Nationstar Mortgage LLC v. Laffrey et al
ORDER AND JUDGMENT OF FORECLOSURE AND SALE: The Court hereby ORDERS that Plaintiff's # 13 Motion for Default Judgment against Defendants John J. Laffrey and Kathryn A. Laffrey in the total amount of $125,735.55 is GRANTED. The Court furth er ORDERS that Judgment of Foreclosure and Sale is hereby entered against Defendants John J. Laffrey and Kathryn A. Laffrey as noted herein. Signed by Senior Judge Frederick J. Scullin, Jr on 2/7/2017. [Copy served upon Referee via regular mail.] (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NATIONSTAR MORTGAGE LLC
JOHN J. LAFFREY, KATHRYN A.
LAFFREY, and AMALGAMATED BANK,
GROSS POLOWY LLC
1775 Wehrle Drive, Suite 100
Williamsville, New York 14221
Attorneys for Plaintiff
AMY E. POLOWY, ESQ.
JOHN J. LAFFREY
KATHRYN A. LAFFREY
SHAPIRO, DICARO & BARAK, LLC
175 Mile Crossing Boulevard
Rochester, New York 14624
Attorneys for Defendant Amalgamated
ELLIS M. OSTER, ESQ.
SCULLIN, Senior Judge
ORDER AND JUDGMENT OF FORECLOSURE AND SALE
On August 23, 2005, Defendant John J. Laffrey signed a Note for the purchase of a home
located at 8453 Transit Lane, Baldwinsville, New York. See Dkt. No. 14-2 at 6. He promised to
pay $104,500, plus interest, to the order of Quicken Loans, Inc., the lender. See id. He would pay
this amount by means of monthly payments of $555.16 for the first 120 months of the Note,
followed by monthly payments of $788.88 thereafter. See id. Additionally, he agreed to make his
monthly payments on the first day of each month beginning with October 1, 2005. See id. On the
same date, Defendant John J. Laffrey and his wife, Defendant Kathryn A. Laffrey, signed a
Mortgage with Quicken Loans, pledging the property as security for the Note and promising to pay
the debt in full by September 1, 2035. See id. at 11. The mortgage was recorded on September 1,
2005. See Dkt. No. 14-1 at 8.
Approximately ten years later, beginning on August 1, 2015, Defendant John J. Laffrey and
Defendant Kathryn A. Laffrey failed to make their monthly payment, as well as all monthly
payments thereafter. See id. Quicken Loans, Inc. assigned the mortgage to Plaintiff two months
later, on October 13, 2015. See Dkt. No. 14-2 at 33.
Plaintiff contends that Defendants John J. Laffrey and Kathryn A. Laffrey owe damages in
the amount of $125,735.55. See Dkt. No. 14-7 at 2. The amount includes "late charges, monies
advanced for taxes, assessments, insurance, maintenance, and preservation of the Property, and the
costs, allowances, expenses of sale, and reasonable attorney's fees for the foreclosure." See Dkt. No.
14-1 at 9. According to the terms of the Mortgage, Plaintiff can require that Defendants John J.
Laffrey and Kathryn A. Laffrey "pay immediately the entire amount then remaining unpaid under
the Note" if they fail to keep the promises and agreements in the Note and Mortgage. See Dkt. No.
14-2 at ¶ 22. Furthermore, the Mortgage provides that any requirement of payment in full permits
Plaintiff to "bring a lawsuit to take away all of the defendants' remaining rights in the Property and
have the Property sold." See id.
On March 8, 2016, Plaintiff commenced this action by filing a complaint against Defendants
John J. Laffrey, Kathryn A. Laffrey, and Amalgamated Bank.1 See Dkt. No. 14-1. Plaintiff also
filed a Notice of Lis Pendens in this Court on March 28, 2016. See Dkt. No. 7. Plaintiff properly
served the complaint on each of the three Defendants. On April 5, 2016, Ellis M. Oster, Esq. filed a
Notice of Appearance on behalf of Defendant Amalgamated Bank. See Dkt. No. 14-3 at 9.
However, none of the Defendants filed an answer to Plaintiff's complaint. Consequently, Plaintiff
requested an entry of default against Defendants on April 21, 2016, which the Clerk of the Court
entered on April 26, 2016. See Dkt. Nos. 10-11.
Pending before the Court is Plaintiff's motion for entry of a default judgment against
Defendants John J. Laffrey and Kathryn A. Laffrey and for a judgment of foreclosure and sale. See
Dkt. Nos. 14, 14-8.
Upon entry of default, the court deems that the defendants have conceded all well-pled
allegations of liability; however, the entry of default "is not considered an admission of damages."
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citations
omitted); see also United States v. LaBarge, No. 8:15-CV-01330, 2016 WL 3926412, *2 (N.D.N.Y.
July 18, 2016) (citations omitted). The plaintiff must establish the amount of damages "by proof
unless the amount is liquidated or susceptible of mathematical computation." Flaks v. Koegel, 504
Amalgamated Bank is named as a Defendant because it is "the holder of a mortgage
encumbering the Property, which is subject and subordinate to Plaintiff's Mortgage." See Dkt.
No. 1, Complaint at ¶ 5.
F.2d 702, 707 (2d Cir. 1974) (citations omitted).
The Court concludes that Plaintiff has complied with the applicable rules for securing a
default judgment in this Court and, accordingly, grants Plaintiff's motion for a default judgment on
the issue of liability.
"A 'sum certain' is a sum which is susceptible to reliable computation or determined by the
court after an accounting." Ins. Co. of N. Am. v. S/S "Hellenic Challenger," 88 F.R.D. 545, 548
(S.D.N.Y. 1980) (citations omitted). When either a sum certain or a reasonably calculated sum is
presented, "'a court may not rubber-stamp the non-defaulting party's damages calculation, but rather
must ensure that there is a basis for the damages that are sought.'" LaBarge, 2016 WL 3926412, at
*2 (quoting Overcash v. United Abstract Group, Inc., 549 F. Supp. 2d 193, 196 (N.D.N.Y. 2008)
(citation omitted)). The plaintiff has the burden of proof to "'establish its entitlement to recovery.'"
Id. (quotation omitted). The court may determine damages in one of two ways: (1) through the
court's analysis of the documents that the plaintiff has provided or (2) through a hearing. See id.
(holding that, "'[w]hile "the court must ensure that there is a basis for the damages specified in a
default judgment, it may, but need not, make the determination through a hearing"'" (quotation
omitted)); see also Galloo Ile-De-France v. Lancaster Int'l, LLC, No. 1:14-cv-00629, 2015 WL
3646195, *2 (N.D.N.Y. June 10, 2015) (holding that "[t]he court may rely solely on 'detailed
affidavits and documentary evidence' for purposes of evaluating the sum of damages" (citations
In the present case, Plaintiff has provided sufficient documentary evidence from which the
Court can determine the amount of damages to which Plaintiff is entitled without the need for a
hearing. Specifically, Plaintiff has provided (1) the Note, which Defendant John J. Laffrey signed;
(2) the Mortgage, which Defendants John J. Laffrey and Kathryn A. Laffrey signed; (3) the
Assignment of the Mortgage to Plaintiff; (4) an Affidavit from Plaintiff's Document Execution
Specialist detailing the costs listed in the Statement of Damages; (5) an attorney's affirmation setting
forth the hourly breakdown of the legal work, who performed that work, and the hourly rates
charged; and (6) the Statement of Damages.
A breakdown of these damages is set forth below.
1. Unpaid balance
In its affidavit, Plaintiff sets forth the total amount due through April 1, 2016, in accordance
with the Note and Mortgage. See Dkt. No. 14-6 at 2.
Principal unpaid balance
Interest (7/1/15 to 4/1/16 @ 6.375%)
Hazard Insurance Disbursements
Mortgage Insurance Premiums
See Dkt. No. 14-2 at 6 ¶ 1; 6 ¶ 2; 14 ¶3(a)(1); 14 ¶ 3(a)(3)-(a)(4); 16 ¶ 5; 17 ¶ 7(a); 18 ¶ 10).
2. Attorney's fees
In an affidavit, Plaintiff's counsel detailed the amount Plaintiff is seeking in attorney's fees.
See Dkt. No. 14-5 at 1-2. Although counsel stated that this $2,900.00 fee is a flat fee charged for
the work, she nevertheless specified the legal work her law firm expended on Plaintiff's behalf in
this case and the hourly fee for such work.
10.6 hours x $125/hour
7 hours x $225/hour
The time that counsel and the paralegals expended on this case included, but was not limited
to, the following tasks: logging information, reviewing the title search, preparing and mailing
various letters, preparing documents for judgment of foreclosure, and correspondence. See Dkt. No.
14-5 at 2-3.
3. Fees and disbursements
In the statement of damages, Plaintiff's counsel detailed the amount Plaintiff is seeking in
fees and disbursements. See Dkt. No. 14-7 at 2.
Fees for Civil Case Filing, including Administrative Fee
Costs for official searches
Serving copy of Summons and Complaint
Clerk's fee for filing Notice of Pendency
Having reviewed the documents that Plaintiff provided in support of its motion, the Court
grants Plaintiff's motion for a default judgment against Defendants John J. Laffrey and Kathryn A.
Laffrey in the amount of $125,735.55 as set forth above.
Accordingly, after reviewing the entire file in this matter, Plaintiff's submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for the entry of a default judgment against Defendants John
J. Laffrey and Kathryn A. Laffrey in the total amount of $125,735.55 is GRANTED; and the Court
ORDERS that Judgment of Foreclosure and Sale is hereby entered against Defendants John
J. Laffrey and Kathryn A. Laffrey in the amount of $121,610.55 with an unpaid principal balance of
$103,794.35 as of April 1, 2016, with contractual interest at the rate of 6.375%, which results in a
daily per diem rate of $18.13 until entry of this Order and Judgment of Foreclosure and Sale and the
statutory rate thereafter; and the Court further
ORDERS that the amount due Plaintiff on the Note is $121,610.55, together with interest as
specified herein, and that the mortgaged property at 8453 Transit Lane, Baldwinsville, New York
13027 ("Property") cannot be sold in parcels; and the Court further
ORDERS that the Property shall be sold pursuant to New York Real Property Actions and
Procedures Law ("RPAPL") § 1351; a deed shall be issued in accordance with RPAPL
1353(1); and the sale proceeds shall be distributed in accordance with RPAPL § 1354; and the Court
ORDERS that the Property shall be sold in one parcel at public auction to the highest
bidder, as authorized under RPAPL § 231(1), at the West Lobby, 2nd Floor of the Onondaga
County Courthouse, 401 Montgomery Street, Syracuse, New York 13202, on any day of the
week the courthouse is open at a time selected by the Referee, by and under the direction of
Thomas Robertson, Esq., whose office is located at 333 East Onondaga Street, Suite 200,
Syracuse, New York 13202, who is hereby appointed Referee to effectuate the sale of the Property
within the time frame set forth in RPAPL § 1351; that said Referee set the date of sale and give
public notice of the time and place of the sale of the Property in compliance with RPAPL
§ 231(2)(a) in The Syracuse Post Standard; and the Court further
ORDERS that the Property shall be sold in "as is" condition defined as the condition the
premises are in as of the date of sale and continuing through the date of closing and that said sale
shall be subject to the following:
(a) Rights of the public and others in and to any part of the Property
that lies within the bounds of any street, alley, or highway; restrictions
and easements of record;
(b) Any state of facts that an accurate, currently dated survey might
(c) Rights of tenants, occupants or squatters, if any. It shall be the
responsibility of the Purchaser to evict or remove any parties in
possession of the Property being foreclosed. There shall be no prorata adjustment in favor of the Purchaser for any rents that are paid for
a period after the foreclosure sale; and
(d) The right of redemption of the United States of America, if any;
and the Court further
ORDERS that, in accordance with RPAPL § 1353(1), Plaintiff or any other parties to this
action may become the purchaser or purchasers at such sale; and the Court further
ORDERS that the Referee at the time of the sale may accept a written bid from Plaintiff or
Plaintiff's attorneys just as though Plaintiff were physically present to submit said bid; and the Court
ORDERS that the terms of the sale, to the extent they do not contradict this Order and
Judgment of Foreclosure and Sale or violate any law, shall be binding in all respects on the
Purchaser; and the Court further
ORDERS that, after the sale, the Referee shall deposit, in his name as Referee, the initial
bid deposit in his IOLA or Separate Account, in a bank or trust company authorized to transact
business in New York. This account shall be used solely to complete the closing of the sale and
payment of the items referenced herein as needed; and the Court further
ORDERS that, in accordance with RPAPL § 1351(1), upon payment of the purchase price,
the Referee shall execute a deed to the Purchaser; and the Court further
ORDERS that, in accordance with RPAPL § 1354, upon payment of the purchase price, the
Referee shall make the following payments or allowances from the sale proceeds to Plaintiff:
First, Payment pursuant to § 8003 of New York Civil Practice Law and Rules by the
Referee of five hundred dollars ($500.00), which represents the statutory fees for his
conducting the sale of the subject Property
Second, Payment by the Referee for the costs of advertising or posting as listed on
bills submitted to and certified by the Referee to be correct, copies of which shall be
annexed to the Referee's Report of Sale.
Third, Payment, in accordance with RPAPL § 1354(1), by the Referee to Plaintiff or
its attorney for the following: (1) Amount due Plaintiff (2) Costs and Disbursements,
and (3) Attorney fees, in the following amounts:
Amount Due Plaintiff. $121,610.55 including interest through April
1, 2016, together with interest at the Note rate (6.375%) until the date
of entry of this Order and Judgment of Foreclosure and Sale and,
thereafter, at the statutory rate until the date of transfer of the
Costs and Disbursements. $1,225.00 to Plaintiff for costs and
disbursements in this action with interest at the Judgment rate thereon
from the date of entry of this Order and Judgment of Foreclosure and
Attorney's Fees. $2,900.00 as reasonable attorney's fees, with legal
interest from the date of entry of this Order and Judgment of
Foreclosure and Sale;
Fourth, Payment, in accordance with RPAPL § 1354(2), of all taxes, assessments
and water rates that are liens on the Property and redeem the Property from any sales
for unpaid taxes, assessments, or water rates that have not apparently become
absolute with such interest or penalties that may lawfully have accrued thereon to the
date of payment; and the Court further
ORDERS that Plaintiff may, after entry of this Order and Judgment of Foreclosure and Sale,
make all necessary advances for inspections and maintenance of the Property, taxes, insurance
premiums or other advances necessary to preserve the Property, whether or not said advances were
made prior to or after entry of this Order and Judgment of Foreclosure and Sale, so long as said
advances are not included in the amount due Plaintiff awarded herein, and that the Referee shall be
provided with receipts for said expenditures, which amounts together with interest thereon at the
Note rate from the date of the expense until the date of entry of this Order and Judgment of
Foreclosure and Sale, then with interest at the Judgment rate until the date of transfer of the
Referee's Deed shall be included in the amount due Plaintiff; and the Court further
ORDERS that, if Plaintiff is the purchaser at sale, the Referee shall not require Plaintiff to
pay either a deposit or the bid amount, but shall execute and deliver to Plaintiff a Deed of the
premises sold upon payment of the statutory fees of $500.00 for conducting the sale of the Property.
Plaintiff shall provide the Referee with proof of the amounts paid for taxes, assessments and water
rates upon recording of the deed. The balance of the bid amount shall be applied to the amounts due
to Plaintiff as specified herein; and, if after applying the balance of the bid amount, there is a
surplus, Plaintiff shall pay it to the Referee, who shall deposit the funds. In accordance with
RPAPL § 1354(4), the Referee shall take receipts for the money so paid out by him and file the
same with his report of sale and deposit the surplus funds, if any, with the Clerk of this Court in
accordance with RPAPL § 1354(4) and the Referee shall give notice of such surplus to the owner of
the mortgaged Property as identified by Plaintiff at the time of the sale within five (5) days after
same shall be received and ascertainable, to the credit of this action, to be withdrawn only upon
order of this Court; that the Referee make a report of such sale under oath showing the disposition
of the proceeds of the sale and accompanied by the vouchers of the persons to whom the payments
were made and file it with the Clerk of this Court within thirty (30) days of completing the sale and
executing the proper conveyance to the Purchaser; and the Court further
ORDERS that transfer tax is not a lien on the Property or an expense of sale, but rather an
expense of recording the deed. All expenses of recording the Referee's Deed shall be paid by the
Purchaser and not the Referee from sale proceeds. The Purchaser shall be responsible for the
interest accruing on real property taxes after the date of the foreclosure sale; and the Court further
ORDERS that the Referee make a report of sale in accordance with RPAPL § 1355,
showing the disposition of the sale proceeds accompanied by the receipts for payments made and
file it with the Clerk of this Court within thirty (30) days of completing the sale; and the Court
ORDERS that the Purchaser or Purchasers at such sale shall be let into possession on
producing the Referee's Deed; and the Court further
ORDERS that each and all of Defendants in this action and all persons claiming under
them, or any or either of them, after the filing of such Notice of Pendency of this action, be and they
hereby are, barred and foreclosed of all right, claim, lien, title, interest, and equity of redemption in
said Property and each and every part thereof; and the Court further
ORDERS that the liens of Plaintiff other than the Mortgage or Mortgages that are the
subject matter of this action are also foreclosed herein as though Plaintiff was named a party
Defendant, specifically reserving to Plaintiff its right to share in any surplus monies as a result of
such position as a lien creditor; and the Court further
ORDERS that, by accepting this appointment, the Referee certifies that he is qualified for
appointment in compliance with all applicable rules governing the qualification of court-appointed
referees; and should the Referee be disqualified from appointment pursuant to the provisions of
such rules, the Referee shall promptly notify the Appointing Judge. The appointee shall not receive
any fee before filing said Referee's Report of Sale with the Court; and the Court further
ORDERS that, pursuant to CPLR § 8003(b), absent application to the Court, further Court
order, and compliance with all applicable rules governing the qualifications of court-appointed
referees, the Referee shall not demand, accept or receive more than the statutory amount of five
hundred dollars ($500.00) otherwise payable to the Referee for the foreclosure sale stage, regardless
of adjournment, delay or stay of the sale; and the Court further
ORDERS that the Notice of Sale must be submitted to this Court and the Office of the
Onondaga County Clerk at least ten (10) days prior to the date of the foreclosure sale; and the Court
ORDERS that the Clerk of the Court shall serve a copy of this Order and Judgment of
Foreclosure and Sale with Notice of Entry upon the Referee appointed herein and any party entitled
to service; and the Court further
ORDERS that this Court shall retain jurisdiction to construe and enforce this Order and
Judgment of Foreclosure and Sale, including but not limited to an application to confirm the sale
made pursuant thereto.
The legal description of the premises hereinbefore mentioned is annexed to this Order and
Judgment of Foreclosure and Sale as Schedule "A."
IT IS SO ORDERED.
Dated: February 7, 2017
Syracuse, New York
ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected,
situate, lying and being in the Town of Clay, County of Onondaga and State of New York, being
part of Farm Lot No. 34 in said Town and more particularly bounded and described as follows:
BEING Lot No. 365 of "Kimbrook Tract, Section 5," according to a map made by Alfred N. Ianuzi,
Jr., Licensed Land Surveyor and filed in the Onondaga County Clerk's Office on March 4, 1986, as
Map No. 6403.
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