the contentions contained herein are not frivolous as defined by 22 130-1.1(c).

Crai . Heideman, Esq.

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Case Info

Judge

Daniel J Furlong Track Judge’s New Case

Case No.

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Document Filed Date

March 09, 2018

Case Filing Date

December 18, 2015

County

Parties

BROYLES, MARK K. Attorney for the Plaintiff
CASE, DAVID P Attorney for the Plaintiff
CHASE HOME FINANCE LLC Plaintiff
CHASE MANHATTAN MORTGAGE CORPORATION Plaintiff
China Ewing Defendant
Curtis Ewing Defendant
ESTATE OF CURTIS EWING Defendant
FLEMING, MARY ENRIGHT Attorney for the Defendants
Frederica Ewing Defendant
Fredericka Ewing Defendant
JPMORGAN CHASE BANK NA Plaintiff
NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE Defendant
Stiene, Charles Attorney for the Plaintiff
UNIFUND CCR PARTNERS Defendant
UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE Defendant
CRAIG BEIDEMAN Attorneys for Plaintiffs
THOMAS THOMAS Attorneys for Plaintiffs
DAVID MANZ Attorney

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