United States District Court, E.D. New York
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE
October 30, 2015, Plaintiff JXB 84 LLC ("JXB" or
"Plaintiff") brought this foreclosure action
against Defendants Said Khalil ("Khalil"), the New
York City Parking Violations Bureau ("NYCPVB"),
John Does 1-12 (representing possible tenants or occupants of
the mortgaged property) (the "John Doe Tenants"),
Mousa Khalil, the New York State Department of Taxation and
Finance ("NYSDTF"), and the New York City
Environmental Control Board ("NYCECB")
(collectively, the "First Non-Mortgagor
Defendants") (Compl. (Dkt. 1).) Plaintiff subsequently
amended the complaint to include as defendants Margaret
Ziede, Chase Bank USA, N.A. ("Chase"), Capital One
Bank (USA) NA ("Capital One"), Recovery of Judgment
LLC Assignee of Congregation Imrei Yehudah, Recovery of
Judgment LLC Assignee of Parkway LLC & Congregation Imrei
Yehudah, Congregation Imrei Yehudah, Emmanuel Diamantakis,
Harry Lambrakis, and George Diamantakis (collectively, the
"Second Non-Mortgagor Defendants"). (Am. Compl.
(Dkt. 6).) Plaintiff seeks to foreclose its mortgage on a
property located at 228 Senator Street, Brooklyn, New York,
11220 (the "Mortgaged Property"), obtain payment on
the underlying mortgage note from Said Khalil, and extinguish
all subordinate interests in the Mortgaged Property.
defendant has appeared in this action and, by April 5, 2016,
the Clerk of Court had entered default against each
defendant. (See Feb. 3, 2016, Entry of Default (Dkt.
29); Apr. 5, 2016, Entry of Default (Dkt. 32).) On April 20,
2016, Plaintiff moved for default judgment and submitted a
proposed Judgment of Foreclosure and Sale (the "Proposed
Order"). (Mot. for Default J. (Dkt. 33); Proposed Order
(Dkt. 33-6)). The court referred the motion to Magistrate
Judge James Orenstein for a report and recommendation
("R&R"), pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1).
(Apr. 21, 2016, Order Referring Mot.)
March 4, 2015, Judge Orenstein issued an R&R recommending
that the court:
• Order the foreclosure and sale of the Mortgaged
Property in accordance with the Proposed Order;
• Order Defendant Khalil to pay Plaintiff $274, 287.84,
constituting the remaining principal amount on the mortgage
note ($146, 897.01) and the accrued interest on that amount,
calculated at an annual rate of 10.10% from the date of Said
Khalil's last payment, September 1, 2008, until the
estimated date of entry of the clerk's judgment, March
31, 2017 ($127, 390.83);
• Dismiss all claims against Defendants NYCPVB and the
John Doe Tenants; and
• Enter default judgment against First and Second
Non-Mortgagor Defendants, terminating any interest those
parties might have in the Mortgaged Property.
(R&R (Dkt. 45).) No party has objected to Judge
Orenstein's R&R, and the time to do so has passed.
See Fed.R.Civ.P. 72(b)(2). (See also
R&R at 10-11 ("Any objections to this Report and
Recommendation must be filed no later than March 6,
2017.").) Therefore, the court reviews the R&R for
clear error. See Gesualdi v. Mack Excavation
& Trailer Serv., Inc., No. 09-CV-2502 (KAM) (JO),
2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010); La Torres
v. Walker. 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000);
ct 28 U.S.C. § 636(b)(1).
no clear error, the court ADOPTS IN FULL the R&R.
See Porter v. Potter. 219 F.App'x 112
(2d Cir. 2007) (summary order). Accordingly, the court:
• DISMISSES all claims against the NYCPVB and the John
Doe Tenants without prejudice;
• ORDERS that default judgment be entered against the
First and Second Non-Mortgagor Defendants, barring and
foreclosing them from all estate, right, title, claim,
interest, lien, and equity of redemption in the Mortgaged
• ORDERS that default judgment be entered against
Defendant Said Khalil on the amount due on the note and
mortgage, totaling $146, 897.01 plus prejudgment interest, to
be calculated at a daily rate of $40.65 from September 1,
2008, until the date of entry of judgment.
is ORDERED to serve a copy of this order on the defaulting
defendants and file a proof of service with trie court.
Additionally, Plaintiff is DIRECTED to provide a revised
proposed Judgment of Foreclosure and Sale as to the property
at Mortgaged Property, consistent with this order, within 20
days of the date of this order. Additionally, the revised
proposed judgment ...