SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS-Part 69/FRP 1 â â â â â â â â â â â â â â â â â â â -X : Index No. 512135/2016 NATIONSTAR MORTGAGE, LLC, : : Hon. Noach Dear, J.S.C. Plaintiff, : : -against- : FORECLOSURE-RESIDENTIAL : RAFI HAYON; NEW YORK CITY PARKING : Mortgaged Premises: VIOLATIONS BUREAU; NEW YORK CITY : 215 Bay 23rd Street TRANSIT ADJUDICATION BUREAU; BOARD OF : Unit 2A MANAGERS OF 215 BAY 23RD STREET : Brooklyn, NY 11214 CONDOMINIUM; MORTGAGE ELECTRONIC : REGISTRATION SYSTEMS INC. AS NOMINEE : Block: 6441 FOR MCS MORTGAGE BANKERS, INC., ITS : Lot: 1103 SUCCESSORS AND ASSIGNS; MORTGAGE : ELECTRONIC REGISTRATION SYSTEMS INC., : ATTORNEY AFFIRMATION AS NOMINEE FOR FAIRMOUNT FUNDING LTD., : to IMPROPER SUBMISSION ITS SUCCESSORS AND ASSIGNS; NEW YORK : from the FISHKILL OFFICE CITY ENVIRONMENTAL CONTROL BOARD; : DOES" DOES," "JOHN AND "JANE SAID NAMES BEING : FICTITIOUS, PARTIES INTENDED BEING POSSIBLE TENANTS : This is a NYSCEF e-filed case. OR OCCUPANTS OF PREMISES AND CORPORATIONS, OTHER : ENTITIES OR PERSONS WHO HAVE, CLAIM, OR MAY CLAIM, : A LIEN AGAINST OR OTHER INTEREST IN, THE PREMISES. : ------------------------------------------------------------X Defendant(s). : MICHAEL R. CURRAN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under penalties of perjury: (" 1. I am the attorney for defendant RAFI HAYON defendant Hayon"). I make the statements herein upon personal knowledge, review of public records and statements of the client. 2. I submit this Affirmation in Objection to an attempt to improperly sidestep the continued litigation in this matter. This is a residential mortgage foreclosure action. The Objection 3. Annexed hereto as Exhibit "A" is the entirely improper attempt by Mr. Ernest Yazzetti, Esq. ofthe Fishkill Office of the firm of Rosicki, Rosicki Ec Associates, P.C. to get Referee Philip L. Kamaras, Esq. to 1 of 15
sign a Referee's Oath and Referee's Report of Amount Due, while two motions are pending before the Court: (a) one returnable 02/15/2018 and (b) one returnable 03/01/2018. The first motion, in fact, is due to a duplicate Notice of Entry that the selfsame Mr. Yazzetti served October 31, 2017. 4. There were two Orders signed on August 8, 2017, both of which were filed on October 13, 2017. They were an Order of Reference on a motion filed September 15, 2016 and a Decision & Order denying a motion to dismiss filed March 18, 2017. Mr. Yazzetti split the Orders and served the Order of Reference on October 31, 2017, while the main office-in Plainview, New York-served both Orders on November 8, 2017. This splitting of the Notices of Entry forced the undersigned to respond twice. 5. Defendant vigorously objects to the current documents, which, at last glance today, were NOT filed on the NYSCEF system, but had been merely quietly mailed to the undersigned. 6. The filing of a motion to reargue stops the clock on an appealable order as of right: in this instance, the product of a motion on notice. See Sholes v. Meagher, 100 N.Y.2d 333, 763 N.Y.S.2d 522 (2003). "With limited exceptions, an appeal may be taken to the Appellate Division as of right from an order deciding a motion made upon notice when--among other possibilities--the order affects a substantial right." 100 N.Y.2d at 335. The same theme applies to a motion to reargue, which must be brought within the time to take an appeal. CPLR 2221(d)(3). Mr. Yazzetti's splitting of service nearly caused a conundrum. Instead, however, both Notices of Entry were addressed by defendant. 7. In the present instance, he has done it again. He served-without filing-an attempt to get the referee to issue an order. The problem is that the Referee was served with the first motion-as he appears on the list of persons allegedly served on the 10/31/2016 Notice of Entry. 8. Defendant objects to the premature attempt to truncate procedure and respectfully requests that the service of Exhibit "A" be deemed by the Court n null vo nd çf no legal effect. Dated: December 15, 2017 ael R. Curran 2 of 15
3 of 15
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------x --- NATIONSTAR MORTGAGE, LLC Index No.: 512135/2016 Plaintiff, -against- NOTICE OF COMPUTATION RAFI HAYON; ; et. al. Premises Address: 215 BAY 23RD STREET APT #2A BROOKLYN, NY 11214 Defendant(s), ------------------------------------------------------------------------x â â PLEASE TAKE NOTICE, that the matters herein referred to Philip L. Kamaras, Esq., Appointed as Referee by Order filed on October 13, 2017, have been noticed for submission to the Referee for his/her review at the office of said Referee located at 26 Court Street, Suite 1302, Brooklyn, NY 11242. Should any party have any specific objections with respect to the proposed computations herein, those objections must be submitted, in writing, to the referee at the above address and on Plaintiff's counsel. PLEASE TAKE FURTHER NOTICE, that a copy of any such objections must be served no later than December 15, 2017. Said objections must be with regard only to the proposed computations and it shall be left to the discretion of the referee whether such objections warrant a hearing. In the event that objections are timely submitted, the referee shall advise all parties if a hearing is required. In the event the referee directs a hearing, the referee shall then schedule the date, time and place of such hearing. If objections are timely submitted, but the referee determines that a hearing is unnecessary, then the computations by the referee shall be done on submission only. In the absence of any timely objections pursuant to the terms herein, the computations shall be made by the referee on submission only. Dated: ' /3-/5)j y Ernest dfti, Esq. ROSICKI, ROSICKI 4 ASSOCIATES, P.C. Attorneys for Plaintiff 2 Summit Court, Suite 301 Fishkill, NY 12524 845.897.1600 4 of 15
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------- -- X NATIONSTAR MORTGAGE, LLC Index No.: 512135/2016 Plaintiff, -against- AFFIDAVIT OF MAILING RAFI HAYON; et. al. Defendant(s), ---- --------- ---- - -------X -"-- â â â â â â - â - â â â - â â â STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) Corina Ortiz, being duly sworn, deposes and says: New York. I am not a party to this action, am over 18 years of age and reside in Dutchess County, On pûi served a Notice of Computation and Proposed referee's Oath and pg g Report to defen ants who lave appeared in this action, by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: MICHAEL R. CURRAN, ESQ ATTORNEY FOR DEFENDANT PHILIP L. KAMARAS, ESQ RAFI HAYON AS REFEREE 98-120 QUEENS BLVD., SUITE 1-C 26 COURT STREET, SUITE 1302, REGO PARK, NY 11374-4414 BROOKLYN, NY 11242 Corina Ortiz Sworn to befo e me on this Sth day of,., 20Û ShutowiPAL Notary public I SHANEKA R PAULIN Notary Public - State of New York NO.01PA6197102 Qualified in Dutchess Cou commission expires My 5 of 15
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X NATIONSTAR MORTGAGE, LLC Index No.: 512135/2016 Plaintiff, -against- REFEREE'S OATH RAFI HAYON; NEW YORK CITY PARKING Premises Address: VIOLATIONS BUREAU; NEW YORK CITY TRANSIT 215 BAY 23RD STREET APT #2A ADJUDICATION BUREAU; BOARD OF MANAGERS BROOKLYN, NY 11214 OF 215 BAY 23RD STREET CONDOMINIUM; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. AS NOMINEE FOR MCS MORTGAGE BANKERS, INC., ITS SUCCESSORS AND ASSIGNS.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., AS NOMINEE FOR FAIRMONT FUNDING LTD., ITS SUCCESSORS AND ASSIGNS; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD ------------------------------------------------------------------------X Defendant(s), The undersigned Referee duly appointed by an Order of this Court, entered and filed in the Office of the Clerk, by which said Order it was referred to the undersigned to compute the amount due the Plaintiff herein on the Note and Mortgage set forth in the Complaint, and to examine and report whether the mortgaged premises can be sold in parcels, and to make report thereon with all convenient speed, being duly sworn, deposes and says: THAT I will faithfully and fairly hear and determine the questions herein referred to me as the case requires, and that I will make a just and true report thereon to the best of my understanding. Philip L. Kamaras, Esq. Referee Sworn to before me this day of, 2017 NOTARY PUBLIC 6 of 15
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------- ---.. -- --------X â â - â - â â NATIONSTAR MORTGAGE, LLC Index No.: 512135/2016 Plaintiff, -against- REFEREE'S REPORT OF AMOUNT DUE RAFI HAYON; et. al. Premises Address: 215 BAY 23RD STREET APT #2A BROOKLYN, NY 11214 Defendant(s), ------------------------------------------------------------------------x â TO THE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: Pursuant to an Order of this Court, entered and filed in the Office of the Clerk by which said Order it was referred to the undersigned to compute the amount due to Plaintiff on the Bond and Mortgage set forth in the Complaint, and to report whether the mortgaged premises can be sold in parcels; The undersigned, the Referee named in said Order, does hereby report as follows: 1. That I was first duly sworn, faithfully and fairly to hear and determine the questions herein referred to me as the case requires. 2. That I have computed the amount due to Plaintiff herein for principal and advances and interest under and by virtue of the Note and Mortgage set forth in the Complaint herein. That I find and accordingly report that there is now due, the sums as evidenced by the Affidavit of Merit provided by Plaintiff attested to the amount due plaintiff, attached hereto. 3. That I have examined the circumstances and advisability of selling the mortgaged premises in parcels; that because there is a building thereon and the manner in which it is situate upon the plot and the size of the plot, the same cannot be divided into parcels and must be sold as one parcel; and because the mortgage states that in the event of foreclosure, the premises shall be 7 of 15
sold in one parcel. 4. Attached hereto is an abstract of the documentary evidence introduced before me. Also attached is the Affidavit of Merit of Plaintiff as to the facts set forth in the Complaint; and the monies due and owing to Plaintiff. DATED: Philip L. Kamaras, Esq. Referee 8 of 15
DOCUMENTARY EVIDENCE NATIONSTAR MORTGAGE, LLC v. RAFI HAYON, et al. 1. Note(s) received in evidence containing all the provisions, recitals and other matters alleged in the complaint. 2. Mortgage(s) received in evidence alleged in the complaint. containing all the provisions, recitals and other matters 3. Assignment(s) of mortgage. Philip L. Kamaras, Esq. Referee 9 of 15
SUPREME COURT OF THE.,ATEATE 1ATE ÓF NEW YORK COUNTY OF Kings -x NATIONSTAR MORTGAGE, LLC, Index No. 512135/2016 Plaintiff, -vs- AFFIDAVIT Defendant(s). RAFI HAYON, et al "X STATE OF _ Texas ) COUNTY OF Denton ) ss: ' Frank Rosas, being duly sworn, deposes and says: 1. I am employed as a v i e. m.m.m by Nationstar Mortgage LLC cc ("Nationstar"), the plaintiff of,the mortgage loan that is the subject of this action (the "Mortgage Loan" Loan"). I have personal knowledge of the facts contained in this Affidavit by virtue of my position at Nationstar, my familiarity with Nationstar's processes and based upon my review and analysis of the relevant business records and other documents of Nationstar referenced and attached herein. While many of Nationstar's processes are automated, the information manually entered by Nationstar employees relating to loans on those systems is based upon personal knowledge of the information and entered into the system at or near the time the knowledge was acquired. These computerized records are created and maintained in the regular course of its business as a loan servicer and Nationstar relies on the records in the ordinary course to conduct its business as a loan servicer. These systems also include records of BANK OF AMERICA the prior servicer of the mortgage loan. I am duly authorized to execute this Affidavit on behalf of Nationstar in support of Nationstar's application for the appomtment appointment of a referee, referee. 10 of 15
2. Nationstar, received the original Note on 06/16/2013 and said note is endorsed in blank. Atrue copy of the original Note in Plaintiff's possession is attached as Exhibit A. 3. Atrue copy of the original recorded Mortgage is attached as Exhibit B. The Mortgage was assigned to Nationstar prior to commencement of this action. A copy of the Assignment of Mortgage is attached as Exhibit C... 4. The origina1note endorsed in blank was transferred to Nationstar prior to commencement of this action and Plaintiff continues to hold the original Note. 5. The Mortgage Loan is in default and is due for the October 1, 2010 payment and all subsequent payments. In reviewing the computerized records relating to the Mortgage Loan, I can confirm that the following amounts are currently due and owing to Nationstar: Unpaid Principal Balance as of October 1, 2010, the default date $415,640.22 Total Accrued Interest $189,511.61 09/01/2010 to 08/24/2016 at 7.625% Accrued Late Charges $0.00 Insufficient Funds Fee $0.00 Advances for Insurance $0.00 Flood Insurance $0.00 Hazard Insurance $0.00 Mortgage Insurance Premiums $0.00 Advances for Taxes $28,678.95 Advances for Property Preservation, Inspection and Valuation $771.00 Property Inspection Costs $771.00 BPO Costs $ Appraisal Costs $ Property Preservation $ 11 of 15
Suspense Balance $0.00 Total Due: $634,601.78 6. There are no just debts, set-offs, credits or allowances due or to become due from Nationstar, other than those set forth herein. Any amounts advanced by Nationstar after the date of this Affidavit for the payment of taxes, insurance and maintenance of the property to protect Nationstar's security interest in the property will be provided to the Referee at the time of a foreclosure sale. 7. The servicing records show that a demand letter was mailed to RAFI HAYON (" ("Defendant(s)") on September 3, 2014 which letter advised Defendant(s) of the default. A true copy of the demand letter is attached as Exhibit D. 8. The servicing records further show that the 90-day notices required by statute were mailed to Defendant(s) by regular and certified mail to the last known mailing address and to the property address on September 11, 2015. These letters were sent in separate envelopes from any other. mailing or notice and were accompanied by a list of housing counseling agencies as required by statute. True copies of the 90-day notices sent to Defendant(s) are attached as Exhibit E. This space was intentionally left blank. 12 of 15
9.. Despite the notices sent to Defendant(s), the default was never cured. Therefore, this action was commenced to recover the entire unpaid principal balance together with interest and disbursements, including reasonable attorneys' fees and costs allowable under the terms of the Mortgage Loan.... NATIONSTAR MORTGAGE LLC By: Fra Rosas Title: Vice President Before me, a notary public, on this day personally appeared Frank Ros as, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained ar true and correct. otar * Public's Signature (Personalized Seal) SHERRYSUMERAUER g4':~my Notary Pub C, State of Texas Comm. Expires 08-26-2018 gttt.~,gi. ~e ~ ',++' Notary ID 11567954 (ALSO TO BE EXECUTED IF OUTSIDE OF THE STATE OF NEW YORK) STATE OF Texas ) COUNTY OF Denton ) ss: On thecal day of tl in the year 20 1 s, before me, the undersigned, personally appeared Frank Rosae person y 1mown to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument, and that such individual made such appearance before the undersigned in oenton County, Texas. asa"assn SHERRYSUMERAUER otary P lictc -4'," ' ',rhn Notary PubHc. State of Texos,'g. Comm. Expires 08-26-2018 Notary ID 11587954 13 of 15
COMPUTATION SCHEDULE NATIONSTAR MORTGAGE, LLC v. RAFI HAYON, et al. RR&A No.: 12-003563 Item Description Amount Principal balance due $415,640.22 hiterest from 9/1/2010 to 8/24/2016 $189,511.61 @ 7.625% Taxes $28,678.95 Property Inspection $771.00 ~XI IIVV Grand Total $634,601.78 Dated: Philip L. Kamaras, Esq. Referee 14 of 15
Index No.: 512135/2016 SUPREME COURT OF THE STATE OF NEW Y ORK COUNTY OF KINGS NATIONSTAR MORTGAGE, LLC, Plaintiff, -against- RAFI HAYON, et al., Defendants. REFEREE'S OATH AND REPORT OF AMOUNT DUE ROSICKI, ROSICKI 4 ASSOCIATES, P.C. Attorneys for Plaintiff 2 Summit Court, Suite 301 Fishkill, NY 12524 845.897.1600 RR&A No.: 12-003563 15 of 15