Motion-Secondary: Federal National Mortgage Association (''Fannie Mae''), A Corporation Organized And Existing Under The Laws Of The United States Of America v. Kelly R. Sharum, Dakin T. Sharum, Chesapeake Appalachia, Llc, Mortgage Electronic Registration Systems, Inc. As Nominee For Phh Mortgage Corp (Fka Cendant Mortgage Corp.), John Doe

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                                                                                                                                        INDEX     NO.     EF14-496
(FILED: CORTLAND COUNTY CLERK 12/14/2016 02:57 PM
NYSCEF   DOC.    NO.       62                                                                                               RECEIVED    NYSCEF:         12/14/2016



          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF CORTLAND
          penne tenn nnn nnn           nnn nn nen   nnn enemanee,
           FEDERAL NATIONAL MORTGAGE                                                   AFFIRMATION IN RESPONSE
           ASSOCIATION ("FANNIE MAE"),
           CORPORATION ORGANIZED AND
           EXISTING UNDER THE LAWS OF THE
           UNITED STATES OF AMERICA

                                           Plaintiff
           VS
                                                                                   INDEX #: EF 14-496
         KELLY R. SHARUM, DAKIN T. SHARUM,
          MORTGAGE ELECTRONIC REGISTRATION                                             MORTGAGED PREMISES:
          SYSETMS, INC. AS NOMINEE FOR PHH                                             6211 COUNTRY LANE
          MORTGAGE CORP (FKA CENDANT                                                   HOMER, NY 13077
          MORTGAGE CORP.),
                                                                                        SBL #; 35.03 - 01 - 34.000

                                        Defendant(s)
          penne enn             nee ene             n renee nnn nenenemenennnnnnn XK

                    Christopher Virga, pursuant to CPLR 2106, and under penalties of perjury affirms as follows:

                       1        Tam an attorney at law and an associate with the law firm of Gross Polowy, LLC,                         the attorneys of

         record for the Plaintiff in the within mortgage foreclosure action.                       As such, I am fully familiar with the facts and

         circumstances of this case and the proceedings heretofore.

                       2        This      Affirmation     is submitted     in Response             to the     Cross-Motion    brought   by   Defendant

         MORTGAGE               ELECTRONIC               REGISTRATION             SYSETMS,                  INC..     AS    NOMINEE       FOR       PHH

         MORTGAGE CORP (“Defendant”), seeking an order directing the Referee to pay any surplus monies resulting

         from this Foreclosure to the Defendant.

                       3        The Defendant’s Cross-Motion is brought pursuant to RPAPL §1351(3) and 1354(3),

                       4        RPAPL         §1351(3) provides that in a foreclosure action where there is only one subordinate

         mortgage on a property, that mortgagee may petition the Court such that the final judgment of foreclosure and sale

         contain language directing that surplus monies be paid directly to it. See RPAPL §1351(3).                             RPAPL §1354 further

         governs the priority in which the surplus monies are to be paid.                          Specifically, RPAPL §1354 states that surplus

         monies will be paid by the Referee only after he/she has-paid “to the plaintiff, or his attorney, the amount of

         the debt, interest and costs, or so much as the proceeds will pa                                      and further “the officer conducting


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the sale shall pay out of the proceeds all taxes, assessments, and water rates which are liens upon the

property sold, and redeem the property sold from any sales for unpaid taxes, assessments or water rates

which have not apparently become absolute.” See RPAPL $1354.

          5       In this case, the Plaintiff is the holder of a first in priority Mortgage and the Defendant was

named as the holder of a subordinate Mortgage.       A copy of the Plaintiff's Mortgage recorded August 12, 2005

along with Assignments of Mortgage is annexed as Exhibit A. A copy of the Defendant’s Mortgage, recorded on

the same day but as a subsequent instrument number is annexed as Exhibit B, See also, New York Real Property

Law §291.

          6      As referenced in the Defendant’s Cross-Motion, the Plaintiffs Proposed Judgment of Foreclosure

and Sale contains language which substantially complies with the Defendant’s Request. See Exhibit C.

          7,     In light of the foregoing, Plaintiff has no opposition to the Defendant’s Cross-Motion, provided

that any language which is added to the final judgment by the Court does not challenge the Plaintiff's lien priority.

 Dated:   December 9, 2016
          Westbury, New York




 To:

GERALD ROTH, ESQ.
Attorney for MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR PHH
MORTGAGE CORP (FKA CENDANT MORTGAGE CORP.)
ONE OLD COUNTRY ROAD, SUITE 113
CARLE PLACE, NY 11514

 KELLY R. SHARUM
 112 CHOCTAW DRIVE
 LOUISBURG, NC 27549

 DAKIN T, SHARUM
 112 CHOCTAW DRIVE
 LOUISBURG, NC 27549




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