Nationstar Mortgage LLC v. McCarthy et al

Filing 31

MEMORANDUM OF DECISION & ORDER; ORDER ADOPTING REPORT AND RECOMMENDATIONS:It has been more than fourteen days since the service of the R&R, and the parties have not filed objections. As such, pursuant to 28 U.S.C. § 636(b) and Federal Rule of Ci vil Procedure 72, this Court has reviewed the R&R for clear error, and finding none, now concurs in both its reasoning and its result. See Coburn v. P.N. Fin., No. 13-CV-1006 (ADS) (SIL), 2015 WL 520346, at *1 (E.D.N.Y.Feb. 9, 2015) (reviewing Report and Recommendation without objections for clear error). Accordingly, the R&R is adopted in its entirety. The Court grants Nationstar's motion to amend the caption and dismiss John Doe, motion to amend the caption and substitute Selene Finance f or Nationstar as the Plaintiff, and motion for default judgment. The Court awards the Plaintiff the amounts recommended in the R&R. The Court selects Kenneth Seidell, Esq., as the referee. The Plaintiff is directed to submit a proposed judgment consistent with the R&R no later than fourteen days from the issuance of this order. John Doe terminated. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 8/13/2019. (Coleman, Laurie)

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

FILED 
CLERK 

11:18 am, Aug 13, 2019

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

MEMORANDUM OF
DECISION & ORDER
2:16-cv-03063 (ADS)(AYS)

-againstTHOMAS MCCARTHY, if he be living or dead,
his spouse, heirs, distributes, and successors in
interest, all of whom and whose names and
places of residence are unknown to Plaintiff;
MAYRA ORTEGA; HELEN CHRISTIAN
REDA; STATE OF NEW YORK, and “JOHN
DOE” said name being fictitious, it being the
intention of Plaintiff to designate any and all
occupants of premises being forecloses herein,
and any parties, corporations or entities, if any,
having or claiming an interest or lien upon the
mortgaged premises,
Defendants.
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APPEARANCES:
Shapiro, DiCaro & Barak, LLC
Attorneys for the Plaintiff
175 Milecrossing Blvd
Rochester, NY 14624
By:
John A. Dicaro, Esq., Of Counsel.
SPATT, District Judge:

On June 13, 2016, plaintiff Nationstar Mortgage LLC (“Nationstar”) commenced this
foreclosure action against defendants Thomas McCarthy (“McCarthy”), Mayra Ortega (“Ortega”),
Helen Christian Reda (“Reda”), and John Doe (together “Defendants”), seeking, among other
things, to foreclose on a mortgage encumbering the real property located at 31 Brookhaven Drive,
Rocky Point, NY 11778 (the “Subject Property”).
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On August 23, 2017, Nationstar amended its complaint solely to include Defendant State
of New York (hereafter included within “Defendants”) and to have the caption on the Summons
conform with the caption on the Complaint.
On June 4, 2018, after Defendants failed to answer or otherwise respond, the Clerk of the
Court entered default pursuant to Federal Rule of Civil Procedure 55(a) as to all Defendants.
On December 13, 2018, Nationstar filed a motion for default judgment and judgment of
foreclosure and sale. Nationstar also sought to amend the caption to delete John Doe, and to
substitute Selene Finance LP as the plaintiff, in its place and stead.
On December 14, 2018, the Court referred the motion to United States Magistrate Judge
Anne Y. Shields for a Report and Recommendation as to as to whether the motion for default
judgment should be granted, and if so, what relief, if any, should be awarded.
On July 26, 2019, Judge Shields issued a Report and Recommendation (“R&R”)
recommending as follows:
For the reasons set forth herein, the Court recommends that Plaintiff’s motion to
amend the caption and dismiss Defendant John Doe be granted. The Court
recommends that Plaintiff’s motion to amend the caption and substitute Selene
Finance LP for Nationstar as the plaintiff of this action be granted. The Court
further recommends that the motion for default judgment be granted and that
Plaintiff be awarded:
1) $305,315.41 to recover for the unpaid principal balance under the Note;
2) $183,141.81 to recover for unpaid interest from February 1, 2008, to
October 15, 2018;
3) $129,502.89 to recover advances for taxes, hazard insurance, inspections,
maintenance, and Mortgage Insurance Premiums;
4) Per diem pre-judgment interest in the amount of $51.23 per day until
judgment is entered;
5) Post-judgment interest pursuant to 28 U.S.C. § 1961(a);
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6) $9,757.40 in costs and disbursements; and
7) $3,475.00 in attorneys’ fees.
The Court further recommends that an Order similar to Plaintiff’s Proposed
Judgment of Foreclosure and Sale, but consistent with the instant Report and
Recommendation, be entered and that a referee be appointed to effectuate the sale.
ECF 29 at 15-16.
The Plaintiff filed proof of service on July 29, 2019.
It has been more than fourteen days since the service of the R&R, and the parties have not
filed objections.
As such, 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. See Coburn v. P.N. Fin., No. 13-CV-1006 (ADS) (SIL), 2015 WL 520346, at *1 (E.D.N.Y.
Feb. 9, 2015) (reviewing Report and Recommendation without objections for clear error).
Accordingly, the R&R is adopted in its entirety. The Court grants Nationstar’s motion to
amend the caption and dismiss John Doe, motion to amend the caption and substitute Selene
Finance for Nationstar as the Plaintiff, and motion for default judgment. The Court awards the
Plaintiff the amounts recommended in the R&R. The Court selects Kenneth Seidell, Esq., as the
referee. The Plaintiff is directed to submit a proposed judgment consistent with the R&R no later
than fourteen days from the issuance of this order.

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SO ORDERED.
Dated: Central Islip, New York
August 13, 2019
___/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge

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