Preview
FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
Carrington Mortgage Services, LLC, INDEX NO. 801416/2019
AFFIRMATION IN
Plaintiff(s), SUPPORT OF PLAINTIFF'S
MOTION FOR A DEFAULT
v. _JUDGMENT. ORDER OF
REFERENCE AND
Carrie Sparks a/k/a Carrie A. Sparks, and "JOHN DOE", JUDGMENT OF
said name being fictitious, itbeing the intention of Plaintiff FORECLOSURE AND SALE
to designate any and all occupants of premises being
foreclosed and corporniians or if
herein, any parties, entities, MORTGAGED PROPERTY:
any, having or claiming an interest or lien upon the 1211 McKinley Parkway
mortgaged premises, NY 14218
Lackawanna,
COUNTY: Erie
SBL #: Section 142.24 Block 2
Lot 18
Defendant(s).
Scott Ferraro, pursuant to CPLR 2106 and under the penalties of perjury, hereby ahms
as follows:
1. I am an attomey at law and an associate with Shapiro, DiCaro & Barak, LLC, the
attorneys of record for Plaintiff Carrington Mortgage Services, LLC. I am hmiliar with the
fully
facts, court papers, and proceedings of this action based upon a review of the file -dtsined by
my office.
2. True and accurate copies of the following documents are attached hereto:
Document Tab
Certificate of Merit Exhibit A
Note Exhibit B
Mortgage Exhibit C
Assignments Exhibit D
Notice of Default Exhibit E
RPAPL §1304 90-Day Notice Exhibit F
Department of Defense Search results Exhibit G
Surnmam and Complaint Exhibit H
Notice of Pendency Exhibit I
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Affidavits of Service Exhibit J
Affidavit of Service by Mail puranant to CPLR 3215(g)(3)(iii) Exhibit K
Affidavit of Merit and Amount Due Exhibit L
Attorney Fee Afrtrmation Exhibit M
Tax Search and Tax Map Exhibit N
Order Granting Relief from the Automatic Stay Exhibit O
Legalback No. 2 - filed with this motion
contemporaneously
Costs and Disbursements of Plaintiff with Supporting Invoices
Legalback No. 3 - filed with this motion
contemporaneously
Proposed Judgment of Foreclosure and Sale
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 Erie County Clerk's Office on January 31, 2019, in the County
where the mortgaged paperty is located. The action was brought to foreclose a residential
mortgage executed by Carrie A. Sparks, as Mortgagor(s) to Mortgage Electronic Registration
Systems, Inc., as nominee for Devere Mortgage Corporation DBA Hunt Mortgage, as Mortgagee,
to secure the sum of $79,881.00, dated August 13, 2013 and recorded in the Erie County Clerk's
Office on August 13, 2013 at 13648 of Mortgages, page 9574. The Mortgage was transferred to
Casiñgton Mortgage Services, LLC, and said transfer was memorialized an Assignment of
by
Mortgage executed on January 22, 2019 and recorded January 25, 2019 at 13885, page 6477.
4. On January 31, 2019, 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".
5. The summons, complaint, and notice of pendency are in the form prescribed by
statute and contain all of the particulars required by law. The summes complies with the
requirements of RPAPL §1320, contains the required notice in boldface type and is in the format
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required by statute. Copies of the su=.mona, complaint, notice of pendency, and affidavits of
"I"
service are attached hereto as Exhibits "H", and "J".
6, On January 31, 2019, Plaintiff was Holder of the subject note. See Affidavit of
Laura Hovis, attached hereto as Exhibit "L".
7. The Certificate of Merit pursuant to CPLR 3012-b was filed with supporting
documents and is attached hereto as Exhibit "A".
8. Pursuant to CPLR 3408 the court held a mandatory settlement conference in this
action. Plaintiff attended a settlement conference on March 4, 2019 but the defeda.nt
mortgagor(s) failed to appear and the case was released from the settlement conference part.
9, According to the affidavit of service filed in the Erie 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 §1303 notice complies with the requirements of that statute, with the
titlein bold, 20-point type and the text in bold, 14-point type. The RPAPL §1303 notice was
delivered to the mortgagors on itsown 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 other pertinent information 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 the 90-day Pre-Foreclosure notice as required RPAPL
by
"F"
§1306. Copies of these notices and affidavits of service are attached hereto as Exhibit and
Exhibit "J".
10. Plaintiff served def-d•=*s with copies of the summons in compliance with CPLR
3215(g)(3). The affidavit of service mail is attached hereto as Exhibit "K".
by
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11. Tenants reside at the mortgaged property. Therefore, Plaintiff requests that "John
Doe"
be added as named defendants in this action pursuant to RPAPL §1311 and that the caption
Doe" DOE"
be amended to add "John in place of the "JOHN defendants as party defendants to
this action.
12, The following defendant(s) did not answer or appear and their time to answer has
expired: Carrie Sparks a/k/a Carrie A. Sparks and "John Doe". Accordingly, these dehan±n are
in default pursuant to CPLR 3215.
13. No defendant is an infant. No defenant is in the armed services of the United
States of America. Upon information and belief, no defendant is incompetent.
14. A Department of Manpower Data Center search was conducted to determine the
current military status of the Defendant(s), Carrie A. Sparks, prior to submitting this application.
The information generated from the seamh(es) indicated that the aforementioned Defendant(s)
is/are not on active duty in the military service of either the United States or an ally. Copies of
said search(es), together with the Affiant's Affidavit of Military Status for the defendant(s)
herein, is/are attached hereto as Exhibit "G".
"N"
15. Attached hereto as Exhibit is a copy of the tax map and tax search alatad to
the subject premises, showing itto be a residential lot comparable in size to the surmnnding lots.
Plaintiff submits that the mortgaged premises should be sold as one parcel.
16. Plaintiff hereby waives any deficiency judgmcat pursuant to RPAPL §1371.
Plaintiff has not made previous motion for this or like relief.
any
PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE
17. Plaintiff requests that the court grant this judgment on default of defendant(s)
Doe"
Carrie Sparks a/k/a Carrie A. Sparks and "John pursuant to RPAPL §1321, that the
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mortgaged property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed
in accordance with RPAPL §1354.
18, RPAPL §1354(2) requires the referee conducting the sale of the mortgaged
property to pay out of the sale's proceeds all taxes, assessments, and water rates that are liens
upon the property and to redeem the property from any sales for unpaid taxes, assessmen+4 or
water rates that have not become absolute. 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 since transfer tax is not a lien upon the property nor is itan expense
of sale, as that term is used in RPAPL §1351(1). Rather, transfer tax is an expense of recording
the deed.
19, Plaintiff is entitled to a Judgment that includes reimbursement for Plaintiff's
attorney fees for this action in accordance with the terms of the note and mortgage, A detailed
affirmation regarding attorney fees is attached hereto as Exhibit "M",
20. Plaintiff is also entitled to a Judgment 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 has been filed centemporaneously with this motion.
21. On April 10, 2019, Carrie Sparks a/k/a Carrie A. Sparks filed a petition under
Chapter 7 of the Bankruptcy Code. Hon. Michael J. Kaplan issued an Order Granting Relief
from the Automatic Stay on May 15, 2019. A copy of said order is attached hereto as Exhibit
"O".
22. Plaintiff has not made any previous motion for this or like relief.
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23. A pmposed Judgment of Foreclosure and Sale is provided to the Court together
with this motion.
WHEREFORE, Plaintiff requests an order of this Court:
A. Directing the entry of a default judg-ñent against all defendants
B. Determining the amount due to Plaintiff in accordance with RPAPL §1321;
C. Granting a judgment of femlosure and sale pursuant to RPAPL §1351;
D. Appointing a referee to conduct an auction sale pursuant to applicable law;
E. Adding names of tenant(s) residing at mortgaged property as named defendants
pursuant to RPAPL §1311, amending the caption to add "JOHN DOE", and
Doe"
removing "John as a party defendant in this action;
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F. Such additional relief as this court may deem just and proper.
Dated:
Monroe Cdunty, New York
Sc ro, Esq.
-
Associate ,,
SHAPIRO, DICARO & BARAK, LLC
Attorneys for Plaintiff
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
Fax: (585) 247-7380
ATTORNEY'S AFFIRMATION
Scott Ferraro, Esq., an attorney at law licensed to practice in the State of New York, and the
for Plaintiff in this action certifies that, to the best of his/her knowledge,
attorney hereby
information and belief, formed after an inquiry reasonable under the circumstances, the
presentation of this pleading, affidavit (or motion if applicable), and the contmdam contained
herein are not frivolous as defined by 22 NYCRR 130-1.1(c).
Scott r .
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FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE Carrington Mortgage Services, LLC, INDEX NO. 801416/2019 AFFIRMATION IN Plaintiff(s), SUPPORT OF PLAINTIFF'S MOTION FOR A DEFAULT v. _JUDGMENT. ORDER OF REFERENCE AND Carrie Sparks a/k/a Carrie A. Sparks, and "JOHN DOE", JUDGMENT OF said name being fictitious, itbeing the intention of Plaintiff FORECLOSURE AND SALE to designate any and all occupants of premises being foreclosed and corporniians or if herein, any parties, entities, MORTGAGED PROPERTY: any, having or claiming an interest or lien upon the 1211 McKinley Parkway mortgaged premises, NY 14218 Lackawanna, COUNTY: Erie SBL #: Section 142.24 Block 2 Lot 18 Defendant(s). Scott Ferraro, pursuant to CPLR 2106 and under the penalties of perjury, hereby ahms as follows: 1. I am an attomey at law and an associate with Shapiro, DiCaro & Barak, LLC, the attorneys of record for Plaintiff Carrington Mortgage Services, LLC. I am hmiliar with the fully facts, court papers, and proceedings of this action based upon a review of the file -dtsined by my office. 2. True and accurate copies of the following documents are attached hereto: Document Tab Certificate of Merit Exhibit A Note Exhibit B Mortgage Exhibit C Assignments Exhibit D Notice of Default Exhibit E RPAPL §1304 90-Day Notice Exhibit F Department of Defense Search results Exhibit G Surnmam and Complaint Exhibit H Notice of Pendency Exhibit I 18-077597 Affirmation Page Iof 7 1 of 7 FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019 Affidavits of Service Exhibit J Affidavit of Service by Mail puranant to CPLR 3215(g)(3)(iii) Exhibit K Affidavit of Merit and Amount Due Exhibit L Attorney Fee Afrtrmation Exhibit M Tax Search and Tax Map Exhibit N Order Granting Relief from the Automatic Stay Exhibit O Legalback No. 2 - filed with this motion contemporaneously Costs and Disbursements of Plaintiff with Supporting Invoices Legalback No. 3 - filed with this motion contemporaneously Proposed Judgment of Foreclosure and Sale 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 Erie County Clerk's Office on January 31, 2019, in the County where the mortgaged paperty is located. The action was brought to foreclose a residential mortgage executed by Carrie A. Sparks, as Mortgagor(s) to Mortgage Electronic Registration Systems, Inc., as nominee for Devere Mortgage Corporation DBA Hunt Mortgage, as Mortgagee, to secure the sum of $79,881.00, dated August 13, 2013 and recorded in the Erie County Clerk's Office on August 13, 2013 at 13648 of Mortgages, page 9574. The Mortgage was transferred to Casiñgton Mortgage Services, LLC, and said transfer was memorialized an Assignment of by Mortgage executed on January 22, 2019 and recorded January 25, 2019 at 13885, page 6477. 4. On January 31, 2019, 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". 5. The summons, complaint, and notice of pendency are in the form prescribed by statute and contain all of the particulars required by law. The summes complies with the requirements of RPAPL §1320, contains the required notice in boldface type and is in the format 18-077597 Affirmation Page 2 of7 2 of 7 FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019 required by statute. Copies of the su=.mona, complaint, notice of pendency, and affidavits of "I" service are attached hereto as Exhibits "H", and "J". 6, On January 31, 2019, Plaintiff was Holder of the subject note. See Affidavit of Laura Hovis, attached hereto as Exhibit "L". 7. The Certificate of Merit pursuant to CPLR 3012-b was filed with supporting documents and is attached hereto as Exhibit "A". 8. Pursuant to CPLR 3408 the court held a mandatory settlement conference in this action. Plaintiff attended a settlement conference on March 4, 2019 but the defeda.nt mortgagor(s) failed to appear and the case was released from the settlement conference part. 9, According to the affidavit of service filed in the Erie 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 §1303 notice complies with the requirements of that statute, with the titlein bold, 20-point type and the text in bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on itsown 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 other pertinent information 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 the 90-day Pre-Foreclosure notice as required RPAPL by "F" §1306. Copies of these notices and affidavits of service are attached hereto as Exhibit and Exhibit "J". 10. Plaintiff served def-d•=*s with copies of the summons in compliance with CPLR 3215(g)(3). The affidavit of service mail is attached hereto as Exhibit "K". by 18-077597 Af Tirmation Page 3 of7 3 of 7 FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019 11. Tenants reside at the mortgaged property. Therefore, Plaintiff requests that "John Doe" be added as named defendants in this action pursuant to RPAPL §1311 and that the caption Doe" DOE" be amended to add "John in place of the "JOHN defendants as party defendants to this action. 12, The following defendant(s) did not answer or appear and their time to answer has expired: Carrie Sparks a/k/a Carrie A. Sparks and "John Doe". Accordingly, these dehan±n are in default pursuant to CPLR 3215. 13. No defendant is an infant. No defenant is in the armed services of the United States of America. Upon information and belief, no defendant is incompetent. 14. A Department of Manpower Data Center search was conducted to determine the current military status of the Defendant(s), Carrie A. Sparks, prior to submitting this application. The information generated from the seamh(es) indicated that the aforementioned Defendant(s) is/are not on active duty in the military service of either the United States or an ally. Copies of said search(es), together with the Affiant's Affidavit of Military Status for the defendant(s) herein, is/are attached hereto as Exhibit "G". "N" 15. Attached hereto as Exhibit is a copy of the tax map and tax search alatad to the subject premises, showing itto be a residential lot comparable in size to the surmnnding lots. Plaintiff submits that the mortgaged premises should be sold as one parcel. 16. Plaintiff hereby waives any deficiency judgmcat pursuant to RPAPL §1371. Plaintiff has not made previous motion for this or like relief. any PLAINTIFF IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE 17. Plaintiff requests that the court grant this judgment on default of defendant(s) Doe" Carrie Sparks a/k/a Carrie A. Sparks and "John pursuant to RPAPL §1321, that the 18-077597 AfErmation Page 4 of7 4 of 7 FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019 mortgaged property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in accordance with RPAPL §1354. 18, RPAPL §1354(2) requires the referee conducting the sale of the mortgaged property to pay out of the sale's proceeds all taxes, assessments, and water rates that are liens upon the property and to redeem the property from any sales for unpaid taxes, assessmen+4 or water rates that have not become absolute. 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 since transfer tax is not a lien upon the property nor is itan expense of sale, as that term is used in RPAPL §1351(1). Rather, transfer tax is an expense of recording the deed. 19, Plaintiff is entitled to a Judgment that includes reimbursement for Plaintiff's attorney fees for this action in accordance with the terms of the note and mortgage, A detailed affirmation regarding attorney fees is attached hereto as Exhibit "M", 20. Plaintiff is also entitled to a Judgment 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 has been filed centemporaneously with this motion. 21. On April 10, 2019, Carrie Sparks a/k/a Carrie A. Sparks filed a petition under Chapter 7 of the Bankruptcy Code. Hon. Michael J. Kaplan issued an Order Granting Relief from the Automatic Stay on May 15, 2019. A copy of said order is attached hereto as Exhibit "O". 22. Plaintiff has not made any previous motion for this or like relief. 18-077597 Affirmation Page 5 of7 5 of 7 FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019 23. A pmposed Judgment of Foreclosure and Sale is provided to the Court together with this motion. WHEREFORE, Plaintiff requests an order of this Court: A. Directing the entry of a default judg-ñent against all defendants B. Determining the amount due to Plaintiff in accordance with RPAPL §1321; C. Granting a judgment of femlosure and sale pursuant to RPAPL §1351; D. Appointing a referee to conduct an auction sale pursuant to applicable law; E. Adding names of tenant(s) residing at mortgaged property as named defendants pursuant to RPAPL §1311, amending the caption to add "JOHN DOE", and Doe" removing "John as a party defendant in this action; 18-077597 Affirmation Page 6 of7 6 of 7 FILED: ERIE COUNTY CLERK 06/25/2019 01:02 PM INDEX NO. 801416/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/25/2019 F. Such additional relief as this court may deem just and proper. Dated: Monroe Cdunty, New York Sc ro, Esq. - Associate ,, SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 Fax: (585) 247-7380 ATTORNEY'S AFFIRMATION Scott Ferraro, Esq., an attorney at law licensed to practice in the State of New York, and the for Plaintiff in this action certifies that, to the best of his/her knowledge, attorney hereby information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this pleading, affidavit (or motion if applicable), and the contmdam contained herein are not frivolous as defined by 22 NYCRR 130-1.1(c). Scott r . 18-077597 Affirmation Page 7 of7 7 of 7