Preview
FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021
SUPREME COURT OF THE STATE OF NEW YORK INDEX NO.: ____________ /2021
COUNTY OF BRONX
Plaintiff designates BRONX
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County as the place of trial
MICHAEL MAGRO LIVING TRUST and Michael
The basis of venue is:
Magro and Moira Magro, or their Successors in Trust,
Site of Mortgaged Premises
as Trustees,
Plaintiff(s), SUMMONS
-against- MORTGAGE
FORECLOSURE
3168 EAST TREMONT AVENUE LLC, NEW YORK
CITY DEPARTMENT OF FINANCE, "JOHN DOE #1" and
"JOHN DOE #2," the (the last two names being fictitious
and unknown to Plaintiffs, the persons or parties MORTGAGED PREMISES:
intended being the tenants, occupants, persons or 3168 East Tremont Avenue
corporations, if any, having or claiming an interest in or Bronx, New York 10461
lien upon the mortgaged premises.),
Defendant(s).
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To the above-named defendant(s):
You are hereby summoned to answer the complaint in this action and to serve a copy of your
answer, or, if the complaint is not served with this summons, to serve a notice of appearance,
on the Plaintiffs Attorney (s) within 20 days after the service of this summons, exclusive of
the day of service (or within 30 days after the service is complete if this summons is not
personally delivered to you within the State of New York), and in case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded
herein.
NOTICE
YOU ARE IN DANGER OF LOSING YOUR PROPERTY
If you do not respond to this summons and complaint by serving
a copy of the answer on the attorney for the mortgage company
who filed this foreclosure proceeding against you and filing the
answer with the court, a default judgment may be entered and
you can lose your property.
Speak to an attorney or go to the court where your case is
pending for further information on how to answer the summons
and protect your property.
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Sending a payment to your mortgage company will not stop this
foreclosure action.
Dated: Bronx, New York
September 1, 2021
Law Office of VICTOR J. MOLINA
Benjamin Sharav, Esq.
Attorney for Plaintiff
930 Grand Concourse, Ste. 1A
Bronx, NY 10451
Tel.: (718) 401-1600
3168 EAST TREMONT AVENUE LLC
3168 East Tremont Avenue
Bronx, New York 10461
NEW YORK CITY DEPARTMENT OF FINANCE
59 Maiden Lane
New York, New York 10038
"JOHN DOE #1" through "JOHN DOE #12"
3168 East Tremont Avenue
Bronx, New York 10461
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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MICHAEL MAGRO LIVING TRUST and Michael
Magro and Moira Magro, or their Successors in
Trust, as Trustees,
Plaintiff(s),
-against-
3168 EAST TREMONT AVENUE LLC, NEW YORK
CITY DEPARTMENT OF FINANCE, "JOHN DOE #1"
COMPLAINT
and "JOHN DOE #2," the (the last two names being
fictitious and unknown to Plaintiffs, the persons or
parties intended being the tenants, occupants, persons or
corporations, if any, having or claiming an interest in or
lien upon the mortgaged premises.),
Defendant(s).
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PLAINTIFF MICHAEL MAGRO LIVING TRUST, by his attorneys, Law Office of
VICTOR J. MOLINA, complaining of the Defendants, upon information and belief, alleges:
PARTIES
1. Plaintiff MICHAEL MAGRO LIVING TRUST, was and is a New York
statutory trust dated March 2, 2012, formed during the lifetime of Michael Magro, a resident
of Bronx, New York, and said Trust having and address in Bronx, New York.
2. Plaintiff MICHAEL MAGRO is an individual residing in New York and a
Trustee of Plaintiff MICHAEL MAGRO LIVING TRUST.
3. Plaintiff MOIRA MAGRO is an individual residing in New York and a
Trustee of Plaintiff MICHAEL MAGRO LIVING TRUST. Plaintiffs are sometimes referred
to hereinafter as “Lenders.”
4. Defendant 3168 EAST TREMONT AVENUE LLC (hereinafter
sometimes referred to as “3168 LLC” or the “Borrower,”) is a Limited Liability Company
created and licensed in New York and having a place of business at 3168 East Tremont
Avenue, Bronx, New York, 10461.
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5. Defendant New York City Department of Finance ("City Finance") is a
New York City agency and a citizen of the State of New York, with its principal place of
business at 59 Maiden Lane, New York, New York 10038. City Finance is named as a party
defendant herein by virtue of possible unpaid liens.
Jurisdiction and Venue
6. Jurisdiction over this action is proper pursuant to CPLR §301.
7. Venue is proper in this Court pursuant to CPLR §503.
The Mortgage and Loan Transaction
1. On or about January 18, 2013, the property at 3168 E. Tremont Avenue,
Bronx, NY 10461, Bronx Block 5350, Lot 62, Property Type: 1-3 Family with Store/Offices
was sold by Plaintiff MICHAEL MAGRO LIVING TRUST to Defendants pursuant to
mortgage financing. (A true and correct copy of the Deed, duly filed in Bronx County is
attached hereto as Exhibit A.)
2. On or about January 18, 2013, a Mortgage was filed in Bronx County,
naming Defendant 3168 EAST TREMONT AVENUE LLC as Mortgagor/Borrower and
Plaintiff MICHAEL MAGRO LIVING TRUST as Mortgagee/Lender in the amount of
$567,000.00. (A true and correct copy of the Mortgage is attached hereto as Exhibit B.)
3. Borrower 3168 LLC, by YAIRTON GARCIA, Managing Member, signed
and delivered to Plaintiffs, that certain Amended Mortgage Note (the "Amended Note"),
signed July 26, 2019, in the original principal amount of $567,000.00 (the "Loan"). (A true
and correct copy of the Note, with an Allonge for the Purpose of Note Endorsement in
favor of Plaintiff affixed thereto, is attached hereto as Exhibit C.)
4. The indebtedness owed under the Note is secured by Borrower's real
property, and improvements thereon, with a street address of 3168 E. Tremont Avenue,
Bronx, New York, and personal property located on or relating to such real property, and all
appurtenances thereto (collectively, the "Property"), as evidenced by a certain Mortgage,
Assignment of Rents and Security Agreement, dated January 4, 2013 (the “Mortgage”),
signed by Borrower by YAIRTON GARCIA and delivered for the benefit of Lenders.
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5. The Mortgage was duly recorded in the Office of the City Register of the
City of New York, Bronx County, on January 4, 2013, as CRFN Document ID
2013011800220002, and the New York State recording tax was duly paid thereon. A true and
correct copy of the Mortgage is attached hereto as Exhibit B, and the Property is legally
described on Exhibit A attached thereto.
6. The indebtedness owed under the Note is further evidenced by that certain
Assignment of Leases and Rents, dated March 27, 2008 (the "ALR"), signed by Borrower
and delivered for the benefit of Greystone. The ALR was duly recorded in the Office of the
City Register of the City of New York, Bronx County on May 1, 2008 as CRFN Document
ID 2013011800220003. A true and correct copy of the ALR is attached hereto as Exhibit D.
7. The Note, the Mortgage, the ALR, and all other documents further
evidencing, securing or executed in connection with the debt owed under the Note, are
referred to herein collectively as the "Loan Documents."
8. Plaintiffs are the current holder and owner of the Loan Documents.
Default Under the Loan Documents
9. The Loan Documents provide, among other things:
(a.) in the event of a default by the Borrower, the entire unpaid principal,
accrued interest, prepayment premium, and all other amounts payable
under the Loan Documents may be accelerated at Plaintiff's option;
(b.) in the event of a default by the Borrower, Borrower's license to collect
the rents generated by the Property may be revoked;
(c.) in any action to foreclose, Plaintiff shall be entitled to the appointment
of a receiver without notice or regard to value;
(d.) Borrower will pay a late charge on any installment when paid more
than 15 days after the due date thereof;
(e.) Plaintiff shall be entitled to legal expenses, costs and fees; and
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(f.) in the event of a default by the Borrower, interest at the default rate
set forth in the Loan Documents shall be owed by the Borrower.
10. Borrower failed to make certain monthly payments of principal and interest
when and as required under the Loan Documents and is therefore in default.
11. By letter dated February 24, 2021 (the "Default Letter"), Lender notified
Borrower of its breach of the Loan Documents for Borrower's failure to make timely monthly
payments as called for under the Note and other Loan Documents beginning. (A true and
correct copy of the Default Letter sent to Borrower is attached hereto as Exhibit E.)
12. By letter dated June 28, 2021 (the "Acceleration Letter"), Lender notified
Borrower of his continued default under the Loan Documents for his failure to make timely
payment in the amounts as and when called for under the Note and other Loan Documents,
and provided notice to Borrower that the indebtedness owed under the Note had been
accelerated. (A true and correct copy of the Acceleration Letter together with proof of
Certified Mailing is attached hereto as Exhibit F.)
13. Borrower’s principal, Yairton Garcia responded with a telephone call to
counsel but has not made or arranged to make any payments.
Default Under the Loan Documents
14. As of August 26, 2021, the following amounts are due and owing to
Plaintiff under the Loan Documents:
(a.) Principal in the amount of $434,445.26;
(b.) Late fees accrued from May 14, 2020 to August 14, 2021 in the
amount of $2,652.32;
(c.) Default interest accrued from May 14, 2020 through August 14, 2021
at the rate of 6.250 per centum per annum in the amount of
$34,202.17;
(d.) Unpaid real estate/property taxes in the amount of $112,864.63;
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(e.) Any and all fees and costs incurred by Plaintiff, both to date and
hereafter, in connection with the collection of the amounts due and
owing under the Loan Documents or for the protection, preservation
and realization of the Property, including tax and insurance advances,
processing fees, late charges, expenses, administrative fees, attorneys'
fees, and costs incurred in connection with the issuance of the third-
party reports in connection with the Property; and
(f.) Prepayment consideration and any other amounts due and owing
under the Loan Documents;
(g.) Less any funds paid by Borrower but not yet applied to the debt by
Plaintiff.
Right to Possession and Rents
15. Under the Mortgage, upon an event of default, Plaintiff has the right to
institute a proceeding for foreclosure. Thus, Plaintiff is entitled to an Order from the Court
that the Mortgage be foreclosed, that the liens provided therein be declared as first and prior
liens on the Property, and that Plaintiff be granted immediate possession of the Property.
16. No other action has been brought to recover any part of the debt under the
Mortgage, Note, or other Loan Documents.
17. The Defendants herein have or claim to have some interest in, or lien upon,
the Property or some part thereof, which interest or lien, if any, has accrued subsequent to
the lien of the Mortgage, and is subject and subordinate thereto.
18. Plaintiff may not be deemed to have waived, altered, released, or changed
its election to foreclose by reason of any payment made after the date of commencement of
this action of any and all of the defaults identified herein.
19. Plaintiff specifically reserves the right to pursue a temporary injunction,
appointment of receiver, or other relief with respect to its rights under the Loan Documents.
20. Pursuant to N.Y. Real Prop. Acts. Law §1371, and to the extent permitted
by the Loan Documents, Plaintiff will move the Court to enter final judgment against
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Borrower for any residue of the debt under the Note remaining unsatisfied after the
foreclosure sale of the Property is completed.
Tenants’ Interest in the Property
21. "JOHN DOE #1" and "JOHN DOE #2," are unknown possible tenants at
the Property.
22. Plaintiff has not been provided a written copy of Lily's Deli's lease (if it
exists) with respect to "JOHN DOE #1" and "JOHN DOE #2,"s possession and occupancy
of the Property.
23. "JOHN DOE #1" and "JOHN DOE #2,"have, or claim to have, an interest
in, or lien on, the Property or some part thereof, which interest or lien is subject and
subordinate to the Plaintiff's mortgage lien, and which interest Plaintiff seeks to remove by
virtue of obtaining a foreclosure judgment against "JOHN DOE #1" and "JOHN DOE #2,"
in accordance with N.Y. Real Property Actions and Proceeding Law 1311.
WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in favor
of Plaintiff for foreclosure of the Property as follows.
1. Finding that Plaintiff has a first and best lien on the Property;
2. Ordering that Plaintiff has the legal right and is authorized to foreclose on
the Property:
(a.) in one parcel according to law together with the fixtures and articles
of personalty upon the premises;
(b.) subject to zoning restrictions and ordinances adopted by any
municipality or other governmental authority, and violations thereof;
(c.) subject to any state of facts that an accurate survey would show;
(d.) subject to covenants and restrictions of record, if any; and
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(e.) subject to violations, if any, noted by any federal, state, city, town or
village agency having authority over the premises;
3. Finding that such foreclosure will vest in the purchaser thereat free and
clear title to the Property, free of any and all interests that are or might be asserted by the
Defendants to this Complaint;
4. Ordering that Plaintiff has the right to credit bid at such foreclosure sale
any and all amounts due to Plaintiff under the Note;
5. Ordering and directing that the Sheriff of Bronx County, New York, or any
referee appointed in this action, foreclose the Property and deliver title via a Sheriff's Deed
or Referee's Deed, and bill of sale, as appropriate, to the successful bidder at such
foreclosure;
6. Ordering and directing that the proceeds of the sale be applied as follows:
(a.) to payment of the expenses of the sale;
(b.) to the payment of the debt owed to Plaintiff under the Note;
(c.) to the payment of foreclosure costs and other accrued costs in
connection with the foreclosure;
(d.) to the payment, at Plaintiffs option, of any real property taxes that
may be due and unpaid in connection with the Property;
(e.) to the payment, at Plaintiffs option, of all other assessments against
or attributable to the Property; and
(f.) the surplus, if any, to the payment of debts secured by junior lienson
the Property and then, to Borrower, in accordance with further order
of the Court;
7. Ordering that Borrower has no right of redemption or reinstatement with
respect to the Property;
8. Finding that Plaintiff has preserved its right to pursue any deficiency that
may exist under the Note after application of the proceeds of the foreclosure sale pursuant
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to N.Y. Real Prop. Acts. Law §1371 and, to the extent permitted by the Loan Documents,
may move the Court to enter final judgment against Borrower for such deficiency; and
9. Ordering all further relief is just, proper, and equitable.
Dated: Bronx, New York
September 1, 2021
Benjamin Sharav, Esq.
Law Office of VICTOR J. MOLINA
Attorney for Plaintiff
930 Grand Concourse, Ste. 1A
Bronx, NY 10451
Tel.: (718) 401-1600
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VERIFICATION
I, MOIRA MAGRO, Trustee of MICHAEL MAGRO LIVING TRUST,
Plaintiffs in this action, swear and affirm that I have read the SUMMONS and COMPLAINT
and know the contents thereof; that the same are true to my own knowledge except as to
matters not stated upon information and belief and as to those matters, I believe them to be
true. That the amount in suit herein remains unpaid.
Dated. September 1, 2021
Bronx, New York
Subscribed and sworn to before me
on 1st day of September, 2021
Bronx
JAIME RAMIREZ �
Notary Publlc, State of New Vor1<0
1814
Registra tion No. 01R A48
Qualified tn �e Bronx County .--", /\ �.
k<
ion Exp ires Nov emb er 30, - ;,-
Commiss
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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MICHAEL MAGRO LIVING TRUST and Michael INDEX NO. /2021
Magro and Moira Magro, or their Successors in
Trust, as Trustees,
Plaintiff(s),
-against-
3168 EAST TREMONT AVENUE LLC, NEW YORK
CITY DEPARTMENT OF FINANCE, "JOHN DOE #1"
and "JOHN DOE #2," the (the last two names being
fictitious and unknown to Plaintiffs, the persons or
parties SUMMONS and COMPLAINT
intended being the tenants, occupants, persons or
corporations, if any, having or claiming an interest in or
lien upon the mortgaged premises.),
Defendants.
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Part 130 Certification.
I hereby certify that, to the best of my knowledge, information and belief, formed after an
inquiry reasonable under the circumstances, (1) the presentation of the paper or the
contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart.
____________________________
Law Office of VICTOR J. MOLINA
Attorney for Plaintiff
930 Grand Concourse, Ste. 1A
Bronx, NY 10451
Tel.: (718) 401-1600
3168 EAST TREMONT AVENUE LLC NEW YORK CITY DEPARTMENT OF
3168 East Tremont Avenue FINANCE 59 Maiden Lane
Bronx, New York 10461 New York, New York 10038
"JOHN DOE #1" through "JOHN DOE #12"
3168 East Tremont Avenue
Bronx, New York 10461
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Preview
FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO.: ____________ /2021 COUNTY OF BRONX Plaintiff designates BRONX -------------------------------------------------------------------X County as the place of trial MICHAEL MAGRO LIVING TRUST and Michael The basis of venue is: Magro and Moira Magro, or their Successors in Trust, Site of Mortgaged Premises as Trustees, Plaintiff(s), SUMMONS -against- MORTGAGE FORECLOSURE 3168 EAST TREMONT AVENUE LLC, NEW YORK CITY DEPARTMENT OF FINANCE, "JOHN DOE #1" and "JOHN DOE #2," the (the last two names being fictitious and unknown to Plaintiffs, the persons or parties MORTGAGED PREMISES: intended being the tenants, occupants, persons or 3168 East Tremont Avenue corporations, if any, having or claiming an interest in or Bronx, New York 10461 lien upon the mortgaged premises.), Defendant(s). -------------------------------------------------------------------X To the above-named defendant(s): You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs Attorney (s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York), and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. NOTICE YOU ARE IN DANGER OF LOSING YOUR PROPERTY If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, a default judgment may be entered and you can lose your property. Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property. 1 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 Sending a payment to your mortgage company will not stop this foreclosure action. Dated: Bronx, New York September 1, 2021 Law Office of VICTOR J. MOLINA Benjamin Sharav, Esq. Attorney for Plaintiff 930 Grand Concourse, Ste. 1A Bronx, NY 10451 Tel.: (718) 401-1600 3168 EAST TREMONT AVENUE LLC 3168 East Tremont Avenue Bronx, New York 10461 NEW YORK CITY DEPARTMENT OF FINANCE 59 Maiden Lane New York, New York 10038 "JOHN DOE #1" through "JOHN DOE #12" 3168 East Tremont Avenue Bronx, New York 10461 2 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------------------------------------------------X INDEX NO.: _________ /2021 MICHAEL MAGRO LIVING TRUST and Michael Magro and Moira Magro, or their Successors in Trust, as Trustees, Plaintiff(s), -against- 3168 EAST TREMONT AVENUE LLC, NEW YORK CITY DEPARTMENT OF FINANCE, "JOHN DOE #1" COMPLAINT and "JOHN DOE #2," the (the last two names being fictitious and unknown to Plaintiffs, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the mortgaged premises.), Defendant(s). -------------------------------------------------------------------X PLAINTIFF MICHAEL MAGRO LIVING TRUST, by his attorneys, Law Office of VICTOR J. MOLINA, complaining of the Defendants, upon information and belief, alleges: PARTIES 1. Plaintiff MICHAEL MAGRO LIVING TRUST, was and is a New York statutory trust dated March 2, 2012, formed during the lifetime of Michael Magro, a resident of Bronx, New York, and said Trust having and address in Bronx, New York. 2. Plaintiff MICHAEL MAGRO is an individual residing in New York and a Trustee of Plaintiff MICHAEL MAGRO LIVING TRUST. 3. Plaintiff MOIRA MAGRO is an individual residing in New York and a Trustee of Plaintiff MICHAEL MAGRO LIVING TRUST. Plaintiffs are sometimes referred to hereinafter as “Lenders.” 4. Defendant 3168 EAST TREMONT AVENUE LLC (hereinafter sometimes referred to as “3168 LLC” or the “Borrower,”) is a Limited Liability Company created and licensed in New York and having a place of business at 3168 East Tremont Avenue, Bronx, New York, 10461. 3 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 5. Defendant New York City Department of Finance ("City Finance") is a New York City agency and a citizen of the State of New York, with its principal place of business at 59 Maiden Lane, New York, New York 10038. City Finance is named as a party defendant herein by virtue of possible unpaid liens. Jurisdiction and Venue 6. Jurisdiction over this action is proper pursuant to CPLR §301. 7. Venue is proper in this Court pursuant to CPLR §503. The Mortgage and Loan Transaction 1. On or about January 18, 2013, the property at 3168 E. Tremont Avenue, Bronx, NY 10461, Bronx Block 5350, Lot 62, Property Type: 1-3 Family with Store/Offices was sold by Plaintiff MICHAEL MAGRO LIVING TRUST to Defendants pursuant to mortgage financing. (A true and correct copy of the Deed, duly filed in Bronx County is attached hereto as Exhibit A.) 2. On or about January 18, 2013, a Mortgage was filed in Bronx County, naming Defendant 3168 EAST TREMONT AVENUE LLC as Mortgagor/Borrower and Plaintiff MICHAEL MAGRO LIVING TRUST as Mortgagee/Lender in the amount of $567,000.00. (A true and correct copy of the Mortgage is attached hereto as Exhibit B.) 3. Borrower 3168 LLC, by YAIRTON GARCIA, Managing Member, signed and delivered to Plaintiffs, that certain Amended Mortgage Note (the "Amended Note"), signed July 26, 2019, in the original principal amount of $567,000.00 (the "Loan"). (A true and correct copy of the Note, with an Allonge for the Purpose of Note Endorsement in favor of Plaintiff affixed thereto, is attached hereto as Exhibit C.) 4. The indebtedness owed under the Note is secured by Borrower's real property, and improvements thereon, with a street address of 3168 E. Tremont Avenue, Bronx, New York, and personal property located on or relating to such real property, and all appurtenances thereto (collectively, the "Property"), as evidenced by a certain Mortgage, Assignment of Rents and Security Agreement, dated January 4, 2013 (the “Mortgage”), signed by Borrower by YAIRTON GARCIA and delivered for the benefit of Lenders. 4 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 5. The Mortgage was duly recorded in the Office of the City Register of the City of New York, Bronx County, on January 4, 2013, as CRFN Document ID 2013011800220002, and the New York State recording tax was duly paid thereon. A true and correct copy of the Mortgage is attached hereto as Exhibit B, and the Property is legally described on Exhibit A attached thereto. 6. The indebtedness owed under the Note is further evidenced by that certain Assignment of Leases and Rents, dated March 27, 2008 (the "ALR"), signed by Borrower and delivered for the benefit of Greystone. The ALR was duly recorded in the Office of the City Register of the City of New York, Bronx County on May 1, 2008 as CRFN Document ID 2013011800220003. A true and correct copy of the ALR is attached hereto as Exhibit D. 7. The Note, the Mortgage, the ALR, and all other documents further evidencing, securing or executed in connection with the debt owed under the Note, are referred to herein collectively as the "Loan Documents." 8. Plaintiffs are the current holder and owner of the Loan Documents. Default Under the Loan Documents 9. The Loan Documents provide, among other things: (a.) in the event of a default by the Borrower, the entire unpaid principal, accrued interest, prepayment premium, and all other amounts payable under the Loan Documents may be accelerated at Plaintiff's option; (b.) in the event of a default by the Borrower, Borrower's license to collect the rents generated by the Property may be revoked; (c.) in any action to foreclose, Plaintiff shall be entitled to the appointment of a receiver without notice or regard to value; (d.) Borrower will pay a late charge on any installment when paid more than 15 days after the due date thereof; (e.) Plaintiff shall be entitled to legal expenses, costs and fees; and 5 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 (f.) in the event of a default by the Borrower, interest at the default rate set forth in the Loan Documents shall be owed by the Borrower. 10. Borrower failed to make certain monthly payments of principal and interest when and as required under the Loan Documents and is therefore in default. 11. By letter dated February 24, 2021 (the "Default Letter"), Lender notified Borrower of its breach of the Loan Documents for Borrower's failure to make timely monthly payments as called for under the Note and other Loan Documents beginning. (A true and correct copy of the Default Letter sent to Borrower is attached hereto as Exhibit E.) 12. By letter dated June 28, 2021 (the "Acceleration Letter"), Lender notified Borrower of his continued default under the Loan Documents for his failure to make timely payment in the amounts as and when called for under the Note and other Loan Documents, and provided notice to Borrower that the indebtedness owed under the Note had been accelerated. (A true and correct copy of the Acceleration Letter together with proof of Certified Mailing is attached hereto as Exhibit F.) 13. Borrower’s principal, Yairton Garcia responded with a telephone call to counsel but has not made or arranged to make any payments. Default Under the Loan Documents 14. As of August 26, 2021, the following amounts are due and owing to Plaintiff under the Loan Documents: (a.) Principal in the amount of $434,445.26; (b.) Late fees accrued from May 14, 2020 to August 14, 2021 in the amount of $2,652.32; (c.) Default interest accrued from May 14, 2020 through August 14, 2021 at the rate of 6.250 per centum per annum in the amount of $34,202.17; (d.) Unpaid real estate/property taxes in the amount of $112,864.63; 6 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 (e.) Any and all fees and costs incurred by Plaintiff, both to date and hereafter, in connection with the collection of the amounts due and owing under the Loan Documents or for the protection, preservation and realization of the Property, including tax and insurance advances, processing fees, late charges, expenses, administrative fees, attorneys' fees, and costs incurred in connection with the issuance of the third- party reports in connection with the Property; and (f.) Prepayment consideration and any other amounts due and owing under the Loan Documents; (g.) Less any funds paid by Borrower but not yet applied to the debt by Plaintiff. Right to Possession and Rents 15. Under the Mortgage, upon an event of default, Plaintiff has the right to institute a proceeding for foreclosure. Thus, Plaintiff is entitled to an Order from the Court that the Mortgage be foreclosed, that the liens provided therein be declared as first and prior liens on the Property, and that Plaintiff be granted immediate possession of the Property. 16. No other action has been brought to recover any part of the debt under the Mortgage, Note, or other Loan Documents. 17. The Defendants herein have or claim to have some interest in, or lien upon, the Property or some part thereof, which interest or lien, if any, has accrued subsequent to the lien of the Mortgage, and is subject and subordinate thereto. 18. Plaintiff may not be deemed to have waived, altered, released, or changed its election to foreclose by reason of any payment made after the date of commencement of this action of any and all of the defaults identified herein. 19. Plaintiff specifically reserves the right to pursue a temporary injunction, appointment of receiver, or other relief with respect to its rights under the Loan Documents. 20. Pursuant to N.Y. Real Prop. Acts. Law §1371, and to the extent permitted by the Loan Documents, Plaintiff will move the Court to enter final judgment against 7 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 Borrower for any residue of the debt under the Note remaining unsatisfied after the foreclosure sale of the Property is completed. Tenants’ Interest in the Property 21. "JOHN DOE #1" and "JOHN DOE #2," are unknown possible tenants at the Property. 22. Plaintiff has not been provided a written copy of Lily's Deli's lease (if it exists) with respect to "JOHN DOE #1" and "JOHN DOE #2,"s possession and occupancy of the Property. 23. "JOHN DOE #1" and "JOHN DOE #2,"have, or claim to have, an interest in, or lien on, the Property or some part thereof, which interest or lien is subject and subordinate to the Plaintiff's mortgage lien, and which interest Plaintiff seeks to remove by virtue of obtaining a foreclosure judgment against "JOHN DOE #1" and "JOHN DOE #2," in accordance with N.Y. Real Property Actions and Proceeding Law 1311. WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in favor of Plaintiff for foreclosure of the Property as follows. 1. Finding that Plaintiff has a first and best lien on the Property; 2. Ordering that Plaintiff has the legal right and is authorized to foreclose on the Property: (a.) in one parcel according to law together with the fixtures and articles of personalty upon the premises; (b.) subject to zoning restrictions and ordinances adopted by any municipality or other governmental authority, and violations thereof; (c.) subject to any state of facts that an accurate survey would show; (d.) subject to covenants and restrictions of record, if any; and 8 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 (e.) subject to violations, if any, noted by any federal, state, city, town or village agency having authority over the premises; 3. Finding that such foreclosure will vest in the purchaser thereat free and clear title to the Property, free of any and all interests that are or might be asserted by the Defendants to this Complaint; 4. Ordering that Plaintiff has the right to credit bid at such foreclosure sale any and all amounts due to Plaintiff under the Note; 5. Ordering and directing that the Sheriff of Bronx County, New York, or any referee appointed in this action, foreclose the Property and deliver title via a Sheriff's Deed or Referee's Deed, and bill of sale, as appropriate, to the successful bidder at such foreclosure; 6. Ordering and directing that the proceeds of the sale be applied as follows: (a.) to payment of the expenses of the sale; (b.) to the payment of the debt owed to Plaintiff under the Note; (c.) to the payment of foreclosure costs and other accrued costs in connection with the foreclosure; (d.) to the payment, at Plaintiffs option, of any real property taxes that may be due and unpaid in connection with the Property; (e.) to the payment, at Plaintiffs option, of all other assessments against or attributable to the Property; and (f.) the surplus, if any, to the payment of debts secured by junior lienson the Property and then, to Borrower, in accordance with further order of the Court; 7. Ordering that Borrower has no right of redemption or reinstatement with respect to the Property; 8. Finding that Plaintiff has preserved its right to pursue any deficiency that may exist under the Note after application of the proceeds of the foreclosure sale pursuant 9 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 to N.Y. Real Prop. Acts. Law §1371 and, to the extent permitted by the Loan Documents, may move the Court to enter final judgment against Borrower for such deficiency; and 9. Ordering all further relief is just, proper, and equitable. Dated: Bronx, New York September 1, 2021 Benjamin Sharav, Esq. Law Office of VICTOR J. MOLINA Attorney for Plaintiff 930 Grand Concourse, Ste. 1A Bronx, NY 10451 Tel.: (718) 401-1600 10 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 VERIFICATION I, MOIRA MAGRO, Trustee of MICHAEL MAGRO LIVING TRUST, Plaintiffs in this action, swear and affirm that I have read the SUMMONS and COMPLAINT and know the contents thereof; that the same are true to my own knowledge except as to matters not stated upon information and belief and as to those matters, I believe them to be true. That the amount in suit herein remains unpaid. Dated. September 1, 2021 Bronx, New York Subscribed and sworn to before me on 1st day of September, 2021 Bronx JAIME RAMIREZ � Notary Publlc, State of New Vor1<0 1814 Registra tion No. 01R A48 Qualified tn �e Bronx County .--", /\ �. k< ion Exp ires Nov emb er 30, - ;,- Commiss 11 of 12 FILED: BRONX COUNTY CLERK 09/03/2021 03:02 AM INDEX NO. 811980/2021E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------------------------------------------------X MICHAEL MAGRO LIVING TRUST and Michael INDEX NO. /2021 Magro and Moira Magro, or their Successors in Trust, as Trustees, Plaintiff(s), -against- 3168 EAST TREMONT AVENUE LLC, NEW YORK CITY DEPARTMENT OF FINANCE, "JOHN DOE #1" and "JOHN DOE #2," the (the last two names being fictitious and unknown to Plaintiffs, the persons or parties SUMMONS and COMPLAINT intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the mortgaged premises.), Defendants. ------------------------------------------------------------------X Part 130 Certification. I hereby certify that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (1) the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart. ____________________________ Law Office of VICTOR J. MOLINA Attorney for Plaintiff 930 Grand Concourse, Ste. 1A Bronx, NY 10451 Tel.: (718) 401-1600 3168 EAST TREMONT AVENUE LLC NEW YORK CITY DEPARTMENT OF 3168 East Tremont Avenue FINANCE 59 Maiden Lane Bronx, New York 10461 New York, New York 10038 "JOHN DOE #1" through "JOHN DOE #12" 3168 East Tremont Avenue Bronx, New York 10461 12 of 12