Eastern Savings Bank, FSB v. Bowen et al

Filing 80

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS, for the reasons set forth below, the R&R is adopted with modification. The Clerk of the Court is further directed to enter judgment in the amount $646,296.93 for ESB and enter the Propose d Judgment of Foreclosure and Sale, annexed hereto as Exhibit A. The judgment amount includes: $279,632.45 in unpaid principal; $225,849.75 in interest accured on the unpaid principal through 7/15/16; $527.35 in late fees; $87,014 .49 in escrow advances; $35,333.42 in interest accured on escrow advances; $14,887.50 in attorney's fees; and $3,051.97 in costs. Pltff's motion for default judgment is granted against the defaulting defts. The Court certifie s, pursuant to 28 USC sec. 1915(a)(3), that any appeal from this order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose if an appeal. The Clerk of Court is directed to close this case for administrative purposes. (Ordered by Judge Eric N. Vitaliano on 5/20/17) c/m (Galeano, Sonia)

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UNITED STATES D ISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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FiLEL
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IN CLERK'S 0 1
·c:irE
DISTRICT

coun'. n Ny

l·iAY 3 l 2G.7

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BROOKLYN OFFICE
EASTERN SA VINOS BANK, FSB,
P laintiff,

MEMORANDUM & ORDER
13-CV-3633 (ENV)(VMS)

-againstMATTHEW BOWEN A /KIA MATHEW BOWEN,
PETER BOWEN, KMV DRIVING SCHOOL, NEW
YORK CITY PARKING VIOLATIONS BUREAU,
NEW YORK CITY ENVIRONMENT AL CONTROL
BOARD, EW YORK CITY TRANSIT
ADJ UDICATION BOARD.
Defendants.

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VIT ALIANO, D.J.
A mortgage foreclosure action, this case has been a sustained and tortuous tug of war. In the
latest tug, defendant Mathew Bowen objects to the Report and Recommendation ("R&R") issued as
to plain ti Frs motion for (i) a judgment of fo reclosure and sale and (ii) a default judgment against
certain nominal defendants. See Dkt. No. 75 (" R&R"); Dkt. No. 70 (Motion for Default Judgment
and .I udgement of Foreclosure and Sale). For the reasons set forth below, the R&R is adopted with
mod ificatio n.
Background
This mortgage foreclosure litigation has been on a four year odyssey in thi s Court. One
overriding fact has never been in dispute : the mortgagor defaulted on the mortgage and the
mortgage has remained unpaid ever since. These and other pertinent facts have been more than
sufficiently reported in prior decisions. See Dkt. N os. 59, 62, 75 ; see also E. Sav. Bank v. Bowen,
No. l 3-CV-3633ENVVMS, 2016 WL 2888997 (E.D.N.Y. May 17, 2016). Fami liarity of the

parties is presumed. Given the undisputed nonpayment of the mortgage, and with no

redembtio~ in

sight, the virtually inevitable end of this litigation has come: ESB's request to enter ajudgmrnt pf
foreclosure and sale.

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granti~g (i~ the
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That result was precipitated when, on July 26, 2016, ESB moved for an order

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judgment of foreclosure and sale against Bowen, pursuant to Federal Rule 54, and (ii) defautt

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judgment against the procedurally defaulting defendants, pursuant to Federal Rule 55(b)(2) and
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Local Civil Rule 55.2(b). See Dkt. No. 70. As directed by the Court, ESB attached a proposed

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judgment of foreclosure and sale to its motion papers. See Dkt. No. 70-5. Bowen objected
terms of the proposed judgment of foreclosure of sale on the grounds that it utilized an

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"ex~m~Iy
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high interest rate" and provided for "outrageously high attorneys' fees and other costs ... ·"I D11.
No. 72. The Court respectfully referred ESB's motion to Magistrate Judge Vera M. Scanlon,, w~o,

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on February 6, 2017, issued a R&R including, as an Appendix, a slightly revised proposedjadgrhent
of foreclosure and sale, Dkt. No. 75-1. Written objections were due within 14 days. See R&R
19.
On February 24, 2017, four days after the objection period had expired 1, Bowen subipitt1d
objections to the R&R in which he primarily disputed the amount of recommended damages:. S,e
Dkt. No. 76 ("Bowen Obj."). Specifically, Bowen objects to the late fees assessed on the loan, the
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hazard insurance charges, the interest assessed on the negative escrow, and the calculation of wa~er
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and sewer charges. Id. ESB timely responded to Bowen's objections on March 10, 2017. See Dkt.
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Because Bowen's objections were untimely the Court could review Judge Scanlon's
against a clear error standard. See Martinson v. U.S. Parole Comm 'n., No. 02CV4913KMKJ 20@5
WL 1309054, at *3-4 (S.D.N.Y. June 1, 2005). Bowen, however, is not represented by coun'.sel d,
therefore, is entitled to special solicitude. See Chinnery v. N Y. State Office ofChildren & Fbmi
Servs., No. 10 CIV. 0882 DAB, 2015 WL 1029601, at *1 n.1 (S.D.N.Y. Mar. 10, 2015), appeal
dismissed (Oct. 22, 2015). With solicitude, then, the Court grants Bowen an extension of tiriie,
nunc pro tune, through the date his objections were filed. See id His objections will, as a r~sult be
reviewed under the same standard that would apply had they actually been filed in a timely m
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No. 77. Having reviewed the R&R, Bowen's objections, ESB's responses and the record itself tie
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nova, the Court now adopts the R&R, with modification, as the opinion of the Court.
Legal Standard

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In reviewing a report and recommendation of a magistrate judge, a district court "m~y
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accept, reject, or modify, in whole or in part, the findings or recommendations made by the ,
magistrate judge." 28 U.S.C. § 636(b)(l). Further, a district judge is required to "determin~ de'
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novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ.
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P. 72(b)(3); see also 28 U.S.C. § 636(b)(l); Arista Records, LLC v. Doe 3, 604 F.3d 110, l lf (21
Cir. 2010). But, as to "those portions of the report to which no timely objection has been made, a
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district court need only satisfy itself that there is no clear error on the face of the record" in qrde~ to
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accept it. Ruiz v. Citibank, N.A., No. 10 Civ. 5950 (KPF), 2014 WL 4635575, at *2 (S.D.N.¥. Aug.
19, 2014) (quoting King v. Greiner, No. 02 Civ. 5810 (D LC), 2009 WL 200143 9, at *4 (S .DlN

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July 8, 2009)).
Discussion
I.

Judgement of Foreclosure and Sale

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The most consequential findings set forth in the R&R are unchallenged. Specificallyj no
party objects to following findings: (i) that the outstanding principal balance owed by Bowej to

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ESB is $279,632.45, see R&R at 7; (ii) that ESB should be awarded $225,849.75 in interest Lcciied
on the unpaid principal, see id at 8; and that (iii) ESB should be awarded $14,887.50 in attoieyls

fees and $3,051.97 in costs, id. at 10-18. These conclusions are correct, well-reasoned, and free

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any clear error. They are adopted by the Court. 2

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The R&R correctly sets out that the $225,849.75 award accounts for interest through }uly

15, 2016. R&R at 7.

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a. Unpaid Late Charges
Bowen does dispute the computation of late fees proposed by ESB and adopted in the R&R.
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The terms of the Note control, which provide that if ESB did not receive the full amount of ~y

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monthly payment by the end of 15 calendars days after the date on which the payment was +e, the
borrower was subject to a late charge of 5% of the overdue payment of principal and

interes~.

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Dkt. No. 1 ("Compl. & Note") at 13. 3 Under this provision, ESB seeks $7,400.23 for the tot~lized
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unpaid late charges that accrued each month from December 16, 2008 through April 16, 20lB, (the
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date on which ESB claims that the loan was accelerated}. Both parties appear to agree that the late
charges are only calculated from the date of default to the date of acceleration. See Dkt. No.]

70-r at

4; Bowen Obj. Bowen, however, argues that the late fee period should be trimmed down to l'at

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most, a few months" since the "subject loan was accelerated in early 2009 before the first
foreclosure filing in state court." Bowen Obj. at 1.
"It is well established [law] that[,] while an election to accelerate must be exercised
affirmatively by some overt act, exercise of the option to accelerate the maturity of a mortgage

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not dependent upon a notice of default or a demand for payment of any defaulted installmen, un1f ss
the mortgage, by its terms, requires otherwise." 650 Brooklyn LLC v. Hunte, 47 Misc. 3d

88f, Sr-

94, 3 N.Y.S.3d 909, 915 (N.Y. Sup. 2015) (citing Charter One Bank. FSB v. Leone, 45 A.Dr 9f8,
958, 845 N.Y.S.2d 513 (3d Dep't 2007)). Indeed, under New York law, "[c]ommencement qf a
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foreclosure action may be sufficient to put the borrower on notice that the option to acceleratf th~
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debt has been exercised." Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 983, 943 N.Y.S.2d
(2d Dep't 2012); see also Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 476,

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All citations to the Complaint & Note are to the Electronic Case Filing pagination.

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ESB provides a chart that breaks down late fee accrual from December 16, 2008 to April 6,
2013. Dkt. No. 70-2 at 18.
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("~he

176 (1932); Clayton Nat., Inc. v. Guidi, 307 A.D.2d 982, 763 N.Y.S.2d 493 (2d Dep't 2003)

filing of the summons and complaint . ... accelerated the note and mortgage[.]"); accord E. saJ.

Bank, FSB v. Whyte, No. 13-CV-6111 CBA LB, 2015 WL 790036, at *7 (E.D.N.Y. Feb. 24, 20ls)

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(awarding late fees up to the date the action was commenced).

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There is no question that, in May 2009, years before filing the instant action, ESB injtit!ted
a foreclosure proceeding in Supreme Court, Kings County. See Dkt. No. 20 at 6; Dkt. No.

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6. That state court action was dismissed without prejudice. See Dkt. No. 38-2 at 12-14; D,. Nt.

38-22. Patently, the commencement of the state court action served as an acceleration of the
mortgage .. This

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obj~ction. filed by Bowen is, as a consequence, sustained to the. extent that te l~te

fees to be mcluded m the Judgment are reduced from $7,400.23 to $527.35, which represents late

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fees running from February 2009 to May 1, 2009, when the original foreclosure action was le, by

ESB in Supreme Court. 5 See Dkt. No. 70-2 at 19; see also Compl. & Note at 4 (setting the default
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date in February 2009).
b. Escrow Advances
Bowen next objects that the amount awarded to ESB in escrow advances is "excessir Jd
unreasonable." Bowen Obj. at 1. Stated simply, Bowen takes issue with two separate com11onelts
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of the $90,087.45 recommended by Judge Scanlon as the escrow advance award: (i) that the

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amount assessed for hazard insurance is exploitatively high, and (ii) that the sewer and watel feJs to
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be awarded were never paid by ESB.

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Not surprisingly, since it is very much in the ordinary course of things, Bowen was r~quired
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by the mortgage terms to reimburse ESB for expenses paid by ESB in maintenance of the

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mortgaged property. Those escrow items included "truces, assessments, water charges, sewer re, ts
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This amount is inclusive of $150.67 (2/17/2009 late fee); $150.67 (3/16/2009 late fee);
$150.67 (4/16/2009 late fee); and $75.34 (5/1/2009 late fee).
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and other similar charges, ... hazard or property insurance covering the [p]roperty, [and] flood :
insurance (if any) ...." Compl. & Note at 24. The mortgage also specifically authorized

E~B ~o

"pay for whatever is reasonable or appropriate to protect [ESB]'s interest in the [p]roperty.

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Id.

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at 28. Further, Bowen was required to pay ESB "any amounts, with interest, which [ESB] spends"
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to protect its interest in the property. Id. Given this standard language, recovery of escrow

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disbursements is far from rare in foreclosure actions. See, e.g., One West Bank, NA. v. Denham,i'No.
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CV 14-5529 DRH AKT, 2015 WL 5562980, at *IO (E.D.N.Y. Aug. 31, 2015) (recommendibg iin
award including escrow advances), report and recommendation adopted, No. 14 CV 5529 tjRH
AKT, 2015 WL 5562981 (E.D.N.Y. Sept. 21, 2015); Onewest Bank, NA. v. Cole, No. 14-CV03078 FB RER, 2015 WL 4429014, at *5 (E.D.N.Y. July 17, 2015).
Providing record support for the escrow advances it claims and the amount awarded to it in
Judge Scanlon's R&R, see R&R at IO, ESB points to its submission of more than 75pages1ftax
documents, water and sewage receipts, and insurance invoices showing its escrow expenses fro
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2010 to 2016. Dkt. No. 70-2 at 4, 21. 6 In addition to providing an evidentiary basis to support
award calculation, the documents also demonstrate that Bowen has been on notice of these charges
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for many years.
Focusing first on the hazard insurance, Bowen claims that the approximately $25,00J that
ESB paid over the course of almost six years is exorbitant. Bowen contends that a reasonabl~
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amount for such insurance coverage should not exceed $8000. Critically, various documents serit
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by ESB to Bowen over the course of his default not only gave him notice of the hazard insurance it
was purchasing for his property, but also gave him ample opportunity to purchase insurance lt a
lower price on the open market, ifhe could find it. For example, a letter to Bowen entitled
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ESB also provides a summary chart that totals each Escrow Item payment (the "Escrow
Items Chart"). See Dkt. No. 70-2 at 21.
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NOTICE OF LENDER PLACED HAZARD COVERAGE, dated March 12, 2015, states in
pertinent part:
Enclosed is a lender placed policy we have purchased on your behalf
at your expense in accordance with the terms of your mortgage
agreement.
The insurance purchased:

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Costs $2,763.00 annually, which may be significantly
more than hazard insurance you can purchase yourself.

You may obtain a refund for a portion of these charges if you provide
us with satisfactory proof that you have purchased your own hazard
coverage while the lender placed hazard insurance is in effect.
Dkt. No. 70-2 at 36 (emphasis in original); see also id. at 49 (2014 Letter).
Whether or not this insurance policy was a bargain is not the point. Nothing in the relord
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evidence even remotely suggests that the coverage purchased by ESB was not an arm's len~
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purchase on the open market. Pointedly, the letter put Bowen on notice that he should seek tjther
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coverage and, in fact, that he might find coverage at a significantly cheaper rate. He elected not to
do so. Had he tried, perhaps he would have found coverage that, even if he could not afford it,
might have provided evidence now to support his objection. As it stands, that objection is oqly
nakedly asserted. 7 Plainly, under the rights granted in the mortgage and in the exercise of common

sense, ESB acted quite properly in acquiring the hazard insurance it acquired to protect its selurJd

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Bowen's $8,000 "suggest[ion]" is purportedly a "[q]uote from the New York PropertY
Insurance Underwriting Association" for "[f]ire insurance only." Without more, it is unclear'jhov¥
Bowen went about calculating this, what terms were used to generate the quote, and why the quote
was for "fire insurance only[,]" making the $8,000 suggestion of little utility here. Bowen also
makes reference to an unnamed class action in Florida against Wells Fargo where "banks paitl
hundreds of millions in fines for abusing and excessively profiting from overcharging homeown rs
for (forced placed Insurance)." Bowen Obj. at 1. The reference is wholly unrelated to this actio
and absolutely irrelevant.
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interest and Bowen's equity in the mortgaged premises. This branch of Bowen's objection lo tJie
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escrow advances of Judge Scanlon's R&R is, consequently, overruled and her R&R as to

th~se
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findings is sustained and adopted in the Court's opinion.

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The second branch of this objection attacks the amount awarded in the R&R to covel the
water and sewage charge reimbursement. Bowen Obj. at 2. ESB calculates a total of $55,9(3.lr in
water and sewer rate payments it paid covering the period from 2010 to 2016, that are brokeh out
into five payments. See Dkt. No. 70-2 at 21. Bowen targets, claiming it a fabrication, the tilt

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five payment, which, ESB claims was $22,626.03. ESB's records reflect that the payment was

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made in March 2010. See id. This time Bowen offers a document to support his contention. Hi1
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objection presents what appears to be a February 24, 2017 printout from the New York City·

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Department of Environmental Protection ("DEP") Bureau of Customer Service. It is titled "k.ccount
Payment History from 01101195" for Bowen's property. As its date establishes, long after thl fillng
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of Judge Scanlon's R&R, this document makes its first appearance in the litigation. The docj+t
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lists the other four payments, but does not reflect that first claimed payment that .Bowen nowl
challenges. 8 See Bowen Obj. at 5.

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Bowen's submission of the DEP document triggers a prefatory adjudication. Given its
creation after the filing of the R&R, see Bowen Obj. at 5, the Court must first determine whereTt
will consider the DEP document at all. A reviewing district court most assuredly has discretion tb
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consider new evidence raised for the first time in an objection to a magistrate judge's R&R. See

Hynes v. Squillace, 143 F .3d 653, 656 (2d Cir. 1998). But, it is also free to exercise its

discJtio~ to
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The printout also lists a payment of$515.63 made on November 7, 2016 which ESB is not
seeking to recoup at this time. It was not included in the calculations because, very simply, i~ wa
made after ESB's Proposed Judgment of Foreclosure and Sale was submitted to the Court.
D t.
No. 77-1 at 2 n.1. This payment does, however, indicate that ESB continues to make water and
sewage payments for Bowen, even now.

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refuse to consider it. See, e.g., Paddington Partners v. Bouchard. 34 F.3d 1132, 1137-38 (2d

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1994) (finding no abuse of discretion in district court's refusal to consider supplemental evidencb);

Amadasu v. Ngati, No. 05-CV-2585

RRM LB, 2012 WL 3930386, at *4 (E.D.N.Y. Sept. 9, 201t.

There is not the slightest pretense of explanation for the .tardiness of Bowen's

proffe~ of llhe

DEP accounting in support of his objection. He had plenty of time to secure it and submit it[ for
Magistrate Judge Scanlon' s consideration on the referral to her of ESB' s motion for judgmebt of
foreclosure and sale. 9 Confronted by the unassailable truth of mortgage nonpayment, the pjst-J&R
submission of the DEP accounting is entirely in keeping with Bowen's approach to this Iitigftiol,
which, mot charitably, can be characterized as foot-dragging. The proffer at best is equivocal.
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Indeed, it confirms four out of five ofESB's claimed payments. At the same time, it does n~t,

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br its
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terms, refute the payment of the fifth installment, though it could be used to support that conclusion.
(More about that later.) On those facts and history, the Court declines to exercise its discretip•n tr[
permit consideration of the proffered DEP accounting in its de novo review of this objection:
Without it, nothing in the record undermines Judge Scanlon's conclusion that all five paymefts ~ere

made by ESB to cover water and sewer charges, and that they should be included in the judbieJt.
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Bowen's objection to the inclusion of the fifth payment is overruled.
In any event, even if the Court were to consider Bowen's proffered DEP accounting, it

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would change nothing. Quite to the contrary, it would confirm the truth of ESB's own submissi~n.
ESB's own business records, submitted long ago, reflect that the water and sewer payment nlt ,
shown in the DEP accounting was not made to DEP in the first place, but, rather, to the

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- NYCTL 2009-A Trust Xspand ("Xspand"), to which the City had apparently sold delinquent water
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Bowen was also provided multiple extensions to oppose ESB's motion for judgment pf
foreclosure and sale. See 8/16/2016 Dkt. Entry; 9/13/2016 Dkt. Entry (granting extension nunc ro
tune after Bowen missed deadline).
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and sewer charges for collection. In sum, Bowen's proffered submission confirms that four
payments were made to DEP. But it does not establish that the fifth was never made. The recor.d,
including the DEP accounting, thus, clearly establishes that the challenged payment was made tl
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Xspand. Compare Dkt. No. 70-2 at 97 (check voucher for first water/sewage payment made to :
Xspand}, with id. at 96 (check voucher for second water/sewage payment made to DEP}, ank at b6
(check voucher for third water/sewage payment made to DEP}, and at 46 (check voucher fol

fo~h

water/sewage payment made to DEP), and at 31 (check voucher for fifth water/sewage paymen~
made to "NYC Water Board," which operates through DEP). Bowen's proffer hardly reflecfs

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revelation of a state secret. As explained by ESB, Xspand was a lienholder for a past-due waterland
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sewer charge from 2008-2009. See Dkt. No. 77-1. In short, the check vouchers submitted by ESB
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in July 2016 are completely consistent with an award that all five payments be included in the .
escrow advances to be awarded to ESB, as the R&R concludes.

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The de novo review of the objection, however, did uncover a few anomalies that do preclude
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the award of the full amount recommended in the R&R ($90,087.45). As will be fleshed out lat~r,
there are inconsistencies in ESB' s records making the more appropriate escrow advance awkd

tb be
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$87.014.49.
c. Interest on Escrow Advances

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Finally, and related to the escrow advance award, Bowen claims that the interest rat1

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calculated on the escrow advances to be excessive, and inaccurate. He requests a reduction o Je
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arbitrary amount of $1,000. Bowen Obj. at 2. By way of background, ESB submitted an estroJ
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interest chart which purports to document changes in Bowen's escrow balance, as well as the per1

diem interest that accrued on this balance. Dkt. No. 70-2 at 101 (the "Escrow Interest Chartr).
Bowen argues that the Escrow Interest Chart is inconsistent with the chart discussed earlier, the
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Escrow Items Chart, which sets out the individual escrow item payments made by ESB, inclfdilg
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escrow advances.

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On this point, although the interest rate is not itself excessive

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(and, in fact, compo"f wr

the interest rate set forth in the Note, see Compl. & Note at 15), the Court agrees with Bowen that
certain inconsistencies are made apparent upon close inspection of ESB's two

escrow-relate~ chLs.

The Escrow Interest Chart records certain deductions from the escrow balance that are not shoj on
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the Escrow Items Chart. See Escrow Interest Chart at 7/30/2010 Entry, 2/1/2013 Entry, 12117/2913
Entry, and 10/22/2015 Entry. Additionally, the payment of $448.51 that ESB made on DecembJr
17, 2013, according to the Escrow Items Chart, is not reflected in the Escrow Interest Chart.:

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Consequently, the Court adjusts for these inconsistencies and awards ESB $87,014.49 in escrow
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advances, and $35,333.42 in escrow interest. 11 These findings of the R&R are modified to that
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extent.
II.

Default Judgment
As a side bar, ESB also moves for default judgment against the defaulting defendants. The
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R&R, citing to the May 17, 2016 Order granting summary judgment, characterized this relief as

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Moreover, that the interest rate is excessive is merely a rehashing of Bowen's pre-R&R
opposition, see Dkt. No. 72. See Chinnery v. N. Y. State Office of Children & Family Servs., No. '10
CIV. 0882 DAB, 2015 WL 1029601, at *l (S.D.N.Y. Mar. 10, 2015) ("[E]ven a prose partyjs ·
objections to a Report and Recommendation must be specific and clearly aimed at particular
findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by
simply relitigating a prior argument.") (citation omitted), appeal dismissed (Oct. 22, 2015). IThe:
Court does not review this rehashed argument de novo and finds no clear error on Judge Scanlon~s
challenged findings regarding this interest rate.
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The Court has relied upon the Escrow Interest Chart to calculate the reduced total escrow
costs incurred by ESB from 3/23/2010 forward ($90,087.45-$3072.96). See Escrow Interest Fh .
Correspondingly, the Court also reduced the escrow interest by $259.17. See id

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"extraneous and unnecessary" since "the [d]istrict [c]ourt has already granted the relief request. '
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R&R at 2. The May 17, 2016 Order, cited in the R&R, provided:

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[ESB] also seeks to default [the defaulting defendants] for failing to
respond to the complaint. In compliance with the requirements of
Rule 55(a) and Local Civil Rule 55.1, [ESB] has submitted an
affirmation showing ( 1) that these parties are not infants, in the
military, or incompetent persons; (2) that they have failed to plead or
otherwise defend the action; and (3) that the complaint was properly
served on them. Accordingly, the Clerk of Court is directed to issue a
certificate of default against [the defaulting defendants].
5117116 Order at 13-14. That order went on to "grant" ESB's "motion to default [the defaulting
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defendants]." Id at 14. 12
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Currently, there appears to be confusion regarding whether the Court, in its May 17, ~016
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Order, granted ESB' s motion for default judgment against the defaulting defendants pursuJt to
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Federal Rule of Civil Procedure 55(b), or simply noted ESB's compliance with the prelimin~
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requirements of Rule 55(a). Clearly, pursuant to the Court's Individual Rules, "motions for ~eu1ult
judgment will not be considered absent prior issuance of a certificate of default by the Clerklof

Court in accordance with Local Civil Rule 55.1." Rule IIl.F, Individual Motion Practice & Rules
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of Judge Eric N. Vitaliano; see also Tarbell v. Jacobs, 856 F. Supp. 101, 104 (N.D.N.Y. 199r)

(citing 10 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure§ 2682 Clp83v.
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Indeed, only after the party seeking a default judgment passes the 55(a) hurdle, does the plairitif~
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get to Rule SS(b), which outlines how the Clerk may enter default judgment in certain scenf os,'i

Rule 55(b)( 1), or, in other cases, how the Court may grant such a judgment, Rule 55(b)(2). ~ee

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New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) ("Rule 55 of the Federal Rules o/Civil:

12

The Clerk of Court then entered the Certificate of Default on June 15, 2016 as to the
defaulting defendants. See 6/15/2016 Dkt. Entry. At the Court's instruction, ESB served the
Certificate on the defaulting defendants on September 14, 2016. See Dkt. No. 73.
12

1

Procedure provides a two-step process for obtaining a default judgment."); Getty Images

(~S)

c.

I

v. Advernet, Inc., No. 09 CIV. 1895 KNF, 2010 WL 4536995, at *4-5 (S.D.N.Y. Nov. 2, 2010).
Notwithstanding, given that this is a foreclosure action and the defaulting parties are for 11
intents and purposes nominal defendants from a practical perspective, it was the Court's intenti n
I

to grant default judgment against them even though not all of the procedural bases had been
touched. With apologies for the procedural bypass and out of an abundance of caution and at the
risk of being overly formulaic, the Court here finds that the claims upon which judgment is Jo Jter
against the defaulting defendants are supported by well-pleaded factual allegations sufficieJ to !
establish a right to the relief sought by ESB. See Taizhou Zhongneng Imp. & Exp. Co. v.

I
I

Koutsobinas, 509 F. App'x 54, 56 (2d Cir. 2013). ESB's motion for default judgment as to the
nonresponding, essentially nominal defendants is granted.
I

Conclu~on

I
I

i

For the reasons set forth above, Bowen's objections to the Report & Recommendatit o~
Magistrate Judge Vera M. Scanlon, dated February 6, 2017, are overruled to the extent indicf1ed
and the R&R is adopted, as modified by this Order, as the opinion of the Court.

1

The Clerk of Court is further directed to enter judgment in the amount of $646,296.93 foJ
I

ESB and enter the Proposed Judgment of Foreclosure and Sale, annexed hereto as Exhibit

I

A.I

I

T~e
I

judgment amount includes:
•

$279,632.45 in unpaid principal;

•

$225,849.75 in interest accrued on the unpaid principal through July l~,

I

2016;
•

$527.35 in late fees;

•

$87,014.49 in escrow advances;

•

$35,333.42 in interest accrued on escrow advances;
13

/S/ USDJ ERIC N. VITALIANO