Preview
INDEX NO. 064872/2014
FILED: SUFFOLK COUNTY CLERK 0773172015 11:32 AM
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/31/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
WANI038
PNC BANK, NATIONAL ASSOCIATION
SUCCESSOR BY MERGER TO NATIONAL
CITY BANK,
AFFIRMATION OF NO ANSWER
Plaintiff, IN SUPPORT FOR ORDER OF
REFERENCE
-vs-
LUZ EDILMA RUIZ; SOUTHSIDE HOSPITAL; Index No. 064872/2014
NORTH SHORE UNIVERSITY HOSPITAL AT
FOREST HILLS; RAB PERFORMANCE
RECOVERIES, LLC; MIDLAND FUNDING LLC
DBA IN NEW YORK AS MIDLAND FUNDING
OF DELAWARE LLC; GOOD SAMARITAN
HOSPITAL MEDICAL CENTER; JUANA F.
CANALES; PEOPLE OF THE STATE OF NEW
YORK O/B/O CLERK OF THE SUFFOLK
COUNTY DISTRICT COURT; "JOHN DOE # 1-5"
AND "JANE DOE #1-5"said names being fictitious,
it being the intention of Plaintiff to designate any
and all occupants, tenants, persons or corporations,
if any, having or claiming an interest in or lien upon
the premises being foreclosed herein
Defendants.
STATE OF NEW YORK)
COUNTY OF NASSAU) ss.:
CHRISTOPHER PAVLIK, ESQ.., affirms under penalties of perjury the truth of the
following:
1. Lam an attorney in the law firm of Fein, Such & Crane, LLP, attorneys of record for
the plaintiff in this action and am duly admitted to practice law in New York State.
2. THAT pursuant RPAPL Section 1302, Plaintiff states that they are the true and lawful
holder of bond(s)/note(s) and mortgagee of record or has been delegated the authority to institute
a mortgage foreclosure action by the owner and holder of the subject mortgage and note. Plaintiff
has complied with all applicable provisions of the Banking Law, specifically with Banking Law
§595-a and 6-1 and 6-m, if applicable, in securing the aforementioned indebtedness and at all
times thereafter.
3. THAT the Plaintiff fully complied with RPAPL Section 1304 and a 90 Day notice was
sent to the borrower(s) on November 5, 2013. At least 90 days prior to the commencement of
this present action, borrower(s) was sent, via registered or certified mail, and first class mail, the
requisite notice under RPAPL Section 1304 in 14-point type, containing the statutorily prescribed
language and the addresses and phone numbers of at least five US Department of Housing and
Urban Development approved housing counseling agencies in the region where the borrower(s)
resides to the last known address of the borrower(s). A copy of the notice is attached hereto as
Exhibit D.
Further, Plaintiff has complied with RPAPL Section 1306 filing requirements in that the
90 day notice was filed with the New York Department of Banking on November 5, 2013. The
confirmation # is NYS3433106.
4. THAT the Summons and Complaint in this action were filed in the Office of the Clerk
of the County of SUFFOLK on June 25, 2014.
5. THAT this action is brought to foreclose a Mortgage executed by LUZ EDILMA
RUIZ to NATIONAL CITY BANK to secure the sum of $95,000.00, which was recorded in the
SUFFOLK County Clerk's Office on December 17, 2004, in Liber 20936 of Mortgages, at Page
750, et seq. NATIONAL CITY BANK merged with and into PNC BANK, NATIONAL
ASSOCIATION. Certificate of merger has been filed.
6. THAT prior to the commencement of this action, Defendant LUZ EDILMA RUIZ
failed to pay the monthly payments due under the terms of the Note and Mortgage, copies of
which are attached to the complaint or annexed hereto. Plaintiff duly notified defendant of the
default, the first date of default being October 13, 2012, but defendant failed to timely cure
resulting in the necessity of the commencement of the present foreclosure action and such default
continues to the present.
7. THAT on June 25, 2014, a notice of the pendency of this action, in the form
prescribed by statute and containing, as your affirmant believes, correctly, all the particulars
required by law to be stated in such notice, was filed in the Office of the Clerk of the County of
SUFFOLK, that being the County in which the mortgaged premise is situated; and that since the
filing of the said notice, the verified complaint in this action has not been amended by making
new parties to this action, or so as to affect other property not described in the original complaint,
or so as to extend the claims of the plaintiff as against the mortgaged premises.
8. THAT all necessary defendant(s) have been properly served with copies of the
Summons and Complaint as shown by the attached date-stamped copies of affidavits of service
heretofore filed in the SUFFOLK County Clerk's Office. See Exhibit F.
9. THAT all of the said defendants are of full age; that none of the defendant(s) are in
the armed services of the United States of America.
10. THAT none of the defendants are of unsound mind and that none of the defendants,
who have not appeared, are absentees.
11. THAT the time of the defendant(s) to appear, answer or otherwise move, with
respect to the complaint has expired and has not been extended by stipulation, order of the Court
or otherwise, and that none of the defendant(s) has answered the complaint. None of the
Defendants has appeared in the action unless there is attached hereto their limited notice or
notices of appearance wherein service of notice of the herein motion was waived.
12. THAT the attached affidavits of service show that the name of the tenant(s) of the
subject property, as provided by the tenant(s) to the process server at time of service, are
I ULIAN NARVAEZ, LUZ ZULETA, and request is therefore made that this name be substituted
in the caption of this action in the place and stead of “JOHN DOE # 1-5" and "JANE DOE #1-5"
without prejudice to any of the proceedings heretofore had herein
13. THAT Affirmant was unable to perform a search through the Department of Defense
Manpower Data Center, Military Verification Department for JULIAN NARVAEZ, LUZ
ZULETA, without said Defendant's social security numbers. However, said party(ies) is/are not
the main defendant in this action and said defendant(s) is/are not obligated to pay any
deficiencies in this action.
14. THAT counsel for the Plaintiff provided the process server with the Summons and
Complaint, printed on white paper, together with the Notice required by RPAPL Section 1303,
printed on a different colored paper than that of the summons and complaint as can be seen from
the affidavit of service attached hereto. The process server effected service upon the
mortgagor(s) with the complaint copy of the notification pursuant to RPAPL Section 1303. An
exact photocopy of said Notice is attached hereto, evidencing that the title of the Notice is in
bold, 20-point font, the text of the Notice is in bold 14-point font, it was on its own page and it
was served with the Summons and Complaint.
15. THAT the mortgagor(s) was served with additional notice of summons in compliance
with CPLR 3215(g)(3). See Exhibit F.
16. THAT counsel for the Plaintiff provided the process server with the Summons and
Complaint, printed on white paper, containing the Notice required by RPAPL Section 1320 in the
required format under the statute. An exact photocopy of said Notice is attached hereto within
the Summons and Complaint, evidencing that the notice is in boldface type. Plaintiff avers that
they have fully complied with all aspects of RPAPL Section 1320. The process server effected
service upon the mortgagor(s) with the Summons and Complaint including the notification
required under the RPAPL Section 1320. See attached affidavits of service in Exhibit F and a
copy of the summons and complaint in Exhibit G.
17. THAT this application is made for the purpose of obtaining an order, pursuant to
RPAPL Section 1321, appointing and directing a referee to compute the amount due to the
plaintiff, and to examine and report whether the mortgaged premises can be sold in parcels.
18. THAT this application is being submitted after the settlement conference was held on
June 3, 2015 wherein this matter was referred to HON. JUSTICE DENISE F. MOLIA to proceed
with the Order of Reference submission.
19, THAT all of the proceedings herein have been regular and in conformity with the
tules and practice of the court.
20. THAT no previous application has been made for the relief requested herein.
WHEREFORE, affirmant respectfully moves and requests that the annexed Order of
Reference be granted.
Dated:4 [LB _, 2015
he t Cow”
CHRISTOPHER PAVLIK, ESQ.
FEIN, SUCH & CRANE, LLP
Attorneys for Plaintiff
Office and P.O. Address
1400 OLD COUNTRY ROAD STE C103
WESTBURY, NY 11590
Telephone No.516/394-6921
Our File #: WAN1038
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INDEX NO. 064872/2014 FILED: SUFFOLK COUNTY CLERK 0773172015 11:32 AM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/31/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK WANI038 PNC BANK, NATIONAL ASSOCIATION SUCCESSOR BY MERGER TO NATIONAL CITY BANK, AFFIRMATION OF NO ANSWER Plaintiff, IN SUPPORT FOR ORDER OF REFERENCE -vs- LUZ EDILMA RUIZ; SOUTHSIDE HOSPITAL; Index No. 064872/2014 NORTH SHORE UNIVERSITY HOSPITAL AT FOREST HILLS; RAB PERFORMANCE RECOVERIES, LLC; MIDLAND FUNDING LLC DBA IN NEW YORK AS MIDLAND FUNDING OF DELAWARE LLC; GOOD SAMARITAN HOSPITAL MEDICAL CENTER; JUANA F. CANALES; PEOPLE OF THE STATE OF NEW YORK O/B/O CLERK OF THE SUFFOLK COUNTY DISTRICT COURT; "JOHN DOE # 1-5" AND "JANE DOE #1-5"said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein Defendants. STATE OF NEW YORK) COUNTY OF NASSAU) ss.: CHRISTOPHER PAVLIK, ESQ.., affirms under penalties of perjury the truth of the following: 1. Lam an attorney in the law firm of Fein, Such & Crane, LLP, attorneys of record for the plaintiff in this action and am duly admitted to practice law in New York State. 2. THAT pursuant RPAPL Section 1302, Plaintiff states that they are the true and lawful holder of bond(s)/note(s) and mortgagee of record or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note. Plaintiff has complied with all applicable provisions of the Banking Law, specifically with Banking Law §595-a and 6-1 and 6-m, if applicable, in securing the aforementioned indebtedness and at all times thereafter. 3. THAT the Plaintiff fully complied with RPAPL Section 1304 and a 90 Day notice was sent to the borrower(s) on November 5, 2013. At least 90 days prior to the commencement of this present action, borrower(s) was sent, via registered or certified mail, and first class mail, the requisite notice under RPAPL Section 1304 in 14-point type, containing the statutorily prescribed language and the addresses and phone numbers of at least five US Department of Housing and Urban Development approved housing counseling agencies in the region where the borrower(s) resides to the last known address of the borrower(s). A copy of the notice is attached hereto as Exhibit D. Further, Plaintiff has complied with RPAPL Section 1306 filing requirements in that the 90 day notice was filed with the New York Department of Banking on November 5, 2013. The confirmation # is NYS3433106. 4. THAT the Summons and Complaint in this action were filed in the Office of the Clerk of the County of SUFFOLK on June 25, 2014. 5. THAT this action is brought to foreclose a Mortgage executed by LUZ EDILMA RUIZ to NATIONAL CITY BANK to secure the sum of $95,000.00, which was recorded in the SUFFOLK County Clerk's Office on December 17, 2004, in Liber 20936 of Mortgages, at Page 750, et seq. NATIONAL CITY BANK merged with and into PNC BANK, NATIONAL ASSOCIATION. Certificate of merger has been filed. 6. THAT prior to the commencement of this action, Defendant LUZ EDILMA RUIZ failed to pay the monthly payments due under the terms of the Note and Mortgage, copies of which are attached to the complaint or annexed hereto. Plaintiff duly notified defendant of the default, the first date of default being October 13, 2012, but defendant failed to timely cure resulting in the necessity of the commencement of the present foreclosure action and such default continues to the present. 7. THAT on June 25, 2014, a notice of the pendency of this action, in the form prescribed by statute and containing, as your affirmant believes, correctly, all the particulars required by law to be stated in such notice, was filed in the Office of the Clerk of the County of SUFFOLK, that being the County in which the mortgaged premise is situated; and that since the filing of the said notice, the verified complaint in this action has not been amended by making new parties to this action, or so as to affect other property not described in the original complaint, or so as to extend the claims of the plaintiff as against the mortgaged premises. 8. THAT all necessary defendant(s) have been properly served with copies of the Summons and Complaint as shown by the attached date-stamped copies of affidavits of service heretofore filed in the SUFFOLK County Clerk's Office. See Exhibit F. 9. THAT all of the said defendants are of full age; that none of the defendant(s) are in the armed services of the United States of America. 10. THAT none of the defendants are of unsound mind and that none of the defendants, who have not appeared, are absentees. 11. THAT the time of the defendant(s) to appear, answer or otherwise move, with respect to the complaint has expired and has not been extended by stipulation, order of the Court or otherwise, and that none of the defendant(s) has answered the complaint. None of the Defendants has appeared in the action unless there is attached hereto their limited notice or notices of appearance wherein service of notice of the herein motion was waived. 12. THAT the attached affidavits of service show that the name of the tenant(s) of the subject property, as provided by the tenant(s) to the process server at time of service, are I ULIAN NARVAEZ, LUZ ZULETA, and request is therefore made that this name be substituted in the caption of this action in the place and stead of “JOHN DOE # 1-5" and "JANE DOE #1-5" without prejudice to any of the proceedings heretofore had herein 13. THAT Affirmant was unable to perform a search through the Department of Defense Manpower Data Center, Military Verification Department for JULIAN NARVAEZ, LUZ ZULETA, without said Defendant's social security numbers. However, said party(ies) is/are not the main defendant in this action and said defendant(s) is/are not obligated to pay any deficiencies in this action. 14. THAT counsel for the Plaintiff provided the process server with the Summons and Complaint, printed on white paper, together with the Notice required by RPAPL Section 1303, printed on a different colored paper than that of the summons and complaint as can be seen from the affidavit of service attached hereto. The process server effected service upon the mortgagor(s) with the complaint copy of the notification pursuant to RPAPL Section 1303. An exact photocopy of said Notice is attached hereto, evidencing that the title of the Notice is in bold, 20-point font, the text of the Notice is in bold 14-point font, it was on its own page and it was served with the Summons and Complaint. 15. THAT the mortgagor(s) was served with additional notice of summons in compliance with CPLR 3215(g)(3). See Exhibit F. 16. THAT counsel for the Plaintiff provided the process server with the Summons and Complaint, printed on white paper, containing the Notice required by RPAPL Section 1320 in the required format under the statute. An exact photocopy of said Notice is attached hereto within the Summons and Complaint, evidencing that the notice is in boldface type. Plaintiff avers that they have fully complied with all aspects of RPAPL Section 1320. The process server effected service upon the mortgagor(s) with the Summons and Complaint including the notification required under the RPAPL Section 1320. See attached affidavits of service in Exhibit F and a copy of the summons and complaint in Exhibit G. 17. THAT this application is made for the purpose of obtaining an order, pursuant to RPAPL Section 1321, appointing and directing a referee to compute the amount due to the plaintiff, and to examine and report whether the mortgaged premises can be sold in parcels. 18. THAT this application is being submitted after the settlement conference was held on June 3, 2015 wherein this matter was referred to HON. JUSTICE DENISE F. MOLIA to proceed with the Order of Reference submission. 19, THAT all of the proceedings herein have been regular and in conformity with the tules and practice of the court. 20. THAT no previous application has been made for the relief requested herein. WHEREFORE, affirmant respectfully moves and requests that the annexed Order of Reference be granted. Dated:4 [LB _, 2015 he t Cow” CHRISTOPHER PAVLIK, ESQ. FEIN, SUCH & CRANE, LLP Attorneys for Plaintiff Office and P.O. Address 1400 OLD COUNTRY ROAD STE C103 WESTBURY, NY 11590 Telephone No.516/394-6921 Our File #: WAN1038