Eastern Savings Bank, FSB v. Robinson et al
MEMORANDUM OF DECISION AND ORDER granting 44 Motion for Summary Judgment; denying 54 Motion for Summary Judgment - Based on the foregoing, the Court grants summary judgment in favor of the Plaintiff Eastern Savings Bank, N.A. and dismisses th e affirmative defenses and counterclaims of the Defendants Richard A. Robinson and Gail Robinson. The Bank shall submit a proposed judgment of foreclosure and sale for the Courts review within 10 days of the date of this Order. Further, the Court den ies the Moving Defendants cross-motion for summary judgment in its entirety. To the extent that the Plaintiff intends to pursue default judgments against the non-appearing Defendants, the case shall remain open for that limited purpose So Ordered by Judge Arthur D. Spatt on 2/4/2016. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EASTERN SAVINGS BANK, FSB,
2/4/2016 9:49 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
DECISION AND ORDER
-againstRICHARD ROBINSON A/K/A RICHARD A.
ROBINSON, GAIL ROBINSON, AMERICREDIT
Kriss & Feuerstein, LLP
Attorneys for the Plaintiff
360 Lexington Avenue, Suite 1200
New York, NY 10017
By: Jerold C. Feuerstein, Esq., Of Counsel
Craig D. Robins, Esq.
Attorney for the Defendants Richard Robinson a/k/a Richard A. Robinson and Gail
180 Froehlich Farm Blvd.
Woodbury, NY 11797
Americredit Financial Services, Inc.
LI Anesthesiologist PLLC
SPATT, District Judge:
On December 23, 2013, the Plaintiff Eastern Savings Bank, FSB (the
“Plaintiff” or “Bank”) commenced this action against the Defendants Richard
Robinson a/k/a Richard A. Robinson, Gail Robinson, Americredit Financial Services,
Inc. (“Americredit”), and LI Anesthesiologist PLLC (“LI Anesthesia”), to foreclosure
on a mortgage that was secured by certain real property located in West Babylon,
On January 27, 2014, the Plaintiff filed an amended complaint, adding one
Quinn Robinson as a Defendant.
On January 22, 2015, the Defendants Richard Robinson and Gail Robinson
answered the amended complaint and asserted various affirmative defenses and
To date, the Defendants Americredit, LI Anesthesia, and Quinn
Robinson have not answered the amended complaint, or otherwise appeared in this
action. On July 1, 2015, the Clerk of the Court noted their default.
Presently before the Court is a motion by the Plaintiff, pursuant to Federal
Rule of Civil Procedure (“Fed. R. Civ. P.”) 56, for summary judgment. Also before
the Court is a cross-motion by the Defendants Richard Robinson and Gail Robinson
counterclaims against the Bank.
For the reasons that follow, the Plaintiff’s motion for summary judgment is
granted and the Moving Defendants’ cross-motion for summary judgment is denied.
Unless otherwise noted, the following facts are not in dispute.
The Note and Mortgage
On or about January 9, 2008, the Bank tendered a loan to the Moving
Defendants in the principal sum of $225,000. The Moving Defendants executed a
promissory note in favor of the Bank in the same amount (the “Note”). The Note
was secured by a mortgage (the “Mortgage”) on certain real property owned by the
Moving Defendants, which is known as 734 Carlton Road in West Babylon (the
There is no dispute that the Mortgage was duly recorded by the
Suffolk County Clerk and constitutes a valid first priority lien on the Premises.
The Note and Mortgage obligated the Moving Defendants to make monthly
payments in satisfaction of the loan principal, together with interest and other
related charges. It is undisputed that the Moving Defendants failed to make any of
their required monthly mortgage payments after April 13, 2013.
As stated above, on December 23, 2013, the Plaintiff commenced this action,
pursuant to the New York Real Property Actions and Proceedings Law (“RPAPL”)
seeking to foreclose on the Mortgage.
Also as noted above, the complaint was amended on January 27, 2015, in
order to add the Defendant Quinn Robinson. However, the amended complaint was
substantively indistinguishable from the original complaint.
Relevant here, the amended complaint contains the following prayer for
WHEREFORE, the Plaintiff demands judgment . . . that the
Defendants, Richard Robinson a/k/a Richard A. Robinson and Gail
Robinson, may be adjudged to pay the whole residue, or so much
thereof as the Court may determine to be just and equitable, of the
debt remaining unsatisfied after a sale of the mortgaged premises and
the application of the proceeds pursuant to the directions contained in
such judgment . . .
Am. Compl. at 7.
The Court will refer to this portion of the Bank’s prayer for relief as the
The Moving Defendants’ Bankruptcy Proceeding
On or about March 28, 2014, the Moving Defendants filed a joint petition for
relief under Chapter 7 of the United States Bankruptcy Code. This civil foreclosure
action was stayed during the pendency of that proceeding.
Apparently, on July 2, 2014, the Bankruptcy Court granted the Moving
Defendants an order of discharge (the “Discharge Order”), which released them
from various personal obligations, including repayment of the Mortgage loan. A
copy of the Discharge Order was not provided for the Court’s review. However, the
parties do not dispute its existence or import.
The Continuation of this Foreclosure Action
On January 22, 2015, following the conclusion of their bankruptcy case, the
Moving Defendants filed an answer to the amended complaint, which included
thirteen different affirmative defenses and two affirmative counterclaims.
Relevant here, the Moving Defendants’ tenth affirmative defense alleges that
the Deficiency Claim, which purports to seek a personal judgment against them for
any monetary deficiency remaining after a sale of the Premises, is invalid because
the Discharge Order eliminated their personal responsibility to repay the Mortgage
Similarly, the Moving Defendants’ second counterclaim alleges that the Bank
had an affirmative obligation to amend their prayer for relief in order to reflect the
Discharge Order, namely, by deleting the Deficiency Claim. In this regard, the
Moving Defendants assert that the Bank’s failure to so amend its pleading
constitutes a violation of the Discharge Order, entitling them to dismissal of the
foreclosure action and associated damages.
In its reply to the Moving Defendants’ counterclaims, the Bank denied these
allegations and clarified their position as follows:
[A]ny request(s) contained in the Complaint on account of monetary
obligations which the Defendants could have owed to Eastern, were
made prior in time to the date that the Defendants (i) filed for Chapter
7 bankruptcy, and (ii) obtained a Chapter 7 discharge in connection
WHEREFORE, Eastern demands judgment against Defendants . . . for
the relief contained in the Complaint, except with respect to those
portions of the Complaint which seek to recover for monetary
obligations of the Defendants as they existed prior to obtaining a
Chapter 7 discharge . . .
See Docket Entry  (emphasis supplied).
The Present Motions
On July 1, 2015, the Bank filed a motion, pursuant to Fed. R. Civ. P. 56,
seeking summary judgment on its foreclosure claim and dismissal of the Moving
Defendants’ affirmative defenses and counterclaims.
The Court notes that the
Bank does not seek to recover any monetary judgment as against the Moving
On October 23, 2015, the Moving Defendants filed an opposition to the Bank’s
motion, and a cross-motion for summary judgment.
In particular, the Moving
Defendants contend that they are entitled to summary judgment on the second
counterclaim, outlined above, which is based on the Bank’s alleged violation of the
As noted above, the Moving Defendants contend that the
appropriate relief for this violation is dismissal of the entire foreclosure action and
The Court notes that, on September 22, 2015, in response to the Moving
Defendants’ request for a pre-motion conference, the Bank stated the following in a
letter that it filed with the Court: “Eastern has already stated, and will reiterate
here that it does not intend to seek a deficiency against the Defendants.”
The Applicable Legal Standards
Under Fed. R. Civ. P. 56(a), “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “The Court ‘must draw all
reasonable inferences and resolve all ambiguities in favor of the non-moving
party.’ ” Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 137 (2d
Cir. 1998) (quoting Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 26 (2dCir.
The Plaintiff’s Motion for Summary Judgment
At the outset, the Court notes that, although the Discharge Order
extinguished the Moving Defendants’ underlying personal liability on the Note, the
Bank’s lien on the Premises survived the Discharge Order intact as an in rem
liability, permitting the Bank to resume this action to foreclose on the Mortgage.
See Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150, 115 L. Ed. 2d 66
(1991) (“Even after the debtor’s personal obligations have been extinguished, the
mortgage holder still retains a ‘right to payment’ in the form of its right to the
proceeds from the sale of the debtor’s property. . . . [A] bankruptcy discharge
extinguishes only one mode of enforcing a claim – namely, an action against the
debtor in personam – while leaving intact another – namely, an action against the
debtor in rem.”); see also In re Rogers, 489 B.R. 327, 334 (D. Conn. 2013) (“Even
though the debtor . . . has obtained a discharge related to the same property in a
prior Chapter 7 case, the Chapter 7 discharge was of his in personam liability only.
The in rem lien on the real property is wholly separate from the debtor’s personal
liability on the property; the former gives a creditor recourse as to the property
itself, independent of any personal liability of the debtor”);
United States v.
Sillaway, 91-cv-0168E, 1993 U.S. Dist. LEXIS 7578, at *1 (W.D.N.Y. June 8, 1993)
(holding that bankruptcy discharge “extinguishes the mortgagor’s underlying
personal liability on the note,” but that “the lien on the mortgaged property survives
the discharge intact as an in rem liability and the lien holder is allowed to foreclose
on such lien”).
Satisfied that the Bank is within its rights to pursue summary judgment as
to its in rem right to foreclose on the Mortgage, independent of any in personam
right to payment that was eliminated by operation of the Discharge Order, the
Court will now turn to the merits of the Bank’s motion.
The Relevant Burdens of Proof
“ ‘In a New York mortgage foreclosure action, a plaintiff makes a prima facie
case – with summary judgment appropriate if nothing else is shown – where the
foreclosing party produces documentary evidence establishing the three elements of
a foreclosure claim: (1) a mortgage, (2) a note, and (3) proof of default on the note by
the mortgagor.’ ”
Wells Fargo Bank, N.A. v. Ullah, 13-cv-485, 2015 U.S. Dist.
LEXIS 77175, at *10 (S.D.N.Y. June 15, 2015) (quoting E. Sav. Bank, FSB v. Bright,
11-cv-1721, 2012 U.S. Dist. LEXIS 93082, at *7-*8 (E.D.N.Y. July 5, 2012)); see E.
Sav. Bank, FSB v. Ferro. 13-cv-5882, 2015 U.S. Dist. LEXIS 22021, at *19 (E.D.N.Y.
Feb. 24, 2015) (same).
If “a plaintiff meets its prima facie burden and the defendant does not contest
those facts, a presumptive right to collect the overdue amount exists that can only
be overcome by showing a meritorious affirmative defense.” Bright, 2012 U.S. Dist.
LEXIS 93082, at *8; see 1077 Madison St., LLC v. Smith, 13-cv-7182, 2015 U.S.
Dist. LEXIS 135025 (E.D.N.Y. Aug. 27, 2015) (Report and Recommendation) (same),
adopted, 2015 U.S. Dist. LEXIS 134173 (E.D.N.Y. Sept. 30, 2015). In that regard,
the burden shifts to the mortgagor to produce admissible evidence of such an
affirmative defense. See Bright, 2012 U.S. Dist. LEXIS 93082, at *8 (citing Regency
Sav. Bank, F.S.B. v. Merritt Park Lands Assocs., 139 F. Supp. 2d 462, 465 (S.D.N.Y.
The Bank’s Prima Facie Case
At the outset, the Court notes that the Bank’s motion is substantially
unopposed. In particular, the Moving Defendants did not respond to the Plaintiff’s
statement of undisputed facts, pursuant to Local Civil Rule 56.1. Nor did they state
any facts relating to the foreclosure action in their own 56.1 Statement. Nor did
they assert in their legal memoranda that the Bank’s version of the relevant facts is
disputed. In fact, there is no mention of the Bank’s motion for summary judgment
anywhere in the Moving Defendants’ legal memoranda.
Rather, their entire
presentation consists of arguments relating to their operative counterclaim, namely,
that the Bank violated the Discharge Order.
The Court further notes that the Moving Defendants did not submit any
evidence, either in support of their cross-motion or in opposition to the Bank’s
motion. Instead, their motion papers consist entirely of legal memoranda and a
Rule 56.1 Statement, which itself makes reference to an exhibit, which is not
By contrast, the Bank submitted valid copies of the Note and Mortgage,
together with the relevant loan documents. In addition, the Bank provided copies of
notices that were sent to the Moving Defendants on June 5, 2013 and September 3,
2013, notifying them that they were in default under the Note and Mortgage and at
risk of losing their home, together with proof of mailing.
The Plaintiff also submitted an affidavit by one Terry Brown, a Senior Asset
Manager at the Bank, who stated that he has personal knowledge of the facts in
this case, and that the Moving Defendants failed to comply with their obligations
under the Note and Mortgage by failing to make the required monthly payments
after April 2013, despite due demand from the Bank. Further, Brown described in
detail the procedures that the Bank utilized for providing the Moving Defendants
with legal notice of their default and providing them with an opportunity to cure.
As noted above, the Moving Defendants do not dispute any of these facts.
Accordingly, in the Court’s view, the Plaintiff has carried its burden of establishing,
by competent documentary evidence, a prima facie foreclosure claim and
presumptive entitlement to collect the overdue amount, to the extent possible
through a foreclosure and sale of the Premises. See Ferro, 2015 U.S. Dist. LEXIS
22021, at *19-*20 (finding that the mortgagee had established a prima facie case of
foreclosure “by submitting copies of the Note and Mortgage, executed by [the]
defendant [ ] and an affidavit from one of its Senior Asset Managers with direct
knowledge of the facts and circumstances of the case attesting to the defendant[‘s]
default on the payments due” (citations omitted)); see also E. Sav. Bank, FSB v.
McLaughlin, 13-cv-1108, 2013 U.S. Dist. LEXIS 185353, at *9 (E.D.N.Y. Dec. 20,
2013) (Report and Recommendation) (same), adopted, 2014 U.S. Dist. LEXIS 22283
(E.D.N.Y. Feb. 18, 2014).
Proof of an Affirmative Defense
As noted above, the burden now shifts to the Moving Defendants to proffer
sufficient admissible evidence to overcome the Bank’s entitlement to summary
As to the Moving Defendants’ Tenth Affirmative
As a defense to this action, the Moving Defendants primarily contend that
the Bank violated the Discharge Order by failing to amend its pleading to withdraw
the Deficiency Claim. This contention is untenable, as a matter of law.
Initially, the Moving Defendants assert that the Bank “had an obligation
imposed by the order of discharge to amend its prayer for relief.” However, to the
extent this position relies on the language of the Discharge Order, it fails because
the Moving Defendants did not attach a copy of that order, or any other related
evidence, to their motion papers for the Court’s review. See Ferro, 2015 U.S. Dist.
LEXIS 22021, at *20-*21 (finding that, where a mortgagor had failed to oppose the
bank’s motion for summary judgment and had “not provided any evidence in
support of his affirmative defenses,” his “ ‘affirmative defenses . . . without any
additional supporting evidence, [were] legally insufficient to preclude the imposition
of summary judgment’ ” (quoting RTC Mortgage Trust 1995-S/N1 v. Polmar Realty,
Inc., 91-cv-6685, 1996 U.S. Dist. LEXIS 17757, at *12 (S.D.N.Y. Nov. 27, 1996))).
In any event, the Moving Defendants do not identify any relevant case law to
support their contention. Nor has the Court’s independent research revealed any
authority for the proposition that a civil plaintiff’s failure to amend his prayer for
relief, in order to reflect a later-issued bankruptcy order, may constitute an
affirmative violation of that bankruptcy order.
Further, even if the Moving
Defendants’ reasoning were persuasive, there is no basis for concluding that the
appropriate relief for such a violation would be the dismissal of a related foreclosure
action, the merits of which are uncontested.
Accordingly, the Court finds that the Moving Defendants have not
sufficiently established the tenth affirmative defense as a basis for defeating the
Bank’s motion for summary judgment.
As to the Moving Defendants’ Remaining
Affirmative Defenses and Counterclaims
In its motion for summary judgment, the Bank put forth extensive legal
argument in support of dismissal of the Moving Defendants’ remaining twelve
affirmative defenses. Nevertheless, except to the extent noted above, the Moving
Defendants did not address any of these points in opposition. Therefore, the Court
deems each of the Moving Defendants’ remaining affirmative defenses to be
abandoned and ineffective to defeat summary judgment. See Avola v. LouisianaPacific Corp., 991 F. Supp. 2d 381, 390 (E.D.N.Y. 2013) (granting summary
judgment on five claims not directly opposed in the plaintiff’s opposition papers)
(citing Struthers v. City of N.Y., 12-cv-242, 2013 U.S. Dist. LEXIS 76916, at *62-*63
(E.D.N.Y. May 31, 2013); Robinson v. Roosevelt Union Free Sch. Dist., 10-cv-834,
2012 U.S. Dist. LEXIS 76524, at *18 (E.D.N.Y. May 31, 2012); Santiago v. City of
N.Y., 05-CV-3668, 2009 U.S. Dist. LEXIS 30371, at *37-*38 n.20 (E.D.N.Y. Mar. 31,
2009); Williams v. British Airways, PLC, 04-cv-471, 06-cv-5085, 2007 U.S. Dist.
LEXIS 73997, at *47-*48 (E.D.N.Y. Sept. 27, 2007); Ostroski v. Town of Southold,
443 F. Supp. 2d 325, 340 (E.D.N.Y. 2006); DeVito v. Barrant, 03-cv-1927, 2005 U.S.
Dist. LEXIS 22444, at *33 (E.D.N.Y. Aug. 23, 2005); Taylor v. City of N.Y., 269
F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (“Federal courts may deem a claim abandoned
when a party moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way”).
Based on the foregoing, the Plaintiff’s motion for summary judgment, to the
limited extent that it seeks an in rem judgment of foreclosure and sale, is granted.
The Bank is requested to submit a proposed judgment consistent with this Decision
and Order for the Court’s review within 10 days of the date of this Order.
The Moving Defendants’ Cross-Motion for Summary Judgment
As noted above, the Moving Defendants cross-move for summary judgment on
their second counterclaim, which, similar to the tenth affirmative defense, alleges
that the Bank violated the Discharge Order. In this regard, in addition to alleging
that this violation requires dismissal of the entire action, the Moving Defendants
also contend that they are entitled to monetary damages.
For substantially the same reasons as outlined above, the Court finds the
Moving Defendants’ contention in this regard to be without merit. As noted above,
there is no apparent legal basis for the Moving Defendants’ position, and the crossmotion is unsupported by any evidence whatsoever.
In this regard, the Moving Defendants assert that the Bank’s conduct “placed
an unfair and improper burden on the Defendants to defend the foreclosure
This assertion is unavailing.
As discussed above, the Bank has, on
multiple occasions, made clear to the Moving Defendants that, in light of the
Discharge Order, it does not intend to seek a deficiency judgment against them.
Accordingly, the Court finds no rational basis for concluding that the Moving
Defendants’ have been, or are now, confused about or otherwise harmed by the
Plaintiff’s perceived intention to pursue the Deficiency Claim.
Accordingly, in the Court’s view, the Moving Defendants have failed to
proffer sufficient admissible evidence to warrant judgment in their favor, as a
matter of law, and the cross-motion for summary judgment is denied.
Based on the foregoing, the Court grants summary judgment in favor of the
Plaintiff Eastern Savings Bank, N.A. and dismisses the affirmative defenses and
counterclaims of the Defendants Richard A. Robinson and Gail Robinson. The Bank
shall submit a proposed judgment of foreclosure and sale for the Court’s review
within 10 days of the date of this Order.
Further, the Court denies the Moving Defendants cross-motion for summary
judgment in its entirety.
To the extent that the Plaintiff intends to pursue default judgments against
the non-appearing Defendants, the case shall remain open for that limited purpose.
Central Islip, New York
February 4, 2016
/s/ Arthur D. Spatt___________________
ARTHUR D. SPATT
United States District Judge
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