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OneWest Bank, N.A. v. Hickok

United States District Court, Northern District of New York

April 21, 2015

ONEWEST BANK, N.A., Plaintiff,
v.
JASON P. HICKOK; NATHAN LITTAUER HOSP.; FULTON CNTY CLERK; and JOHN DOE, Defendants.[1]

GROSS POLOWY, LLC Counsel for Plaintiff

AMY E. POLOWY, ESQ.

KEITH R. YOUNG, ESQ.

DECISION AND ORDER

HON. GLENN T. SUDDABY U.S. DISTRICT JUDGE

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.

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.)

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 ...


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