Opinion
CIVIL 19-cv-11806
12-20-2021
UNITED STATES OF AMERICA, Plaintiff, v. Jennette Caraballo 32 Black Hawk Road Pine Bush, NY 12566 Chase Bank USA, NA 200 White Clay Center Drive Newark, DE 19711 GE Money Bank 170 Election Road Ste 125 Draper, Utah 84020 John Doe, Mary Roe, and XYZ Corporation 32 Black Hawk Road Pine Bush, NY 12566 Defendants.
NOTICE OF MOTION AND MOTION FOR AMENDMENT OF THE CAPTION
CATHY SEIBEL, U.S.D.J.
PLEASE TAKE NOTICE that the United States of America, by Pincus Law Group, PLLC, will move and does hereby move this Honorable Court, located at the U.S. Courthouse, 100 State Street, Rochester, NY 14614, on a date to be determined by the Court, or as soon thereafter as counsel can be heard for an Order pursuant to Fed.R.Civ.P. 15 amending the caption of this action y substituting Mary Caraballo into the caption in the place and stead of defendant Mary Roe, dismissing the defendants John Doe and XYZ Corporation and for such other and further relief as the Court may deem just and proper.
In support of the present Motion, the United States relies upon the attached Affirmation of Barry M. Weiss and the exhibits described therein.
The plaintiff intends to file Reply papers to any Opposition papers filed with respect to this motion.
Application granted. The Clerk of Court is respectfully directed to amend the caption to substitute Mary Caraballo for Mary Roe, and to terminate John Doe and XYZ Corporation as defendants.
SO ORDERED.
ATTORNEY AFFIRMATION
Barry M. Weiss, hereby states that he is an attorney duly admitted to practice in the Southern District of the State of New York, and hereby affirms under penalty of perjury as follows:
1. I am associated with Pincus Law Group, PLLC, the attorneys of record for the plaintiff, United States of America, by and through its agency, USDA Rural Housing Service (hereinafter also referred to as “the plaintiff'), and I am familiar with the facts and circumstances, pleadings and proceedings herein. This affirmation is submitted in support of the plaintiff's motion for an Order pursuant to Fed.R.Civ.P. 15 amending the caption of this action by substituting Mary Caraballo into the caption in the place and stead of defendant Mary Roe, dismissing the defendants John Doe and XYZ Corporation and for such other and further relief as the Court may deem just and proper.
2. This is an action for foreclosure of a mortgage on the premises known as 32 Black Hawk Road, Pine Bush, NY 12566.
3. This action was commenced on December 26, 2019, by the filing of the original complaint in the Office of the Clerk of this Court. (Doc #1).
4. As appears by the Affidavits of Service on file in the office of the Clerk of this Court (Doc #37), the defendants named in the Complaint, except John Doe and XYZ Corporation were duly served with the Summons and Complaint. (Exhibit A.)
5. Each of these defendants are in default for want of appearance, defense or answer, although the time for each of these defendants to appear, answer or otherwise defend in this action has expired.
6. In addition to these defendants, an individual who upon information and belief is an occupant of the premises was served with the summons and complaint, to wit, Mary Caraballo, who as an occupant of the subject premises and consequently may have an interest in the subject premises and thus is a necessary party to this action pursuant to RPAPL § 1311. RPAPL § 1311 provides that “each of the following persons, whose interest is claimed to be subject and subordinate to the plaintiff's lien, shall be made a party defendant to the action: 1. Every person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and 3. Every person having any lien or incumbrance upon the real property which is claimed to be subject and subordinate to the lien of the plaintiff.” A copy of the affidavit of service upon Mary Caraballo is attached hereto as Exhibit B. It is therefore requested that the caption of the action be amended by substituting Mary Caraballo into the caption in the place and stead of defendant Mary Doe, and following such substitution, that the Clerk of the Court amend the docket and electronic docket of the Court accordingly, all without prejudice to the proceedings heretofore had herein.
7. It was found that there is no John Doe and no XYZ Corporation occupying the premises. The plaintiff therefore further requests that the caption of the action be amended by excising the defendants John Doe and XYZ Corporation, and that this action be discontinued against the defendants John Doe and XYZ Corporation, all without prejudice to the proceedings heretofore had herein, and that the caption be amended accordingly. Copies of the Affidavits of Attempted Service upon John Doe and XYZ Corporation are annexed hereto as Exhibit C.
WHEREFORE, it is requested that an order be made pursuant to Fed.R.Civ.P. 15 amending the caption of this action by substituting Mary Caraballo into the caption in the place and stead of defendant Mary Roe, dismissing the defendants John Doe and XYZ Corporation and for such other and further relief as the Court may deem just and proper.
EXHIBIT OMITTED