Preview
At an I.A.S. Term Part of the
Supreme Court of the State of New York
held in and for the County of CHAUTAUQUA
at the Courthouse thereof on the
day of , 2018.
Present:
Honorable Stephan W. Cass, J.S.C._
Justice
- - - - - - - - - - - - - - - - - - - - - - - X INDEX NO.
KEYBANK, NATIONAL ASSOCIATION SUCCESSOR BY EK12017001406
MERGER WITH FIRST NIAGARA BANK, N.A.
Plaintiff, DEFAULT JUDGMENT OF
FORECLOSURE AND SALE
-against-
AMY L. MORRISON AS EXECUTRIX OF THE ESTATE OF MORTGAGED PROPER_TY_:
JANET M. WARNER A/K/A JANET MARILYN WARNER, 604 Big Tree Sugar
ALLISON M. FUTCH AS POSSIBLE HEIR AND Grove Road,
DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER Jamestown, NY 14701
A/K/A JANET MARILYN WARNER, MOLLY J. MATHIS AS COUNTY:CHAUTAUQUA
POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF SBL # 436;1;41
JANET M. WARNER A/K/A JANET MARILYN WARNER,
BRUCE W. BARKER AS POSSIBLE HEIR AND
DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER
A/K/A JANET MARILYN WARNER, ELIZABETH A. BARKER
AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE
OF JANET M. WARNER A/K/A JANET MARILYN WARNER,
ROBERT A. LYON AS POSSIBLE HEIR AND DISTRIBUTEE
OF THE ESTATE OF JANET M. WARNER A/K/A JANET
MARILYN WARNER, UNITED STATES OF AMERICA
(WESTERN DISTRICT) , PEOPLE OF THE STATE OF NEW
YORK, MARINE MIDLAND BANK, N.A., CHRYSLER
FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER
CHRYSLER FINANCIAL SERVICES AMERICAS LLC,
SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION,
Defendants.
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UPON the Summons, Complaint, and Notice of Pendency filed in this
action on the 31st day of October, 2017, and the Notice of Pendency
re-filed on, the 28th day of March, 2018, the Notice of Motion dated
November 1, 2018, the affirmation of Stagg, Terenzi, Confusione &
Wabnik, LLP., by Christopher E. Medina, Esq., the affidavit of merit
and amount due by Irena Karovski who is of Banking Officer of Keybank,
National Association successor by merger to First Niagara Bank, N.A.,
duly sworn to on September 1, 2018, together with the exhibits annexed
thereto, all in support of Plaintiffs motion for a Judgment of
Foreclosure and Sale; and
UPON proof that each of the defendants herein has been duly
served with the Summons and Complaint in this action, and United
States of America (Western District) having voluntarily appeared by an
attorney and the remaining defendants having not served any answer to
the Complaint or otherwise appeared, nor had their time to do so
extended; and it appearing that more than the legally required number
of days has elapsed since defendants AMY L. MORRISON AS EXECUTRIX OF
THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ALLISON M.
FUTCH AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M.
WARNER A/K/A JANET MARILYN WARNER, MOLLY J. MATHIS AS POSSIBLE HEIR
AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN
WARNER, BRUCE W. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE
OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ELIZABETH A. BARKER AS
POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A
JANET MARILYN WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND DISTRIBUTEE
OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, PEOPLE OF
THE STATE OF NEW YORK, MARINE MIDLAND BANK, N.A., CHRYSLER FINANCIAL
SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES
AMERICAS LLC, SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION, were so served
and Plaintiff having established to the court's satisfaction that a
judgment against defendants is warranted; and
UPON the affidavit of mailing reflecting compliance with CPLR
3215(g) (3) (iii); and
UPON proof that non-appearing defendants AMY L. MORRISON AS
EXECUTRIX OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER,
ALLISON M. FUTCH AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF
JANET M. WARNER A/K/A. JANET MARILYN WARNER, MOLLY J. MATHIS AS
POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A
JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE
OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ELIZABETH
A. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M.
WARNER A/K/A JANET MARILYN WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND
DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN
WARNER, PEOPLE OF THE STATE OF NEW YORK, MARINE MIDLAND BANK, N.A.,
CHRYSLER FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER
FINANCIAL SERVICES AMERICAS LLC, SOUTHERN CHAUTAUQUA FEDERAL CREDIT
UNION are not absent, in accordance with RPAPL §1321(2); and
A Referee having been appointed to compute the amount due to
Plaintiff upon the bond/note and mortgage set forth in the Complaint
and to examine whether the mortgaged property can be sold in parcels;
and
UPON reading and filing the Report of Joel Seachrist, Esq.,
dated Octber 4, 2018, showing the sum of $63,166.50 due as of
September 30, 2018 and that the mortgaged property may not be sold in
parcels; and
UPON proof of due notice of this motion upon all parties entitled
to receive same, and upon all the prior proceedings and papers filed
herein;
NOW, on motion by Stagg, Terenzi, Confusione & Wabnik, LLP
attorney's for the Plaintiff, it is hereby
ORDERED, ADJUDGED AND DECREED that the motion is granted; and it
is further
ORDERED, ADJUDGED AND DECREED that the Referee's Report be, and
the same is, hereby in all respects ratified and confirmed; and it is
further
ORDERED, ADJUDGED AND DECREED, that the mortgaged property described
in the Complaint and as hereafter described, or such part thereof as
may be sufficient to discharge the mortgage debt, the expenses of the
sale, and the costs of this action as provided by the RPAPL be sold,
within 90 days of the date of this Judgment, in one parcel, at a
public auction at the
by and under the direction of Joel Seachrist,
Esq., 31 East Main Street, Westfield, NY 14787, (716) 326-2700; who is
hereby appointed Referee for that purpose; that said Referee give
public notice of the time and place of sale in accordance with RP APL
§231 in ; 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 (22 NYCRR Part 36), including, but not
limited to §36.2 (c) ("Disqualifications from appointment") and §36.2
(d) ("Limitations on appointments based upon compensation"); and, if
the Referee is disqualified from receiving an appointment pursuant to
the provisions of that Rule, the Referee shall immediately notify the
Appointing Judge; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee is prohibited from
accepting or retaining any funds for him/herself or paying funds to
him/herself without compliance with Part 36 of the Rules of the Chief
Administrative Judge; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee shall conduct the
foreclosure sale only if Plaintiff, its successors and/or assignees,
or its representative is present at the sale or the Referee has
received a written bid and Terms of Sale from Plaintiff, its
successors and/or assigns, or its representative; and it is further
ORDERED, ADJUDGED AND DECREED that if the Referee does not
conduct the sale within 90 days of the date of the judgment, in
accordance with CPLR 2004, the time fixed by RPAPL §1351(1) is
extended for the Referee to conduct the sale as soon as reasonably
practicable; and it is further
ORDERED, ADJUDGED AND DECREED that at the time of sale the
Referee shall accept a written bid from the Plaintiff or the
Plaintiffs attorney, just as though Plaintiff were physically present
to submit said bid; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee shall accept the
highest bid offered by a bidder who shall be identified upon the court
record, and shall require that the successful bidder immediately
execute Terms of Sale for the purchase of the property, and pay to the
Referee, in cash or certified or bank check, ten percent (10%) of the
sum bid, unless the successful bidder is Plaintiff in which case no
deposit against the purchase price shall be required; and it is
further
ORDERED, ADJUDGED AND DECREED that, in the event the first
successful bidder fails to execute the Terms of Sale immediately
following the bidding upon the subject property or fails to
immediately pay the ten percent (10%) deposit as required, the
property shall immediately and on the same day be reoffered at
auction; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee shall then deposit
the down payment and proceeds of sale, as necessary, in
; in his/her own name as Referee, in
accordance with CPLR 2609; and it is further
ORDERED, ADJUDGED AND DECREED that after the property is sold,
the Referee shall execute a deed to the purchaser, in accordance with
RPAPL §1353 and the terms of sale, which shall be deemed a binding
contract; and it is further
ORDERED, ADJUDGED AND DECREED that, in the event a party other
than the Plaintiff becomes the purchaser at the sale, the closing of
title shall be held no later than 30 days after the date of such sale
unless otherwise stipulated by all parties to the sale; and it is
further
ORDERED, ADJUDGED AND DECREED that, if Plaintiff (or its
affiliate, as defined in paragraph (a) of subdivision 1 of section
six-1 of the Banking Law) is the purchaser, such party shall place the
property back on the market for sale or other occupancy: (a) within
180 days of the execution of the deed of sale, or (b) within 90 days
of completion of construction, renovation, or rehabilitation of the
property, provided that such construction, renovation, or
rehabilitation proceeded diligently to completion, whichever comes
first, provided however, that a court of competent jurisdiction may
grant an extension for good cause; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee, on receiving the
proceeds of such sale, shall forthwith pay therefrom, in accordance
with their priority according to law, all taxes, assessments, sewer
rents, or water rates, which are, or may become , liens on the property
at the time of sale, with such interest or penalties which may have
lawfully accrued thereon to the date of payment; and it is further
ORDERED, ADJUDGED AND DECREED, that the Referee then deposit the
balance of said proceeds of sale in her/his own name as Referee in
[ Name of Deposi t ory] , and shall thereafter make the following
payments in accordance with RPAPL §1354, as follows:
FIRST: The Referee's statutory fees for conducting the
sale, in accordance with CPLR 8003(b), not to exceed $500.00
unless the sells for $50,000.00 or more [-OR- in the
property
event a sale was cancelled or postponed, Plaintiff shall
compensate the Referee in the sum of $ for each
adjournment or cancellation, unless the Referee caused the
delay];
SECOND: All taxes, assessments, and water rates that are
liens upon the property and monies necessary to redeem the
property from any sales for unpaid taxes, assessments, or water
rates that have not become absolute, and any other amounts due in
accordance with RPAPL §1354(2). Purchaser shall be responsible
for interest and penalties due on any real property taxes
accruing after the sale. The Referee shall not be responsible for
the payment of penalties or fees pursuant to this appointment.
The Purchaser shall hold the Referee harmless from any such
penalties or fees assessed;
THIRD: The expenses of the sale and the advertising
expenses as shown on the bills presented and certified by said
Referee to be correct, duplicate copies of which shall be annexed
to the report of sale;
FOURTH: The Referee shall then pay to the Plaintiff or its
attorney the following:
Amount Due per Referee's Report: $55,607.16 with interest
at the note rate from September 30, 2018 until the date of entry
of this judgment, together with any advances as provided for in
the note and mortgage which Plaintiff has made for taxes,
insurance, principal, and interest, and any other charges due to
prior mortgages or to maintain the property pending consummation
of this foreclosure sale, not previously included in the
computation, upon presentation of receipts for said expenditures
to the Referee, all together with interest thereon pursuant to
the note and mortgage, and then with interest from the date of
entry of this judgment at the statutory rate until the date the
deed is transferred
Costs and Disbursements: $3,575.23 adjudged to the
Plaintiff for costs and disbursements in this action (ad d i f
appl i cable, as taxed or calculated by the Clerk and inserted
herein), with interest at the statutory judgment rate from the
date of entry of this judgment;
Additional Allowance: $300.00 is hereby awarded to
Plaintiff in addition to costs, with interest at the statutory
judgment rate from the date of entry of this judgraéñt, pursuant
to CPLR Article 83;
Attorney Fees: $5,350.00 is hereby awarded to Plaintiff as
reasonable legal fees herein, with interest at the statutory rate
from the date of entry of this judgment;
FIFTH: Surplus monies arising from the sale shall be paid
into court by the officer conducting the sale within five days
after receipt in accordance with RPAPL §1354(4) and in accordance
with local County rules regarding Surplus Monies; and it is
further
ORDERED, ADJUDGED AND DECREED that if the Plaintiff is the
purchaser of the property, or in the event that the rights of the
purchasers at such sale and the terms of sale under this judgment
shall be assigned to and be acquired by the Plaintiff, and a valid
assignment thereof is filed with said Referee, said Referee shall not
require Plaintiff to pay in cash the entire amount bid at said sale,
but shall execute and deliver to the Plaintiff or its assignee, a deed
or deeds of the property sold upon the payment to said Referee of the
amounts specified in items marked and "Third"
"First", "Second",
above; that the Referee shall allow the Plaintiff to pay the amounts
specified in "Second" and "Third" above when it is the
recording deed;
that the balance of the bid, after deducting the amounts paid by the
Plaintiff, shall be applied to the amount due Plaintiff as specified
in paragraph "Fourth" that Plaintiff shall surplus
above; pay any
after applying the balance of the bid to the Referee, who shall
deposit it in accordance with paragraph "Fifth" and it is
above;
further
ORDERED, ADJUDGED AND DECREED that all expenses of recording the
Referee's deed, including real property transfer tax, which is not a
lien upon the property at the time of sale, shall be paid by the
purchaser, not by the Referee from sale proceeds, and that any
transfer tax shall be paid in accordance with Tax Law §1404; and it is
further
ORDERED, ADJUDGED AND DECREED that if the sale proceeds
distributed in accordance with paragraphs "First,"
"Second, "Third",
and "Fourth" above are insufficient to Plaintiff the Amount Due
pay
per the Referee's Report as set forth in paragraph "Fourth" in
above,
accordance with RPAPL §1371 if permitted by law; and it is further
ORDERED, ADJUDGED AND DECREED that the mortgaged property is to
be sold in one parcel in "as is" physical order and subject
condition,
to any condition that an inspection of the property would disclose;
any facts that an accurate survey of the property would show; any
covenants, restrictions, declarations, reservations, easements, right
of way, and public utility agreements of record, if any; any building
and zoning ordinances of the municipality in which the mortgaged
property is located and possible violations of same; any rights of
tenants or persons in possession of the subject property; prior liens
of record, if any, except those liens addressed in RPAPL §1354; any
equity of redemption of the United States of America to redeem the
property within 120 days from the date of sale; and any rights
pursuant to CPLR 317, 2003, and 5015, or any appeal of the underlying
action or additional litigation brought by any defendant or its
successor or assignee contesting the validity of this foreclosure; and
it is further
ORDERED, ADJUDGED AND DECREED that the purchaser be let into
possession of the property upon production in hand of the Referee's
Deed or upon personal service of the Referee's deed in accordance with
CPLR 308; and it is further
ORDERED, ADJUDGED AND DECREED that the Defendants in this action
and all persons claiming through them and any person obtaining an
interest in the property after the filing of the Notice of Pendency
are barred and foreclosed of all right, claim, lien, title, and
interest in the property after the sale of the mortgaged property; and
it is further
ORDERED, ADJUDGED AND DECREED that within 30 days after
completing the sale and executing the proper conveyance to the
purchaser, - unless the time is extended the court, the officer
by
making the sale shall file with the clerk a report under oath of the
disposition of the proceeds of the sale in accordance with RPAPL
§1355(1) and follow all local County rules regarding handling of
Surplus Monies; and it is further
ORDERED, ADJUDGED AND DECREED that if the purchaser or purchasers
at said sale default(s) upon the bid and/or the terms of sale the
Referee may place the property for resale without prior application to
the Court unless Plaintiff s attorneys shall elect to make such
application; and it is further
ORDERED, ADJUDGED AND DECREED that Plaintiff shall serve a copy
of this Judgment with Notice of Entry upon the owner of the equity of
redemption, any tenants named in this action, and any other parties or
persons entitled to service, including the Referee appointed herein;
and it is further
ORDERED, ADJUDGED AND DECREED that nothing herein shall be deemed
to relieve Plaintiff of any obligation imposed by RP APL § 1307 and RP
APL § 1308 to secure and maintain the property until such time as
ownership of the property has been transferred and the deed duly
recorded; and it is further
ORDERED, ADJUDGED AND DECREED that, when the Referee files a
report of sale, he or she shall concurrently file a Foreclosure
Actions Surplus Monies Form; and it is further
ORDERED, ADJUDGED AND DECREED that to ensure compliance herewith,
Plaintiff shall file a written report with the court within six months
from the date of entry of this judgment stating whether the sale has
occurred and the outcome thereof.
Said property is commonly known as 604 Big Tree Sugar Grove Road,
Jamestown, NY 14701.
The legal description of the mortgaged property referred to
herein is annexed hereto as Schedule A.
DATED:
ENTER:
J.S.C.
FRANKLIN ABSTRACT, LTD.
TitleNumber: FAF-850
Filenumber: KBK-18616
SCHEDULE A
DESCRIPTION OF PREMISES UNDER EXAMINATION
ALL that tract or parcel of land, situate in the Town of Busti,County of Chautauqua and State of New
York and being part of Lot 27, Township 1, Range 12 of the Holland Land Company's Survey and more
particularly bounded and described as follows:
Comr..e..cing inthe center lineof the Big Tree,Sugar Grove Road, at itspoint of intersection with the
center lineof the Lindquist Road;
RUNNING THENCE northerly along the center lineof said Big Tree, Sugar Grove Road, 8 rods;
THENCE easterly along the line parallelwith the said Lindquist Road, 16 rods to a point;
THENCE southerly 8 rods to the center lineof said Lindquist Road;
THENCE Westerly along the center lineof said Lindquist Road, apprer!-+aly 16 rods to the point and
place of beginning.
Premises commonly known as:
604 BigTree Sugar Grove Road, Jamestown, New York
And also by
Section: 436, Block: 1and Lot: 41
IndexNo. EK12017001406
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CHAUTAUQUA
KEYBANK, NATIONAL ASSOCIATION SUCCESSOR BY MERGER WITH FIRST NIAGARA
BANK, N.A.
Plaintiff(s),
-against-
AMY L.MORRISON AS EXECUTRIX OF THE ESTATE OF JANET M. WARNER A/K/A JANET
MARILYN WARNER, ET AL.,
Defendant(s)
PROPOSED JUDGMENT OF FORECLOSURE AND SALE
. -
STAGG, TERENZI, CONFUSIONE & WABNIK, LLP
ATTORNEY(S) forPLAINTIFF
Office
Office & Post Address
401 FRANKLIN AVENUE
SUITE 300
GARDEN CITY, NEW YORK 11530
(516) 812-4500
FACSIMILE NO. (516) 812-4600
To Si-natiire 1.1
for
Attorney(s)
CHRISTOPHE E. MEDINA, ESQ.
Service a copy of the within is hereby admitted
Dated,
for
Attornev(s) _ ............
Please take notice
NOTICs OF ENTRY
Qthat the within
is a (certified)
truecopy of a duly entered in the office of the clerk
of the within
named
courton
NOTICE OF SETTLEMENT
Qthat an order of which
the within be prescated for settlement
is a true copy win to the HON. one of
the judges
of the within at
Court,
Dated,
Yours, etc.
STAGG, TERENZI, CONFUSIONE & WABNIK, LLP
ATTORNEY(S) forPLAINTIFF
Office & Post Office Address
401 FRANKLIN AVENUE
SUITE 300
GARDEN CITY, NEW YORK 11530
(516) 812-4500
FACSIMILE NO. (516) 812-4600
To
for
Attorney(s)
Preview
At an I.A.S. Term Part of the Supreme Court of the State of New York held in and for the County of CHAUTAUQUA at the Courthouse thereof on the day of , 2018. Present: Honorable Stephan W. Cass, J.S.C._ Justice - - - - - - - - - - - - - - - - - - - - - - - X INDEX NO. KEYBANK, NATIONAL ASSOCIATION SUCCESSOR BY EK12017001406 MERGER WITH FIRST NIAGARA BANK, N.A. Plaintiff, DEFAULT JUDGMENT OF FORECLOSURE AND SALE -against- AMY L. MORRISON AS EXECUTRIX OF THE ESTATE OF MORTGAGED PROPER_TY_: JANET M. WARNER A/K/A JANET MARILYN WARNER, 604 Big Tree Sugar ALLISON M. FUTCH AS POSSIBLE HEIR AND Grove Road, DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER Jamestown, NY 14701 A/K/A JANET MARILYN WARNER, MOLLY J. MATHIS AS COUNTY:CHAUTAUQUA POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF SBL # 436;1;41 JANET M. WARNER A/K/A JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ELIZABETH A. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, UNITED STATES OF AMERICA (WESTERN DISTRICT) , PEOPLE OF THE STATE OF NEW YORK, MARINE MIDLAND BANK, N.A., CHRYSLER FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS LLC, SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION, Defendants. - - - - - - - - - - - - - - - - - - - - - - - X UPON the Summons, Complaint, and Notice of Pendency filed in this action on the 31st day of October, 2017, and the Notice of Pendency re-filed on, the 28th day of March, 2018, the Notice of Motion dated November 1, 2018, the affirmation of Stagg, Terenzi, Confusione & Wabnik, LLP., by Christopher E. Medina, Esq., the affidavit of merit and amount due by Irena Karovski who is of Banking Officer of Keybank, National Association successor by merger to First Niagara Bank, N.A., duly sworn to on September 1, 2018, together with the exhibits annexed thereto, all in support of Plaintiffs motion for a Judgment of Foreclosure and Sale; and UPON proof that each of the defendants herein has been duly served with the Summons and Complaint in this action, and United States of America (Western District) having voluntarily appeared by an attorney and the remaining defendants having not served any answer to the Complaint or otherwise appeared, nor had their time to do so extended; and it appearing that more than the legally required number of days has elapsed since defendants AMY L. MORRISON AS EXECUTRIX OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ALLISON M. FUTCH AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, MOLLY J. MATHIS AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ELIZABETH A. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, PEOPLE OF THE STATE OF NEW YORK, MARINE MIDLAND BANK, N.A., CHRYSLER FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS LLC, SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION, were so served and Plaintiff having established to the court's satisfaction that a judgment against defendants is warranted; and UPON the affidavit of mailing reflecting compliance with CPLR 3215(g) (3) (iii); and UPON proof that non-appearing defendants AMY L. MORRISON AS EXECUTRIX OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ALLISON M. FUTCH AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A. JANET MARILYN WARNER, MOLLY J. MATHIS AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, BRUCE W. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ELIZABETH A. BARKER AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ROBERT A. LYON AS POSSIBLE HEIR AND DISTRIBUTEE OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, PEOPLE OF THE STATE OF NEW YORK, MARINE MIDLAND BANK, N.A., CHRYSLER FINANCIAL SERVICES AMERICAS LLC F/K/A DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS LLC, SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION are not absent, in accordance with RPAPL §1321(2); and A Referee having been appointed to compute the amount due to Plaintiff upon the bond/note and mortgage set forth in the Complaint and to examine whether the mortgaged property can be sold in parcels; and UPON reading and filing the Report of Joel Seachrist, Esq., dated Octber 4, 2018, showing the sum of $63,166.50 due as of September 30, 2018 and that the mortgaged property may not be sold in parcels; and UPON proof of due notice of this motion upon all parties entitled to receive same, and upon all the prior proceedings and papers filed herein; NOW, on motion by Stagg, Terenzi, Confusione & Wabnik, LLP attorney's for the Plaintiff, it is hereby ORDERED, ADJUDGED AND DECREED that the motion is granted; and it is further ORDERED, ADJUDGED AND DECREED that the Referee's Report be, and the same is, hereby in all respects ratified and confirmed; and it is further ORDERED, ADJUDGED AND DECREED, that the mortgaged property described in the Complaint and as hereafter described, or such part thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of this action as provided by the RPAPL be sold, within 90 days of the date of this Judgment, in one parcel, at a public auction at the by and under the direction of Joel Seachrist, Esq., 31 East Main Street, Westfield, NY 14787, (716) 326-2700; who is hereby appointed Referee for that purpose; that said Referee give public notice of the time and place of sale in accordance with RP APL §231 in ; 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 (22 NYCRR Part 36), including, but not limited to §36.2 (c) ("Disqualifications from appointment") and §36.2 (d) ("Limitations on appointments based upon compensation"); and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further ORDERED, ADJUDGED AND DECREED that the Referee is prohibited from accepting or retaining any funds for him/herself or paying funds to him/herself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further ORDERED, ADJUDGED AND DECREED that the Referee shall conduct the foreclosure sale only if Plaintiff, its successors and/or assignees, or its representative is present at the sale or the Referee has received a written bid and Terms of Sale from Plaintiff, its successors and/or assigns, or its representative; and it is further ORDERED, ADJUDGED AND DECREED that if the Referee does not conduct the sale within 90 days of the date of the judgment, in accordance with CPLR 2004, the time fixed by RPAPL §1351(1) is extended for the Referee to conduct the sale as soon as reasonably practicable; and it is further ORDERED, ADJUDGED AND DECREED that at the time of sale the Referee shall accept a written bid from the Plaintiff or the Plaintiffs attorney, just as though Plaintiff were physically present to submit said bid; and it is further ORDERED, ADJUDGED AND DECREED that the Referee shall accept the highest bid offered by a bidder who shall be identified upon the court record, and shall require that the successful bidder immediately execute Terms of Sale for the purchase of the property, and pay to the Referee, in cash or certified or bank check, ten percent (10%) of the sum bid, unless the successful bidder is Plaintiff in which case no deposit against the purchase price shall be required; and it is further ORDERED, ADJUDGED AND DECREED that, in the event the first successful bidder fails to execute the Terms of Sale immediately following the bidding upon the subject property or fails to immediately pay the ten percent (10%) deposit as required, the property shall immediately and on the same day be reoffered at auction; and it is further ORDERED, ADJUDGED AND DECREED that the Referee shall then deposit the down payment and proceeds of sale, as necessary, in ; in his/her own name as Referee, in accordance with CPLR 2609; and it is further ORDERED, ADJUDGED AND DECREED that after the property is sold, the Referee shall execute a deed to the purchaser, in accordance with RPAPL §1353 and the terms of sale, which shall be deemed a binding contract; and it is further ORDERED, ADJUDGED AND DECREED that, in the event a party other than the Plaintiff becomes the purchaser at the sale, the closing of title shall be held no later than 30 days after the date of such sale unless otherwise stipulated by all parties to the sale; and it is further ORDERED, ADJUDGED AND DECREED that, if Plaintiff (or its affiliate, as defined in paragraph (a) of subdivision 1 of section six-1 of the Banking Law) is the purchaser, such party shall place the property back on the market for sale or other occupancy: (a) within 180 days of the execution of the deed of sale, or (b) within 90 days of completion of construction, renovation, or rehabilitation of the property, provided that such construction, renovation, or rehabilitation proceeded diligently to completion, whichever comes first, provided however, that a court of competent jurisdiction may grant an extension for good cause; and it is further ORDERED, ADJUDGED AND DECREED that the Referee, on receiving the proceeds of such sale, shall forthwith pay therefrom, in accordance with their priority according to law, all taxes, assessments, sewer rents, or water rates, which are, or may become , liens on the property at the time of sale, with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is further ORDERED, ADJUDGED AND DECREED, that the Referee then deposit the balance of said proceeds of sale in her/his own name as Referee in [ Name of Deposi t ory] , and shall thereafter make the following payments in accordance with RPAPL §1354, as follows: FIRST: The Referee's statutory fees for conducting the sale, in accordance with CPLR 8003(b), not to exceed $500.00 unless the sells for $50,000.00 or more [-OR- in the property event a sale was cancelled or postponed, Plaintiff shall compensate the Referee in the sum of $ for each adjournment or cancellation, unless the Referee caused the delay]; SECOND: All taxes, assessments, and water rates that are liens upon the property and monies necessary to redeem the property from any sales for unpaid taxes, assessments, or water rates that have not become absolute, and any other amounts due in accordance with RPAPL §1354(2). Purchaser shall be responsible for interest and penalties due on any real property taxes accruing after the sale. The Referee shall not be responsible for the payment of penalties or fees pursuant to this appointment. The Purchaser shall hold the Referee harmless from any such penalties or fees assessed; THIRD: The expenses of the sale and the advertising expenses as shown on the bills presented and certified by said Referee to be correct, duplicate copies of which shall be annexed to the report of sale; FOURTH: The Referee shall then pay to the Plaintiff or its attorney the following: Amount Due per Referee's Report: $55,607.16 with interest at the note rate from September 30, 2018 until the date of entry of this judgment, together with any advances as provided for in the note and mortgage which Plaintiff has made for taxes, insurance, principal, and interest, and any other charges due to prior mortgages or to maintain the property pending consummation of this foreclosure sale, not previously included in the computation, upon presentation of receipts for said expenditures to the Referee, all together with interest thereon pursuant to the note and mortgage, and then with interest from the date of entry of this judgment at the statutory rate until the date the deed is transferred Costs and Disbursements: $3,575.23 adjudged to the Plaintiff for costs and disbursements in this action (ad d i f appl i cable, as taxed or calculated by the Clerk and inserted herein), with interest at the statutory judgment rate from the date of entry of this judgment; Additional Allowance: $300.00 is hereby awarded to Plaintiff in addition to costs, with interest at the statutory judgment rate from the date of entry of this judgraéñt, pursuant to CPLR Article 83; Attorney Fees: $5,350.00 is hereby awarded to Plaintiff as reasonable legal fees herein, with interest at the statutory rate from the date of entry of this judgment; FIFTH: Surplus monies arising from the sale shall be paid into court by the officer conducting the sale within five days after receipt in accordance with RPAPL §1354(4) and in accordance with local County rules regarding Surplus Monies; and it is further ORDERED, ADJUDGED AND DECREED that if the Plaintiff is the purchaser of the property, or in the event that the rights of the purchasers at such sale and the terms of sale under this judgment shall be assigned to and be acquired by the Plaintiff, and a valid assignment thereof is filed with said Referee, said Referee shall not require Plaintiff to pay in cash the entire amount bid at said sale, but shall execute and deliver to the Plaintiff or its assignee, a deed or deeds of the property sold upon the payment to said Referee of the amounts specified in items marked and "Third" "First", "Second", above; that the Referee shall allow the Plaintiff to pay the amounts specified in "Second" and "Third" above when it is the recording deed; that the balance of the bid, after deducting the amounts paid by the Plaintiff, shall be applied to the amount due Plaintiff as specified in paragraph "Fourth" that Plaintiff shall surplus above; pay any after applying the balance of the bid to the Referee, who shall deposit it in accordance with paragraph "Fifth" and it is above; further ORDERED, ADJUDGED AND DECREED that all expenses of recording the Referee's deed, including real property transfer tax, which is not a lien upon the property at the time of sale, shall be paid by the purchaser, not by the Referee from sale proceeds, and that any transfer tax shall be paid in accordance with Tax Law §1404; and it is further ORDERED, ADJUDGED AND DECREED that if the sale proceeds distributed in accordance with paragraphs "First," "Second, "Third", and "Fourth" above are insufficient to Plaintiff the Amount Due pay per the Referee's Report as set forth in paragraph "Fourth" in above, accordance with RPAPL §1371 if permitted by law; and it is further ORDERED, ADJUDGED AND DECREED that the mortgaged property is to be sold in one parcel in "as is" physical order and subject condition, to any condition that an inspection of the property would disclose; any facts that an accurate survey of the property would show; any covenants, restrictions, declarations, reservations, easements, right of way, and public utility agreements of record, if any; any building and zoning ordinances of the municipality in which the mortgaged property is located and possible violations of same; any rights of tenants or persons in possession of the subject property; prior liens of record, if any, except those liens addressed in RPAPL §1354; any equity of redemption of the United States of America to redeem the property within 120 days from the date of sale; and any rights pursuant to CPLR 317, 2003, and 5015, or any appeal of the underlying action or additional litigation brought by any defendant or its successor or assignee contesting the validity of this foreclosure; and it is further ORDERED, ADJUDGED AND DECREED that the purchaser be let into possession of the property upon production in hand of the Referee's Deed or upon personal service of the Referee's deed in accordance with CPLR 308; and it is further ORDERED, ADJUDGED AND DECREED that the Defendants in this action and all persons claiming through them and any person obtaining an interest in the property after the filing of the Notice of Pendency are barred and foreclosed of all right, claim, lien, title, and interest in the property after the sale of the mortgaged property; and it is further ORDERED, ADJUDGED AND DECREED that within 30 days after completing the sale and executing the proper conveyance to the purchaser, - unless the time is extended the court, the officer by making the sale shall file with the clerk a report under oath of the disposition of the proceeds of the sale in accordance with RPAPL §1355(1) and follow all local County rules regarding handling of Surplus Monies; and it is further ORDERED, ADJUDGED AND DECREED that if the purchaser or purchasers at said sale default(s) upon the bid and/or the terms of sale the Referee may place the property for resale without prior application to the Court unless Plaintiff s attorneys shall elect to make such application; and it is further ORDERED, ADJUDGED AND DECREED that Plaintiff shall serve a copy of this Judgment with Notice of Entry upon the owner of the equity of redemption, any tenants named in this action, and any other parties or persons entitled to service, including the Referee appointed herein; and it is further ORDERED, ADJUDGED AND DECREED that nothing herein shall be deemed to relieve Plaintiff of any obligation imposed by RP APL § 1307 and RP APL § 1308 to secure and maintain the property until such time as ownership of the property has been transferred and the deed duly recorded; and it is further ORDERED, ADJUDGED AND DECREED that, when the Referee files a report of sale, he or she shall concurrently file a Foreclosure Actions Surplus Monies Form; and it is further ORDERED, ADJUDGED AND DECREED that to ensure compliance herewith, Plaintiff shall file a written report with the court within six months from the date of entry of this judgment stating whether the sale has occurred and the outcome thereof. Said property is commonly known as 604 Big Tree Sugar Grove Road, Jamestown, NY 14701. The legal description of the mortgaged property referred to herein is annexed hereto as Schedule A. DATED: ENTER: J.S.C. FRANKLIN ABSTRACT, LTD. TitleNumber: FAF-850 Filenumber: KBK-18616 SCHEDULE A DESCRIPTION OF PREMISES UNDER EXAMINATION ALL that tract or parcel of land, situate in the Town of Busti,County of Chautauqua and State of New York and being part of Lot 27, Township 1, Range 12 of the Holland Land Company's Survey and more particularly bounded and described as follows: Comr..e..cing inthe center lineof the Big Tree,Sugar Grove Road, at itspoint of intersection with the center lineof the Lindquist Road; RUNNING THENCE northerly along the center lineof said Big Tree, Sugar Grove Road, 8 rods; THENCE easterly along the line parallelwith the said Lindquist Road, 16 rods to a point; THENCE southerly 8 rods to the center lineof said Lindquist Road; THENCE Westerly along the center lineof said Lindquist Road, apprer!-+aly 16 rods to the point and place of beginning. Premises commonly known as: 604 BigTree Sugar Grove Road, Jamestown, New York And also by Section: 436, Block: 1and Lot: 41 IndexNo. EK12017001406 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CHAUTAUQUA KEYBANK, NATIONAL ASSOCIATION SUCCESSOR BY MERGER WITH FIRST NIAGARA BANK, N.A. Plaintiff(s), -against- AMY L.MORRISON AS EXECUTRIX OF THE ESTATE OF JANET M. WARNER A/K/A JANET MARILYN WARNER, ET AL., Defendant(s) PROPOSED JUDGMENT OF FORECLOSURE AND SALE . - STAGG, TERENZI, CONFUSIONE & WABNIK, LLP ATTORNEY(S) forPLAINTIFF Office Office & Post Address 401 FRANKLIN AVENUE SUITE 300 GARDEN CITY, NEW YORK 11530 (516) 812-4500 FACSIMILE NO. (516) 812-4600 To Si-natiire 1.1 for Attorney(s) CHRISTOPHE E. MEDINA, ESQ. Service a copy of the within is hereby admitted Dated, for Attornev(s) _ ............ Please take notice NOTICs OF ENTRY Qthat the within is a (certified) truecopy of a duly entered in the office of the clerk of the within named courton NOTICE OF SETTLEMENT Qthat an order of which the within be prescated for settlement is a true copy win to the HON. one of the judges of the within at Court, Dated, Yours, etc. STAGG, TERENZI, CONFUSIONE & WABNIK, LLP ATTORNEY(S) forPLAINTIFF Office & Post Office Address 401 FRANKLIN AVENUE SUITE 300 GARDEN CITY, NEW YORK 11530 (516) 812-4500 FACSIMILE NO. (516) 812-4600 To for Attorney(s)