JXB 84 LLC v. Khalil et al

Filing 51

CORRECTED ORDER ADOPTING REPORT AND RECOMMENDATIONS. So Ordered by Judge Nicholas G. Garaufis on 3/29/2017. (This Order corrects the date of the R&R issued by Magistrate Judge Orenstein, and referenced on page 2 of this Order, from 3/4/2015 to 2/17/2017). (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

JXB 84 LLC,
ORDER

. Plaintiff,

15-CV-6251(NGG)
(JO)
-againstSAIDKHALIL,etal.,
Defendants.
.X

NICHOLAS G. GARAUFIS,United States District Judge,
On October 30,2015,Plaintiff JXB 84 LLC("JXB" or "Plaintiff') brought this
foreclosure action against Defendants Said Khalil ("Khalil"),the New York City Parking

Violations Bureau("NYCPVB"),John Does 1-12 (representing possible tenants or occupants of
the mortgaged property)(the "John Doe Tenants"), Mousa Khalil, the New York State
Department of Taxation and Finance("NYSDTF"),and the New York City Environmental

Control Board("NYCECB")(collectively, the "First Non-Mortgagor Defendants")(Compl.
(Dkt. 1).) Plaintiff subsequently amended the complaint to include as defendants Margaret
Ziede, Chase Bank USA,N.A.("Chase"), Capital One Bank(USA)NA ("Capital One"),

Recovery of Judgment LLC Assignee of Congregation Imrei Yehudah, Recovery of Judgment

LLC Assignee ofParkway LLC & Congregation Imrei Yehudah, Congregation Imrei Yehudah,
Emmanuel Diamantakis, Harry Lambrakis, and George Diamantakis (collectively, the "Second
Non-Mortgagor Defendants"). (Am. Compl.(Dkt. 6).) Plaintiff seeks to foreclose its mortgage

on a property located at 228 Senator Street, Brooklyn, New York, 11220(the "Mortgaged
Property"), obtain payment on the underlying mortgage note from Said Khalil, and extinguish all
subordinate interests in the Mortgaged Property. (IdJ

No defendant has appeared in this action and, by April 5,2016,the Clerk of Court had
entered default against each defendant. (See Feb. 3, 2016, Entry of Default(Dkt. 29); Apr. 5,

2016,Entry of Default(Dkt. 32).) On April 20,2016,Plaintiff moved for defaultjudgment and
submitted a proposed Judgment ofForeclosure and Sale (the "Proposed Order"). (Mot. for
Default J.(Dkt. 33); Proposed Order(Dkt. 33-6)). The court referred the motion to Magistrate
Judge James Orenstein for a report and recommendation("R&R"),pursuant to 28
U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Apr. 21,2016, Order
Referring Mot.)

On February 17,2017, Judge Orenstein issued an R&R recommending that the court:
• Order the foreclosure and sale of the Mortgaged Property'm accordance with the
Proposed Order;
• Order Defendant Khalil to pay Plaintiff $274,287.84, constituting the remaining
principal amoimt on the mortgage note ($146,897.01) and the accrued interest on
that amount, calculated at an aimual rate of 10.10% from the date of Said Khalil's
last payment, September 1, 2008, xmtil the estimated date of entry of the clerk's

judgment, March 31,2017($127,390.83);^
• Dismiss all claims against Defendants NYCPVB and the John Doe Tenants; and
• Enter default judgment against First and Second Non-Mortgagor Defendants,
terminating any interest those parties might have in the Mortgaged Property.

(R&R(Dkt. 45).) No party has objected to Judge Orenstein's R&R,and the time to do so has

passed. S^ Fed. R. Civ. P. 72(b)(2). (See also R&R at 10-11 ("Any objections to this Report
and Recommendation must be filed no later than March 6, 2017.").) Therefore, the court
reviews the R&R for clear error. See Gesualdi v. Mack Excavation & Trailer Serv.. Inc..

'
Judge Orenstein reached this interest figure by multiplying the daily rate of interest, $40.65, by the number of days
that have elapsed since Said Khalil last paid an installment on the note. (R&R at 10.) In this order, the court adopts
this method of calculation but does not retain the final figure.

No.09-CV-2502(KAM)
(JO), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15,2010); La Torres v.

Walker. 216 F. Supp. 2d 157,159(S.D.N.Y. 2000);^28 U.S.C. § 636(b)(1).
Finding no clear error, the court ADOPTS IN FULL the R&R.

Porter v. Potter, 219

F. App'x 112(2d Cir. 2007)(summary order). Accordingly, the court:

• DISMISSES all claims against the NYCPVB and the John Doe Tenants without
prejudice;
• ORDERS that defaultjudgment be entered against the First and Second
Non-Mortgagor Defendants, barring and foreclosing them from all estate, right,

title, claim, interest, lien, and equity ofredemption in the Mortgaged Property;^
• ORDERS that defaultjudgment be entered against Defendant Said Khalil on the
amount due on the note and mortgage,totaling $146,897.01 plus prejudgment
interest, to be calculated at a daily rate of$40.65 from September 1,2008, until
the date of entry ofjudgment.

Plaintiff is ORDERED to serve a copy ofthis order on the defaulting defendants and file a proof
ofservice with the court. Additionally, Plaintiffis DIRECTED to provide a revised proposed

Judgment ofForeclosure and Sale as to the property at Mortgaged Property, consistent with this
order, within 20 days ofthe date ofthis order. Additionally, the revised proposed judgment shall
designate a referee responsible for selling mortgaged premises, subject to this court's approval.
SO ORDERED.

s/Nicholas G. Garfaufis
Dated: Brooklvm New York

MarchP^,2017

NICHOLAS G. GARAUFl.

United States District Judge

^ For clarity, this group consists ofthe following Defendants: Mousa Khalil, the New York State Department of
Taxation and Finance, the New York City Environmental Control Board, Margaret Ziede, Chase Bank USA,N.A.,
Capital One Bank OJSA)NA,Recovery ofJudgment LLC Assignee of Congregation Imrei Yehudah, Recovery of
Judgment LLC Assignee ofParkway LLC & Congregation Lnrei Yehudah, Congregation Imrei Yehudah,
Emmanuel Diamantakis, Harry Lambrakis, and George Diamantakis.