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Nationstar Mortgage LLC v. Laffrey

United States District Court, N.D. New York

February 7, 2017


          GROSS POLOWY LLC Attorneys for Plaintiff AMY E. POLOWY, ESQ.



          SHAPIRO, DICARO & BARAK, LLC Attorneys for Defendant Amalgamated Bank ELLIS M. OSTER, ESQ.




         On 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.

         Approximately 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.

         Plaintiff 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.

         On March 8, 2016, Plaintiff commenced this action by filing a complaint against Defendants John J. Laffrey, Kathryn A. Laffrey, and Amalgamated Bank.[1] 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.

         Pending 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.


         A. Liability

         Upon 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).

         The 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.

         B. Damages

         "A '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)).

         In the 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 Damages.

         A breakdown of these damages is set forth below.

         1. Unpaid balance

         In its 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

$103, 794.35

Interest (7/1/15 to 4/1/16 @ 6.375%)

4, 962.69

Hazard Insurance Disbursements

1, 483.00

Tax Disbursements

11, 021.93

Mortgage Insurance Premiums


Property Inspections/Preservation



$121, 610.55

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