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PRESENT:
Honorable
Justice.
SUPREME COURT THE STATE OF NEW YORK:
COUNTY OF ERIE
NATIONSTAR MORTGAGE LLC D/B/A
CHAMPION MORTGAGE COMPANY
Plaintiff.
-against-
MICHAEL V. D'AMICO AS HEIR AND
ADMINISTRATOR OF THE ESTATE OF
PATRICIA A. DAMICO, SUZANNE M.
DAMICO AS HEIR OF THE ESTATE OF
At an of the
Supreme Court of the State of New York,
held in and for the County of Erie at the
Courthouse thereof, Supreme Court
Building, 92 Franklin Street, Buffalo, New
York on the — day’ of
, 2017.
Index No: 808090/2015
JUDGMENT OF FORECLOSURE AND
SALE
Mortgaged Premises:
51 Cloister Court
PATRICIA A. DAMICO, JAMES F. D'AMICO Lackawanna, New York 14219
AS HEIR OF THE ESTATE OF PATRICIA A.
DAMICO, MIDLAND FUNDING LLC, NEW
CENTURY FINANCIAL SERVICES, INC.,
SECRETARY OF HOUSING AND URBAN
DEVELOPMENT, AMBER D'AMICO,
Defendant.
= x
Upon the summons and complaint filed herein on July 2, 2015 and notice of
pendency of action previously filed herein on July 2, 2015, and on the attorney's statement of
Deana Cheli, Esq., dated December 13, 2016, demonstrating that all of the defendants have been
duly served with the summons and complaint herein and the affidavits of service of the
defendant previously filed herein, and upon the Order
entered herein on March 9, 2017appointing Max Humann, Esq., as referee to ascertain and compute the amount due to the
plaintiff pursuant to the note and mortgage and to protect the lien of said mortgage, and to
examine and report whether the mortgage premises can be sold in parcels; and
Upon reading and filing the report of the referee dated September 5, 2017 from
which report it appears that the sum of $126,063.93 was due to plaintiff, as of May 31, 2017, on
the note and mortgage described in the complaint, and that the mortgaged premises should be
sold in one parcel; and
Upon reading and filing the affidavit of regularity of Deana Cheli, Esq. sworn to
on September 15, 2017, from which it appears that this action was brought to foreclose a
mortgage on certain real property situated in the County of Erie and State of New York more
commonly known as $1 Cloister Court, Lackawanna, New York 14219 and that the whole
amount secured by said mortgage is due and payable as computed in the aforesaid Referee's
report, and that all of the defendants herein have been duly served with the summons and
complaint, and upon the entry of summary judgment on plaintiff's foreclosure complaint against
the defendants, and that none of the defendants is an infant, incompetent or absentee,
"Sale" is herein defined as the foreclosure auction date.
NOW, on motion of McCabe, Weisberg & Conway, P.C., attorneys for the
plaintiff, it is
ORDERED, ADJUDGED and DECREED, that the report of the Referee, Max
Humann, Esq., dated September 5, 2017, by and the same is hereby in all respects ratified and
confirmed; and it is further
ORDERED, ADJUDGED and DECREED, that plaintiff is entitled to judgment
establishing the validity of said mortgage and that the plaintiff if entitled to recover upon saidmortgage herein the sum of $126,063.93, with interest thereon from Thursday, June 1, 2017 to
date of the closing of title of the referee's sale of the mortgaged premises, and also any amount
paid by plaintiff for local realty taxes, water charges and assessments, hazard and F.H.A.
Insurance, and the preservation or protection of the property; and it further
ORDERED, ADJUDGED and DECREED, that said premises affected by said
mortgage set forth in the complaint herein and hereinafter set forth, constituting one parcel to be
sold in one parcel at public auction, at
under the direction of Max Humann, Referee, and that said Referee give public notice of the time
and place of sale according to law and the rules and practice of this Court by publishing the
notice of sale in the and
that plaintiff on such sale, or any other party to this action, may become purchaser, the payment
of all taxes, transfer fees and costs, including New York State and local Transfer taxes and the
cost of the deed stamps to be attached to the Referee’s Deed shall be paid by the Purchaser. Any
and all maintenance fees and assessments, taxes, water rates, and any fees associated with the
transfer of title for the subject premises accrued from the Sale date forward are the obligation of
the purchaser; and that said Referee shall sell and convey said premises subject to the following:
ile Any state of fact which would be shown by an accurate survey;
a All covenants, restrictions, easements, agreements and reservations, if any,
or record, and to any violations thereof;
3. Any and all building and zoning regulations, restrictions and ordinances of
the municipality in which said premises are situated, and any violations of the same;
4. Any and all orders or requirements issued by any governmental body
having jurisdiction against or affecting said premises pursuant to Title 28; Section 2410 of the
United States Code; and
5! The Right, if any, of the United States of America to redeem the premises
pursuant to Title 28; Section 2410 of the United States Code; and
6. The physical condition of any building or structure on the premises as ofthe date of sale hereunder; that said Referee shall then deposit the balance of such proceeds in
his/her own name as referee and shall thereafter make the following payments, and his checks
drawn for such purpose shall be paid by said depository; and
. 7. Any prior outstanding mortgages or liens that may exist on the subject
premises.
First: He shall pay a sum not exceeding $500.00 for said Referee's fees as
provided in Section 8003 (b) of the Civil Practice Law and Rules.
Second: Unless the mortgaged premises are hereby specifically ordered to be sold
subject to the same, he shall pay all local realty taxes, water rates and assessments which are or
shall become liens on said premises to the date of sale, and redeem any such liens that may be
sold.
Third: He shall pay the advertising and posting expenses shown by the bills
presented and certified by said Referee to be corrected.
Fourth: He shall pay to the plaintiff or plaintiff's attorney the sum of $
adjudged to plaintiff for the costs and disbursements of this action, to be taxed by the Clerk of
the Court and an additional allowance of $. awarded to plaintiff or
plaintiffs attorney, in addition to costs with interest thereon, and an amount of
$ to plaintiff's attorneys for reasonable attorneys’ fees as provided in the
note and mortgage, and also the sum of $126,063.93 the amount reported due as aforesaid,
together with interest thereon from Thursday, June 1, 2017 to the date of the closing of title of
the referee's sale of the mortgaged premises, and also any amounts paid by plaintiff for any
hazard and F.H.A. Insurance, or the preservation of the property and, unless the premises are
sold thereto, any payments necessary to satisfy all local realty taxes, water and other municipal
charges and assessments, and that he take a receipt or affidavit thereof and file it with his report
of sale.
Fifth: He shall, within five days after the same shall be received and beascertainable, place on deposit with the Clerk of the County of Erie the surplus money, if any, to the
credit of this action, to be withdrawn only on an order of this Court signed by a Justice of this Court;
Sixth: In the absence of the designated Referee, the court will designate a substitute
Referee forthwith, and it is further
ORDERED, ADJUDGED and DECREED, that said Referee make a report of sale
and file it with the Clerk of the County of Erie within 30 days of completing the sale and executing
the proper conveyance to the purchasers; and that the purchaser or purchasers at such sale be
forthwith let into possession on production of the Referee's Deed; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee deposit all funds
received pursuant to this Order in his/her own name as Referee in Referee's 1.0.L.A. account
maintained for legal clients at a bank within the state of New York or in an FDIC-insured bank of the
Referee's choice within the state of New York, and it is further
ORDERED, ADJUDGED and DECREED, that in case the plaintiff shall become
the purchaser of the Premises directed to be sold at an amount equal to or less than the amount due
under this judgment with costs, allowance and expenses, the payment by the plaintiff to said Referee
of the sum bid by it for said Premises or any part thereof, is hereby dispensed with, and that the
plaintiff shall be given due credit and allowance by said Referee for the amount due, and that
plaintiff before the delivery of the deed to it, shall pay the fee of the Referee and the expenses of sale
and costs and allowance, all as provided for above, and all local realty taxes, assessments and water
rents which may be a lien upon said Premises at the time of such sale, unless the Premises are sold
subject thereto; and it further
ORDERED, ADJUDGED and DECREED, that each and all of the defendants in
this action, and also all persons claiming under them or any of them, after the filing of a notice of
pendency of action, be and same hereby are forever barred and foreclosed of all right, claim, lien,
title, interest and equity of redemption in said premises and every part thereof, except nothing hereinshall bar any right of the United States of America to redeem as provided in Title 28 of the United
States Code, Section 2410; and it further
ORDERED, ADJUDGED and DECREED, that in the event that the plaintiff shall
elect to accept a purchase money mortgage from any purchaser or purchasers at such sale, the amount
thereof shall be credited against the amount due the plaintiff under this judgment, and that the
purchaser, or purchasers, shall not be required to pay the same in cash, but shal! be credited upon its
bid with such amount, and that the Referee take plaintiff's receipt for such amount and file it with his
report of sale.
ORDERED, ADJUDGED AND DECREED, that to ensure that the Foreclosure
Action Surplus Monies Form was timely filed and any surplus funds appropriately deposited, a
conference will be scheduled within 90 days from the date of this Order. If the form has been timely
filed with this Court and the Clerk’s Office, a conference will not be scheduled; and it is further
ORDERED, ADJUDGED and DECREED, that by accepting this appointment the
referee certifies that he/she is in compliance with Part 36 of the Rules of the Chief Judge (22NYCRR
Part 36), including, but not limited to, section 36.2(c) ("Disqualifications from appointment"), and
section 36.2(d) ("Limitations on appointments based upon compensation").
THAT a particular description of said premises described in said mortgage and to be
sold by said referee is annexed hereto as Exhibit A.
ENTER
J.S.C.Solutionstar Settlement Services
420 Rouser Road
Coraopolis, PA 15108
SCHEDULE A
DESCRIPTION OF MORTGAGED PREMISES
Title No. 12-02699289
ALL that tract or parcel of land, situate In the City of Lackawanna, County of Erle and
State of New York, being part of Lots Numbers Four Hundred Thirty-Five (435) and
Four Hundred Thirty-Six (436) of the Buffalo Creek Reservation and further
distinguished as subdivision Lot Number One Hundred Fifteen (115) as shown on a
map entitled "Autumn Acres" filed in the Erle County Clerk's Office under Map cover
Number Two Thousand Two Hundred Fourteen (2214).
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PRESENT: Honorable Justice. SUPREME COURT THE STATE OF NEW YORK: COUNTY OF ERIE NATIONSTAR MORTGAGE LLC D/B/A CHAMPION MORTGAGE COMPANY Plaintiff. -against- MICHAEL V. D'AMICO AS HEIR AND ADMINISTRATOR OF THE ESTATE OF PATRICIA A. DAMICO, SUZANNE M. DAMICO AS HEIR OF THE ESTATE OF At an of the Supreme Court of the State of New York, held in and for the County of Erie at the Courthouse thereof, Supreme Court Building, 92 Franklin Street, Buffalo, New York on the — day’ of , 2017. Index No: 808090/2015 JUDGMENT OF FORECLOSURE AND SALE Mortgaged Premises: 51 Cloister Court PATRICIA A. DAMICO, JAMES F. D'AMICO Lackawanna, New York 14219 AS HEIR OF THE ESTATE OF PATRICIA A. DAMICO, MIDLAND FUNDING LLC, NEW CENTURY FINANCIAL SERVICES, INC., SECRETARY OF HOUSING AND URBAN DEVELOPMENT, AMBER D'AMICO, Defendant. = x Upon the summons and complaint filed herein on July 2, 2015 and notice of pendency of action previously filed herein on July 2, 2015, and on the attorney's statement of Deana Cheli, Esq., dated December 13, 2016, demonstrating that all of the defendants have been duly served with the summons and complaint herein and the affidavits of service of the defendant previously filed herein, and upon the Order entered herein on March 9, 2017appointing Max Humann, Esq., as referee to ascertain and compute the amount due to the plaintiff pursuant to the note and mortgage and to protect the lien of said mortgage, and to examine and report whether the mortgage premises can be sold in parcels; and Upon reading and filing the report of the referee dated September 5, 2017 from which report it appears that the sum of $126,063.93 was due to plaintiff, as of May 31, 2017, on the note and mortgage described in the complaint, and that the mortgaged premises should be sold in one parcel; and Upon reading and filing the affidavit of regularity of Deana Cheli, Esq. sworn to on September 15, 2017, from which it appears that this action was brought to foreclose a mortgage on certain real property situated in the County of Erie and State of New York more commonly known as $1 Cloister Court, Lackawanna, New York 14219 and that the whole amount secured by said mortgage is due and payable as computed in the aforesaid Referee's report, and that all of the defendants herein have been duly served with the summons and complaint, and upon the entry of summary judgment on plaintiff's foreclosure complaint against the defendants, and that none of the defendants is an infant, incompetent or absentee, "Sale" is herein defined as the foreclosure auction date. NOW, on motion of McCabe, Weisberg & Conway, P.C., attorneys for the plaintiff, it is ORDERED, ADJUDGED and DECREED, that the report of the Referee, Max Humann, Esq., dated September 5, 2017, by and the same is hereby in all respects ratified and confirmed; and it is further ORDERED, ADJUDGED and DECREED, that plaintiff is entitled to judgment establishing the validity of said mortgage and that the plaintiff if entitled to recover upon saidmortgage herein the sum of $126,063.93, with interest thereon from Thursday, June 1, 2017 to date of the closing of title of the referee's sale of the mortgaged premises, and also any amount paid by plaintiff for local realty taxes, water charges and assessments, hazard and F.H.A. Insurance, and the preservation or protection of the property; and it further ORDERED, ADJUDGED and DECREED, that said premises affected by said mortgage set forth in the complaint herein and hereinafter set forth, constituting one parcel to be sold in one parcel at public auction, at under the direction of Max Humann, Referee, and that said Referee give public notice of the time and place of sale according to law and the rules and practice of this Court by publishing the notice of sale in the and that plaintiff on such sale, or any other party to this action, may become purchaser, the payment of all taxes, transfer fees and costs, including New York State and local Transfer taxes and the cost of the deed stamps to be attached to the Referee’s Deed shall be paid by the Purchaser. Any and all maintenance fees and assessments, taxes, water rates, and any fees associated with the transfer of title for the subject premises accrued from the Sale date forward are the obligation of the purchaser; and that said Referee shall sell and convey said premises subject to the following: ile Any state of fact which would be shown by an accurate survey; a All covenants, restrictions, easements, agreements and reservations, if any, or record, and to any violations thereof; 3. Any and all building and zoning regulations, restrictions and ordinances of the municipality in which said premises are situated, and any violations of the same; 4. Any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises pursuant to Title 28; Section 2410 of the United States Code; and 5! The Right, if any, of the United States of America to redeem the premises pursuant to Title 28; Section 2410 of the United States Code; and 6. The physical condition of any building or structure on the premises as ofthe date of sale hereunder; that said Referee shall then deposit the balance of such proceeds in his/her own name as referee and shall thereafter make the following payments, and his checks drawn for such purpose shall be paid by said depository; and . 7. Any prior outstanding mortgages or liens that may exist on the subject premises. First: He shall pay a sum not exceeding $500.00 for said Referee's fees as provided in Section 8003 (b) of the Civil Practice Law and Rules. Second: Unless the mortgaged premises are hereby specifically ordered to be sold subject to the same, he shall pay all local realty taxes, water rates and assessments which are or shall become liens on said premises to the date of sale, and redeem any such liens that may be sold. Third: He shall pay the advertising and posting expenses shown by the bills presented and certified by said Referee to be corrected. Fourth: He shall pay to the plaintiff or plaintiff's attorney the sum of $ adjudged to plaintiff for the costs and disbursements of this action, to be taxed by the Clerk of the Court and an additional allowance of $. awarded to plaintiff or plaintiffs attorney, in addition to costs with interest thereon, and an amount of $ to plaintiff's attorneys for reasonable attorneys’ fees as provided in the note and mortgage, and also the sum of $126,063.93 the amount reported due as aforesaid, together with interest thereon from Thursday, June 1, 2017 to the date of the closing of title of the referee's sale of the mortgaged premises, and also any amounts paid by plaintiff for any hazard and F.H.A. Insurance, or the preservation of the property and, unless the premises are sold thereto, any payments necessary to satisfy all local realty taxes, water and other municipal charges and assessments, and that he take a receipt or affidavit thereof and file it with his report of sale. Fifth: He shall, within five days after the same shall be received and beascertainable, place on deposit with the Clerk of the County of Erie the surplus money, if any, to the credit of this action, to be withdrawn only on an order of this Court signed by a Justice of this Court; Sixth: In the absence of the designated Referee, the court will designate a substitute Referee forthwith, and it is further ORDERED, ADJUDGED and DECREED, that said Referee make a report of sale and file it with the Clerk of the County of Erie within 30 days of completing the sale and executing the proper conveyance to the purchasers; and that the purchaser or purchasers at such sale be forthwith let into possession on production of the Referee's Deed; and it is further ORDERED, ADJUDGED AND DECREED that the Referee deposit all funds received pursuant to this Order in his/her own name as Referee in Referee's 1.0.L.A. account maintained for legal clients at a bank within the state of New York or in an FDIC-insured bank of the Referee's choice within the state of New York, and it is further ORDERED, ADJUDGED and DECREED, that in case the plaintiff shall become the purchaser of the Premises directed to be sold at an amount equal to or less than the amount due under this judgment with costs, allowance and expenses, the payment by the plaintiff to said Referee of the sum bid by it for said Premises or any part thereof, is hereby dispensed with, and that the plaintiff shall be given due credit and allowance by said Referee for the amount due, and that plaintiff before the delivery of the deed to it, shall pay the fee of the Referee and the expenses of sale and costs and allowance, all as provided for above, and all local realty taxes, assessments and water rents which may be a lien upon said Premises at the time of such sale, unless the Premises are sold subject thereto; and it further ORDERED, ADJUDGED and DECREED, that each and all of the defendants in this action, and also all persons claiming under them or any of them, after the filing of a notice of pendency of action, be and same hereby are forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption in said premises and every part thereof, except nothing hereinshall bar any right of the United States of America to redeem as provided in Title 28 of the United States Code, Section 2410; and it further ORDERED, ADJUDGED and DECREED, that in the event that the plaintiff shall elect to accept a purchase money mortgage from any purchaser or purchasers at such sale, the amount thereof shall be credited against the amount due the plaintiff under this judgment, and that the purchaser, or purchasers, shall not be required to pay the same in cash, but shal! be credited upon its bid with such amount, and that the Referee take plaintiff's receipt for such amount and file it with his report of sale. ORDERED, ADJUDGED AND DECREED, that to ensure that the Foreclosure Action Surplus Monies Form was timely filed and any surplus funds appropriately deposited, a conference will be scheduled within 90 days from the date of this Order. If the form has been timely filed with this Court and the Clerk’s Office, a conference will not be scheduled; and it is further ORDERED, ADJUDGED and DECREED, that by accepting this appointment the referee certifies that he/she is in compliance with Part 36 of the Rules of the Chief Judge (22NYCRR Part 36), including, but not limited to, section 36.2(c) ("Disqualifications from appointment"), and section 36.2(d) ("Limitations on appointments based upon compensation"). THAT a particular description of said premises described in said mortgage and to be sold by said referee is annexed hereto as Exhibit A. ENTER J.S.C.Solutionstar Settlement Services 420 Rouser Road Coraopolis, PA 15108 SCHEDULE A DESCRIPTION OF MORTGAGED PREMISES Title No. 12-02699289 ALL that tract or parcel of land, situate In the City of Lackawanna, County of Erle and State of New York, being part of Lots Numbers Four Hundred Thirty-Five (435) and Four Hundred Thirty-Six (436) of the Buffalo Creek Reservation and further distinguished as subdivision Lot Number One Hundred Fifteen (115) as shown on a map entitled "Autumn Acres" filed in the Erle County Clerk's Office under Map cover Number Two Thousand Two Hundred Fourteen (2214).