OneWest Bank N.A. v. Iammatteo et al

Filing 39

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Brown's R&R (Docket Entry 37) is ADOPTED in its entirety and Plaintiff's motion (Docket Entry 23) is GRANTED IN PART and DENIED IN PART. Plaintiff's motion for entry of a d efault judgment against the Iammatteos is GRANTED. Plaintiff's motion to amend the caption is GRANTED and its claims against John Doe No. 1 through John Doe No. 10 are DISCONTINUED WITHOUT PREJUDICE. The Clerk of the Court is directed to SUBSTI TUTE CIT Bank, N.A., as Plaintiff in this action, and TERMINATE John Doe No. 1 through John Doe No. 10 as defendants in this action. Plaintiff's motion for attorneys' fees is DENIED WITHOUT PREJUDICE. Plaintiff is granted leave to renew i ts application for attorneys' fees within sixty (60) days of the date of this Memorandum and Order. Plaintiff's motion for a Judgment of Foreclosure and Sale is GRANTED. Plaintiff is directed to submit the names of three (3) proposed refere es within thirty (30) days of the date of this Memorandum and Order. The Court will enter a Judgment of Foreclosure and Sale following its selection of a referee and determination of Plaintiff's renewed fee application. So Ordered by Judge Joanna Seybert on 9/21/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ONEWEST BANK, N.A.,
Plaintiff,
-againstRICHARD IAMMATTEO, ELSIE IAMMATTEO, and
JOHN DOE NO. 1 through JOHN DOE NO. 10,

MEMORANDUM & ORDER
15-CV-0434(JS)(GRB)

Defendants.
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APPEARANCES
For Plaintiff:
Rachel Beth Drucker, Esq.
Robert G. Wilk, Esq.
Windels Marx Lane & Mittendorf LLP
156 West 56th Street
New York, NY 10019
For Defendants:
Richard and
Elsie Iammatteo

Richard A. Guttman, Esq.
125 East Main Street, Suite 82
Kings Park, NY 11754

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge Gary R.
Brown’s Report and Recommendation (“R&R”) recommending that this
Court grant in part and deny in part plaintiff OneWest Bank, N.A.’s
(“Plaintiff”) motion seeking, inter alia, entry of a default
judgment

against

defendants

Richard

(collectively, the “Iammatteos”).

and

Elsie

(Docket Entry 37.)

Iammatteo
For the

following reasons, the Court ADOPTS Judge Brown’s R&R in its
entirety.

BACKGROUND
On
foreclosure

January
action

28,

against

2015,
the

Plaintiff

Iammatteos

commenced

with

respect

this
to

a

mortgage encumbering property located at 1682 Northern Boulevard,
Laurel Hollow, New York (the “Property”).

(See Compl. ¶ 1.)

On

April 23, 2015, the Clerk of the Court entered default against the
Iammatteos.

(Docket Entries 14 and 15.)

On December 11, 2015,

Plaintiff filed a motion requesting: (1) entry of a default
judgment against the Iammatteos; (2) amendment of the caption to
strike defendants John Doe No. 1 through John Doe No. 10 and
discontinuance of the action against these defendants without
prejudice; (3) amendment of the caption to substitute CIT Bank,
N.A., as plaintiff in place of OneWest Bank N.A.; (4) that the
Court, a Special Master, or Magistrate Judge compute the amounts
due Plaintiff under the mortgage and report as to whether the
Property can be sold in one parcel; (5) an award of damages,
including interest and counsel fees; (6) entry of a judgment of
foreclosure and sale.

(Pl.’s Mot., Docket Entry 23.)

On January 16, 2016, the Court referred Plaintiff’s
motion to Judge Brown for a report and recommendation on whether
the motion should be granted and, if necessary, a determination of
the damages, costs, and/or fees to be awarded.

(Docket Entry 28.)

On July 29, 2016, Judge Brown issued his R&R.
Docket Entry 37.)

(R&R,

Judge Brown recommends that the Court enter a
2

default

judgment

against

the

Iammatteos;

execute

Plaintiff’s

Proposed Judgment of Foreclosure and Sale with the exception of
the requested attorneys’ fees; and appoint a referee to determine
whether the Property may be sold in a single parcel and conduct
the sale of the Property.

(R&R at 1-2.)

Judge Brown recommends

that Plaintiff’s request for an award of attorneys’ fees be denied
without prejudice and with leave to renew due to Plaintiff’s
failure to submit contemporaneous billing records or information
regarding the individuals providing legal services.

(R&R at 3.)

Judge Brown further recommends that the Court grant Plaintiff’s
motion to amend the caption to substitute CIT Bank, N.A., as
Plaintiff, and strike John Doe No. 1 through John Doe No. 10 as
defendants.

(R&R at 1.)

The Court notes that after Plaintiff filed its motion,
the Iammatteos retained counsel and filed an Order to Show Cause
seeking a preliminary injunction and temporary restraining order.
(Docket

Entry

31.)

On

February

9,

2016,

the

Court

denied

Plaintiff’s application and referred the matter to Judge Brown for
a traverse hearing.

(Docket Entry 32.)

Plaintiff filed a letter

motion to strike the traverse hearing referral, alleging that the
Iammatteos’ counsel failed to provide his availability for the
hearing.

(Pl.’s Ltr. Mot., Docket Entry 33.)

On March 7, 2016,

the Court deferred ruling on Plaintiff’s letter motion and provided
the Iammatteos’ counsel with a final opportunity to contact Judge
3

Brown with his availability for a traverse hearing.

On March 25,

2016, the Court granted Plaintiff’s letter motion in light of
counsel’s failure to contact Judge Brown.
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

judge.”

findings
28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen days of service of
the R&R.

The time for filing objections has expired, and no party

has objected.

Accordingly, all objections are hereby deemed to

have been waived.
Upon careful review and consideration, the Court finds
Judge Brown’s R&R to be comprehensive, well-reasoned, and free of
clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
Judge Brown’s R&R (Docket Entry 37) is ADOPTED in its
entirety and Plaintiff’s motion (Docket Entry 23) is GRANTED IN
PART and DENIED IN PART. Plaintiff’s motion for entry of a default
judgment against the Iammatteos is GRANTED.

Plaintiff’s motion to

amend the caption is GRANTED and its claims against John Doe No.
4

1 through John Doe No. 10 are DISCONTINUED WITHOUT PREJUDICE.

The

Clerk of the Court is directed to SUBSTITUTE CIT Bank, N.A., as
Plaintiff in this action, and TERMINATE John Doe No. 1 through
John Doe No. 10 as defendants in this action.
Plaintiff’s motion for attorneys’ fees is DENIED WITHOUT
PREJUDICE.

Plaintiff is granted leave to renew its application

for attorneys’ fees within sixty (60) days of the date of this
Memorandum and Order.

Plaintiff’s motion for a Judgment of

Foreclosure and Sale is GRANTED.

Plaintiff is directed to submit

the names of three (3) proposed referees within thirty (30) days
of the date of this Memorandum and Order.

The Court will enter a

Judgment of Foreclosure and Sale following its selection of a
referee and determination of Plaintiff’s renewed fee application.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
21 , 2016
Central Islip, New York

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