Ditech Financial LLC v. Frantz et al

Filing 40

ORDER granting 30 Motion for Default Judgment; granting 39 Motion for Reconsideration: The Court hereby ORDERS that Plaintiff's motion for reconsideration (Dkt. No. 39) of the Court's March 29, 2017 Memorandum-Decision and Order (Dkt. No. 33) is GRANTED; and the Court further ORDERS that Plaintiff's motion for default judgment (Dkt. No. 30) is GRANTED; and the Court further ORDERS that the Clerk of the Court enter judgment in Plaintiff's favor and close this case; a nd 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 January 27, 2016; 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 receit 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.

5:16-cv-0146
(MAD/TWD)

JOHN F. FRANTZ; LAURA J. FRANTZ;
USAA FEDERAL SAVINGS BANK;
ST. JOSEPH'S HOSPITAL CENTER,
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

DENNIS JOSE, ESQ.
STEPHEN J. VARGAS, ESQ.

BOND, SCHOENECK & KING, PLLC
Syracuse Office
One Lincoln Center
Syracuse, New York 13202
Attorneys for Defendants John and Laura Frantz

JOSEPH ZAGRANICZNY, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Ditech Financial LLC ("Plaintiff") commenced this foreclosure action on
February 8, 2016, pursuant to Article 13 of the New York Real Property Actions and Proceedings

Law ("RPAPL"). See Dkt. No. 1. Presently before the Court is Plaintiff's motion for
reconsideration. See Dkt. No. 39. For the following reasons, that 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 July 21, 2016. See Dkt.
No. 30. The Court denied the motion in a March 29, 2017 Memorandum-Decision and Order
("March Order"). See Dkt. No. 33. In the March 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 6-7. 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 action to
the notice of pendency. See id. The March Order also ordered that the Onondaga County Clerk
vacate the notice of pendency filed on January 27, 2016. See id. at 9.
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On August 30, 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. 37. Plaintiff subsequently filed a motion for reconsideration of the Court's
March Order. See Dkt. No. 39. As the Court noted in the March 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 January 27, 2016.
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. 39) of the Court's March
29, 2017 Memorandum-Decision and Order (Dkt. No. 33) is GRANTED; and the Court further
ORDERS that Plaintiff's motion for default judgment (Dkt. No. 30) 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 January 27, 2016; 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

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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

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