`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ONEIDA
`PRESENT: HON. Bernadette T. Clark, J.S.C.
`
`Rocket Mortgage, LLC f/k/a Quicken Loans, LLC,
`
`
`Plaintiff,
`
`
`-v
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`John L. Malagese; "John Doe"; " John Doe",
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`Defendants.
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`
`
`
`
`
`
`At a Motion Term of the Supreme Court of
`the State of New York held in and for the
`County of Oneida, at the Courthouse
`thereof, at Utica, New York, on
`_____________________, 2024.
`
`
`JUDGMENT OF
`FORECLOSURE AND
`SALE
`
`Index No. EFCA2022-002489
`RJI No:
`
`Our File No.: 22-091182
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`Property Address:
`7101 Stearns Road
`Rome, NY 13440
`
`Section 244.000 Block 2 Lot
`3.3
`
`Mortgage Servicer: Rocket
`Mortgage, LLC
`
`Mortgage Servicer Phone #:
`(800) 508-0944
`
`[PLAINTIFF’S COUNSEL MUST CHECK AND COMPLETE
`ALL APPLICABLE ENTRIES IN THIS JUDGMENT OF
`FORECLOSURE EXCEPT AS OTHERWISE NOTED]
`
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`Plaintiff having moved this Court for a Judgment of Foreclosure and Sale,
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`NOW, upon plaintiff’s
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` ex parte application or
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` motion heard on June 14, 2024 at
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`which time
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` plaintiff/
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` defendant appeared,
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` or no appearances were required, and upon
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`all prior proceedings herein, and a settlement/status conference having been held on October 30,
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`2023 and upon
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`22-091182
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`1) the Summons and Complaint filed on November 1, 2022;
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`2) the Notice of Pendency filed on November 1, 2022;
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`3) the Affirmation of Barbara Dunleavy, Esq. affirmed on May 15, 2024, with Exhibits
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`annexed;
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`4) the Affidavit of Robert Leon, dated November 8, 2023, with Exhibits annexed;
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`5) the Report of the Referee, Ricardo J. Mauro, Esq., dated April 6, 2024, by which
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`Report it appears that the sum of $138,546.34 was due as of December 1, 2023, and
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`the mortgaged premises should be sold in
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` one parcel or
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` _____________________________________________;
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`6) proof of service upon all parties entitled to notice of this application for a Judgment
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`of Foreclosure and Sale:
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`7) other [specify]:
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`it is hereby
`
`;
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`Ratification of Referee’s Report
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`ORDERED, ADJUDGED and DECREED that to the extent provided for herein the
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`Report of Referee Ricardo J. Mauro, Esq., dated April 6, 2024 be and the same hereby is ratified
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`and confirmed; and it is further
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`Sale Instructions
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`ORDERED, ADJUDGED and DECREED that the above-described mortgaged
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`premises, or such part thereof as may be sufficient to discharge the mortgage debt, the expenses
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`of the sale, and the costs of this action as provided by the Real Property Actions and Proceedings
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`Law, be sold in
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` one parcel or
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` _____________________________________________ at
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`public auction at the Lobby of the Rome Supreme Courthouse, 302 North James Street, Rome,
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`22-091182
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`New York 13440, to accommodate social distancing, A Court Security Officer shall be in
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`attendance to ensure compliance with all COVID-19 protocols, by and under the direction of the
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`Referee who is appointed herein for that purpose, and the Referee shall set the date of sale and
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`give public notice of the time and place of sale in accordance with RPAPL §231 in the Rome
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`Sentinel, and in accordance with the Fifth Judicial District Foreclosure Sale Covid-19 Protocol,
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`attached hereto, including that a Covid-19 Notice shall be included in the advertisement
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`published in the local newspaper stating that all Covid-19 Safety Protocols will be followed and
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`enforced by the Referee at the foreclosure sale; and
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`[The Court will Initial the Applicable Provision Below]
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` the Referee shall conduct the foreclosure sale as soon as reasonably possible, but in
`no event prior to
`
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`, 20
`;
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` the Referee shall conduct the foreclosure sale on or before _____________________;
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`and it is further
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`Initial Bid Instructions
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`ORDERED, ADJUDGED and DECREED that the Referee shall accept at such sale the
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`highest bid offered by a bidder who shall be identified upon the court record and shall require
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`that such successful bidder immediately execute Terms of Sale for the purchase of the premises
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`and pay to the Referee, in cash or certified or bank check, ten percent (10%) of the sum bid,
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`unless the successful bidder is the plaintiff in which case no deposit against the purchase price
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`shall be required; and it is further
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`Subsequent Bid Instructions
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`ORDERED, ADJUDGED and DECREED that in the event the first successful bidder
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`fails to execute the Terms of Sale immediately following the bidding upon the subject premises
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`22-091182
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`or fails to immediately pay the ten percent (10%) deposit as required, the premises shall
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`immediately and on the same day be reoffered at auction; and it is further
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`Closing of Title
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`ORDERED, ADJUDGED and DECREED that the closing of title shall take place at
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`the office of the Referee or at such other location as the Referee shall determine and the closing
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`of title and filing of the Referee’s deed shall be made within forty-five (45) days after such sale
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`unless otherwise stipulated to by all parties. The Referee shall transfer title only to the
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`successful bidder at the auction. Any delay or adjournment of the closing date beyond forty-five
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`(45) days may be stipulated to by the parties with the Referee’s consent up to ninety (90) days
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`from the date of sale. Any adjournment beyond ninety (90) days may be set only with approval
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`of this Court; and it is further
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`Deposit of Funds
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`ORDERED, ADJUDGED and DECREED that the Referee shall deposit all funds
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`received pursuant to this Judgment of Foreclosure and Sale in the Referee’s IOLA account; and
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`it is further
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`Payment from Funds
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`ORDERED, ADJUDGED and DECREED that the Referee on receiving the proceeds
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`of such sale shall cause to be paid promptly therefrom;
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`FIRST:
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`The statutory fees and commissions of the Referee pursuant to CPLR
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`§8003(b) in the amount of $750.00. In the event a scheduled sale is cancelled or
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`postponed by a person or entity other than the Referee, or the action is discontinued,
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`pursuant to CPLR §8003(a) the plaintiff shall pay to the Referee the sum of $350.00 for
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`each adjournment or cancellation, and for any discontinuance. Such compensation may
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`22-091182
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`be recouped from the proceeds of sale as a cost to plaintiff. This Judgment of
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`Foreclosure and Sale constitutes the necessary prior authorization for compensation as set
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`forth herein. No compensation totaling in excess of $750.00, including compensation
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`authorized pursuant to CPLR §8003(a) for computation of the sum due to plaintiff, may
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`be accepted by the Referee without Court approval and compliance with the provisions of
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`22 NYCRR §36.4.
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`SECOND:
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`The reasonable expenses of the sale, including the cost of advertising as
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`shown on the bills presented and certified by the Referee to be correct, copies of which
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`shall be annexed to the Report of Sale. The Referee shall not be held responsible for the
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`payment of penalties or fees pursuant to this appointment. The Purchaser shall hold the
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`Referee harmless from any such penalties or fees assessed.
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`THIRD:
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`Pursuant to RPAPL §1354 in accordance with their priority according to
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`law, all taxes, assessments, sewer rents, water rates and any other charges placed upon
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`the premises by any municipal authorities having priority over the foreclosed mortgage
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`and which liens on the premises at the time of sale, with such interest or penalties that
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`lawfully may have accrued thereon to the date of payment.
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`FOURTH:
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`as limited herein, to the plaintiff or its attorneys
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`(a)
`
`(b)
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`[to be inserted by the Clerk] the sum of $________________ for costs and
`disbursements in this action to be taxed by the Clerk, with interest from
`the date hereof;
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`the sum of $______________________, the amount reported by the
`Referee and/or approved by the Court as due, together with interest
`thereon pursuant to the terms of the Note from _________________, the
`date to which interest was calculated in the Report of the Referee through
`the date of entry of this Judgment of Foreclosure and Sale, and thereafter
`at the statutory post-judgment rate to the date of transfer of title, or so
`much thereof as the purchase money of the mortgaged premises will pay
`of the same;
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`22-091182
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`(c)
`
`(d)
`
`(e)
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`[to be inserted by the Court] the sum of $________________ hereby
`awarded to the plaintiff as reasonable legal fees as provided for in the
`Mortgage;
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`the amount of any advances provided for in the Note and Mortgage that
`plaintiff may have made for taxes and insurance, and amounts due to prior
`mortgagors, upon presentation to the Referee of receipts for these
`expenditures;
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`the amount of any advances provided for in the Note and Mortgage that
`plaintiff reasonably may have made to maintain the premises pending
`consummation of the foreclosure sale upon presentation to the Referee of
`receipts for these expenditures.
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`Notwithstanding sub-paragraphs FOURTH(b) and FOURTH(e) above, plaintiff may
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`recover interest for only ninety (90) days after the date of this Judgment of Foreclosure
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`and Sale, and plaintiff may recover up to a maximum of only $250.00 for any
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`maintenance or premise preservation expenses after the date of this Judgment of
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`Foreclosure; and it is further
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`Report of Sale
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`ORDERED, ADJUDGED and DECREED that the Referee shall timely file the
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`Referee’s Report of Sale and plaintiff shall timely move to confirm the Referee’s Report of Sale
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`pursuant to RPAPL §1355; and it is further
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`Plaintiff as Purchaser
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`ORDERED, ADJUDGED and DECREED that in the event plaintiff purchases the
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`mortgaged premises at the sale, the Referee shall not require the plaintiff to pay in cash the entire
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`amount bid at the sale but shall execute and deliver to the plaintiff a deed of the premises sold
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`upon payment to the Referee of the sum awarded under the above provisions marked “FIRST,”
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`“SECOND,” and “THIRD,” if such expenses were paid by the Referee, or in lieu of the payment
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`of the last mentioned amounts, upon filing with the Referee receipts of the proper municipal
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`22-091182
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`authorities showing payment thereof. The balance of the amount bid, after deducting therefrom
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`the aforementioned payments to the Referee shall be allowed to the plaintiff and applied by the
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`Referee upon the amounts due to the plaintiff as specified in item marked “FOURTH.” If upon
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`applying the balance of the amount bid, there is a surplus over and above the amounts due to
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`plaintiff, then upon delivery to plaintiff of the Referee’s deed, plaintiff shall pay to the Referee
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`the amount of such surplus, which amount shall be applied by the Referee, upon motion made
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`pursuant to RPAPL §1351(3), and proof satisfactory to the Referee of the sums due thereon, to
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`any subordinate mortgage duly recorded against the premises pursuant to RPAPL §1354(3),
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`which payment shall be reported in the Referee’s Report of Sale. Any surplus remaining after all
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`payments as herein provided shall be deposited into Court in accordance with RPAP: §1354(4)
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`and the Referee shall immediately give notice of such surplus to the owner of the mortgaged
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`premises as identified by plaintiff at the time of the sale; and it is further
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`Surplus Monies
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`ORDERED, ADJUDGED and DECREED that the Referee shall take and file with the
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`Referee’s Report of Sale plaintiff’s receipt(s) for the amounts paid as directed in item marked
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`“FOURTH,” and the Referee shall deposit the surplus monies, if any with the Oneida County
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`Department of Finance, to the credit of this action, within five (5) days after receipt unless such
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`period is deemed extended by the filing of an application for additional compensation, to be
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`withdrawn only upon order of this Court; and the Referee shall make the Referee’s Report of
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`Sale under oath showing the disposition of the proceeds of the sale accompanied by the vouchers
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`of the person(s) to whom payment was made and file it in the Oneida County Clerk’s Office
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`within thirty (30) days after completing the sale and executing the proper conveyance to the
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`22-091182
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`purchaser or within thirty (30) days of a decision of this Court with respect to any application for
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`additional compensation; and it is further
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`Foreclosure Action Surplus Monies Form
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`ORDERED, ADJUDGED and DECREED that the Referee shall complete the
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`Foreclosure Action Surplus Monies Form and file it in the Oneida County Clerk’s Office and
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`deliver a copy to the Court within thirty (30) days of the foreclosure sale; and it is further
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`Deficiency Judgment Application
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`ORDERED, ADJUDGED and DECREED that if the proceeds of the sale are
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`insufficient to pay the amount report by the Referee as due to plaintiff, the plaintiff may apply to
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`the Court to recover the whole or such part of the deficiency as prescribed by RPAPL §1371; and
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`it is further
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`Possession
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`ORDERED, ADJUDGED and DECREED that the purchaser(s) at the foreclosure sale
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`be let into possession of the premises on production of the Referee’s deed; and it is further
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`Claims Barred
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`ORDERED, ADJUDGED and DECREED that the defendant(s) in this action, and all
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`persons claiming under any of them after filing of the Notice of Pendency of this action, be and
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`hereby forever are barred and foreclosed of all right, claim, lien, title, interest and equity of
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`redemption in the mortgaged premises and each and every part thereof; and it is further
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`Conditions of Sale
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`ORDERED, ADJUDGED and DECREED that the premises be sold in “as is” physical
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`order and condition on the day of sale, subject to any state of facts that an inspection of the
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`premises would disclose, any state of facts that an accurate survey of the premises would show,
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`22-091182
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`any covenants, restrictions, declarations, reservations, easements, right of way and public utility
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`agreements of record, any building and zoning ordinances of the municipality in which the
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`mortgaged premises are located and possible violations of same, any rights of tenants or persons
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`in possession of the subject premises, prior liens of record, if any, except those liens addressed in
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`RPAPL §1354, and any equity of redemption of the United States of America to redeem the
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`premises within one hundred twenty (120) days from the date of sale. Risk of loss shall not pass
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`to purchaser until closing of title; and it is further
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`Referee Qualification
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`ORDERED, ADJUDGED and DECREED that by accepting this appointment, the
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`Referee certifies that he/she is in compliance with Part 36 of the Rules of the Chief Judge
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`including but not limited to 22 NYCRR §36.2(c) (“Disqualifications from appointment) and 22
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`NYCRR §36.2(d) (“Limitations on appointments based upon compensation”); and it is further
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`Service of Judgment of Foreclosure and Sale
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`ORDERED, ADJUDGED and DECREED that a copy of this Judgment of Foreclosure
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`and Sale with notice of entry shall be served within twenty (20) days of entry and no less than
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`thirty (30) days prior to sale upon the designated Referee, the owner of the equity of redemption
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`as of the date of this Judgment of Foreclosure and Sale, any tenants named in this action, and any
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`other party entitled to notice; and it is further
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`Service of Notice of Sale
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`ORDERED, ADJUDGED and DECREED that plaintiff shall serve a copy of the
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`Notice of Sale upon the owner of equity of redemption at the owner of equity of redemption’s
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`last known address and at the property address, and an affidavit of such service shall be filed at
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`least ten (10) days prior to the scheduled sale; and it is further
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`22-091182
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`9
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`Transfer of Interest During Pendency
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`ORDERED, ADJUDGED and DECREED that during the pendency of this action if
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`any interest in the Note and/or Mortgage that is the subject of this action has been or is
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`transferred, the person or entity to whom the interest has been or is transferred shall apply to the
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`Court within thirty (30) days of the transfer to be substituted or joined in this action pursuant to
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`CPLR §1018.
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`
`
`Dated: _________________
`
`
`
`
`
`
`Hon. Bernadette T. Clark, J.S.C.
`Justice of the Supreme Court
`
`
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`22-091182
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`ATTORNEY'S CERTIFICATION
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`I, Barbara Dunleavy, am an attorney duly admitted to the practice of law in the State of
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`New York. I am an associate of LOGS Legal Group LLP, the attorneys for the Plaintiff, Rocket
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`Mortgage, LLC f/k/a Quicken Loans, LLC, in the above captioned civil action.
`
`I HEREBY CERTIFY, pursuant to §130-1.1-a of the Rules of the Chief Administrator
`
`(22 NYCRR), to the best of my knowledge, information and belief, formed after an inquiry
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`reasonable under the circumstances, that the presentation of the papers in this action checked
`
`below, or the contentions therein, are not frivolous as defined in subsection (c) of §130-1.1 of the
`
`Rules of the Chief Administrator (22NYCRR):
`
`{X} Summons & Complaint
`
`{X} Answer or Reply
`
`{X} Attorney's Affirmations
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`{X} Other: Judgment of Foreclosure and Sale
`
`
`Dated: May 15, 2024
`
`
`
`Barbara Dunleavy, Esq.
`Bankruptcy Attorney
`LOGS LEGAL GROUP LLP F/K/A
`SHAPIRO, DICARO & BARAK, LLC
`175 Mile Crossing Boulevard
`Rochester, New York 14624
`(585) 247-9000
`Fax: (585) 247-7380
`
`22-091182
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`

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`EXHIBIT “A”
`EXHIBIT “A”
`
`ALL THAT TRACT, PIECE OR PARCEL OF LAND, SITUATE, IN THE TOWN OF FLOYD, COUNTY OF ONEIDA, AND
`ALL THAT TRACT, PIECE OR PARCEL OF LAND, SITUATE, IN THE TOWN OF FLOYD, COUNTY OF ONEIDA, AND
`STATE OF NEW YORK, BEGINNING AT THE NORTHEASTERLY CORNER OF LAND NOW OR FORMERLY OWNED
`STATE OF NEW YORK, BEGINNING AT THE NORTHEASTERLY CORNER OF LAND NOW OR FORMERLY OWNED
`BY PEKOLA, RUNNING THENCE WESTERLY ALONG THE NORTHERLY BOUNDARY LINE OF THE PEKOLA
`BY PEKOLA, RUNNING THENCE WESTERLY ALONG THE NORTHERLY BOUNDARYLINE OF THE PEKOLA
`PROPERTY A DISTANCE OF 250 FEET; THENCE NORTHERLY A DISTANCE OF 100 FEET TO THE
`PROPERTY A DISTANCE OF 250 FEET; THENCE NORTHERLYA DISTANCEOF 100 FEET TO THE
`SOUTHWESTERLY CORNER OF LAND NOW OR FORMERLY OWNED BY OLIVER, THENCE EASTERLY ALONG
`SOUTHWESTERLY CORNER OF LAND NOW OR FORMERLY OWNED BYOLIVER, THENCE EASTERLY ALONG
`THE OLIVER BOUNDARY LINE A DISTANCE OF 250 FEET TO THE WESTERLY LINE OF STEARNS ROAD; THENCE
`THE OLIVER BOUNDARYLINE A DISTANCE OF 250 FEET TO THE WESTERLYLINE OF STEARNS ROAD; THENCE
`SOUTHERLY ALONG STEARNS ROAD, A DISTANCE 100 FEET TO THE PLACE OF BEGINNING. IT BEING
`SOUTHERLY ALONG STEARNS ROAD, A DISTANCE 100 FEET TO THE PLACE OF BEGINNING. IT BEING
`INTENDED HEREBY TO CONVEY A RECTANGLE PARCEL OF LAND 100 FEET IN FRONT AND REAR AND 250
`INTENDED HEREBY TO CONVEY A RECTANGLE PARCEL OF LAND 100 FEET IN FRONT AND REAR AND 250
`FEET DEEP BOUNDED EAST BY STEARNS ROAD, SOUTH BY PEKOLA, NORTH BY OLIVER AND WEST BY LAND
`FEET DEEP BOUNDED EAST BY STEARNS ROAD, SOUTH BY PEKOLA, NORTH BY OLIVER AND WEST BY LAND
`NOW OR FORMERLY OWNED BY STEARNS, SUBJECT TO ALL EASEMENTS OF RECORD.
`NOW OR FORMERLY OWNED BYSTEARNS, SUBJECT TO ALL EASEMENTS OF RECORD.
`
`NOTE: THE COMPANY IS PROHIBITED FROM INSURING THE AREA OR QUANTITY OF THE LAND. THE COMPANY
`NOTE: THE COMPANY IS PROHIBITED FROM INSURING THE AREA OR QUANTITY OF THE LAND. THE COMPANY
`DOES NOT REPRESENT THAT ANY ACREAGE OR FOOTAGE CALCULATIONS ARE CORRECT. REFERENCES TO
`DOES NOT REPRESENT THAT ANY ACREAGE OR FOOTAGE CALCULATIONS ARE CORRECT. REFERENCES TO
`QUANTITY ARE FOR IDENTIFICATION PURPOSES ONLY.
`QUANTITY ARE FOR IDENTIFICATION PURPOSES ONLY.
`
`COMMONLY KNOWN AS: 7101 STEARNS RD, ROME, NY 13440-6414
`COMMONLY KNOWNAS: 7101 STEARNS RD, ROME, NY 13440-6414
`
`THE PROPERTY ADDRESS AND TAX PARCEL IDENTIFICATION NUMBER LISTED ARE PROVIDED SOLELY FOR
`THE PROPERTY ADDRESS AND TAX PARCEL IDENTIFICATION NUMBER LISTED ARE PROVIDED SOLELY FOR
`INFORMATIONAL PURPOSES.
`INFORMATIONAL PURPOSES.
`
`
`
`