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Firststorm Partners 2, LLC v. Kaye Vassel and Paul Vassel

August 15, 2012

FIRSTSTORM PARTNERS 2, LLC, PLAINTIFF,
v.
KAYE VASSEL AND PAUL VASSEL,
DEFENDANTS.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

On May 23, 2012, the court adopted a Report and Recommendation issued by Magistrate Judge Ramon E. Reyes, Jr. on March 8, 2012, granting plaintiff's motion for summary judgment in its entirety and dismissing defendants' counterclaims in their entirety, but requested additional documentary support to enable the court to determine the amount due and outstanding under the Note and Mortgage, including accrued interest, and any other relief sought by plaintiff. (See ECF No. 41, Order Adopting Report and Recommendation, dated 5/23/2012; and ECF No. 39, Report and Recommendation, dated 3/8/2012 ("R&R").) Presently before the court are plaintiff's supplementary submissions, which provide an adequate basis to determine the amount due and outstanding under the Note and Mortgage. (ECF No. 42-43.) Defendants did not file any opposition to plaintiff's supplementary submissions. For the reasons that follow, the court grants a judgment of foreclosure in favor of plaintiff in the amount of $469,095.52, plus interest at a rate of $110.29 per diem from May 24, 2012, through the date of entry of judgment, and post-judgment interest as prescribed by law. The court also awards plaintiff's counsel $17,150 in attorneys' fees, and $2,837.29 in costs.

BACKGROUND

On May 24, 2010, Greystone Bank ("Greystone") commenced this action against defendants Kaye Vassel and Paul Vassel (together, "defendants") to foreclose on a first mortgage lien on certain real property designated as Block 10188, Lot 45 with an address of 109-18 Merrick Boulevard, Jamaica, New York (the "Property"). (See generally ECF No. 1, Complaint filed 5/24/2010 ("Compl.").) On September 22, 2011, Greystone filed a motion for summary judgment, which defendants did not oppose. (ECF No. 30, Motion for Summary Judgment, filed 9/22/2011.) Following the acquisition of the Note and Mortgage at issue in this action by FirstStorm Partners 2, LLC ("FirstStorm" or "plaintiff"), FirstStorm was substituted for Greystone as plaintiff in the action. (Order Granting Motion to Substitute Party, dated 10/26/2011.)

On March 8, 2012, Magistrate Reyes issued the R&R granting plaintiff's motion for summary judgment in its entirety and dismissing defendants' counterclaims in their entirety. (ECF No. 39.) On May 23, 2012, after the expiration of the statutory period for objections to the R&R, the court adopted the R&R in its entirety, for the reasons stated therein, and ordered the foreclosure and sale of the Property. (ECF No. 41.) The court also requested the plaintiff to provide, by June 1, 2012, additional documentary support to enable the court to determine the amount due and outstanding under the Note and Mortgage, including accrued interest, and any other relief sought by plaintiff, and further ordered that any defendant who wished to respond should so by June 8, 2012. (Id.)

On June 1, 2012, FirstStorm timely submitted a sworn affidavit and supporting documentation to establish the amount due and outstanding under the Note and Mortgage, including accrued interest, and the other relief it requests. (See generally ECF No. 42, Declaration of Rachel Kramer ("Kramer Decl."); and ECF No. 42-1, Declaration of William McDonald ("McDonald Dec.").) On July 19, 2012, at the court's direction, FirstStorm submitted clarified, updated records to support its request for attorneys' fees. (See ECF No. 43, Supplemental Memorandum dated 7/18/2012 ("Supp. Mem.").) In addition to the amounts due and outstanding under the Note and Mortgage, FirstStorm also requests (i) attorneys' fees in the amount of $44,721.30; (ii) the appointment of a referee, Michael King, Esq., to conduct the foreclosure sale; and (iii) an order permitting FirstStorm to recover any deficiency remaining after the sale from defendants. (Kramer Decl. ¶¶ 16-26, 29-30; Supp. Mem. at 1.) None of the defendants have responded or demonstrated any intent of responding to the Court's May 23, 2012 Memorandum and Order.

DISCUSSION

I. Amounts Due Under the Note and Mortgage

The court has reviewed FirstStorm's additional submissions and finds that they provide an adequate basis from which the court can determine the amount due and outstanding under the Note and Mortgage, and the interest applicable thereto. The court has also performed independent calculations to confirm the accuracy of FirstStorm's requested amounts, and finds that FirstStorm has established its entitlement to:

* $397,043.58 in unpaid principal, as reflected in plaintiff's computerized loan history (see McDonald Decl. ¶ 8, Ex. A);

* $70,075.52 in interest accruing between December 1, 2009 and May 23, 2012, on the unpaid principal balance at the rates of 7.125% per annum (for the period prior to April 20, 2011); 12.125% per annum (for the period between April 20, 2011 and April 30, 2011; and 10% per annum (for the period between May 1, 2011 to May 23, 2012), as set forth in Paragraphs 3(b)(i)-(iii) and 8 of the Note (see Kramer Decl. ¶¶ 5-12, Ex. 1; McDonald Decl. ¶¶ 4-8);

* $1,976.42 in advances for payment of "forced place insurance" for the Property (see McDonald Decl. ¶ 7, Ex. B);

* Interest on the Note and Mortgage that continues to accrue at a rate of $110.29 per diem from May 24, 2012 to the date of entry of judgment (see Kramer Decl. ¶¶ 13, 27-28); and

* Interest on the Note and Mortgage that continues to accrue at the federal post-judgment statutory rate from the date of the entry of judgment to the date of the foreclosure sale of the Property (see 28 U.S.C. ...


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