Nationstar Mortgage LLC v. Garcia et al

Filing 23

ORDER - The October 19, 2015 Report and Recommendation is adopted in its entirety, and the Plaintiffs motion for a default judgment is granted, to the extent set forth above. The Clerk of the Court is directed to enter judgment consistent with this Order, and to close this case. See Order for further details. So Ordered by Judge Arthur D. Spatt on 3/9/2016. c/ecf Judgment Clerk. (Coleman, Laurie)

FILED 
CLERK 

3/9/2016 3:50 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NATIONSTAR MORTGAGE LLC,
Plaintiff,

ORDER
15-CV-1854 (ADS)(SIL)

-againstESTEBAN
E.
GARCIA,
RAB
PERFORMANCE
RECOVERIES,
LLC,
SOUTHSIDE HOSPITAL, BROOKHAVEN
MEMORIAL HOSPITAL, STATE FARM
MUTUAL AUTOMOBILE INSURANCE
COMPANY, AS ASSIGNEE OF RMARIO R.
CALLES, and CLERK OF THE SUFFOLK
COUNTY DISTRICT COURT,
Defendants.
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APPEARANCES:

Gross Polowy LLC
Attorneys for the Plaintiff
900 Merchants Concourse, Suite 412
Westbury, NY 11590
By: Michael W. Nardolillo, Esq., Of Counsel
NO APPEARANCES:
Esteban E. Garcia
Defendant
RAB Performance Recoveries, LLC
Defendant
Southside Hospital
Defendant
Brookhaven Memorial Hospital
Defendant
State Farm Mutual Automobile Insurance Company, as Assignee of Rmario
R. Calles
Defendant

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Clerk of the Suffolk County District Court
Defendant
SPATT, District Judge:
On April 6, 2015, the Plaintiff Nationstar Mortgage LLC (the “Plaintiff” or
“Nationstar”) filed a complaint against the Defendants Esteban E. Garcia
(“Garcia”); RAB Performance Recoveries, LLC; Southside Hospital; Brookhaven
Memorial Hospital; State Farm Mutual Automobile Insurance Company, in its
capacity as the assignee of one Rmario R Calles; and the Clerk of the Suffolk
County District Court.
The complaint asserted claims arising under the New York Real Property
Actions and Proceedings law, and sought to foreclose on a mortgage secured by real
property located in Riverhead (the “Premises”). According to the complaint, the
Plaintiff is the holder of the promissory note, which is secured by the mortgage. See
Compl. ¶ 2. The Defendant Garcia owns the Premises. See id. ¶ 3. The remaining
Defendants allegedly possess various liens encumbering the Premises, each of
which is subordinate to the Plaintiff’s mortgage. See id. ¶¶ 4-8.
On June 2, 2015, the Clerk of the Court noted the default of all of the
Defendants.
On July 7, 2015, the Plaintiff moved for a default judgment.
On July 8, 2015, the Court referred this matter to United States Magistrate
Judge Steven I. Locke for a recommendation as to whether the motion for a default
judgment should be granted, and if so, whether damages should be awarded,
including reasonable attorneys’ fees and costs.

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On October 19, 2015, Judge Locke issued a Report and Recommendation (the
“R&R”) recommending that the Plaintiff’s motion for a default judgment be granted,
and damages awarded as follows: (i) $145,566.19, representing the unpaid principal
balance due under the promissory note; (ii) $56,916.38 in accrued unpaid interest
under the note, together with per diem interest of $22.93 for each day until
judgment

is

entered;

(iii)

post-judgment

interest

in

accordance

with

28 U.S.C. § 1961, which requires that such interest be calculated based on the
weekly average one-year constant maturity Treasury yield for the week preceding
the date on which judgment is entered; (iv) $5,098.83 for property inspections, a
broker price opinion, and property preservation costs; and (v) $36,733.73 in escrow
advances.
Judge Locke recommended granting in part and denying in part the
Plaintiff’s request for litigation costs.

In this regard, although the Court took

judicial notice of the $400 filing fee in this action and Suffolk County’s $80 notice of
pendency filing fee, both of which are entitled to be reimbursed, the Plaintiff failed
to submit any invoices, receipts, or other documentary proof to support its request
for an additional $990 in alleged service fees, and $275 that it claims to have “paid
for searches.”
Further,

Judge

Locke

recommended

denying

without

prejudice

the

application of the Plaintiff’s counsel, namely, Gross Polowy, LLC, for an award of
attorneys’ fees.

In this regard, the court noted that counsel failed to submit

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contemporaneous time records that would allow the court to assess the
reasonableness of its request for a $3,500 fee award.
With respect to the Plaintiff’s request for a judgment of foreclosure and sale
of the Premises, and the appointment of a referee, Judge Locke recommended the
following: (i) that the Plaintiff be determined to have established its presumptive
right to foreclose upon the Premises due to the Defendant Garcia’s default; (ii) that
one Thomas H. Stock, Esq. be appointed as the referee to effectuate the foreclosure
and sale of the Premises; and (iii) that the proceeds of the sale be applied to the
total amount owed on the promissory note, as set forth above.
Finally, the Plaintiff’s motion for a default judgment seeks to reform the
subject mortgage to include certain terms that were erroneously omitted from the
description of the Premises, but which accurately reflect the parties’ true intent.
Judge Locke granted in part and denied in part this request. In particular, having
reviewed the proof submitted by the Plaintiff, Judge Locke found that two of the
Plaintiff’s proposed amendments to the Mortgage reflected mutual mistakes that
warrant reformation – namely, (i) the omission of the term “Suffolk County” in the
description of the location of the Premises; and (ii) the omission of the northerly
boundary in the metes and bounds description of the Premises. The court’s R&R
includes proposed modified language to reflect these modifications.
However, Judge Locke found that there was insufficient evidence to warrant
including the phrase “with the buildings and improvements thereon erected,
situated” into the language of the mortgage. He recommended that the partial

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denial of this portion of the motion be without prejudice to the Plaintiff’s ability to
renew upon the submission of appropriate documentation.
On October 20, 2015, the Plaintiff filed proof of service of the R&R on all of
the Defendants. More than fourteen days have elapsed since service of the R&R on
the Defendants, each of whom has failed to file an objection. Nor has the Plaintiff
filed any additional proof.
Therefore, pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure
72, this Court has reviewed the R&R for clear error, and finding none, now concurs
in both its reasoning and its result.
Accordingly, the October 19, 2015 Report and Recommendation is adopted in
its entirety, and the Plaintiff’s motion for a default judgment is granted, to the
extent set forth above.

The Clerk of the Court is directed to enter judgment

consistent with this Order, and to close this case.
It is SO ORDERED
Dated:

Central Islip, New York
March 9, 2016

/s/ Arthur D. Spatt___________________
ARTHUR D. SPATT
United States District Judge

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