Preview
FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
DAVID BARKER,
Plaintiff,
V. AFFIDAVIT
ANTHONY V. GERVERA, Index No.:
AMANDA D. GERVERA, and EF2021-00001543
FARM CREDIT EAST, ACA,
Defendants.
State of New York )
) ss
County of Onondaga )
David Barker, being duly sworn, deposes and says:
1. I am a lifelong farmer, and a resident of Oswego County. I am 59 years old.
I reside at, 80 North Church Street in Lacona. This has been my family's
farm for generations, since the 1850's.
2. Amanda D. Gervera is my daughter and Anthony V. Gervera is my son-inÂ
law. They have four children. They are both in their early 30's.
3. The legal description of our family farm property is in the deed, which
is attached as Exhibit "A".
4. The deed to the property was transferred from me to Anthony V. Gervera
and Amanda D. Gervera on or about August 30, 2018.
5. My former wife, Darlene Barker was a co-owner of the property
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immediately before it was transferred. Darlene is the mother of Amanda.
We also raised four other children together on the farm, ranging in age from
33 to 16. The 16 year old lives with me and her mother. My son lives in
Buffalo, the other two live within 20 miles of here.
6. Prior to the transfer, I got sick from being over-medic ated. The medicine
was for controlling nerves. I felt like a zombie while taking the medication.
That problem resolved when I stopped taking the medication. I also had to
have a knee replacement. I could hardly walk and then my wife decided to
leave me. We had some financial issues because of these problems. My
daughter Amanda and her husband came to me and offered to help out.
They offered to pay off our debt and give me life use of the farm. They
were going to pay the taxes as well.
7. During this time, Darlene and I were also estranged and contemplating a
divorce at the time.
8. I also have significant hearing impairment. All of this left me vulnerable to
influence by family members. I thought they were trying help, to take the
burden off me.
9. The transfer of the farm took place as a result of negotiations between me
and Anthony V. Gervera and Amanda D. Gervera and Darlene Barker.
Other family members were consulted by Amanda, including my son Jason,
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FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543
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my daughter Ashley and my daughter Mindy. The substance of
conversations was that we would receive a payment of $250,000.00, which
would pay off the mortgage and other expenses. I was supposed to have
life use of the farm.
10. I believe that the real estate contract was on a form provided by Anthony V.
Gervera's mother, Lori Gervera. My daughter and Tony filled out the form.
The agreement that I signed had a hand written note in the margin
specifying that I would receive life use of the property. There was also a
stipulation that they could build a house on the farm written on the form. I
did not receive a copy of that document; however, I was later provided with
a copy of an agreement that did not have the provision for life use after this
dispute arose. Attached as exhibit B is a copy of the later document that I
received.
11. At the time the parties agreement was reduced to writing, I had a
relationship of trust with Anthony V. Gervera and Amanda D. Gervera, by
virtue of the familial relationship. Amanda and Tony lived about 10 miles
away. She had lived here till she got married, about two years before. I
never had a problem with Amanda until this erupted. I appreciated their
offer of financial assistance and believed that their offer to have me retain
life use was real.
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FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022
12. At the time the agreement was reduced to writing, I reasonably relied on the
superior knowledge of Anthony V. Gervera and Amanda D. Gervera to do
what was necessary. Anthony was being assisted by a his mother, a realtor.
They also had an attorney, Todd Doldo. My wife got Richard Champney to
be the lawyer.
13. I signed the deed at Champney's office in advance of the closing. I thought
there was going to be a closing. I talked to Champney's secretary about the
life use clause at the time when I signed the deed, in advance of the closing.
I then called Tony, who told me that they will give me something in writing
at closing about the life use when it closed. I don't know what happened
from there, because I was out of the loop. There was no formal closing, i.e.,
we never sat down around a table and I never sat down with my lawyer to
discuss the matter.
14. After the execution of the sale agreement, the written contract was changed
by/or on behalf of Anthony V. Gervera and Amanda D. Gervera by
substituting one or more pages that omitted the handwritten note stipulating
Plaintiffs life use. I don't know how this happened either.
15. Darlene and I were represented by the same attorney, Richard Champney,
Esq.. I did not meet him before I signed the deed and signed what I was
told to sign. I mentioned the life use to his secretary, but never got any
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follow-up information from his office. The deed did not contain any
reservation of life use.
16. On the topic of mutual mistake, or unilateral mistake on the part of me and
fraud on the part of Anthony V. Gervera and Amanda D. Gervera, I can not
tell you at this moment exactly how that happened. I have my suspicions
about how the sales agreement was changed; it could have been Anthony
and/or Amanda and/or Anthony's mother.
17. The completion of the transaction without providing me with a life estate
did not reflect my intention.
18. I have estimated the life estate to be worth $391,837.50, based on my life
expectancy. I am 59 years old.
19. The value of the farm was greatly in excess of $250,000. It is 300 acres. I
had just spent $160,000 on building a barn and $160,000 on a windmill a
few years before. The property also has two houses on it. The crop land
alone was worth $3,000 per acre, which is far more than what they paid.
Depending on the property is marketed, it is worth more than $750,000.00,
and probably much more.
20. At the time the transactions were completed, Anthony V. Gervera and
Amanda D. Gervera had the opportunity to mislead me. I was in contact
with them regularly and trusted them.
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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022
21. At the time the transactions were completed, Anthony V. Gervera and
Amanda D. Gervera exercised undue influence over me by tricking me into
signing a deed that did not provide for life use of the property.
22. After the completion of the real estate transaction, I have continued to live at
the property believing that I have a right to be there for life, but thereafter
discovered that Anthony V. Gervera and Amanda D. Gervera were planning
to sell much of the property.
23. We had conversations about it and they were trying to figure out ways to
make money by selling some of they property. Thereafter, I received a letter
from their attorney who, among other things, proposed to just offer me the
house.
24. In summary, in reliance on the representations of family members, Anthony
V. Gervera and Amanda D. Gervera, I transferred the property to them.
25. Anthony V. Gervera and Amanda D. Gervera were enriched by obtaining the
family farm for a fraction of the market value of the property.
26. The enrichment of Anthony V. Gervera and Amanda D. Gervera was at my
expense.
2 7. I submit that it would be against equity and good conscience to permit
Anthony V. Gervera and Amanda D. Gervera to retain the family farm
without the providing a life estate in favor of me.
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FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022
28. Additionally, after the completion of the real estate transaction, Anthony V.
Gervera and Amanda D. Gervera sold two of my farm tractors for $3,000
and never paid me. They also sold hay. They was supposed to split the hay
money. They only paid a third of for a portion of it and never paid me
anything thereafter. I estimate the value of the hay was $7,500. The brand
new modular home belonging to me was supposed to be kept separate from
the real estate transaction. They apparently used it as collateral for their
loan. My share of the proceeds was supposed to be $16,500.00. This is
according to a tax document that I received after the closing.
D VID BARKER
27TH
SWORN BEFORE ME THIS DAY
OF JANUARY, 20 .
NOTARY PUBLIC
Mich2el J. Longstreet
'itus of thw York
Notarv Puunc
Cuallt d in Ci.cnd3 County
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Preview
FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON DAVID BARKER, Plaintiff, V. AFFIDAVIT ANTHONY V. GERVERA, Index No.: AMANDA D. GERVERA, and EF2021-00001543 FARM CREDIT EAST, ACA, Defendants. State of New York ) ) ss County of Onondaga ) David Barker, being duly sworn, deposes and says: 1. I am a lifelong farmer, and a resident of Oswego County. I am 59 years old. I reside at, 80 North Church Street in Lacona. This has been my family's farm for generations, since the 1850's. 2. Amanda D. Gervera is my daughter and Anthony V. Gervera is my son-in law. They have four children. They are both in their early 30's. 3. The legal description of our family farm property is in the deed, which is attached as Exhibit "A". 4. The deed to the property was transferred from me to Anthony V. Gervera and Amanda D. Gervera on or about August 30, 2018. 5. My former wife, Darlene Barker was a co-owner of the property 1 of 7 FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022 immediately before it was transferred. Darlene is the mother of Amanda. We also raised four other children together on the farm, ranging in age from 33 to 16. The 16 year old lives with me and her mother. My son lives in Buffalo, the other two live within 20 miles of here. 6. Prior to the transfer, I got sick from being over-medic ated. The medicine was for controlling nerves. I felt like a zombie while taking the medication. That problem resolved when I stopped taking the medication. I also had to have a knee replacement. I could hardly walk and then my wife decided to leave me. We had some financial issues because of these problems. My daughter Amanda and her husband came to me and offered to help out. They offered to pay off our debt and give me life use of the farm. They were going to pay the taxes as well. 7. During this time, Darlene and I were also estranged and contemplating a divorce at the time. 8. I also have significant hearing impairment. All of this left me vulnerable to influence by family members. I thought they were trying help, to take the burden off me. 9. The transfer of the farm took place as a result of negotiations between me and Anthony V. Gervera and Amanda D. Gervera and Darlene Barker. Other family members were consulted by Amanda, including my son Jason, 2 of 7 FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022 my daughter Ashley and my daughter Mindy. The substance of conversations was that we would receive a payment of $250,000.00, which would pay off the mortgage and other expenses. I was supposed to have life use of the farm. 10. I believe that the real estate contract was on a form provided by Anthony V. Gervera's mother, Lori Gervera. My daughter and Tony filled out the form. The agreement that I signed had a hand written note in the margin specifying that I would receive life use of the property. There was also a stipulation that they could build a house on the farm written on the form. I did not receive a copy of that document; however, I was later provided with a copy of an agreement that did not have the provision for life use after this dispute arose. Attached as exhibit B is a copy of the later document that I received. 11. At the time the parties agreement was reduced to writing, I had a relationship of trust with Anthony V. Gervera and Amanda D. Gervera, by virtue of the familial relationship. Amanda and Tony lived about 10 miles away. She had lived here till she got married, about two years before. I never had a problem with Amanda until this erupted. I appreciated their offer of financial assistance and believed that their offer to have me retain life use was real. 3 of 7 FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022 12. At the time the agreement was reduced to writing, I reasonably relied on the superior knowledge of Anthony V. Gervera and Amanda D. Gervera to do what was necessary. Anthony was being assisted by a his mother, a realtor. They also had an attorney, Todd Doldo. My wife got Richard Champney to be the lawyer. 13. I signed the deed at Champney's office in advance of the closing. I thought there was going to be a closing. I talked to Champney's secretary about the life use clause at the time when I signed the deed, in advance of the closing. I then called Tony, who told me that they will give me something in writing at closing about the life use when it closed. I don't know what happened from there, because I was out of the loop. There was no formal closing, i.e., we never sat down around a table and I never sat down with my lawyer to discuss the matter. 14. After the execution of the sale agreement, the written contract was changed by/or on behalf of Anthony V. Gervera and Amanda D. Gervera by substituting one or more pages that omitted the handwritten note stipulating Plaintiffs life use. I don't know how this happened either. 15. Darlene and I were represented by the same attorney, Richard Champney, Esq.. I did not meet him before I signed the deed and signed what I was told to sign. I mentioned the life use to his secretary, but never got any 4 of 7 FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022 follow-up information from his office. The deed did not contain any reservation of life use. 16. On the topic of mutual mistake, or unilateral mistake on the part of me and fraud on the part of Anthony V. Gervera and Amanda D. Gervera, I can not tell you at this moment exactly how that happened. I have my suspicions about how the sales agreement was changed; it could have been Anthony and/or Amanda and/or Anthony's mother. 17. The completion of the transaction without providing me with a life estate did not reflect my intention. 18. I have estimated the life estate to be worth $391,837.50, based on my life expectancy. I am 59 years old. 19. The value of the farm was greatly in excess of $250,000. It is 300 acres. I had just spent $160,000 on building a barn and $160,000 on a windmill a few years before. The property also has two houses on it. The crop land alone was worth $3,000 per acre, which is far more than what they paid. Depending on the property is marketed, it is worth more than $750,000.00, and probably much more. 20. At the time the transactions were completed, Anthony V. Gervera and Amanda D. Gervera had the opportunity to mislead me. I was in contact with them regularly and trusted them. 5 of 7 FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022 21. At the time the transactions were completed, Anthony V. Gervera and Amanda D. Gervera exercised undue influence over me by tricking me into signing a deed that did not provide for life use of the property. 22. After the completion of the real estate transaction, I have continued to live at the property believing that I have a right to be there for life, but thereafter discovered that Anthony V. Gervera and Amanda D. Gervera were planning to sell much of the property. 23. We had conversations about it and they were trying to figure out ways to make money by selling some of they property. Thereafter, I received a letter from their attorney who, among other things, proposed to just offer me the house. 24. In summary, in reliance on the representations of family members, Anthony V. Gervera and Amanda D. Gervera, I transferred the property to them. 25. Anthony V. Gervera and Amanda D. Gervera were enriched by obtaining the family farm for a fraction of the market value of the property. 26. The enrichment of Anthony V. Gervera and Amanda D. Gervera was at my expense. 2 7. I submit that it would be against equity and good conscience to permit Anthony V. Gervera and Amanda D. Gervera to retain the family farm without the providing a life estate in favor of me. 6 of 7 FILED: JEFFERSON COUNTY CLERK 01/27/2022 03:56 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/27/2022 28. Additionally, after the completion of the real estate transaction, Anthony V. Gervera and Amanda D. Gervera sold two of my farm tractors for $3,000 and never paid me. They also sold hay. They was supposed to split the hay money. They only paid a third of for a portion of it and never paid me anything thereafter. I estimate the value of the hay was $7,500. The brand new modular home belonging to me was supposed to be kept separate from the real estate transaction. They apparently used it as collateral for their loan. My share of the proceeds was supposed to be $16,500.00. This is according to a tax document that I received after the closing. D VID BARKER 27TH SWORN BEFORE ME THIS DAY OF JANUARY, 20 . NOTARY PUBLIC Mich2el J. Longstreet 'itus of thw York Notarv Puunc Cuallt d in Ci.cnd3 County 7 of 7