Ditech Financial LLC v. Sterly et al

Filing 36

ORDER granting 35 Motion for Reconsideration; granting 20 Motion for Default Judgment: The Court hereby ORDERS that Plaintiff's motion for reconsideration (Dkt. No. 35) of the Court's December 23, 2016 Memorandum- Decision and Orde r (Dkt. No. 25) is GRANTED; and the Court further ORDERS that Plaintiff's motion for default judgment (Dkt. No. 20) is GRANTED; and the Court further ORDERS that the Clerk of the Court enter judgment in Plaintiff's favor and close th is case; and the Court further ORDERS that the Clerk of Onondaga County in the State of New York shall not vacate the notice of pendency filed on December 8, 2015; and the Court further ORDERS that Plaintiff shall serve a copy of this Order on the Clerk of Onondaga County in the State of New York by Certified Mail, Return Receipt Requested, and file the returned receipt using the Court's electronic filing system; and the Court further ORDERS that the Clerk of the Court serve a copy of this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 5/2/2018. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DITECH FINANCIAL LLC,
formerly known as GREEN TREE
SERVICING LLC,
Plaintiff,
vs.

5:15-cv-1455
(MAD/TWD)

DEVON STERLY, also known as
DEVON BAILEY; SYNCHRONY
BANK, formerly known as GE CAPITAL
BANK, formerly known as GE MONEY
BANK,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

GROSS POLOWY, LLC
Williamsville Office
1775 Wehrle Drive, Suite 100
Williamsville, New York 14221
Attorneys for Plaintiff

AMY E. POLOWY, ESQ.

GROSS POLOWY, LLC
Westbury Office
900 Merchants Concourse, Suite 412
Westbury, New York 11590
Attorneys for Plaintiff

STEPHEN J. VARGAS, ESQ.

WHITELAW, FANGIO LAW FIRM
247-259 West Fayette Street
Syracuse, New York 13202
Attorney for Defendant Sterly

MARRY LANNON FANGIO, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Ditech Financial LLC ("Plaintiff") commenced this action on December 8, 2015
pursuant to Article 13 of the New York Real Property Actions and Proceedings Law ("RPAPL")

to foreclose a mortgage encumbering 4523 Broad Road, Syracuse, New York 13215, together
with the land, buildings, and other improvements on the property. See Dkt. No. 1. Presently
before the Court is Plaintiff's motion for reconsideration. See Dkt. No. 35. For the following
reasons, the motion is granted.
"The standard for granting [a motion for reconsideration] is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Motions for reconsideration will be denied "where the moving party seeks solely to relitigate an
issue already decided." See id. "Accordingly, earlier decisions in a case 'may not usually be
changed unless there is an intervening change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent a manifest injustice.'" In re Edny Cathode Ray Tube
Antitrust Cases, No. 17-CV-4504, 2017 WL 4351503, *1 (E.D.N.Y. Sept. 29, 2017) (quoting
Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand LLP, 322 F.3d
147, 167 (2d Cir. 2003)).
Plaintiff filed its first motion for default judgment in this case on April 18, 2016. See Dkt.
No. 20. The Court denied the motion in a December 23, 2016 Memorandum-Decision and Order
("December Order"). See Dkt. No. 25. In the December Order, the Court found that Plaintiff had
met all of the procedural requirements for a default judgment and all of the common law
requirements to foreclose on its mortgage. See id. at 5, 7. However, the Court found that Plaintiff
failed to meet one of the procedural requirements set forth in Article 13 of the RPAPL. See id. at
7-8. In particular, the Court determined that Plaintiff failed to properly file a notice of pendency
with the Onondaga County Clerk because Plaintiff did not attach a copy of the complaint in this
2

action. See id. The December Order also ordered that the Onondaga County Clerk vacate the
notice of pendency filed on December 8, 2015. See id. at 9.
On April 27, 2017, Plaintiff filed a letter with the Court showing that Plaintiff had, in fact,
properly filed the notice of pendency in state court, including a copy of the complaint in this
action. See Dkt. No. 30. Plaintiff subsequently filed the present motion for reconsideration of the
Court's December Order. As the Court noted in the December Order, Plaintiff met all of the
procedural requirements for a default judgment and all of the common law requirements to
foreclose on its mortgage. Since Plaintiff properly filed the notice of pendency, Plaintiff also met
the procedural requirements set forth in Article 13 of the RPAPL. Therefore, Plaintiff's motion
for reconsideration is granted, and Plaintiff's motion for default judgment is also granted.
Furthermore, it is not necessary for the Onondaga County Clerk to vacate the notice of pendency
filed on December 8, 2015.
After carefully reviewing Plaintiff's submissions and the applicable law, and for the
reasons stated herein, the Court hereby
ORDERS that Plaintiff's motion for reconsideration (Dkt. No. 35) of the Court's
December 23, 2016 Memorandum-Decision and Order (Dkt. No. 25) is GRANTED; and the
Court further
ORDERS that Plaintiff's motion for default judgment (Dkt. No. 20) is GRANTED; and
the Court further
ORDERS that the Clerk of the Court enter judgment in Plaintiff's favor and close this
case; and the Court further
ORDERS that the Clerk of Onondaga County in the State of New York shall not vacate
the notice of pendency filed on December 8, 2015; and the Court further
3

ORDERS that Plaintiff shall serve a copy of this Order on the Clerk of Onondaga County
in the State of New York by Certified Mail, Return Receipt Requested, and file the returned
receipt using the Court's electronic filing system; and the Court further
ORDERS that the Clerk of the Court serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 2, 2018
Albany, New York

4