One West Bank, FSB v. Davi et al

Filing 18

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiff's # 16 Motion for Summary Judgment with respect to liability is GRANTED. The Court further ORDERS that this matter is referred to Magistrate Judge Treece to conduct any pro ceedings necessary to ascertain and compute the amounts due Plaintiff under the mortgage being foreclosed in this action and, if necessary, to examine and report whether the mortgaged property can be sold in one or more parcels and to submit a report -recommendation to this Court for its review. The Court further ORDERS that Plaintiff's # 16 motion to strike Defendant Davi's answer is DENIED. The Court further ORDERS that Plaintiff's # 16 motion to amend the caption is DENIED; however, Plaintiff's # 16 motion to dismiss this action, without prejudice, against Defendants John Doe No. 1 through John Doe No. 10 is GRANTED. Signed by Senior Judge Frederick J. Scullin, Jr. on 9/30/2014. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________________
ONE WEST BANK, FSB,
Plaintiff,
v.

1:13-CV-1055
(FJS/RFT)

LARA M. DAVI; BALLSTON SPA
NATIONAL BANK;1 and JOHN DOE NO. 1
through JOHN DOE NO. 10, inclusive, the names
of the last 10 defendants being fictitious, the true
names of said defendants being unknown to Plaintiff,
it being intended to designate fee owners, tenants
or occupants of the mortgaged premises, etc.,
Defendants.
____________________________________________________
APPEARANCES

OF COUNSEL

WINDELS MARX LANE
& MITTENDORF, LLP
156 West 56th Street
New York, New York 10019
Attorneys for Plaintiff

JAMES D. GREENHALGH, ESQ.
ROBERT G. WILK, ESQ.

LEWIS & STANZIONE, ESQS.
287 Main Street
P.O. Box 383
Catskill, New York 12414
Attorneys for Defendant Davi

RALPH C. LEWIS, JR.

SCULLIN, Senior Judge

1

According to the complaint, Ballston Spa National Bank is a Defendant in this action
because it "has an interest in the Mortgaged Property as a judgment creditor." See Dkt. No. 1 at
¶ 5.

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action against Defendants on August 27, 2013, seeking to
foreclose a mortgage encumbering property improved by a single family dwelling, located at 16
Marshall Street, Albany New York. See Dkt. No. 1 at ¶ 1. Plaintiff filed a Notice of Pendency of
Action with the Albany County Clerk on August 27, 2013, and filed that document in this Court
on October 7, 2013. See Dkt. No. 7. Defendant Davi is the owner of the mortgaged property.
See id. at ¶ 4. Since the parties to this suit are citizens of different states, the Court has subject
matter jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
On January 31, 2014, Plaintiff filed a motion seeking the following relief: (1) an Order
granting summary judgment against Defendant Davi and striking her answer; (2) an Order
appointing a special master, pursuant to Rule 53 of the Federal Rules of Civil Procedure and
directing said special master to ascertain and compute the amounts due Plaintiff under the
mortgage being foreclosed in this action and to examine and report whether the mortgaged
property can be sold in one parcel; and (3) an Order amending the caption to excise Defendants
John Doe No. 1 through John Doe No. 10 and discontinuing the action against them without
prejudice. See Dkt. No. 16. Defendant Davi did not file any opposition to this motion.

II. BACKGROUND
On May 31, 2007, Defendant Davi executed and delivered a promissory note ("Note") to
Quicken Loans, Inc., it successors and/or assigns, evidencing a loan in the amount of
$128,000.00 and providing for the monthly payment of principal and interest, beginning on
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August 1, 2007, with payment of the unpaid principal balance due on July 1, 2037, unless due
earlier because of default or acceleration. See Plaintiff's Statement of Material Facts at ¶ 5 (citing
Complaint at ¶ 11, 16); Affirmation of Robert G. Wilk ("Wilk Aff.") dated January 30, 2014, at
Exhibit "A" attached thereto). On May 31, 2007, Defendant Davi executed and delivered a
mortgage ("Mortgage") to Quicken Loans, Inc., its successors and/or assigns, securing payment
of the Note. See id. at ¶ 6 (citing Complaint at ¶ 12); Wilk Aff. at Exhibit "A" attached thereto.
The mortgage was duly recorded in the Albany County Clerk's Office on June 15, 2007,
Document Number 9977576, Book 5492, Page 419, and the requisite mortgage recording tax and
all other fees were duly paid thereon. See id. at ¶ 7 (citing Complaint at ¶ 13). On August 13,
2011, the Note and Mortgage were assigned to Plaintiff and, to date, have not been otherwise
assigned. See id. at ¶ 8 (citing Complaint at ¶ 14); Wilk Aff. at Exhibit "A" attached thereto.
Pursuant to the Note and Mortgage, Plaintiff has the right to accelerate the entire principal
amount outstanding and accrued interest if any installment is not made when due. See id. at ¶ 9
(citing Complaint at ¶¶ 17-18). Defendant Davi defaulted under the terms of the Note and
Mortgage by failing to pay $1,159.58 due on December 1, 2012, and further failing to pay all
sums due thereafter. See id. at ¶ 10 (citing Complaint at ¶ 19).
On March 14, 2013, Plaintiff sent Defendant a ninety (90) day pre-foreclosure notice
pursuant to New York Real Property and Procedure Law, see id. at ¶ 11 (citing Complaint at
¶ 20), Wilk Aff. at Exhibit "F" attached thereto; and a notice of default on the Mortgage, see id.
at ¶ 13 (citing Complaint at ¶ 22), Wilk Aff. at Exhibit "H." On March 18, 2013, Plaintiff made
a filing with the New York State Department of Financial Services pursuant to New York Real
Property and Procedure Law § 1306. See id. at ¶ 12 (citing Complaint at ¶ 21); Wilk Aff. at
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Exhibit "G" attached thereto. At the time of the commencement of this action, the unpaid
principal sum underlying the Note and Mortgage totaled $140,352.55. See id. at ¶ 16 (citing
Complaint at ¶¶ 8(b), 25). Plaintiff has not commenced any other action for recovery of the
monies or any part thereof evidenced by the Note and secured by the Mortgage. See id. at ¶ 18
(citing Complaint at ¶ 28). As of June 21, 2013, the amount due and owing pursuant to the Note
and Mortgage was $147,277.58, including unpaid principal balance, interest, accumulated late
charges and recoverable balance. See id. at ¶ 19 (citing "Notice Pursuant to the Fair Debt
Collections Practices Act, 15 U.S.C. 1692 As Amended" annexed to the Complaint).

III. DISCUSSION
A.

Standard of review
"Summary judgment is proper only when, construing the evidence in the light most

favorable to the non-movant, 'there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.'" Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir.
2011) (quoting Fed. R. Civ. P. 56(a)) (other citation omitted). Where, as in this case, the motion
for summary judgment is not opposed, the court "may not grant the motion without first
examining the moving party's submission to determine if it has met its burden of demonstrating
that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.
2001).
If the movant establishes a prima facie entitlement to summary judgment, "the burden
shifts to the non-movant to point to record evidence creating a genuine issue of material fact."
Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) (citations omitted). "'Conclusory
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allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact.'"
Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)).

B.

Mortgage foreclosure actions under New York law
"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." Eastern Savings Bank, FSB v.
Bright, No. 11-cv-1721, 2012 WL 2674668, *3 (E.D.N.Y. July 5, 2012) (citations omitted); see
also Builders Bank v. Charm Devs. II, LLC, No. 09-CV-3935, 2010 WL 3463142, *2 (E.D.N.Y.
Aug. 30, 2010) (stating that, "'[u]nder New York law, summary judgment in a mortgage
foreclosure action is appropriate where the Note and Mortgage are produced to the Court along
with proof that the Mortgagor has failed to make payments due under the Note.'" (quotation
omitted)). "[W]here the mortgage holder establishes the basic elements of a cause of action for
foreclosure, the mortgage holder is entitled to a presumptive right to collect, which can only be
overcome by an affirmative showing from the defendant." United States v. Freidus, 769 F. Supp.
1266, 1277 (S.D.N.Y. 1991).
In this case, Plaintiff has submitted copies of the Note and Mortgage executed by
Defendant Davi, as well as an affidavit from Elizabeth Wright with knowledge of Defendant
Davi's failure to make the loan payments that the Note requires. See Wilk Aff. at Exhibit "A"
attached thereto; Affidavit of Elizabeth Wright ("Wright Aff.") dated December 2, 2013.
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Accordingly, the Court finds that Plaintiff has established its prima facie case.
Although Defendant Davi filed an answer, she asserted only general denials and no
affirmative defenses. Specifically, she "denies each and every allegation contained in paragraphs
19, 23, 25 and 30 of the complaint." See Dkt. No. 6, Answer, at ¶ 2. These paragraphs allege as
follows:
¶ 19. Defendant Lara M. Davi failed to comply with the terms and
provisions of the Note and Mortgage by failing to make the
payment of $1,159.58 due on December 1, 2012, comprising
principal, interest, and other sums required by the Note and
Mortgage to be paid monthly, and by failing to make all payments
due thereafter. Such default continues through the date of this
Complaint, uncured and unabated.
¶ 23. The default alleged above constitutes defendant Lara M.
Davi's failure to keep her promises and agreements made in the
Note and Mortgage, and has not been cured.
¶ 25. There is now due and owing to Plaintiff the unpaid principal
sum of $140,352.55 plus interest thereon, together with accrued
late charges and related expenses incurred in protecting Plaintiff's
security in the amount as shall be computed by the Court, a
Referee, or a Special Master.
¶ 30. Plaintiff requests that in the event that this action proceeds to
judgment of foreclosure and sale, the Mortgaged Property be sold,
subject to the following:
a. Any state of facts that an inspection of the
Mortgaged Property would disclose;
b. The state of facts that surveys of the Mortgaged
Property might disclose;
c. Sums, if any, of real estate taxes, and
assessments, water, sewer, and vault charges, with
interest and penalties, including lien and certificate
sales for delinquent items, unless paid from the
proceeds of the foreclosure sale;
d. Covenants, reservations, restrictions, easements
and public utility agreements of record, if any;
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e. Building and zoning ordinances of the
municipalities in which the Mortgaged Property is
located and possible violations of same;
f. All rights of tenants or persons in possession of
the Mortgaged Property other than tenants, if any,
named as defendants in this action;
g. Any equity of redemption of the United States of
America, to redeem the Mortgaged Property or any
part thereof after the date or sale; and
h. Prior liens of record prior to the Mortgage, if any.
See Dkt. No. 1 at ¶¶ 19, 23, 25, and 30.2
Defendant Davi's general denials to paragraphs 19, 23 and 25, appear to indicate that she
challenges both the fact that she is in default and the amount due and outstanding under the Note
and Mortgage. Therefore, the Court denies Plaintiff's motion to strike Defendant Davi's answer.
However, because Defendant has not submitted any documentary evidence that would raise an
issue of fact precluding summary judgment in this action regarding the issue of default, the Court
grants Plaintiff's motion for summary judgment with regard to the issue of liability.

C.

Amendment of the caption
Plaintiff seeks to amend the caption of this action to "excise defendants John Doe No. 1

through John Doe No. 10 and discontinue the action as against them, all without prejudice to any
of the proceedings heretofore had herein." See Dkt. No. 16. There is no need to amend the
caption. However, the Court will dismiss this action against Defendants John Doe No. 1 through
John Doe No. 10 without prejudice.
2

The Court notes that there is nothing in paragraph 30 for Defendant Davi to deny.
Furthermore, the Court finds it strange that the last paragraph of her answer provides that
"plaintiff demands judgment dismissing the complaint, together with the costs and disbursements
of this action." See Dkt. No. 6.
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D.

Appointment of a Special Master
Plaintiff asks this Court to appoint a special master and to direct said special master "to

ascertain and compute the amounts due Plaintiff under the mortgage being foreclosed in this
action and to examine and report whether the mortgaged property can be sold in one or more
parcels." See Dkt. No. 16.3 The Court sees no need, at this time, to appoint a Special Master.
Rather, the Court will refer this matter to Magistrate Judge Treece to make the necessary
determinations and to submit a report-recommendation to this Court for its review.

IV. CONCLUSION
Having reviewed the entire record in this matter and the applicable law, and for the
above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for summary judgment with respect to liability is
GRANTED; and the Court further
ORDERS that this matter is referred to Magistrate Judge Treece to conduct any
proceedings necessary to ascertain and compute the amounts due Plaintiff under the mortgage
being foreclosed in this action and, if necessary, to examine and report whether the mortgaged
property can be sold in one or more parcels and to submit a report-recommendation to this Court
for its review; and the Court further
ORDERS that Plaintiff's motion to strike Defendant Davi's answer is DENIED; and the
Court further
3

It is not clear to the Court that it will be necessary to determine whether the subject
property should be sold in one or more parcels given Ms. Wright's statement that, "[b]ecause the
Property consists of a single lot, it should be sold as one parcel." See Wright Aff. at ¶ 13.
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ORDERS that Plaintiff's motion to amend the caption is DENIED; however, Plaintiff's
motion to dismiss this action, without prejudice, against Defendants John Doe No. 1 through
John Doe No. 10 is GRANTED.

IT IS SO ORDERED.
Dated: September 30, 2014
Syracuse, New York

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