Nationstar Mortg. LLC v. Atanas
Nationstar Mortg. LLC v. Atanas
Opinion of the Court
BACKGROUND
Plaintiff Nationstar Mortgage LLC ("Plaintiff") commenced this action on December 20, 2016, pursuant to Article 13 of the New York Real Property Actions and Proceedings Law ("RPAPL"), to foreclose a mortgage encumbering 573 Bay Road, Webster, New York 14850, together with the land, buildings, and other improvements located on the property ("Property"). (Dkt. 1 at ¶ 1). Defendants Eric L. Atanas, also known as Eric Atanas, and Kathleen M. Pink, also known as Kathleen Pink (collectively, "Defendants"), have not appeared in this action. (Dkt. 8). On March 16, 2017, Plaintiff filed a motion for a default judgment and for foreclosure and sale of the Property. (Dkt. 9; see Dkt. 10). On May 23, 2017, the Court denied that motion without prejudice and granted Plaintiff the opportunity to file a renewed motion for a default judgment to cure the deficiencies described therein. (Dkt. 13). On July 6, 2017, Plaintiff timely filed a renewed motion for a default judgment and for foreclosure and sale of the Property. (Dkt. 16; see Dkt. 17; Dkt. 18). The Court issued a motion scheduling order the same day, setting a briefing schedule and directing Plaintiff to serve that order and Plaintiff's motion papers upon Defendants. (Dkt. 20). On July 10, 2017, Plaintiff filed an affidavit of service, demonstrating that Plaintiff had served Defendants with the Court's motion scheduling order and Plaintiff's motion papers. (Dkt. 21). Defendants failed to answer the motion papers or otherwise appear in this action.
On January 29, 2018, the Court issued a Decision and Order granting Plaintiff's motion for a default judgment, denying Plaintiff's request for attorneys' fees, and denying Plaintiff's application for a judgment of foreclosure and sale of the Property without prejudice. (Dkt. 22). Plaintiff was granted leave to file substantiating documentation to cure the deficiencies in its motion papers regarding damages. (Id. ). The Court assumes familiarity with the factual background and procedural history of this case, as set forth in its May 23, *7032017, Decision and Order. (See Dkt. 13 at 1-3).
Currently before the Court is Plaintiff's renewed motion for a judgment of foreclosure and sale of the Property. (Dkt. 23). For the reasons set forth below, Plaintiff's motion is granted.
DISCUSSION
I. Default Damages
"A default constitutes an admission of all well-pleaded factual allegations in the complaint, except for those relating to damages." 1st Bridge LLC v. 682 Jamaica Ave., LLC , No. 08-CV-3401 (NGG)(MDG),
"[A] court must ensure that there is an adequate basis for the damages sought by a plaintiff before entering judgment in the amount demanded." Ditech Fin. LLC v. Singh , No. 15-CV-7078 (FB) (SMG),
A. Plaintiff's Damages Under the Note and Mortgage
Plaintiff requests an award of damages arising under the terms of the Note and the Mortgage, and the reimbursement of costs incurred through the prosecution of this action. The original principal balance under the Note and the Mortgage was $289,389.00. (Dkt. 23-1 at 13; id. at 30). Pursuant to the terms of the Note, Plaintiff is entitled to "the full amount of Principal which has not been paid and all the interest that [Defendants] owe on that amount," as well as "all of its costs and expenses in enforcing th[e] Note to the extent not prohibited by applicable law." (Id. at 14). The Mortgage instrument provides similar language permitting the recovery of damages and costs in the event Defendants default on their loan obligations and Plaintiff commences a subsequent action to enforce the terms of the parties' agreement. (See id. at 42-43).
In its previously filed motion papers (Dkt. 18), Plaintiff submitted a Statement of Damages that sought the unpaid principal *704balance on the Mortgage, the interest accumulated between January 1, 2016, and February 2, 2017-which accrued at an annual rate of 4.50%-and the reimbursement of various advances on insurance, taxes, property preservation, inspection, and valuation. (Dkt. 18-8 at 1). Plaintiff also sought to recover certain fees relating to the filing and service of this action, title searches, and the filing of the notice of pendency. (Id. at 2). In attempting to establish default damages under the Note and the Mortgage, Plaintiff relied almost exclusively upon the affidavit of Daphne Proctor ("Proctor"), Plaintiff's "Document Execution Specialist." (Dkt. 18-7). Proctor averred to the accuracy of the values pertaining to the unpaid principal balance, the accrued interest, and the aforesaid advances. (Id. at 2). Specifically, Proctor relied upon "computerized records" relating to the loan transaction at issue, which were kept in the regular course of Plaintiff's business. (Id. at 1-2). However, the Court rejected these submissions as insufficient evidence of the damages sought under the Note and the Mortgage. (See Dkt. 22 at 13-16).
On the present motion, Plaintiff has once again provided a Statement of Damages (Dkt. 23-1 at 146-47). Plaintiff claims that the unpaid principal balance due on the Note is $279,837.53, and that $13,676.57 in interest has accrued between January 1, 2016, and February 2, 2017. (Id. at 146). Plaintiff also indicates that it is entitled to the recovery of various disbursements and costs relating to the aforementioned advances toward insurance, taxes, property preservation, inspections, and valuation, which amount to another $12,814.63. (Id. ). As such, Plaintiff claims that the total amount due on the Note is $306,328.73. (Id. ).
Plaintiff has also submitted an affidavit from its "Document Execution Associate," Ebony White ("White"). (Dkt. 23-1 at 80). White avers to the accuracy of these values based upon his review of the computerized records created and maintained in servicing Defendants' loan. (Id. at 80-81). However, Plaintiff's instant motion papers also include those computerized loan records (see id. at 83-116), and they-along with White's affidavit-supply sufficient evidence to support the values alleged in Plaintiff's Statement of Damages, see, e.g., CIT Bank N.A. v. Seeram , No. 16 CV 2608 (RRM)(LB),
"The daily interest is calculated with the following formula: daily interest rate = (outstanding principal * interest rate per annum) / 365 days." Happy Homes, LLC v. Jenerette-Snead , No. 15-CV-01788 (MKB) (RML),
Therefore, the Court finds that Plaintiff has established its entitlement to $306,328.78 in damages under the Note.
B. Recoverable Costs
Plaintiff also seeks to recover the costs associated with commencing and pursuing this action. (Dkt. 23-2 at 5-6). As noted above, the Note and the Mortgage expressly contemplate the recovery of certain litigation costs. (Dkt. 23-1 at 14, 42-43). Specifically, Plaintiff seeks to recover the $400.00 court-filing fee paid in commencing this action, $275.00 paid in undertaking title searches, $190.00 paid in serving the summons and complaint, $35.50 paid for filing the notice of pendency in the Monroe County Clerk's Office, and $20.00 paid for postal costs. (Id. ; see Dkt. 23-1 at 146). "Plaintiffs seeking to recover costs must submit bills or receipts for claimed expenses." James v. Nat'l R.R. Passenger Corp. , No. 1:02-CV-03915-RJH,
"Although no supporting documentation of the government's costs is attached, the filing fees incurred in connection with this case are readily verifiable," and thus, Plaintiff may recover the $400.00 court-filing fee and the $35.50 notice of pendency filing fee. United States v. Simmons , No. 13-CV-00789(S)(M),
Therefore, the Court finds that Plaintiff is also entitled to $920.50 in costs.
II. Judgment of Foreclosure and Sale
"In the usual course, once a plaintiff mortgagee in a foreclosure action has established a prima facie case by presenting a note, a mortgage, and proof of default, it has a presumptive right to foreclose that can only be overcome by an affirmative showing by the mortgagor." OneWest Bank, N.A. v. Bianchini , No. CV 14-3234 (DRH) (GRB),
Plaintiff also requests that the Court appoint a referee to facilitate the sale of the Property. (Dkt. 23-2 at 7). Plaintiff has submitted the names of three proposed referees for the Court's consideration. (Dkt. 23-1 at ¶ 11). "Courts in this Circuit have permitted such appointments where the plaintiff 'established a prima facie case by presenting a note, a mortgage, and proof of default.' " Dambra ,
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment of foreclosure and sale (Dkt. 23) is granted, which will issue under separate cover in a form substantially similar to the proposed judgment submitted by Plaintiff. The Court grants Plaintiff the following damages, which it is entitled to recover to the extent possible through a foreclosure and sale of the Property:
(1) $279,837.53 representing the outstanding principal balance due on the Note; plus
(2) $13,676.57 in unpaid interest accrued on the outstanding principal between January 1, 2016, and February 2, 2017; plus
(3) Continuing per diem interest on the outstanding principal balance at a rate of $34.50 per day from February 2, 2017, until judgment is entered; and *707(4) $920.50 in costs
SO ORDERED.
The Court notes that the advances for hazard insurance appear to cost $917.87. (Dkt. 23-1 at 101). However, since Plaintiff has requested $913.27, the Court will apply this number in calculating Plaintiff's damages.
Reference
- Full Case Name
- NATIONSTAR MORTGAGE LLC v. Eric L. ATANAS, aka Eric Atanas, Kathleen M. Pink, aka Kathleen Pink
- Cited By
- 2 cases
- Status
- Published