FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO.

804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

SUIiREME COURT STATE OF NEW YORK

COUNTY OF ERIE
______________________________________________ _______.

TOWN OF WEST SENECA,

SUMMONS
Plaintiff,
Index No.
vs.
Filed:
SELECT PORTFOLIO SERVICING, INC.,

Defendant.
_________________________________________________________________________

To the Corporate Person Named as Defendant above: PLEASE TAKE NOTICE THAT YOU
ptE SUMMONED to answer the complaint of the plaintiff herein and to serve a copy of your
answer on the plaintiff (at the address indicated below within 20 days after service of this
Summons (not counting the day of service itself), or within 30 days after service is complete if
the Summons is not delivered personally to you within the State of New York. YOU ARE
HEREBY NOTIFIED THAT should you fail to answer, a judgment will be entered against you

by default for the relief demanded in the complaint.

Dated: , 2019

Amy Gathings, Esq.

Western New York Law Center, Inc.
Attorneys for the Town of West Seneca

37 Franklin Street, Suite 210

Buffalo, New York 14202

Tel: 716-855-0203 x 117

Fax: 716-270-4005

Defendant Select Portfolio Servicing, Inc.

3815 S. West Temple
Salt Lake City, UT 84115
c/o Registered Agent
Corporation Service Company
80 State Street

Albany, New York 12207-2543

Venue: Plaintiff designates the Supreme Court by and for the County of Erie as the place of trial.
As the Defendant is a corporation, association or partnership that conducts business within the
State as a Mortgage Banker licensed by the NYS Department of Financial Services the basis of
this designation is CPLR §507.

1 of 8
FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO. 804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

SUPREME COURT STATE OF NEW YORK

COUNTY OF ERIE
______________-- ______________________________________________

TOWN OF WEST SENECA,

VERIFIED COMPLAINT
Plaintiff,
Index No.
vs.
Filed:
SELECT PORTFOLIO SERVICING, INC.,

Defendant.
_____. _______________________________________ -----

Plaintiff, Town of West Seneca, by its-attorneys, Western New York Law Center, Inc.,

Attorneys for the Town of West Seneca, for its comphiñt againt Defendant, on personal

knowledge as to facts relating to the Town of West Seneca and on information and belief as to

other allegations, respectfully alleges as follows:

PARTIES

1. Plaintiff Town of West Seneca is a municipal corporation organized pursuant to

the laws of the State of New York.

2. Defendant Select Portfolio Servicing, Inc. was the last mortgage loan servicer for

the first lien mortgage on the property that is the subject of this action and is a corporation

incorporated under the laws of the State of Utah.

PRELIMINARY STATEMENT

3. The Legislature enacted the "Abandoned Property Neighbõrhood Relief Act of

2016"
to address the growing concern relating to vacant and abandoned residential property.

Vacant and abandoñêd homes pose a threat to health and safety, increase the crime rate, and

become a burden for taxpayers when they are not maintained. Mortgagees and loan servicers

2 of 8
FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO. 804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

exacerbate this epidemic by not securing or maintainiñg properties in which they hold a legal

interest and by initiating foreclosure actions that they never complete causing a homeowner to

abandon the property and leaving the home empty and deteriorating. In an effort to deter this

behavior on the part of mortgagees and loan servicers, the law defines the duty of a mortgagee or

its loan servicing agent to maintain vacant property secured by a delinquent mortgage. This law

is codified in the Real Property Action and Proceedings Law (RPAPL) §§1308-1310. Required

maintenance in chides a variety of steps to ensure that the does not present significant
property

health or safety issues and compliance with multiple provisions of the New York State Property

Maintenance Code. RPAPL §1308(4, 7). RPAPL §1308(8) authorizes municipalities to bring an

action to enforce the law and to seek penalties.

4. Plaintiff brings this action pursuant to RPAPL §1308(8)(c) to hold Plaintiff

accountable for violations of its obligations as described in the law which caused the

deterioration of this property, the decrease in value of the surrounding acighbarhood, the decline

in the safety of the neighborhood, and the increased threat to public health and safety that this

property now poses. Plaintiff seeks an order imposing punitive fines pursuant to the statue in the

amount of up to $500 per day for each day code violations existed and continue to exist on the

Subject Property beginning March 9, 2018, the day Defendant registered the Subject Property

with the New York State Department of Financial Services, through June 27, 2018, the date that

the mortgagee of record discharged its lien.

5. Plaintiff also seeks to recover any costs it has incurred or may incur to maintain

the property at issue in this action.

JURISDICTION

6. This Court has jurisdiction of this action pursuant to RPAPL §1308.

3 of 8
FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO. 804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

VENUE

7. Venue in this action is proper pursuant to C.P.L.R. 507 because the property

involved is in Erie County.

FACTS

8. The real property at issue in this action is a residential property located at

1137 East and West Road, West Seneca, New York 14224 (Subject Property) and was

encumbered by a mortgage filed and recorded and serviced by Defendant. The mortgage was

filed in Book 13218, Page 5036. A copy of the mortgage is attached as Exhibit A.

9. The property owner defadted on the mortgage and/or abandoned the premises,

readering the Subject Property vacant and abandoned pursuant to RPAPL §1309. The

foreclosure action was filed on May 12, 2015 at Index. No. 600255/2015. A copy of the

Summons and Complaint is attached as Exhibit B.

10. Defendant has not completed foreclosure proceedings on the Subject Property nor

maiñtained or secured the Subject Property as required by RPAPL §1308.

11. Pursuant to RPAPL §1308(1) the Defendant is required to complete an exterior

inspection of the Subject Property to determine occupancy within 90 days of the borrower's

delinquency. Throughout the delinquency of the loan, the Defendant is required to conduct an

exterior inspection every 25 to 35 days.

12. Pursuant to the statutory scheme, if the Defendant had a reasonable basis to

believe the Subject Property was vacant or abandoned, Defendant was obligated to secure and

maintain the property pursuant to RPAPL §1308(3)-(7). Though it is likely Defendant had a

reasonable basis to believe the Subject Property was vacant much sooner, it is indisputable that

4 of 8
FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO. 804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

Defendant believed the property to be vacant and abandoned at the time it registered the property

as a vacant and abandoned property with the New York State Department of Financial Services

on March 9, 2018. A copy of the letter from New York State Department of Financial Services

confirming the registration date is attached as Exhibit C.

13. Defendant has failed to adm''ately inspect, maintain or secure the Subject

Property.

14. The Plaintiff conduded at least three ecñsecutive inspections of the Subject

Property, and each inspection was conducted twenty-five to thirty-five days apart and at different

times of the day. The inspections were conducted on May 27, 2015, April 27, 2016, May 10,

2017, and May 29, 2018. A notice was sent by Plaintiff to the liõñicowner of record regarding

the code violations on the Subject Property on November 13, 2017. The property inspection

reports and letter to the homeowner are attached as Exhibit D.

15. At each inspection (i) no occupant was present and there was no evidence of

occupancy on the property to indicate that any persons are residing there; and (ii) the residential

real property was not being maintained in a manner ceñsistent with the standards set forth in

New York property maintenance code chapter 3 sections 301, 302 (excluding 302.2, 302.6,

302.8), 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.

16. Specifically, the property was cited for violations which included, among other

things, missing windows, exposed wood, downspout/gutters in disrepair, and foüüdâtion failing

permit for repair. Copies of the property inspection reports are attached as Exhibit D.

17. Defendant determined that the Subject Property is vacant and abandoned and

registered the Subject Property with the New York Department of Financial Services as required

by RPAPL §1310 on March 9, 2018. See Exhibit C.

5 of 8
FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO. 804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

18. Plaintiff through its attorneys, Western New York Law Center, Inc., filed a

complaint with New York State Department of Financial Services on or around November 9,

2017. Plaintiff, through New York State Department of Financial Services, gave at least seven

days'
notice to the Defêñdañt by sending notice of these violations to Defendant on November,

16, 2017; February 15, 2018; February 28, 2018; April 3, 2018; and again on April 30, 2018. In

these notices, Plaintiff, through New York State Department of Financial Services, advised

Defendant of its failure to comply with the provisions of the RPAPL. Copies of the notices are

attached as Exhibit E.

19. On January 17, 2019, Plaintiff sent Defendant further notice of its intent to

enforce the provisions of the RPAPL through possible legal action to secure compliance, to

pursue penalties pursuant to §1308 of the RPAPL, to recover any costs incurred by the City to

maintain the property and to recover civil penalties in an amount of up to $500 per day from the

date Defendant registered the property with the New York Department of Fiñ:ñcial Services. A

copy of the notice sent to Defendant is attached as Exhibit F.

20. Defendant did not respond and has failed to inspect, maintain or secure the

Subject Property.

21. The violations on the Subject property have not been corrected to date.

22. The satisfaction of mortgage was filed in Book 13860, Page 5242 on June 27,

2018 whereby Defendant abandoned its foreclosure action in an effort to be relieved of its

obligations related to this property thus leaving the Subject Property in a state of limbo with no

one to be held responsible for its condition other than the taxpayers. The mortgage satisfaction is

attached as Exhibit G.

6 of 8
FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO. 804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

23. On January 16, 2019, Plaintiff sent written notice to the Department of Finañcial

Services of its intention to bring this action against the Defedant. A copy of the notice sent to

the Department of Financial Services as well as a copy of the certified mail return receipt are

attached as Exhibit H.

RE_DUEST FOR RELIEF

WHEREFORE, the plaintiff demands judgmcat as follows:

A. Reimbursing Plaintiff for any costs it has incurred or may incur to maintain the Subject

Property;

B. Entering a judgmcat against Defedant for civil pêñetics in the amount of up to $500 per

day beginning on March 9, 2018, the day Defendant registered the Subject Property with

the Department of Financial Services through June 27, 2018, the date that the mortgage

was discharged of record.

C. Awarding costs and disbursements of this action; and

D. Providing such other and further relief as the Court may deem just and proper.

Dated: Buffalo, New York

March 2 C\ , 2019

Western New York Law Center, Inc.

Attorneys for the Town of West Seneca
37 Franklin Street, Suite 210

Buffalo, New York 14202

Tel: 716-855-0203 ext. 117
Fax: 716-270-4005
agathings@wnylc.com

7 of 8
FILED: ERIE COUNTY CLERK 04/02/2019 01:44 PM INDEX NO. 804347/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/05/2019

VERIFICATION

State of New York )

County Of Erie ) :ss:

Tina Hawthorne, Town Attorney for the Town of West Seneca, being duly sworn,

deposes and says: I have read the contents of the forgoing Complaint and know the

contents to be true from my own knowledge, except as to those matters stated on

information and belief, and as to those matters I believe them to be true.

Signature: A )

Tina Hawthorne, Esq., Town Attorney for the Town of West Seneca

Sworn to before me on

Notary Public

AMY J GATHINGS
NOTARY PUBLIC-STATE OF NEW YORK
No.02GA6364318
Qualified in Erie County
My Comm!•sson,Expires o9-1b__

8 of 8