U.S. Bank, N.A. v. Byrd et al

Filing 62

ORDER. For the reasons set forth in the attached Memorandum and Order, the court grants a judgment of foreclosure against all defendants in the amount of $1,734,806.28, along with interest that accrues at a rate of $345.97 per diem from Fe bruary 9, 2011, through the date of judgment. The court respectfully directs the Clerk to (a) enter judgment in favor of plaintiff against Annith and Wayne Byrd for (1) foreclosure and sale of the property located at 501-509 East 78th Street in Broo klyn, New York, in the amount of $1,734,806.28; (2) interest accruing at a rate of $345.97 per diem from February 9, 2011, through the date of judgment; (3) $19,858.00 in attorneys fees; and (4) $1,475.84 in costs; (b) serve a copy of this Memorandum and Order on any party not represented on ECF and note service on the docket; and (c) close this case. Ordered by Judge Kiyo A. Matsumoto on 3/30/2012. (Chang, Emily)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MEMORANDUM AND ORDER

U.S. BANK, N.A.,

10-cv-3381 (KAM)(RML)

Plaintiff,
-againstANNITH BYRD, WAYNE BYRD, HARVESTIME
TABERNACLE, INC., CARMEN FAIRCLOUGH,
TRAVELENE NECKLES, JACQUELINE SIMPSON,
RUPERT WYNTER, MELVYN DUNKLEY, and
NORRIS WYNTER,
Defendants.
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MATSUMOTO, United States District Judge:

On February 22, 2012, the court granted summary
judgment and awarded certain attorneys’ fees and costs to
plaintiff in the instant foreclosure action, but requested
additional documentary support to enable the court to determine
the amount due and outstanding under the relevant Note and
Mortgage.

Presently before the court are plaintiff’s

supplementary submissions, which provide an adequate basis to
determine the amount due and outstanding under the Note and
Mortgage.

For the reasons that follow, the court grants a

judgment of foreclosure in favor of plaintiff in the amount of
$1,734,806.28, along with interest at a rate of $345.97 per diem
from February 9, 2011, through the date of judgment.

1

On February 9, 2007, defendant Annith Byrd executed a
promissory note (the “Note”), promising to pay Greenpoint
Mortgage Funding Inc. (“Greenpoint”) a principal sum of
$1,575,000. (ECF No. 53, Plaintiff’s Statement of Undisputed
Material Facts ¶¶ 1-2.)

On the same date, defendants Annith and

Wayne Byrd (the “Byrd defendants”) executed and delivered to
Greenpoint an assignment of rents, security agreement, and
commercial mortgage (collectively, the “Mortgage”) on the
commercial property located at 501-509 East 78th Street in
Brooklyn, New York, as security for the loan.

(Id. ¶ 3.)

Plaintiff U.S. Bank, N.A. (“plaintiff”) is now the holder of the
Note, Mortgage, and all the other related loan documents.

(Id.

¶ 14.)
On April 11, 2011, plaintiff moved for summary
judgment, seeking to foreclose on the Mortgage.
51, Plaintiff’s Motion for Summary Judgment.)

(See ECF No.
On February 22,

2012, this court, which has subject-matter jurisdiction in this
action pursuant to 28 U.S.C. § 1332, granted summary judgment to
plaintiff against defendants Annith Byrd, Wayne Byrd, Harvestime
Tabernacle, Inc., Carmen Fairclough, Travelene Neckles,
Jacqueline Simpson, Rupert Wynter, Melvyn Dunkley, and Norris
Wynter (collectively, “defendants”); (2) ordered the foreclosure
and sale of the property located at 501-509 East 78th Street in

2

Brooklyn, New York 1; and (3) awarded plaintiff a total of
$19,858.00 in attorneys’ fees and $1,475.84 in costs up to and
including plaintiff’s motion for summary judgment.
generally ECF No. 59, Order dated 2/22/2012.)

(See

In addition, the

court directed plaintiff to submit, by February 29, 2012,
supporting documentation and calculations to enable the court to
assess the amount due and outstanding under the Note and
Mortgage, and further ordered that any defendant who wished to
respond should do so by March 7, 2012.

(See id. at 22.)

On February 28, 2012, plaintiff timely submitted a
sworn affidavit and supporting documentation to establish the
amount due and outstanding under the Note and Mortgage.

(See

generally ECF No. 60, Declaration of Kenneth Beck (“Beck
Decl.”).)

None of the defendants have responded or demonstrated

any intent of responding to the Court’s February 22, 2012
Memorandum and Order.
The court has reviewed plaintiff’s additional
submissions and finds that they provide an adequate basis from
which the court can determine the amount due and outstanding
under the Note and Mortgage.

The court has also performed

independent calculations to confirm the accuracy of plaintiff’s
claims, and finds that plaintiff has established its entitlement
to:
1

This court appointed a receiver for the Property on March 17, 2011.
ECF No. 49, Order Appointing Receiver.)
3

(See

•

$1,532,921.14 in principal, as reflected in
plaintiff’s computerized loan history (see Beck
Decl. ¶ 7, Ex. C);

•

$119,360.26 in interest accruing between March 1,
2010, and February 9, 2011, on the unpaid
principal balance at the rate of 8.125 percent
per annum, per paragraph 3(b)(i) of the Note (see
id. ¶ 8, Ex. D);

•

$5,262.47 in late charges, per paragraph 7 of the
Note (see id. ¶ 9, Ex. D);

•

$15,329.21 in prepayment premiums, per paragraph
10(a)(iii) of the Note (see id. ¶ 11, Ex. D);

•

$61,933.20 in advances for payment of real estate
taxes and insurance charges, after deducting the
amount remaining in defendants’ tax escrow
account (see id. ¶ 12, Exs. E & F); and

•

Interest on the Note and Mortgage that continues
to accrue at a rate of $345.97 per diem from
February 9, 2011, through the date of entry of
judgment.

Accordingly, the court finds that the amount due and outstanding
under the Note and Mortgage as of February 9, 2011, is
$1,734,806.28, and interest shall accrue at a rate of $345.97
per diem from February 9, 2011, through the date of entry of
judgment.
CONCLUSION
For the foregoing reasons, the court grants a judgment
of foreclosure against all defendants in the amount of
$1,734,806.28, along with interest that accrues at a rate of
$345.97 per diem from February 9, 2011, through the date of
judgment.
4

The court respectfully directs the Clerk to (a) enter
judgment in favor of plaintiff against Annith and Wayne Byrd for
(1) foreclosure and sale of the property located at 501-509 East
78th Street in Brooklyn, New York, in the amount of
$1,734,806.28; (2) interest accruing at a rate of $345.97 per
diem from February 9, 2011, through the date of judgment;
(3) $19,858.00 in attorneys’ fees; and (4) $1,475.84 in costs;
(b) serve a copy of this Memorandum and Order on any party not
represented on ECF and note service on the docket; and (c) close
this case.

SO ORDERED.

Dated:

Brooklyn, New York
March 30, 2012

____________/s/________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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