CIT Bank, N.A. v. Hawkins et al

Filing 23

ORDER denying without prejudice and with leave to renew 21 Motion for Default Judgment. If plaintiff elects to renew its motion, it shall do so by 6/28/2019. Ordered by Judge Nina Gershon on 5/30/2019. (Barrett, C)

FILED

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UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

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BROOKLYN·

CIT BANK, N.A.,
Plaintiff,

1

MAY 30 2019 . ,·

ORDER

-against-

17-cv-4704 (NG) (SMG)

DOUGLAS HAWKINS, MORTGAGE ELECTRONIC
REGISTRATION SYSTEM ACTING SOLELY AS A
NOMINEE FOR CAMBRIDGE HOME CAPITAL,
LLC., MUNICIPAL CREDIT UNION, NEW YORK
CITY ADJUDICATION BUREAU, NEW YORK CITY
ENVIRONMENT AL CONTROL BOARD,
Defendants.

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GERSHON, United States District Judge:
Plaintiff CIT Bank, N .A. brought this action against defendants Douglas Hawkins,
Mortgage Electronic Registration System ("MERS") (acting solely as a nominee for Cambridge
Home Capital, LLC), Municipal Credit Union ("MCU"), New York City Transit Adjudication
Bureau ("TAB"), 1 and New York City Environmental Control Board ("ECB") seeking to foreclose
on a mortgage encumbering real property located at 69-52 De Costa Avenue, Arveme, New York
("the Property"). Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court issued a
Certificate of Default against all defendants because of their failure to answer or otherwise respond
to the complaint. Plaintiff now moves for a default judgment, computation of damages, and
judgment of foreclosure and sale.
DISCUSSION
Under Local Civil Rule 55.2(b), a party seeking a judgment by default shall include with
its application "(l) the Clerk's certificate of default, (2) a copy of the claim to which no response

1

This defendant was improperly listed as New York City Adjudication Bureau in the complaint's
caption.

has been made, and (3) a proposed form of default judgment." In addition, under Local Civil Rule
55.2(c), "all papers submitted to the Court" pursuant to Rule 55.2(b) "shall simultaneously be
mailed to the party against whom a default judgment is sought at the last known residence of such
party (if an individual) or the last known business address of such party (if a person other than an
individual). Proof of such mailing shall be filed with the Court."
Plaintiffs motion for a default judgment did not include a copy of the certificate of default,
an omission that renders it procedurally defective as to each defendant. The motion is therefore
denied without prejudice. See, e.g., Gustavia Home, LLC v. Derby, 2017 WL 9989600, at *1-2
(E.D.N.Y. May 16, 2017).
Plaintiffs motion is also flawed because plaintiff has not sufficiently shown that the
defendants other than Hawkins were properly served with its motion for a default judgment.
Plaintiff did not file proof of service of its motion on the docket, but it did attach an affidavit of
service to the courtesy copy of its motion that it submitted to the court. The affidavit, which the
court has docketed, indicates that plaintiff served Hawkins, MERS, TAB, and ECB by mail on
June 14, 2018. There is no proof of service for MCU. Moreover, the affidavit indicates that
plaintiff served its motion on MERS, TAB, and ECB at addresses different from those at which it
served each of them with the complaint. Therefore, should plaintiff renew its motion, it must not
only file proof of service of the motion for each defendant on the docket, but it must explain why
the address at which it served a defendant was proper. If the address differs from that at which a
defendant was served with the complaint, plaintiff must address that discrepancy.
The court has reviewed the substance of plaintiffs motion and found several deficiencies.

If plaintiff renews its motion, it shall also submit (and properly serve on defendants) supplemental
motion papers addressing the following:

2

•

Whether ECB' s liens are against the Property at issue, rather than against Hawkins in
personam or against the Bronx property listed on Schedule B. 2

•

The information on which plaintiff relies to show that TAB has one or more liens against
the Property. Schedule B does not suffice.

•

Whether plaintiff has satisfied the Servicemembers Civil Relief Act, 50 U.S.C. §
393 l(b)(l)A), and Local Civil Rule 55.l(b)(l), where the Status Report that plaintiffs
counsel submitted contains a misspelling of Hawkins' name.

•

The precise calculations plaintiff used to determine the principal and interest owed by
Hawkins. Plaintiff should also address why the principal amount is $631,871.52 (as
opposed to $632,295.20, the amount in the Modification Agreement); the source of the
$12. 75 credited to Hawkins; and how that credit should be factored into the interest
calculation.

•

An itemized list of each of the costs, escrow advances, late charges, and fees that plaintiff
seeks to be awarded as damages under the terms of the Note, Mortgage, and Modification
Agreement, and corresponding evidence showing that plaintiff incurred each of these
costs. Printouts from plaintiffs internal computer program, without any guidance as to
how to interpret them, are wholly inadequate.

•

Unredacted copies of the time sheets plaintiff submitted to support its application for
attorneys' fees. If plaintiff believes that any portion of those time sheets is privileged, it
must provide support for that position and it must submit unredacted versions in camera.

2

See, e.g., Spring Homes LLC v. Rivera, 2016 WL 5793196, at *3 (E.D.N.Y. Aug. 16, 2016),
report and recommendation adopted by 2016 WL 5716499 (E.D.N.Y. Sept. 30, 2016).
3

Plaintiff is reminded that only confidential communications are privileged. 3 The mere
fact that a conversation between a lawyer and client occurred or that a legal document
was drafted is not privileged.
•

Delineation of exactly which hours listed on plaintiffs counsels' time sheets were
incorporated into the flat fee charged to plaintiff.

•

The exact nature of each of plaintiffs attorneys' costs, and proof that each one was not
only incurred but paid by plaintiff. 4

•

Authority for plaintiffs request for reimbursement of its attorneys' fees and costs that
were incurred well before the initiation of this litigation.
CONCLUSION

Plaintiffs motion for a default judgment is denied without prejudice and with leave to
renew. If plaintiff elects to renew its motion, it shall do so by June 28, 2019. If plaintiff fails in
its renewed motion to provide any of the information requested above, the corresponding relief
will be denied with prejudice.
Plaintiff is advised that this order may not contain an exhaustive recitation of the
deficiencies in its moving papers. It is cautioned to review its motion carefully to ensure that it
has complied with all the rules applicable to default judgment motions and has provided sufficient
support for the relief it seeks.

3

See, e.g., United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011).

4

Markey v. Lapolla Indus., Inc., 2017 WL 9512407, at *8 (E.D.N.Y. Aug. 24, 2017), report and
recommendation adopted by 2017 WL 4271560 (E.D.N.Y. Sept. 26, 2017).
4

SO ORDERED .

Nina Gershon

/s/
NINA GERSHON
United States District Judge
.,

May 30, 2019
Brooklyn, New York

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