Preview
UD) U 0 OUN IK 09 AW INDEX NO. 064863/2014
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 11/27/2015 |
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
eee ee eem ene ee eee nnn een nena nen nnennune nem nnmmmnnnn Index No.: 64863/14
CITIBANK, N.A.,
Plaintiff, AFFIRMATION IN
SUPPORT OF
APPLICATION TO ADD
NECESSARY
DEFENDANTS
-against-
FRANK OLMEDA, JPMORGAN CHASE BANK, NA,
CLERK OF THE SUFFOLK COUNTY DISTRICT
COURT,
and JOHN DOE AND JANE DOE #1 through #7, the last
seven (7) names being fictitious and unknown to the
plaintiff, the person or parties intended being the tenants,
occupants, persons or parties, if any, having or claiming an
interest in or lien upon the mortgaged premises described in
the Complaint,
Defendants.
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Hillary Prada, Esq., an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following to be true under the penalty of perjury:
1 Tam an attorney with the firm of Stiene & Associates, P.C., the attorneys for the
plaintiff in the above entitled action, and as such T am fully familiar with all of the facts in this
action.
2 On October 27, 2001, the Defendant, Frank Olmeda, executed and delivered to
Consumer Home Mortgage, Inc., a Note ("the Note") dated October 27, 2001, whereby Frank
Olmeda promised to pay Consumer Home Mortgage the principal sum of $99,700.00. A copy of
the Note, with proper endorsements, is annexed hereto as Exhibit A.
d to
3 On October 27, 2001, the Defendant, Frank Olmeda, executed and delivere
.00
Consumer Home Mortgage, a Mortgage ("the Mortgage") in the principal sum of $99,700
NY 11950 (“the
with interest, mortgaging the premises known as 36 Gores Drive, Mastic,
fully described
Premises") as collateral security for the Note. The mortgaged premises are more
in Exhibit B annexed hereto.
4 The Mortgage was duly recorded in the Suffolk County Clerk's Office on January
paid. A copy of the
25, 2002, in Liber M00020013, at Page 213, and the recording tax was duly
were tendered and tranferred
Mortgage is annexed hereto as Exhibit C. The Note and Mortgage
2002, in Liber
to the Plaintiff. Assignments of Mortgage were recorded on January 25,
Page 267, in the
M00020013, at Page 214, and on April 14, 2014, in Liber M00022479, at
hereto as
Suffolk County Clerk’s Office. Copies of the Assignments of Mortgage are annexed
Exhibit D.
y, were
5 The Summons and Complaint in this action, along with Notice of Pendenc
duly filed in the Suffolk County City Register’s Office on June 25, 2014. The Summons and
since the date of
Complaint and the Notice of Pendency have not been amended in any manner
hereto as
filing. Copies of the Summons, Complaint and Notice of Pendency are annexed
Exhibit E.
6 Unbeknownst to Plaintiff, on September 1, 2011, Frank Olmeda passed away. A
es
copy of the Death Certificate for Frank Olmeda is annexed hereto as Exhibit F. Surrogat
See Exhibits G and I.
scarches revealed that no Surrogates proceedings have been commenced.
nts to this
As aresult, the heirs and distributes of Frank Olmeda are necessary party defenda
due
action, See NY RPAPL 1311. Plaintiff is unable to ascertain with certainty, despite
and distributees of Frank Olmeda.
diligence, that it bas located and served all of the heirs
Plaintiff respectfully requests leave to amend the Compl
aint, directing service by publication
upon the unknown heirs and distributees of Frank Olmeda.
Property Services,
7 ~ On or about June 26, 2014, Plaintiff advised Integrity Real
LLC, a process serving company, to complete an heirsh
ip investigation for Frank Olmeda.
igation of Heirship, sworn to on
Annexed hereto as Exhibit G is the Affidavit of Invest
0: { Integrity Real Property Services, LLC.
December 23, 2014, by Connor Tracey, an employee
to appoint a Temporary
8 On January 22, 2015, Plaintiff submitted an Application
n was denied in part by order of this
Administrator for the Estate of Frank Olmeda. The motio
ed hereto as Exhibit H. Said Order
court dated January 29, 2015. A copy of the Order is annex
nt a personal representative to the E. state
directed Plaintiff to proceed in Surrogates Court to appoi
pursue a deficiency judgment as
of Frank Olmeda. However, as Plaintiff waives its right to
against the Estate o Frank Olmeda. Plaintiff respectfully submits that Frank Olmeda is no
As such, Plaintiffrespectfully
longer a necessary party to this action. See NY RPAPL § 1311.
2015 Order that instructs Plaintiff to
requests an Order striking the provision o f the January 29,
proceed to Surrogate’s Court.
Real Property Services,
9 On or about April 20, 2015, Plaintiff advised Integrity
LLC, a process serving company, to complete an update
d heirship investigation for Frank
vit of Investigation of Heirship,
Olmeda, Annexed hereto as Exhibit I is the updated Affida
of Integrity Real Property Services,
sworn to on July 8, 2015, by Connor Tracey, an employee
s that Plaintiff has located and.
LLC. The updated Affidavit of Investigation of Heirship reflect
l Olmeda, Justin Olmeda, Latisha
served Odalis Benitez, Frank Olmeda, Jr., Trevor Fogg, Michae
of Frank Olmeda
Olmeda, Simon Fogg, Amy Olmeda, and Eric Olmeda, as heirs
diligence, if the
10. Furthernmore, Plaintiff ultimately cannot determine, with due
or distributes. As such, Plaintiff
Defendant, Frank Olmeda, has any additional unknown heirs
Fogg, Latisha Olmeda,
resp ectfully requests that Odalis Benitez, Frank Olmeda, Jr., Trevor
, Gabriel Rosado s/h/a John Doe #1,
Simon Fogg, Amy Olmeda, as heirs-at-law of Frank Olmeda
of Frank Olmeda, Michael
Justin Olmeda s/h/a John Doe #2, individually and as heir-at-law
Frank Olmeda, Eric Oimeda s/h/a
Olmeda s/h/a John Doe 43, individually and as heir-at-law of
Jones ” sfh/a John Doe #5
John Doe #4, individually and as heir-at-law of Frank Olmeda, “James
ants “JOHN
and “Jane Jones » s/h/a Jane Doe #6, be substituted in place and stead of the Defend
who may have acquired interest
DOE AND JANE DOE #1 through #7”, and that those persons
action.
in the mortgaged premises be added as party defendants to the
summons
11. All of the other defendants have been duly served with copies of the
and complaint. Copies of the affidavits of service are annexed hereto as Exhibit J.
failed to
12. The time to answer has expired for all Defendants. Al! of the Defendants
int, and are therefore in
appear, answer, or make any motion raising an objection to the Compla
as it has been more
default. However, all of the Defendants are entitled to notice of this motion
than a year since their default in answering the Complaint.
all of the heirs and
13. As a result of plaintiff's inability to ascertain that it has located
and in light of the
distributees of Frank Olmeda, despite diligent efforts by the Plaintiff,
military, it is respectfully
possibility that said heirs and distributees may be deceased or in the
ce to all of the proceedings,
requested that the caption of this action be amended without prejudi
the respective heirs-at-law, next of kin,
heretofore had herein, to include as party Defendants
legatees, assignees, lienors, creditors
distributees, executors, administrator: s, trustees, devisees,
or claiming under, by or through said
and successors in interest and generally all persons having
lien or otherwise, any right, title or _
Defendants who may be deceased, by purchase, inheritance,
herein, and that the attached order,
interest in and to the premises described in the complaint
by publication in accordance wi ith the
directing service of the summons, upon the Defendant,
caption in the proposed Supplemental Summo ns, Amend
ed Complaint and Amended Notice of
pleadings are annexed
Pendency, be signed by this Court. Copies of the proposed amended
hereto as Exhibit K.
party to this action in light
14. Furthermore, as Frank Olmeda is no longer a necessary
against his estate, Plaintiff
of Plaintiff's waiver of its right to pursue a deficiency judgment
directing Plaintiff to proceed in
requests that the provision of the January 29, 2015 Order
Surrogates Court be stricken.
nt to its authority under CPLR
15, Affirmant respectfully requests that the Court, pursua
Odalis Benitez, Frank Olmeda, Jr.,
§306-b, extend Plaintiff's time to effectuate service upon
heirs~ at-law of Frank Olmeda,
Trevor Fogg, Latisha Olmeda, Simon Fogg, Amy Olmeda, as
John Doe #2, individually and as heir-at-
Gabriel Rosado s/h/a John Doe #1, Justin Olmeda s/b/a
#3, individually and as heir-at-law of
law of Frank Olmeda, Michael Olmeda s/h/a John Doe
dually and as heir-at-law of Frank Olmeda,
Frank Olmeda, Eric Olmeda s/h/a John Doe #4, indivi
“James Jones » s/h/a John Doe #5 and “Jane Jones” s/b/a Jane Doe
#6, and upon the unknown
is required duc to the time needed to
heirs and distributees of Frank Olmeda. The additional time
time to obtain a-signed order of
prepare a proper due diligence investigation and affidavit, the
to said order.
publication and the length of time required to publish pursuant
16. Plaintiff further requests that a guardian ad litem and military attorney be
be
appointed to appear herein and accept service on behalf of any of the Defendants who may
be
absentees, infants or incompetents, or unknown successors in interest or Defendants who may
in the military service.
17. That no previous application for the relief requested herein has been made to any
other Court or Justice.
WHEREFORE, plaintiff respectfully requests that the annexed order be signed
permitting those heirs-at-law, next-of-kin, distributees, executors, administrators, trustees,
devisees, legates, assignees, licnors, creditors and successors in interest and generally all
otherwise,
persons having or claiming under, by or through Frank Olmeda by purchase lien or
any right, title or interest in and to the real property described in the complaint herein, as
by
aforesaid, to be joined as party defendant; permitting service of the supplemental summons
publication; appointing a guardian ad litem and military attorney for said unknown heirs of Frank
Simon Fogg,
Olmeda; adding Odalis Benitez, Frank Olmeda, Jr., Trevor Fogg, Latisha Olmeda,
Amy Olmeda, as heirs-at-law of Frank Olmeda, Gabriel Rosado s/h/a John Doe #1, Justin
Olmeda s/h/a John Doe #2, individually and as heir-at-law of Frank Olmeda, Michael Olmeda
John Doe
s/b/a John Doe #3, individually and as heit-at-law of Frank Olmeda, Eric Olmeda s/h/a
#4, individually and as heir-at-law of Frank Olmeda, “James Jones” s/h/a John Doe #5 and “Jane
of
Jones” s/h/a Jane Doe #6, as party defendants to the within action and amending the caption
this action accordingly; discontinuing this action as against the Defendants “JOHN DOE AND
JANE DOE #1 through #7”, and amending the caption of this action accordingly; extending
Plaintiff's time to serve the defendants and file proof of service thereof; excising Frank Olmeda
s the
from the action; striking the portion of the Order dated January 29, 2015 that instruct
Plaintiff to proceed in the Surrogate’s Court of Suffolk County.
Dated: Huntington, New York
November 6, 2015
Preview
UD) U 0 OUN IK 09 AW INDEX NO. 064863/2014 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 11/27/2015 | | SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK eee ee eem ene ee eee nnn een nena nen nnennune nem nnmmmnnnn Index No.: 64863/14 CITIBANK, N.A., Plaintiff, AFFIRMATION IN SUPPORT OF APPLICATION TO ADD NECESSARY DEFENDANTS -against- FRANK OLMEDA, JPMORGAN CHASE BANK, NA, CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, and JOHN DOE AND JANE DOE #1 through #7, the last seven (7) names being fictitious and unknown to the plaintiff, the person or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants. eee ene ee ne ene neem en nnmnnmnmnnmn Hillary Prada, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: 1 Tam an attorney with the firm of Stiene & Associates, P.C., the attorneys for the plaintiff in the above entitled action, and as such T am fully familiar with all of the facts in this action. 2 On October 27, 2001, the Defendant, Frank Olmeda, executed and delivered to Consumer Home Mortgage, Inc., a Note ("the Note") dated October 27, 2001, whereby Frank Olmeda promised to pay Consumer Home Mortgage the principal sum of $99,700.00. A copy of the Note, with proper endorsements, is annexed hereto as Exhibit A. d to 3 On October 27, 2001, the Defendant, Frank Olmeda, executed and delivere .00 Consumer Home Mortgage, a Mortgage ("the Mortgage") in the principal sum of $99,700 NY 11950 (“the with interest, mortgaging the premises known as 36 Gores Drive, Mastic, fully described Premises") as collateral security for the Note. The mortgaged premises are more in Exhibit B annexed hereto. 4 The Mortgage was duly recorded in the Suffolk County Clerk's Office on January paid. A copy of the 25, 2002, in Liber M00020013, at Page 213, and the recording tax was duly were tendered and tranferred Mortgage is annexed hereto as Exhibit C. The Note and Mortgage 2002, in Liber to the Plaintiff. Assignments of Mortgage were recorded on January 25, Page 267, in the M00020013, at Page 214, and on April 14, 2014, in Liber M00022479, at hereto as Suffolk County Clerk’s Office. Copies of the Assignments of Mortgage are annexed Exhibit D. y, were 5 The Summons and Complaint in this action, along with Notice of Pendenc duly filed in the Suffolk County City Register’s Office on June 25, 2014. The Summons and since the date of Complaint and the Notice of Pendency have not been amended in any manner hereto as filing. Copies of the Summons, Complaint and Notice of Pendency are annexed Exhibit E. 6 Unbeknownst to Plaintiff, on September 1, 2011, Frank Olmeda passed away. A es copy of the Death Certificate for Frank Olmeda is annexed hereto as Exhibit F. Surrogat See Exhibits G and I. scarches revealed that no Surrogates proceedings have been commenced. nts to this As aresult, the heirs and distributes of Frank Olmeda are necessary party defenda due action, See NY RPAPL 1311. Plaintiff is unable to ascertain with certainty, despite and distributees of Frank Olmeda. diligence, that it bas located and served all of the heirs Plaintiff respectfully requests leave to amend the Compl aint, directing service by publication upon the unknown heirs and distributees of Frank Olmeda. Property Services, 7 ~ On or about June 26, 2014, Plaintiff advised Integrity Real LLC, a process serving company, to complete an heirsh ip investigation for Frank Olmeda. igation of Heirship, sworn to on Annexed hereto as Exhibit G is the Affidavit of Invest 0: { Integrity Real Property Services, LLC. December 23, 2014, by Connor Tracey, an employee to appoint a Temporary 8 On January 22, 2015, Plaintiff submitted an Application n was denied in part by order of this Administrator for the Estate of Frank Olmeda. The motio ed hereto as Exhibit H. Said Order court dated January 29, 2015. A copy of the Order is annex nt a personal representative to the E. state directed Plaintiff to proceed in Surrogates Court to appoi pursue a deficiency judgment as of Frank Olmeda. However, as Plaintiff waives its right to against the Estate o Frank Olmeda. Plaintiff respectfully submits that Frank Olmeda is no As such, Plaintiffrespectfully longer a necessary party to this action. See NY RPAPL § 1311. 2015 Order that instructs Plaintiff to requests an Order striking the provision o f the January 29, proceed to Surrogate’s Court. Real Property Services, 9 On or about April 20, 2015, Plaintiff advised Integrity LLC, a process serving company, to complete an update d heirship investigation for Frank vit of Investigation of Heirship, Olmeda, Annexed hereto as Exhibit I is the updated Affida of Integrity Real Property Services, sworn to on July 8, 2015, by Connor Tracey, an employee s that Plaintiff has located and. LLC. The updated Affidavit of Investigation of Heirship reflect l Olmeda, Justin Olmeda, Latisha served Odalis Benitez, Frank Olmeda, Jr., Trevor Fogg, Michae of Frank Olmeda Olmeda, Simon Fogg, Amy Olmeda, and Eric Olmeda, as heirs diligence, if the 10. Furthernmore, Plaintiff ultimately cannot determine, with due or distributes. As such, Plaintiff Defendant, Frank Olmeda, has any additional unknown heirs Fogg, Latisha Olmeda, resp ectfully requests that Odalis Benitez, Frank Olmeda, Jr., Trevor , Gabriel Rosado s/h/a John Doe #1, Simon Fogg, Amy Olmeda, as heirs-at-law of Frank Olmeda of Frank Olmeda, Michael Justin Olmeda s/h/a John Doe #2, individually and as heir-at-law Frank Olmeda, Eric Oimeda s/h/a Olmeda s/h/a John Doe 43, individually and as heir-at-law of Jones ” sfh/a John Doe #5 John Doe #4, individually and as heir-at-law of Frank Olmeda, “James ants “JOHN and “Jane Jones » s/h/a Jane Doe #6, be substituted in place and stead of the Defend who may have acquired interest DOE AND JANE DOE #1 through #7”, and that those persons action. in the mortgaged premises be added as party defendants to the summons 11. All of the other defendants have been duly served with copies of the and complaint. Copies of the affidavits of service are annexed hereto as Exhibit J. failed to 12. The time to answer has expired for all Defendants. Al! of the Defendants int, and are therefore in appear, answer, or make any motion raising an objection to the Compla as it has been more default. However, all of the Defendants are entitled to notice of this motion than a year since their default in answering the Complaint. all of the heirs and 13. As a result of plaintiff's inability to ascertain that it has located and in light of the distributees of Frank Olmeda, despite diligent efforts by the Plaintiff, military, it is respectfully possibility that said heirs and distributees may be deceased or in the ce to all of the proceedings, requested that the caption of this action be amended without prejudi the respective heirs-at-law, next of kin, heretofore had herein, to include as party Defendants legatees, assignees, lienors, creditors distributees, executors, administrator: s, trustees, devisees, or claiming under, by or through said and successors in interest and generally all persons having lien or otherwise, any right, title or _ Defendants who may be deceased, by purchase, inheritance, herein, and that the attached order, interest in and to the premises described in the complaint by publication in accordance wi ith the directing service of the summons, upon the Defendant, caption in the proposed Supplemental Summo ns, Amend ed Complaint and Amended Notice of pleadings are annexed Pendency, be signed by this Court. Copies of the proposed amended hereto as Exhibit K. party to this action in light 14. Furthermore, as Frank Olmeda is no longer a necessary against his estate, Plaintiff of Plaintiff's waiver of its right to pursue a deficiency judgment directing Plaintiff to proceed in requests that the provision of the January 29, 2015 Order Surrogates Court be stricken. nt to its authority under CPLR 15, Affirmant respectfully requests that the Court, pursua Odalis Benitez, Frank Olmeda, Jr., §306-b, extend Plaintiff's time to effectuate service upon heirs~ at-law of Frank Olmeda, Trevor Fogg, Latisha Olmeda, Simon Fogg, Amy Olmeda, as John Doe #2, individually and as heir-at- Gabriel Rosado s/h/a John Doe #1, Justin Olmeda s/b/a #3, individually and as heir-at-law of law of Frank Olmeda, Michael Olmeda s/h/a John Doe dually and as heir-at-law of Frank Olmeda, Frank Olmeda, Eric Olmeda s/h/a John Doe #4, indivi “James Jones » s/h/a John Doe #5 and “Jane Jones” s/b/a Jane Doe #6, and upon the unknown is required duc to the time needed to heirs and distributees of Frank Olmeda. The additional time time to obtain a-signed order of prepare a proper due diligence investigation and affidavit, the to said order. publication and the length of time required to publish pursuant 16. Plaintiff further requests that a guardian ad litem and military attorney be be appointed to appear herein and accept service on behalf of any of the Defendants who may be absentees, infants or incompetents, or unknown successors in interest or Defendants who may in the military service. 17. That no previous application for the relief requested herein has been made to any other Court or Justice. WHEREFORE, plaintiff respectfully requests that the annexed order be signed permitting those heirs-at-law, next-of-kin, distributees, executors, administrators, trustees, devisees, legates, assignees, licnors, creditors and successors in interest and generally all otherwise, persons having or claiming under, by or through Frank Olmeda by purchase lien or any right, title or interest in and to the real property described in the complaint herein, as by aforesaid, to be joined as party defendant; permitting service of the supplemental summons publication; appointing a guardian ad litem and military attorney for said unknown heirs of Frank Simon Fogg, Olmeda; adding Odalis Benitez, Frank Olmeda, Jr., Trevor Fogg, Latisha Olmeda, Amy Olmeda, as heirs-at-law of Frank Olmeda, Gabriel Rosado s/h/a John Doe #1, Justin Olmeda s/h/a John Doe #2, individually and as heir-at-law of Frank Olmeda, Michael Olmeda John Doe s/b/a John Doe #3, individually and as heit-at-law of Frank Olmeda, Eric Olmeda s/h/a #4, individually and as heir-at-law of Frank Olmeda, “James Jones” s/h/a John Doe #5 and “Jane of Jones” s/h/a Jane Doe #6, as party defendants to the within action and amending the caption this action accordingly; discontinuing this action as against the Defendants “JOHN DOE AND JANE DOE #1 through #7”, and amending the caption of this action accordingly; extending Plaintiff's time to serve the defendants and file proof of service thereof; excising Frank Olmeda s the from the action; striking the portion of the Order dated January 29, 2015 that instruct Plaintiff to proceed in the Surrogate’s Court of Suffolk County. Dated: Huntington, New York November 6, 2015