Preview
FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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-- - X INDEX NO:
REVERSE MORTGAGE SOLUTIONS, INC., 032397/2015
Plaintiff, ATTORNEY
AFFIRMATION IN
v. SUPPORT OF
PLAINTIFF'S MOTION
UNKNOWN HEIRS OF THE ESTATE OF GRACE WALTON FOR A DEFAULT
if he be living and if they be dead, the respective heirs-at-law, JUDGMENT AND ORDER
next-of-kin, distributees, executors, administrators, trustees, OF REFERENCE
devisees, legatees, assignees, lienors, creditors and successors in
interest and generally all persons having or claiming under, by MORTGAGED PROPERTY:
or through said defendant who may be deceased, by purchase, 59 Heritage Drive Unit #59E,
inheritance, lien or inheritance, any right, titleor interest in or to New City, NY 10956
DOE"
the real property described in the Complaint, "JOHN and COUNTY: Rocldand
"JANE DOE", the last two names being fictitious, said parties Section: 43.7
intended being tenants or occupants, if any, having or claiming Block: 1
an interest in, or lien upon the premises described in the Lot: 20./2600
complaint, THE NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, and THE UNITED STATES OF
AMERICA INTERNAL REVENUE SERVICE,
Defendant(s).
- - -- - --------- --- ---- --- - - ---- ---- - -X
Anita Briant-Napier, Esq., pursuant to CPLR 2106 and under the penalties of perjury,
affirms as follows:
1. I am an attorney at law and an Associate with Aldridge Pite, LLP the attorneys of record
for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this
action based upon a review of the filemaintained by my office.
2. True and accurate copies of the following supporting documents are attached
hereto:
Document Tab
Affirmation pursuant to Admin Order 431/11 or Certificate of Exhibit A
Note Exhibit B
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018
Mortgage Exhibit C
Assignments Exhibit D
Notice of Default Exhibit E
Order Directing Service Pursuant to CPLR 308(5) Exhibit F
Department of Defense Search results Exhibit G
Summons and Complaint Exhibit H
Notice of Pendency Exhibit I
Affidavits of Service Exhibit J
Affidavit of Service by Mail pursuant to CPLR 321(g)(iii) Exhibit K
Affidavit of Merit and Amount Due Exhibit L
Affirmation of Regularity Exhibit M
Guardian Ad Litem Documents Exhibit N
Affidavits of Publication Exhibit 0
Legalback No.2 - filed contemporaneous with this motion
Proposed Order of Reference
All personal non-public information has been redacted from the attached supporting
documents.
3. This residential mortgage foreclosure action was commenced by filing the
summons and complaint in the Rockland County Clerk's office on June 5, 2015 in the County
where the mortgaged property is located. The action was brought to foreclose a residential
mortgage executed by Grace Walton on March 26, 2007. The mortgage was recorded in the
Office of the Clerk of County of Rockland on April 11, 2007, in Instrument No. 2007-00018156.
4. On June 5, 2015, Plaintiff filed a notice of pendency in accordance with RPAPL
$1331 and CPLR Article 65, a copy of which is attached hereto as exhibit I. Plaintiff filed an
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018
Amended Notice of Pendency on May 19, 2016.
5. The summons, complaint and notice of pendency are in the form prescribed by
statute and contain all the particulars required by law. The summons complies with the
requirements of RPAPL §1320, contains the required notice in boldface type and is in the format
required by statute. According to the affidavit of service, the summons was served together with
the complaint. Copies of the summons, complaint, notice of pendency and affidavits of service
are attached hereto as exhibits H-J.
6. On June 5, 2015, Plaintiff was the holder and in possession of the subject note.
See Affidavit of Nicole Johnson, attached hereto as exhibit L.
7. The certificate of merit required pursuant to CPLR 3012-b was filed together with
supporting documents and is attached hereto as exhibit A.
8. 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
§1303 notice complies with the requirements of that statute, with the titlein bold, 20-point type
and text in bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on its
own separate page, together with the summons and complaint. Copies of these notices and
affidavits of service are attached hereto as exhibits F and J.
9. Plaintiff served an additional copy of the summons in compliance with CPLR
3215(g)(iii). The affidavit of service by mail is attached hereto as exhibit K.
Doe" Doe"
10. Defendants captioned as "John and "Jane are not necessary parties.
Doe" Doe"
Accordingly, the defendants captioned as "John and "Jane were not served with
Doe" Doe"
copies of the summons and complaint. Plaintiff request that the "John and "Jane
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defendants be excised from the caption of the action without prejudice to any of the proceedings
herein.
11. The following defendant(s) did not answer or appear and their time to answer has
expired: UNKNOWN HEIRS OF THE ESTATE OF GRACE WALTON. Accordingly, these
defendants are in default.
12. 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.
13. The mortgage recorded in Instrument No. 2007-00018156 to be foreclosed, contains
scrivener's errors within its description. Plaintiff has no adequate remedy at law unless the said
"A"
mortgage be reformed to reflect the correct legal description as set forth in Schedule
annexed hereto. Plaintiff respectfully requests that the mortgage recorded in Instrument No.
2007-00018156 to be foreclosed, be reformed to reflect the correct legal description as set forth
in Schedule "A".
14. After due diligence, GRACE WALTON was unable to be served. On May 5, 2016 an
Order of Publication and Appointment of a Guardian Ad Litem was signed. Annexed hereto as
"E"
Exhibit is a copy of said order. Subsequently, a Supplemental Summons and Amended
Complaint was filed in the Office of the Clerk of Rockland County. Said Supplemental
Summons was filed on May 19, 2016 and is annexed hereto as Exhibit "H". On January 18,
2017 an Order Substituting Guardian was signed. On or about November 20, 2017, a guardian's
consent and qualifying affirmation was signed by the court appointed guardian, Robyn H.
Lefcourt, Esq., whereby no objections were set forth to have a referee appointed to compute the
sums due to plaintiff and for entry of final Judgment in this action. A copy of the guardian's
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Plaintiff
FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018
consent and qualifying affirmation is attached hereto as Exhibit "N". Pursuant to the terms of the
Order of Publication, the Supplemental Summons was published in The Journal Newspaper on
2nd 96 th 2nd
June 2", 9'", and 23rd, 2016 and was published in The Rockland County Times on June 2",
16* "O"
9*, 16 and 23rd, 2016. Annexed hereto as Exhibit are the affidavits of publication and
posting. In addition, copies of the Supplemental Summons and Amended Complaint were
mailed to GRACE WALTON.
15. An Order Directing Service pursuant to CPLR 308(5) was signed on May 5, 2016.
Due to clerical error defendants SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
CAPITAL ONE BANK USA, N.A., and BOARD OF MANAGERS OF NEW CITY
CONDOMINIUMS IV were inadvertently left out of the amended caption. Plaintiff respectfully
requests that SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CAPITAL ONE
BANK USA, N.A., and BOARD OF MANAGERS OF NEW CITY CONDOMINIUMS IV be
added to the caption as necessary parties.
16. Plaintiff has not made any previous motion for this or like relief.
Therefore, itis respectfully requested that the Court grant Plaintiffs motion for a Default
Judgment and Order of Reference in accordance with RPAPL §1321 and award such other and
further relief as the Court may deem just and proper.
WHEREFORE, Plaintiff requests an order from this Court:
A. Appointing a referee to compute the amount due Plaintiff and to examine
whether the mortgaged property known as 59 Heritage Drive Unit #59E, New
City, NY 10956 can be sold in parcels, and make his/her computation and report
with all convenient speed pursuant to RPAPL §1321;
Doe" Doe"
B. Removing "John and "Jane as a party Defendants to this action;
C. Adding SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
CAPITAL ONE BANK USA, N.A., and BOARD OF MANAGERS OF NEW
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018
CITY CONDOMINIUMS IV to the caption as necessary parties;
D. Determining allnon-appearing and non-answering Defendants to be in default;
E. Reforming the mortgage to reflect the correct legal description as set forth in
Schedule "A";
F. Granting such additional relief as the Court may deem just and proper.
The undersigned affirms that the foregoing statements are true, under the penalties of perjury.
DATED: 1 /i„'
/L , 2
-,th'
Di
lville, New York
Anita Briant-Napier, Esq.,
Anita Briant-Napier, 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 of his/her knowledge,
information and belief, formed after an inquiry reasonable under the circumstances, the
presentation of this pleading, affidavit (or motion ifapplicable), and the contentions contained
herein are not frivolous as defined by 22 NYCRR 130-1.1(c).
r
Anita Briant-Napier, Esq.,
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018
ATTORNEY'S AFFIRMATION
The undersigned, Anita Briant-Napier, Esq., pursuant to CPLR 2106 and under penalties
of perjury affirms as follows:
That she is the attorney of record for Plaintiff in the above-captioned action, that the
foregoing disbursements have been incurred in this action and are reasonable in amount, and that
the copies of documents or papers charged for herein were actually and necessarily obtained.
DATED:
Û m1 K
t
/201r
1 lie,New Yor
B t- Esq.
apier,
Aldridge Pite, LLP
Attorneys for Plaintiff
40 Marcus Drive, Suite 200
Melville, NY 11747
Phone: 631-454-8059
I
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Preview
FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND - - -- - - -- --- - ----- - --- ---- - -- --- -- ----X -- - X INDEX NO: REVERSE MORTGAGE SOLUTIONS, INC., 032397/2015 Plaintiff, ATTORNEY AFFIRMATION IN v. SUPPORT OF PLAINTIFF'S MOTION UNKNOWN HEIRS OF THE ESTATE OF GRACE WALTON FOR A DEFAULT if he be living and if they be dead, the respective heirs-at-law, JUDGMENT AND ORDER next-of-kin, distributees, executors, administrators, trustees, OF REFERENCE devisees, legatees, assignees, lienors, creditors and successors in interest and generally all persons having or claiming under, by MORTGAGED PROPERTY: or through said defendant who may be deceased, by purchase, 59 Heritage Drive Unit #59E, inheritance, lien or inheritance, any right, titleor interest in or to New City, NY 10956 DOE" the real property described in the Complaint, "JOHN and COUNTY: Rocldand "JANE DOE", the last two names being fictitious, said parties Section: 43.7 intended being tenants or occupants, if any, having or claiming Block: 1 an interest in, or lien upon the premises described in the Lot: 20./2600 complaint, THE NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and THE UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE, Defendant(s). - - -- - --------- --- ---- --- - - ---- ---- - -X Anita Briant-Napier, Esq., pursuant to CPLR 2106 and under the penalties of perjury, affirms as follows: 1. I am an attorney at law and an Associate with Aldridge Pite, LLP the attorneys of record for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this action based upon a review of the filemaintained by my office. 2. True and accurate copies of the following supporting documents are attached hereto: Document Tab Affirmation pursuant to Admin Order 431/11 or Certificate of Exhibit A Note Exhibit B 1 of 7 FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018 Mortgage Exhibit C Assignments Exhibit D Notice of Default Exhibit E Order Directing Service Pursuant to CPLR 308(5) Exhibit F Department of Defense Search results Exhibit G Summons and Complaint Exhibit H Notice of Pendency Exhibit I Affidavits of Service Exhibit J Affidavit of Service by Mail pursuant to CPLR 321(g)(iii) Exhibit K Affidavit of Merit and Amount Due Exhibit L Affirmation of Regularity Exhibit M Guardian Ad Litem Documents Exhibit N Affidavits of Publication Exhibit 0 Legalback No.2 - filed contemporaneous with this motion Proposed Order of Reference All personal non-public information has been redacted from the attached supporting documents. 3. This residential mortgage foreclosure action was commenced by filing the summons and complaint in the Rockland County Clerk's office on June 5, 2015 in the County where the mortgaged property is located. The action was brought to foreclose a residential mortgage executed by Grace Walton on March 26, 2007. The mortgage was recorded in the Office of the Clerk of County of Rockland on April 11, 2007, in Instrument No. 2007-00018156. 4. On June 5, 2015, Plaintiff filed a notice of pendency in accordance with RPAPL $1331 and CPLR Article 65, a copy of which is attached hereto as exhibit I. Plaintiff filed an 2 of 7 FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018 Amended Notice of Pendency on May 19, 2016. 5. The summons, complaint and notice of pendency are in the form prescribed by statute and contain all the particulars required by law. The summons complies with the requirements of RPAPL §1320, contains the required notice in boldface type and is in the format required by statute. According to the affidavit of service, the summons was served together with the complaint. Copies of the summons, complaint, notice of pendency and affidavits of service are attached hereto as exhibits H-J. 6. On June 5, 2015, Plaintiff was the holder and in possession of the subject note. See Affidavit of Nicole Johnson, attached hereto as exhibit L. 7. The certificate of merit required pursuant to CPLR 3012-b was filed together with supporting documents and is attached hereto as exhibit A. 8. 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 §1303 notice complies with the requirements of that statute, with the titlein bold, 20-point type and text in bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on its own separate page, together with the summons and complaint. Copies of these notices and affidavits of service are attached hereto as exhibits F and J. 9. Plaintiff served an additional copy of the summons in compliance with CPLR 3215(g)(iii). The affidavit of service by mail is attached hereto as exhibit K. Doe" Doe" 10. Defendants captioned as "John and "Jane are not necessary parties. Doe" Doe" Accordingly, the defendants captioned as "John and "Jane were not served with Doe" Doe" copies of the summons and complaint. Plaintiff request that the "John and "Jane 3 of 7 FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018 defendants be excised from the caption of the action without prejudice to any of the proceedings herein. 11. The following defendant(s) did not answer or appear and their time to answer has expired: UNKNOWN HEIRS OF THE ESTATE OF GRACE WALTON. Accordingly, these defendants are in default. 12. 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. 13. The mortgage recorded in Instrument No. 2007-00018156 to be foreclosed, contains scrivener's errors within its description. Plaintiff has no adequate remedy at law unless the said "A" mortgage be reformed to reflect the correct legal description as set forth in Schedule annexed hereto. Plaintiff respectfully requests that the mortgage recorded in Instrument No. 2007-00018156 to be foreclosed, be reformed to reflect the correct legal description as set forth in Schedule "A". 14. After due diligence, GRACE WALTON was unable to be served. On May 5, 2016 an Order of Publication and Appointment of a Guardian Ad Litem was signed. Annexed hereto as "E" Exhibit is a copy of said order. Subsequently, a Supplemental Summons and Amended Complaint was filed in the Office of the Clerk of Rockland County. Said Supplemental Summons was filed on May 19, 2016 and is annexed hereto as Exhibit "H". On January 18, 2017 an Order Substituting Guardian was signed. On or about November 20, 2017, a guardian's consent and qualifying affirmation was signed by the court appointed guardian, Robyn H. Lefcourt, Esq., whereby no objections were set forth to have a referee appointed to compute the sums due to plaintiff and for entry of final Judgment in this action. A copy of the guardian's 4 of 7 Plaintiff FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018 consent and qualifying affirmation is attached hereto as Exhibit "N". Pursuant to the terms of the Order of Publication, the Supplemental Summons was published in The Journal Newspaper on 2nd 96 th 2nd June 2", 9'", and 23rd, 2016 and was published in The Rockland County Times on June 2", 16* "O" 9*, 16 and 23rd, 2016. Annexed hereto as Exhibit are the affidavits of publication and posting. In addition, copies of the Supplemental Summons and Amended Complaint were mailed to GRACE WALTON. 15. An Order Directing Service pursuant to CPLR 308(5) was signed on May 5, 2016. Due to clerical error defendants SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CAPITAL ONE BANK USA, N.A., and BOARD OF MANAGERS OF NEW CITY CONDOMINIUMS IV were inadvertently left out of the amended caption. Plaintiff respectfully requests that SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CAPITAL ONE BANK USA, N.A., and BOARD OF MANAGERS OF NEW CITY CONDOMINIUMS IV be added to the caption as necessary parties. 16. Plaintiff has not made any previous motion for this or like relief. Therefore, itis respectfully requested that the Court grant Plaintiffs motion for a Default Judgment and Order of Reference in accordance with RPAPL §1321 and award such other and further relief as the Court may deem just and proper. WHEREFORE, Plaintiff requests an order from this Court: A. Appointing a referee to compute the amount due Plaintiff and to examine whether the mortgaged property known as 59 Heritage Drive Unit #59E, New City, NY 10956 can be sold in parcels, and make his/her computation and report with all convenient speed pursuant to RPAPL §1321; Doe" Doe" B. Removing "John and "Jane as a party Defendants to this action; C. Adding SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CAPITAL ONE BANK USA, N.A., and BOARD OF MANAGERS OF NEW 5 of 7 FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018 CITY CONDOMINIUMS IV to the caption as necessary parties; D. Determining allnon-appearing and non-answering Defendants to be in default; E. Reforming the mortgage to reflect the correct legal description as set forth in Schedule "A"; F. Granting such additional relief as the Court may deem just and proper. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. DATED: 1 /i„' /L , 2 -,th' Di lville, New York Anita Briant-Napier, Esq., Anita Briant-Napier, 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 of his/her knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this pleading, affidavit (or motion ifapplicable), and the contentions contained herein are not frivolous as defined by 22 NYCRR 130-1.1(c). r Anita Briant-Napier, Esq., 6 of 7 FILED: ROCKLAND COUNTY CLERK 04/16/2018 04:50 PM INDEX NO. 032397/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/16/2018 ATTORNEY'S AFFIRMATION The undersigned, Anita Briant-Napier, Esq., pursuant to CPLR 2106 and under penalties of perjury affirms as follows: That she is the attorney of record for Plaintiff in the above-captioned action, that the foregoing disbursements have been incurred in this action and are reasonable in amount, and that the copies of documents or papers charged for herein were actually and necessarily obtained. DATED: Û m1 K t /201r 1 lie,New Yor B t- Esq. apier, Aldridge Pite, LLP Attorneys for Plaintiff 40 Marcus Drive, Suite 200 Melville, NY 11747 Phone: 631-454-8059 I 7 of 7