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One West Bank, Fsb v. Davi

United States District Court, N.D. New York

September 30, 2014

ONE WEST BANK, FSB, Plaintiff,
LARA M. DAVI; BALLSTON SPA NATIONAL BANK;[1] and JOHN DOE NO. 1 through JOHN DOE NO. 10, inclusive, the names of the last 10 Defendants Being fictitious, the true names of said Defendants Being unknown to Plaintiff, It being intended to designate fee owners, tenants or occupants of the mortgaged premises, etc., Defendants.


RALPH C. LEWIS, JR., LEWIS & STANZIONE, ESQS., Catskill, New York, Attorneys for Defendant Davi.


FREDERICK J. SCULLIN, Jr., Chief District Judge.


Plaintiff commenced this action against Defendants on August 27, 2013, seeking to foreclose a mortgage encumbering property improved by a single family dwelling, located at 16 Marshall Street, Albany New York. See Dkt. No. 1 at ¶ 1. Plaintiff filed a Notice of Pendency of Action with the Albany County Clerk on August 27, 2013, and filed that document in this Court on October 7, 2013. See Dkt. No. 7. Defendant Davi is the owner of the mortgaged property. See id. at ¶ 4. Since the parties to this suit are citizens of different states, the Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

On January 31, 2014, Plaintiff filed a motion seeking the following relief: (1) an Order granting summary judgment against Defendant Davi and striking her answer; (2) an Order appointing a special master, pursuant to Rule 53 of the Federal Rules of Civil Procedure and directing said special master to ascertain and compute the amounts due Plaintiff under the mortgage being foreclosed in this action and to examine and report whether the mortgaged property can be sold in one parcel; and (3) an Order amending the caption to excise Defendants John Doe No. 1 through John Doe No. 10 and discontinuing the action against them without prejudice. See Dkt. No. 16. Defendant Davi did not file any opposition to this motion.


On May 31, 2007, Defendant Davi executed and delivered a promissory note ("Note") to Quicken Loans, Inc., it successors and/or assigns, evidencing a loan in the amount of $128, 000.00 and providing for the monthly payment of principal and interest, beginning on August 1, 2007, with payment of the unpaid principal balance due on July 1, 2037, unless due earlier because of default or acceleration. See Plaintiff's Statement of Material Facts at ¶ 5 (citing Complaint at ¶ 11, 16); Affirmation of Robert G. Wilk ("Wilk Aff.") dated January 30, 2014, at Exhibit "A" attached thereto). On May 31, 2007, Defendant Davi executed and delivered a mortgage ("Mortgage") to Quicken Loans, Inc., its successors and/or assigns, securing payment of the Note. See id. at ¶ 6 (citing Complaint at ¶ 12); Wilk Aff. at Exhibit "A" attached thereto. The mortgage was duly recorded in the Albany County Clerk's Office on June 15, 2007, Document Number 9977576, Book 5492, Page 419, and the requisite mortgage recording tax and all other fees were duly paid thereon. See id. at ¶ 7 (citing Complaint at ¶ 13). On August 13, 2011, the Note and Mortgage were assigned to Plaintiff and, to date, have not been otherwise assigned. See id. at ¶ 8 (citing Complaint at ¶ 14); Wilk Aff. at Exhibit "A" attached thereto. Pursuant to the Note and Mortgage, Plaintiff has the right to accelerate the entire principal amount outstanding and accrued interest if any installment is not made when due. See id. at ¶ 9 (citing Complaint at ¶¶ 17-18). Defendant Davi defaulted under the terms of the Note and Mortgage by failing to pay $1, 159.58 due on December 1, 2012, and further failing to pay all sums due thereafter. See id. at ¶ 10 (citing Complaint at ¶ 19).

On March 14, 2013, Plaintiff sent Defendant a ninety (90) day pre-foreclosure notice pursuant to New York Real Property and Procedure Law, see id. at ¶ 11 (citing Complaint at ¶ 20), Wilk Aff. at Exhibit "F" attached thereto; and a notice of default on the Mortgage, see id. at ¶ 13 (citing Complaint at ¶ 22), Wilk Aff. at Exhibit "H." On March 18, 2013, Plaintiff made a filing with the New York State Department of Financial Services pursuant to New York Real Property and Procedure Law § 1306. See id. at ¶ 12 (citing Complaint at ¶ 21); Wilk Aff. at Exhibit "G" attached thereto. At the time of the commencement of this action, the unpaid principal sum underlying the Note and Mortgage totaled $140, 352.55. See id. at ¶ 16 (citing Complaint at ¶¶ 8(b), 25). Plaintiff has not commenced any other action for recovery of the monies or any part thereof evidenced by the Note and secured by the Mortgage. See id. at ¶ 18 (citing Complaint at ¶ 28). As of June 21, 2013, the amount due and owing pursuant to the Note and Mortgage was $147, 277.58, including unpaid principal balance, interest, accumulated late charges and recoverable balance. See id. at ¶ 19 (citing "Notice Pursuant to the Fair Debt Collections Practices Act, 15 U.S.C. 1692 As Amended" annexed to the Complaint).


A. Standard of review

"Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed.R.Civ.P. 56(a)) (other citation omitted). Where, as in this case, the motion for summary judgment is not opposed, the court "may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).

If the movant establishes a prima facie entitlement to summary judgment, "the burden shifts to the non-movant to point to record evidence creating a genuine issue of material fact." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) (citations omitted). "Conclusory allegations, conjecture, and speculation... are insufficient to create a genuine issue of fact.'" Niagara Mohawk Power Corp. v. Jones Chem., ...

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