OneWest Bank, N.A. v. Hickok et al

Filing 23

DECISION AND ORDER granting # 16 Plaintiff's Motion for entry of Default Judgment against Defendants. The Clerk of the Court shall terminate John Doe as a Defendant in this action. Plaintiff is awarded a Judgment against Defendant Hickok in the amount of $183,445.59, with interest at the statutory rate after the date of the entry of this Decision and Order; and that the Property shall be sold pursuant to NY RPAPL § 1351, that a deed shall be issued in accordance with NY RPAPL
67; 1353(1), and that the sale proceeds shall be distributed in accordance with NY RPAPL § 1354; and that, should Plaintiff continue to request a proposed Judgment of Foreclosure and Sale, Plaintiff shall, within THIRTY (30) DAYS of the date of this Decision and Order, do each of the three things specified above in Part III.C. of this Decision and Order. If plaintiff fails to do each of the three things specified above in Part III.C. of this Decision and Order within THIRTY (30) DAYS of th e date of this Decision and Order, the Clerk is directed to enter a default judgment in favor of the Plaintiff in the amount of $183,445.59, with interest at the statutory rate after the date of entry of this Decision and Order against Defendant Hickok and close this case. Signed by Judge Glenn T. Suddaby on 4/21/15. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ONEWEST BANK, N.A.,
Plaintiff,
v.

6:14-CV-0781
(GTS/TWD)

JASON P. HICKOK; NATHAN LITTAUER HOSP.;
FULTON CNTY CLERK; and JOHN DOE,
Defendants.1
____________________________________________
APPEARANCES:

OF COUNSEL:

GROSS POLOWY, LLC
Counsel for Plaintiff
25 Northpointe Parkway, Suite 25
Amherst, NY 14228

AMY E. POLOWY, ESQ.
KEITH R. YOUNG, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this real property foreclosure action arising under diversity
jurisdiction and filed by OneWest Bank, N.A. (“Plaintiff”) against Jason P. Hickok, Nathan
Littauer Hospital, Fulton County Clerk, and John Doe (collectively “Defendants”), is Plaintiff’s
motion for default judgment pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 16.) For the reasons
stated below, Plaintiff’s motion is granted. However, to the extent that Plaintiff additionally
requests that the Court issue a Judgment of Foreclosure and Sale, Plaintiff is directed to file an
amended proposed Judgment of Foreclosure and Sale and a memorandum of law.

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Plaintiff voluntarily discontinues its claims against Defendant John Doe. (Dkt.
No. 16, Attach. 1, at ¶ 11.) As a result, the Clerk of Court is directed to terminate John Doe as a
Defendant on the docket sheet.

I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Generally, liberally construed, Plaintiff’s Complaint alleges as follows. (Dkt. No. 1) On
or about July 26, 2007, Defendant Hickok executed a promissory note (“Note”) promising to pay
$105,600.00. To secure his promise to pay his obligation under the Note, Defendant Hickok
executed and delivered a Mortgage on the property located at 202 East State Street Gloversville,
New York 12078 (the “Property”). On October 8, 2008, Defendant signed a Loan Modification
Agreement, modifying the terms of the Note (“Modified Note”) and the Mortgage.
Subsequently, Mortgage was assigned first to IndyMac Federal Bank, FSB, and then to
OneWest Bank N.A. (formally known as OneWest Bank, FSB). On May 1, 2009, Defendant
failed to make a payment due and owing in accordance with the terms of the Modified Note and
Mortgage. Plaintiff accelerated the loan and declared the entire amount due and owing under the
Modified Note. As a result, the principal balance presently due and owing under the Note and
Mortgage is $182,247.69, in addition to interest accruing from October 17, 2014, at a rate of
6.125%.
Finally, alleges the Complaint, the remaining Defendants claim an interest or a lien in the
Property prior and adverse to Plaintiff’s mortgage lien, which claim is invalid. (Id.)
Based on these (and other) factual allegations, Plaintiff’s Complaint asserts the following
two claims against Defendants: (1) a claim for a judgment foreclosing on Plaintiff’s mortgage
encumbering 202 East State Street Gloversville pursuant to Article 13 of the New York Real
Property Actions and Proceedings Law (“NY RPAPL”); and (2) a claim for a judgment
discharging the prior and adverse liens on the Property pursuant to Article 15 of the NY RPAPL.
(See generally Dkt. No. 1.)
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B.

Plaintiff’s Service of Its Complaint and Defendants’ Failure to Answer

On June 27, 2014, Plaintiff served its Complaint on Defendants. (Dkt. No. 3.) As of the
date of this Decision and Order, Defendants have filed no Answer to that Complaint. (See
generally Docket Sheet.)
C.

Clerk’s Office’s Entry of Default and Defendants’ Non-Appearance

On October 3, 2014, Plaintiff filed for entry of default. (Dkt. No. 13.) On October 6,
2014, the Clerk of the Court entered default against Defendants, pursuant to Fed. R. Civ. P.
55(a). (Dkt. No. 14.) As of the date of this Decision and Order, Defendants have not appeared
and attempted to cure that entry of default. (See generally Docket Sheet.)
D.

Plaintiff’s Motion for Default Judgment and Defendants’ Non-Response

On December 8, 2014, Plaintiff filed a motion for default judgment against Defendants
pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 16.) As of the date of this Decision and Order,
Defendants have filed no response to that motion. (See generally Docket Sheet.)
Generally, in support of its motion for default judgment, Plaintiff argues as follows: (1)
Plaintiff is entitled to a judgment of foreclosure and sale; (2) the property should be sold
pursuant to NY RPAPL § 1351 and that the sale of the proceeds be distributed in accordance
with NY RPAPL § 1354; and (3) Plaintiff is entitled to reimbursement for its attorney fees and
Plaintiff is entitled to reimbursement for its costs, allowances, and disbursements made in
accordance with the Note and Mortgage and Article 83 of the New York Civil Practice Law and
Rules (“NY CPLR”). (Dkt. No. 16, at ¶ 16-17.) Familiarity with the particular grounds for
Plaintiff’s motion for default judgment against Defendants is assumed in this Decision and
Order, which is intended primarily for the review of the parties.

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II.

GOVERNING LEGAL STANDARD
“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.” Robertson v. Doe, 05-CV7046, 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.’” Robertson, 2008
WL 2519894, at *3 (quoting Fed. R. Civ. P. 55[a]). “Second, pursuant to Rule 55(b)(2), the
party seeking default judgment is required to present its application for entry of judgment to the
court.” Id. “Notice of the application must be sent to the defaulting party so that it has an
opportunity to show cause why the court should not enter a default judgment.” Id. (citing Fed.
R. Civ. P. 55[b][2]). “When an action presents more than one claim for relief . . . , the court may
direct entry of a final judgment as to one or more, but fewer than all, claims or parties . . . if the
court expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b).
When a court considers a motion for the entry of a default judgment, it must “accept[ ] as
true all of the factual allegations of the complaint . . . .” Au Bon Pain Corp. v. Artect, Inc., 653
F.2d 61, 65 (2d Cir. 1981) (citations omitted). “However, the court cannot construe the damages
alleged in the complaint as true.” Eng’rs Joint Welfare, Pension, Supplemental Unemployment
Benefit and Training Funds v. Catone Constr. Co., Inc., 08-CV-1048, 2009 WL 4730700, at *2
(N.D.N.Y. Dec. 4, 2009) (Scullin, J.) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183
F.3d 151, 155 [2d Cir. 1999]). “Rather, the court must ‘conduct an inquiry in order to ascertain
the amount of damages with reasonable certainty.’” Eng’rs Joint Welfare, Pension,
Supplemental Unemployment Benefit and Training Funds, 2009 WL 4730700, at *2 (quoting
Alcantara, 183 F.3d at 155 [citation omitted]). This inquiry “involves two tasks: [1] determining

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the proper rule for calculating damages on such a claim, and [2] assessing plaintiff's evidence
supporting the damages to be determined under this rule.” Alcantara, 183 F.3d at 155. Finally,
in calculating damages, the court “need not agree that the alleged facts constitute a valid cause of
action . . . .” Au Bon Pain, 653 F.2d at 65 (citation omitted).
III.

ANALYSIS
A.

Liability

After carefully considering Plaintiff’s unopposed motion, the Court is satisfied that
Plaintiff has met its modest threshold burden of establishing entitlement to default judgment
against Defendants on the issue of liability under the circumstances.2
For example, for the reasons stated above in Part I of this Decision and Order, the Court
finds that due notice of this action has been given to Defendants. However, no Answer has been
filed and no one has appeared on behalf of Defendants. In addition, the Clerk has already
entered default against Defendants, and Plaintiff has served Defendants with its motion for the
issuance of a default judgment. However, Defendants have still neither responded to the motion
nor even appeared in this action. Finally, the Court finds that the factual allegations of Plaintiff’s
Complaint are sufficient to state a claim upon which relief can be granted. See W.A.W. Van
Limburg Stirum et al. v. Whalen et al., 90-CV-1279, 1993 WL 241464, at *4 (N.D.N.Y. June 29,
1993) (Munson, J.) (holding that, “[b]efore judgment can be entered, the court must determine

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In this District, a movant’s burden with regard to an unopposed motion is
lightened such that, in order to succeed, the movant need only show its entitlement to the relief
requested in its motion, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1 n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases).
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whether plaintiff’s factual allegations are sufficient to state a claim for relief . . . the court may
exercise its discretion to require some proof of the facts that must be established in order to
determine liability”).
For each of these alternative reasons, the Court grants Plaintiff’s motion for the issuance
of a default judgment on the issue of liability pursuant to Fed. R. Civ. P. 55(b).
B.

Damages

After carefully considering Plaintiff’s unopposed motion, the Court has calculated the
amount of damages owed as follows.
In support of its damages request, Plaintiff has provided, inter alia, the certification of
Plaintiff’s Assistant Secretary, Caryn Edwards, which demonstrates that Defendant Hickok is
indebted to Plaintiff in the amount of $176,411.67 as of October 17, 2014.3 In addition, Plaintiff
has established the following amounts due and owing: $3,388.92 in interest based on a per diem
rate of $18.22 accruing from October 17, 2014, to the date of this Decision and Order (April 21,
2015),4 $1,145 in costs and disbursements,5 and $2,500 in attorney’s fees.6

3

(Dkt. No. 16, Attach. 10, at 2-7 [Ex. I-1 to Young Affirm.].)

4

(Id. at 7.)

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The Court calculates Plaintiff’s costs, fees and disbursements as follows: $350 for
civil case fee filing pursuant to 28 U.S.C. § 1914(a), plus $760 for serving the Summons and
Complaint, plus $35 for the Clerk’s fee for filing the Notice of Pendency.
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Attorneys for Plaintiff did not include time sheets or detailed explanations of the
time spent working on this cause of action. However, based upon the work completed by
Plaintiff’s attorneys listed in the Attorney Fee Affirmation (which included ordering a title
search, reviewing title search and relevant loan documents, preparing a debt validation letter,
preparing for service of process of all defendants, and preparing judgment of foreclosure), this
Court concludes that an award of $2,500 in attorney’s fees is appropriate based upon the
attorney’s hourly rate of $175 and paralegal’s rate of $75 (i.e., 10 x $175 + 10 x $75).
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Therefore, the Court concludes that Plaintiff has met its burden of establishing a valid
basis for the damages, and that default judgment against Defendants in the amount of
$183,445.59 is appropriate.7
C.

Proposed Judgment of Foreclosure and Sale

In addition to submitting a proposed Judgment requesting the relief granted by this
Decision and Order, Plaintiff has submitted a proposed Judgment of Foreclosure and Sale, which
the Court finds to not be sufficiently explained in Plaintiff’s attorney affirmation. (Compare
Dkt. No. 22, Attach. 1, at 4-9 with Dkt. No. 16, Attach. 1.)
If Plaintiff continues to request such a Judgment of Foreclosure and Sale, Plaintiff is
directed to do the following three things within thirty days of the date of this Decision and
Order: (1) file an amended proposed Judgment of Foreclosure and Sale, which fills in the blanks
currently contained in its proposed Judgment of Foreclosure and Sale, and which amends the
amounts of money referenced therein so they comport with the amounts of money awarded in
this Decision and Order; (2) in addition to filing that amended document, email it in Word
format to the undersigned’s courtroom deputy, Lori Welch, at [e-mail];
and (3) file a memorandum of law citing legal authority for each of the paragraphs requested in
the amended document.
ACCORDINGLY, it is

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See Eng’rs Joint Welfare, Pension, Supplemental Unemployment Benefit and
Training Funds, 2009 WL 4730700, at *3-4 (finding, in an unopposed motion for default
judgment based on an ERISA claim, that plaintiffs were entitled to unpaid contributions, interest
on unpaid contributions, liquidated damages, and audit fees in amounts that plaintiffs claimed
they were entitled to pursuant to the parties’ agreement and/or 29 U.S.C. § 1132[g][2][C]).
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ORDERED that the Clerk of the Court shall TERMINATE John Doe as a Defendant in
this action, in accordance with note 1 of this Decision and Order; and it is further
ORDERED that Plaintiff’s motion for entry of default judgment against Defendants
(Dkt. No. 16) is GRANTED; and it is further
ORDERED that Plaintiff is awarded a Judgment against Defendant Hickok in the
amount of $183,445.59, with interest at the statutory rate after the date of the entry of this
Decision and Order; and it is further
ORDERED that the Property shall be sold pursuant to NY RPAPL § 1351, that a deed
shall be issued in accordance with NY RPAPL § 1353(1), and that the sale proceeds shall be
distributed in accordance with NY RPAPL § 1354; and it is further
ORDERED that, should Plaintiff continue to request a proposed Judgment of
Foreclosure and Sale, Plaintiff shall, within THIRTY (30) DAYS of the date of this Decision
and Order, do each of the three things specified above in Part III.C. of this Decision and Order;
and it is further
ORDERED that, if plaintiff fails to do each of the three things specified above in Part
III.C. of this Decision and Order within THIRTY (30) DAYS of the date of this Decision and
Order, the Clerk is directed to enter a default judgment in favor of the Plaintiff in the amount of
$183,445.59, with interest at the statutory rate after the date of entry of this Decision and Order
against Defendant Hickok and close this case.
Date: April 21, 2015
Syracuse, New York

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