United States District Court, N.D. New York
GROSS POLOWY, LLC KEITH R. YOUNG, ESQ., 1175 Wehrle Drive Suite 100 Williamsville, New York 14221 Attorneys for Plaintiff.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff brought this action pursuant to Article 13 of New York Real Property Actions and Proceedings Law ("R.P.A.P.L."). See Dkt. No. 1. Specifically, Plaintiff is seeking to foreclose a mortgage encumbering 640 Limekiln Road, Town of Malone, County of Franklin, State of New York (the "property"), including the land, buildings, and other improvements located on the property, along with other relief as allowed by terms of the mortgage being foreclosed. See id. at ¶¶ 1, 11. Currently before the Court is Plaintiff's motion for a default judgment against Defendants Jamie Conklin also known as Jamie A. Conklin and Christy Conklin also known as Christy L. Conklin ("Defendants") and a motion to discontinue the action against Defendant "John Doe" without prejudice. See Dkt. No. 11.
This action was commenced by Plaintiff on October 10, 2014. See Dkt. No. 1. According to the complaint, on February 29, 2008, Defendants executed and delivered a note promising to pay $88, 609.00 plus interest to the lender. See id. at ¶ 10. As security for the note, a mortgage on the property, including the land, buildings, and other improvements located on the property, was also executed and delivered by Defendants. See id. at ¶ 11. The mortgage was subsequently assigned to Plaintiff OneWest Bank, N.A. See id. at ¶ 12. Defendants defaulted under the terms of the note and mortgage by failing to tender the monthly payment that was due on November 1, 2012 and failing tendering any subsequent monthly payments. See id. at ¶ 13. Pursuant to the terms of the note and mortgage, Plaintiff accelerated the payments and declared due the entire amount owed on the note. See id.; Dkt. No. 11-2 at 6, 14.
At the time of the complaint, Plaintiff claimed that Defendants owed a principal balance of $81, 212.18 with annual interest at the rate of 6.50% accruing from October 1, 2012. See Dkt. No. 11-3 at ¶ 14. It is additionally claimed that, pursuant to the terms of the note and mortgage, Defendants also owe late charges, monies advanced for taxes, inspection fees, insurance disbursements, and the costs, allowances, expenses of sale, and reasonable attorney's fees for the foreclosure. See id. at ¶ 13-14. Plaintiff alleges that it complied with the notice provisions of the mortgage and section 1304 of the R.P.A.P.L. and filed the information required under section 1306 of the R.P.A.P.L. See id. at ¶ 16.
On March 12, 2012, Plaintiff filed with the Court affidavits of service, attesting that the summons and complaint together with the notice required by R.P.A.P.L. § 1303 - entitled "Help for Homeowners, " a debt validation letter, and certificate of merit were properly served on Defendants. See Dkt. No. 5. Specifically, Defendant Christy Conklin was personally served with these documents on October 29, 2014, and Defendant Jamie Conklin was served by delivering a copy of these documents to Defendant Christy Conklin, a person of suitable age and discretion, at Defendant Jamie Conklin's residence on October 29, 2014 followed by first class mailing of these documents to his residence on October 31, 2014. See id. On November 5, 2014, Plaintiff also sent the R.P.A.P.L. § 1303 notice to each of Defendants by first class mail. See id.
Defendants failed to respond to the complaint or otherwise appear in this action. On January 23, 2015, Plaintiff requested that the Clerk of the Court enter a certificate of entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure and the Northern District of New York Local Rule 55.1(b) ("Local Rule"). See Dkt. No. 9. On January 27, 2015, the Clerk of the Court entered the requested default. See Dkt. No. 10. Plaintiff now asks the Court for entry of default judgment against Defendants. See Dkt. No. 11.
A. Entry of Default Judgment
"Rule 55 sets forth a two-step process that first requires the entry of a default through a notation on the record that the party has defaulted, and then entry of a default judgment, which is the final action in the case." La Barbera v. Fed. Metal & Glass Corp., 666 F.Supp.2d 341, 346 (E.D.N.Y. 2009). The court clerk must enter the default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." In addition, Local Rule 55.1 requires
[a] party applying to the Clerk for a certificate of entry of default pursuant to Fed.R.Civ.P. 55(a) shall submit an affidavit showing that (1) the party against whom it seeks a judgment of affirmative relief is not an infant, in the military, or an incompetent person (2) a party against whom it seeks a judgment for affirmative relief has failed to plead or otherwise defend the action as provided in the Federal Rules of Civil Procedure and (3) it has properly served the pleading to which the opposing party has not responded.
"After a default has been entered against a party, if that party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), a default judgment may be entered." La Barbera, 666 F.Supp.2d at 347 (citing Fed.R.Civ.P. 55(b)). Further procedural requisites are imposed by Local Rule 55.2, requiring a party to submit the entry of default, a ...