OneWest Bank, NA v. Bianchini et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS : The Court adopts the 2017 R&R of Judge Brown as if set forth herein and will on this date execute a Judgment of Foreclosure and Sale substantially in the form proposed by plaintiff. See attached. Ordered by Judge Denis R. Hurley on 3/22/2017. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CIT BANK, N.A., formerly known as
ONEWEST BANK, NA,
ORDER ADOPTING R & R
Plaintiff,
14-CV-3234(DRH)(GRB)
-againstFRANK A. BIANCHINI, INDIVIDUALLY
AND AS SURVIVING JOINT TENANT
WITH RIGHT OF SURVIVORSHIP OF GAIL
A. SCAMONI; BISHOPS GATE RESIDENTIAL
MORTGAGE TRUST; JOHN DOE (being
fictitious and unknown to Plaintiff, intended
to be tenants, occupants, persons or corporations
having or claiming an interest in or lien
encumbering the property described in the
Complaint or their heirs at law, distributees,
executors, administrators, trustees, guardians,
assignees, creditors, or successors.),
Defendants.
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HURLEY, Senior District Judge:
Plaintiff OneWest Bank, NA (“Plaintiff”) commenced this diversity action against
defendants pursuant to New York Real Property Actions and Proceeding Law Article 13 to
foreclose a mortgage encumbering 535 Ashroken Avenue, Northport, New York. Defendants
failed to answer the complaint and Plaintiff moved for a default judgment. By Order dated March
26, 2015 the Court referred the motion to U.S. Magistrate Judge Gary R. Brown, pursuant to 28
U.S.C. § 636(b)(3), for a report and recommendation. On February 22, 2016, Judge Brown
issued a Report and Recommendation that (1) the motion to amend the caption to dismiss John
Doe as a party defendant be granted; (2) the motion for default judgment be granted; and (3) the
judgment of foreclosure and sale, together with any award for principal, advances, interest,

attorneys’ fees and costs be denied without prejudice to renewal following submission of
requisite documentation, which recommendation was adopted by this Court on March 15, 2016.
Plaintiff then filed a renewed motion for judgment of foreclosure and sale, which motion was
again referred to Magistrate Judge Brown. On February 28, 2017 Judge Brown issued a Report
and Recommendation and a Supplement thereto (collectively, the “2017 R & R”) recommending
that (1) a Judgment of Foreclosure and Sale be entered in a form substantially similar to the
proposed judgment of foreclosure and sale submitted by plaintiff, including (a) that the lien of
defendant Bishops Gate Residential Mortgage Trust is invalid and extinguished and (b) setting
principal damages in the amount of $1,102,805.55, attorneys’ fees in the amount of $3,500.00
and costs of $400.00 for a total of $1,106705.50; and (2) the Clerk of the County of Suffolk be
directed to index the Mortgage in a form substantially similar to the corrected property
description set forth in the proposed judgment of foreclosure and sale. More than fourteen days
have elapsed since service of the R&R and no objections have been filed.
Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72, this Court has reviewed the
Report and Recommendation for clear error, and finding none, now concurs in both its reasoning
and its result. Accordingly, this Court adopts the 2017 R&R of Judge Brown as if set forth herein
and will on this date execute a Judgment of Foreclosure and Sale substantially in the form
proposed by plaintiff.
SO ORDERED.
Dated: Central Islip, N.Y.
March 22, 2017

/s/ Denis R. Hurley
Denis R. Hurley,
United States District Judge

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