West Coast 2014-7, LLC v. Lieberman et al
DECISION AND ORDERED, that Plaintiffs Motion for entry of a default judgment (Dkt. No. 17) is GRANTED. The Court will execute the Proposed Judgment of Foreclosure and Sale forthwith and appoints David L. Gruenberg of Troy, New York, to serve as referee; and it is further ORDERED, that the Clerk of the Court TERMINATE John Does 1-12 as defendants in this action. Signed by Senior Judge Lawrence E. Kahn on December 08, 2017. (sas) Modified on 12/8/2017 to correct text (sas).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WEST COAST 2014-7, LLC,
JUSTIN LIEBERMAN, et al.,
DECISION AND ORDER
On September 22, 2015, Plaintiff commenced this mortgage foreclosure action to
foreclose a lien on real property at 133 Dunbar Road, Claverack, New York, in Columbia
County. Dkt. No. 1 (“Complaint”). Plaintiff filed a Notice of Pendency of Action with the
Columbia County Clerk on October 15, 2015. Dkt. No. 11. Defendant Justin Lieberman is the
owner of the mortgaged property. Id. at 1; Dkt. No. 1-2 (“Mortgage”) at 2.2 Since the parties to
this suit are citizens of different states, Compl. ¶¶ 2–4, the Court has subject matter jurisdiction
over this matter pursuant to 28 U.S.C. § 1332.
Defendant has not answered the Complaint or otherwise appeared. On April 12, 2017,
Plaintiff obtained a Clerk’s Entry of Default. Dkt. No. 16. Presently before the Court is Plaintiff’s
Though the Complaint names “John Doe ‘1’ through ‘12’” as defendants in this action,
Plaintiff has voluntarily discontinued its claims against them. Dkt. No. 17-7 (“Memorandum”)
¶ 9. Therefore, “John Doe ‘1’ through ‘12’” are dismissed from this action. However, no
amendment to the caption is necessary. One West Bank, FSB v. Davi, No. 13-CV-1055, 2014
WL 4897311, at *4 (N.D.N.Y. Sept. 30, 2014).
The cited page numbers for this document refer to those generated by the Court’s
electronic filing system (“ECF”).
motion for the following relief: (1) default judgment pursuant to Rule 55 of the Federal Rules of
Civil Procedure against Defendant; (2) an order appointing a referee for the sale of the property;
and (3) a judgment of foreclosure and sale. Dkt. Nos. 17 (“Motion”); 17-7 (“Memorandum”).
Defendant did not file any opposition to the Motion. For the following reasons, Plaintiff’s
Motion is granted.
On May 21, 2007, Defendant executed and delivered a promissory note (“Note”) to First
Franklin Financial Corp., evidencing a loan in the amount of $279,000.00 and providing for the
monthly payment of principal and interest beginning on July 1, 2007. Compl. ¶ 18; Dkt. No. 1-3
(“Note”) at 3. On the same day, Defendant also executed and delivered the Mortgage to
Mortgage Electronic Registration Systems, Inc., as the nominee for First Franklin Financial
Corp., securing payment on the Note. Compl. ¶ 14; Mortgage at 1. The Mortgage was duly
recorded on May 21, 2007, in the Columbia County Clerk’s Office—Book 609, Page 2376—and
the requisite mortgage recording tax and all other fees were paid. Mortgage at 1–2.
On January 22, 2015, after a series of assignments, the Mortgage was assigned to
Plaintiff. Compl. ¶ 22; Dkt. No. 1-4 (“Assignments”) at 16.3 This final assignment was duly
recorded in the Columbia County Clerk’s Office on April 21, 2015. Compl. ¶ 22; Assignments
at 16. 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. Compl. ¶ 30.
Defendant defaulted under the terms of the Note and Mortgage by failing to tender payment that
The cited page numbers for this document refer to those generated by ECF.
became due on July 1, 2010, and further failing to pay all sums due thereafter. Compl. ¶ 28; Dkt.
No. 17-3 (“Ohno Affidavit”) ¶ 7.
On February 18, 2015, pursuant to the terms of the Mortgage, Plaintiff sent Defendant a
notice of default. Compl. ¶ 31; Dkt. No. 1-5 (“Notice”). Defendant did not respond. At the time
of the commencement of this action, the unpaid principal sum underlying the Note and Mortgage
totaled $273,777.60. Ohno Affidavit ¶ 5. As of April 30, 2017, the amount due and owing
pursuant to the Note and Mortgage was $473,943.12, including unpaid principal balance, interest,
and accumulated late charges. Id. ¶ 9.
A. Default Judgment
“Federal Rule of Civil Procedure 55 provides a two-step process that the Court must
follow before it may enter a default judgment against a defendant.” Elec. Creations Corp. v.
Gigahertz, Inc., No. 12-CV-1423, 2013 WL 3229125, at *3 (N.D.N.Y. June 25, 2013) (quoting
Robertson v. Doe, No. 05-CV-7046, 2008 WL 2519894, at *3 (S.D.N.Y. June 19, 2008)).
“First, under Rule 55(a), when a party fails to ‘plead or otherwise defend . . . the clerk must enter
the party’s default.’” Id. (alteration in original) (quoting Robertson, 2008 WL 2519894, at *3).
Second, under Rule 55(b)(2), “the party seeking default judgment is required to present its
application for entry of judgment to the court.” Id. (quoting Robertson, 2008 WL 2519894,
“When a default is entered, the defendant is deemed to have admitted all of the wellpleaded factual allegations in the complaint pertaining to liability. . . .” Bravado Int’l Grp. Merch.
Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). Nevertheless,
“judgment against a defaulting party should be granted only after careful examination of the
moving party’s claim by the district court . . . . Indeed, a defendant’s default does not in itself
warrant a court in entering a default judgment because there must be a sufficient basis in the
pleadings for the judgment entered.” Amador v. Galbreath, No. 10-CV-6702, 2013 WL 1755784,
at *2 (W.D.N.Y. Apr. 24, 2013) (alteration in original) (quoting Bianco v. Seaway Indus. Servs,
Inc., No. 03-CV-84, 2004 WL 912916, at *1 (W.D.N.Y. Apr. 1, 2004)). “The Court . . . must
review the allegations in the complaint to determine if the elements of each claim have been
adequately plead.” Colon v. City of New York, No. 09-CV-8, 2012 WL 691544, at *4 (E.D.N.Y.
Feb. 9, 2012), adopted by 2012 WL 686878 (E.D.N.Y. Mar. 2, 2012). “The burden is on the
plaintiff to establish its entitlement to recovery.” Bravado Int’l, 655 F. Supp. 2d at 189.
Under Rule 55, damages in a default judgment may be determined by the court through a
hearing. Fed. R. Civ. P. 55(b)(2); see also Greyhound, 973 F.2d at 158 (“Damages, which are
neither susceptible of mathematical computation nor liquidated as of the default, usually must be
established by the plaintiff in an evidentiary proceeding in which the defendant has the
opportunity to contest the amount.”). However, a hearing is not necessary when the court relies
“upon detailed affidavits and documentary evidence, supplemented by the District Judge’s
personal knowledge of the record,” to calculate a damage award. Tamarin v. Adam Caterers, Inc.,
13 F.3d 51, 54 (2d Cir. 1993). “[E]ven upon default, a court may not rubber-stamp the nondefaulting party’s damages calculation, but rather must ensure that there is a basis for the
damages that are sought.” United States v. Hill, No. 12-CV-1413, 2013 WL 474535, at *1
(N.D.N.Y. Feb. 7, 2013) (alteration in original) (quoting Overcash v. United Abstract Grp., Inc.,
549 F. Supp. 2d 193, 196 (N.D.N.Y. 2008)); see also Braccia v. D’Blass Corp., No. 08-CV-8927,
2011 WL 2848146, at *3 (S.D.N.Y. Jun. 13, 2011) (“When assessing damages, a court cannot
rely on the plaintiff’s statement of damages; rather damages must be established ‘with reasonable
certainty.’” (quoting Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d
105, 111 (2d Cir. 1997))), adopted by 2011 WL 2848202 (S.D.N.Y. Jul. 18, 2011). Such
assessment “must be based on admissible evidence.” Braccia, 2011 WL 2848146, at *3 (citing
Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217, 224 (S.D.N.Y. 2003)).
B. Mortgage Foreclosure
“Under New York law, a plaintiff is entitled to foreclosure as a matter of law through the
production of the mortgage, the unpaid note, and evidence of default.” OneWest Bank, N.A. v.
Cole, No. 14-CV-3078, 2015 WL 4429014, at *4 (E.D.N.Y. July 17, 2015). “[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.” One West Bank, FSB v. Davi, No. 13-CV-1055, 2014
WL 4897311, at *2 (N.D.N.Y. Sept. 30, 2014) (quoting United States v. Freidus, 769 F.
Supp. 1266, 1277 (S.D.N.Y. 1991)).
Plaintiff has fulfilled the procedural prerequisites for default judgment. It has properly
served Defendant, to which no response has been made, Dkt. No. 17-1 (“Schaefer Declaration”)
¶ 8; it has obtained an entry of default, Dkt. No. 16; and it has provided an affidavit setting forth
the facts required by Local Rule 55.2(a), including an affidavit of non-military service and
evidence that Defendant is neither an infant nor incompetent, Schaefer Declaration ¶ 11.4
Therefore, Plaintiff is entitled to a default judgment.
The Court has reviewed the affidavits and documentary evidence that Plaintiff submitted
in support of its damages request. See Transatlantic Marine Claims Agency, 109 F.3d at 111
(permitting district courts to rely upon affidavits and documents in calculating damages upon
default). The Court has determined that Plaintiff is entitled to its requested damages in the
amount of $473,943.12, which includes accrued interest through April 30, 2017.5
C. Proposed Judgment of Foreclosure and Sale
Plaintiff has submitted copies of the Note and Mortgage executed by Defendant, as well
as an affidavit from Glenn Ohno with knowledge of Defendant’s failure to make the loan
payments that the Note requires. Ohno Affidavit ¶ 7. Accordingly, the Court finds that Plaintiff
has established its prima facie case. Defendant has failed to appear in this action and has offered
no affirmative showing to rebut the prima facie case. Therefore, a Judgment of Foreclosure and
Sale will be entered in a form substantially similar to the Proposed Judgment of Foreclosure and
Sale submitted by Plaintiff. Dkt. No. 17-6 (“Proposed Judgment”). David L. Gruenberg, whose
Plaintiff’s many attempts to serve Defendant personally failed. See Dkt. Nos. 7
(“January 2016 Status Report”), 10 (“March 2016 Status Report”). On November 15, 2016,
U.S. Magistrate Judge Daniel J. Stewart granted Plaintiff’s request to perform alternative service
and to extend the time to serve. Dkt. No. 12 (“Order”). In its request for entry of default, Plaintiff
provided affidavits of publication, demonstrating its compliance with the Order and N.Y.
C.P.L.R. § 308(5). Dkt. No. 15, Exs. A–C.
Although Plaintiff filed its Complaint on September 22, 2015, interest that accrues after
the filing of the Complaint may be recovered in a default judgment. CIT Bank, N.A. v. Dambra,
No. 14-CV-3951, 2015 WL 7422348, at *7–8 (E.D.N.Y. Sept. 25, 2015), adopted by 2015
WL 7430006 (Nov. 20, 2015).
business address is 54 2nd Street, Troy, New York, 12180, will be appointed as a referee to
effectuate the sale of the encumbered property.
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion for entry of a default judgment (Dkt. No. 17) is
GRANTED. The Court will execute the Proposed Judgment of Foreclosure and Sale forthwith
and appoints David L. Gruenberg of Troy, New York, to serve as referee; and it is further
ORDERED, that the Clerk of the Court TERMINATE John Does 1–12 as defendants in
this action; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Decision and Order on
all parties in accordance with the Local Rules.
IT IS SO ORDERED.
December 08, 2017
Albany, New York
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