United States District Court, N.D. New York
POLOWY LLC Attorneys for Plaintiff AMY E. POLOWY, ESQ.
J. LAFFREY Defendant NO APPEARANCE
KATHRYN A. LAFFREY Defendant NO APPEARANCE
SHAPIRO, DICARO & BARAK, LLC Attorneys for Defendant
Amalgamated Bank ELLIS M. OSTER, ESQ.
ORDER AND JUDGMENT OF FORECLOSURE AND SALE
FREDERICK J. SCULLIN, JR. SENIOR UNITED STATES DISTRICT
August 23, 2005, Defendant John J. Laffrey signed a Note for
the purchase of a home located at 8453 Transit Lane,
Baldwinsville, New York. See Dkt. No. 14-2 at 6. He
promised to pay $104, 500, plus interest, to the order of
Quicken Loans, Inc., the lender. See Id. He would
pay this amount by means of monthly payments of $555.16 for
the first 120 months of the Note, followed by monthly
payments of $788.88 thereafter. See Id.
Additionally, he agreed to make his monthly payments on the
first day of each month beginning with October 1, 2005.
See Id. On the same date, Defendant John J. Laffrey
and his wife, Defendant Kathryn A. Laffrey, signed a Mortgage
with Quicken Loans, pledging the property as security for the
Note and promising to pay the debt in full by September 1,
2035. See Id. at 11. The mortgage was recorded on
September 1, 2005. See Dkt. No. 14-1 at 8.
ten years later, beginning on August 1, 2015, Defendant John
J. Laffrey and Defendant Kathryn A. Laffrey failed to make
their monthly payment, as well as all monthly payments
thereafter. See Id. Quicken Loans, Inc. assigned the
mortgage to Plaintiff two months later, on October 13, 2015.
See Dkt. No. 14-2 at 33.
contends that Defendants John J. Laffrey and Kathryn A.
Laffrey owe damages in the amount of $125, 735.55.
See Dkt. No. 14-7 at 2. The amount includes
"late charges, monies advanced for taxes, assessments,
insurance, maintenance, and preservation of the Property, and
the costs, allowances, expenses of sale, and reasonable
attorney's fees for the foreclosure." See
Dkt. No. 14-1 at 9. According to the terms of the Mortgage,
Plaintiff can require that Defendants John J. Laffrey and
Kathryn A. Laffrey "pay immediately the entire amount
then remaining unpaid under the Note" if they fail to
keep the promises and agreements in the Note and Mortgage.
See Dkt. No. 14-2 at ¶ 22. Furthermore, the
Mortgage provides that any requirement of payment in full
permits Plaintiff to "bring a lawsuit to take away all
of the defendants' remaining rights in the Property and
have the Property sold." See id.
March 8, 2016, Plaintiff commenced this action by filing a
complaint against Defendants John J. Laffrey, Kathryn A.
Laffrey, and Amalgamated Bank. See Dkt. No. 14-1. Plaintiff also
filed a Notice of Lis Pendens in this Court on March 28,
2016. See Dkt. No. 7. Plaintiff properly served the
complaint on each of the three Defendants. On April 5, 2016,
Ellis M. Oster, Esq. filed a Notice of Appearance on behalf
of Defendant Amalgamated Bank. See Dkt. No. 14-3 at
9. However, none of the Defendants filed an answer to
Plaintiff's complaint. Consequently, Plaintiff requested
an entry of default against Defendants on April 21, 2016,
which the Clerk of the Court entered on April 26, 2016.
See Dkt. Nos. 10-11.
before the Court is Plaintiff's motion for entry of a
default judgment against Defendants John J. Laffrey and
Kathryn A. Laffrey and for a judgment of foreclosure and
sale. See Dkt. Nos. 14, 14-8.
entry of default, the court deems that the defendants have
conceded all well-pled allegations of liability; however, the
entry of default "is not considered an admission of
damages." Greyhound Exhibitgroup, Inc. v. E.L.U.L.
Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)
(citations omitted); see also United States v.
LaBarge, No. 8:15-CV-01330, 2016 WL 3926412, *2
(N.D.N.Y. July 18, 2016) (citations omitted). The plaintiff
must establish the amount of damages "by proof unless
the amount is liquidated or susceptible of mathematical
computation." Flaks v. Koegel, 504 F.2d 702,
707 (2d Cir. 1974) (citations omitted).
Court concludes that Plaintiff has complied with the
applicable rules for securing a default judgment in this
Court and, accordingly, grants Plaintiff's motion for a
default judgment on the issue of liability.
'sum certain' is a sum which is susceptible to
reliable computation or determined by the court after an
accounting." Ins. Co. of N. Am. v. S/S
"Hellenic Challenger, " 88 F.R.D. 545, 548
(S.D.N.Y. 1980) (citations omitted). When either a sum
certain or a reasonably calculated sum is presented,
"'a court may not rubber-stamp the non-defaulting
party's damages calculation, but rather must ensure that
there is a basis for the damages that are sought.'"
LaBarge, 2016 WL 3926412, at *2 (quoting
Overcash v. United Abstract Group, Inc., 549
F.Supp.2d 193, 196 (N.D.N.Y. 2008) (citation omitted)). The
plaintiff has the burden of proof to "'establish its
entitlement to recovery.'" Id. (quotation
omitted). The court may determine damages in one of two ways:
(1) through the court's analysis of the documents that
the plaintiff has provided or (2) through a hearing. See
Id. (holding that, "'[w]hile "the court
must ensure that there is a basis for the damages specified
in a default judgment, it may, but need not, make the
determination through a hearing"'" (quotation
omitted)); see also Galloo Ile-De-France v. Lancaster
Int'l, LLC, No. 1:14-cv-00629, 2015 WL 3646195, *2
(N.D.N.Y. June 10, 2015) (holding that "[t]he court may
rely solely on 'detailed affidavits and documentary
evidence' for purposes of evaluating the sum of
damages" (citations omitted)).
present case, Plaintiff has provided sufficient documentary
evidence from which the Court can determine the amount of
damages to which Plaintiff is entitled without the need for a
hearing. Specifically, Plaintiff has provided (1) the Note,
which Defendant John J. Laffrey signed; (2) the Mortgage,
which Defendants John J. Laffrey and Kathryn A. Laffrey
signed; (3) the Assignment of the Mortgage to Plaintiff; (4)
an Affidavit from Plaintiff's Document Execution
Specialist detailing the costs listed in the Statement of
Damages; (5) an attorney's affirmation setting forth the
hourly breakdown of the legal work, who performed that work,
and the hourly rates charged; and (6) the Statement of
breakdown of these damages is set forth below.
affidavit, Plaintiff sets forth the total amount due through
April 1, 2016, in accordance with the Note and Mortgage.
See Dkt. No. 14-6 at 2.
Principal unpaid balance
Interest (7/1/15 to 4/1/16 @ 6.375%)
Hazard Insurance Disbursements
Mortgage Insurance Premiums