United States District Court, N.D. New York
DITECH FINANCIAL LLC, formerly known as GREEN TREE SERVICING LLC, Plaintiff,
JOHN F. FRANTZ; LAURA J. FRANTZ; USAA FEDERAL SAVINGS BANK; ST. JOSEPH'S HOSPITAL CENTER, Defendants.
POLOWY, LLC Attorneys for Plaintiff GROSS POLOWY, LLC
Attorneys for Plaintiff BOND, SCHOENECK & KING, PLLC
Attorneys for Defendants John and Laura Frantz
COUNSEL AMY E. POLOWY, ESQ. DENNIS JOSE, ESQ. STEPHEN J.
VARGAS, ESQ. JOSEPH ZAGRANICZNY, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge:
Ditech Financial LLC ("Plaintiff") commenced this
action on February 8, 2016 pursuant to Article 13 of the New
York Real Property Actions and Proceedings Law
("RPAPL") to foreclose a mortgage encumbering 409
Brooklea Drive, Fayetteville, New York 13066, together with
the land, buildings, and other improvements located on the
property (the "Mortgaged Property"). See
Dkt. No. 1. Defendants USAA Federal Savings Bank
("USAA")and St. Joseph's Hospital Center
("St. Joseph's") have not appeared in this action.
before the Court is Plaintiff's motion for default
judgment and for judgment of foreclosure and sale of the
Mortgaged Property. See Dkt. No. 30 at 1.
to the complaint, Defendants John and Laura Frantz
(collectively, the "Frantz Defendants") executed
and delivered a note promising to pay $144, 000.00 plus
interest to the lender, USAA. See Dkt. No. 1 at 6.
Defendants John and Laura Frantz also executed and delivered
a mortgage on the property as security for payment of the
note. See Id. at 6. The mortgage was subsequently
assigned to Plaintiff on October 10, 2013. See Id.
at 2; see also Dkt. No. 3 at 28. The Frantz
Defendants defaulted under the terms of the note and mortgage
by failing to tender the monthly payment due on November 1,
2009, and all subsequent monthly payments. Dkt. No. 1 at 3.
Pursuant to the terms of the note and mortgage, Plaintiff
accelerated the payments and declared due the entire amount
owed on the note. Id.
time of the complaint, Plaintiff claimed that the Frantz
Defendants owed a principal balance of $136, 096.24 with
interest at the rate of 5.75% accruing from October 1, 2009.
Id. In addition, the Frantz Defendants 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. Id. Furthermore, Plaintiff requests
that any taxes, assessments, water charges, insurance
premiums, and other charges necessary to protect the value of
the apparently vacant Mortgaged Property be added to the
total amount due to Plaintiff. See Id. Plaintiff
claims that it complied with the notice provisions of the
mortgage and section 1304 of the RPAPL and filed the
information required under section 1306 of the RPAPL.
March 3, 2016, Plaintiff filed with the Court affidavits of
service, attesting that the summons and complaint, together
with the notice required by RPAPL § 1303, a debt
validation letter, and a certificate of merit were properly
served on the Frantz Defendants. See Dkt. No. 11.
This service was followed by a first class mailing of the
summons and a section 1303 notice on February 29, 2016.
See Id. at 2, 4. On February 25, 2016, Defendant
USAA was served by a process server delivering a copy of the
summons, complaint, and certificate of merit on a registered
agent authorized to accept service on behalf of Defendant
USAA. See Dkt. No. 7. Defendant St. Joseph's was
similarly served on an agent authorized to accept service on
behalf of Defendant St. Joseph's on February 24, 2016.
See Dkt. No. 8.
USAA and St. Joseph's failed to respond to the complaint
or otherwise appear in this action. On April 8, 2016,
Plaintiff requested that the Clerk of the Court enter a
certificate of entry of default against those Defendants
pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure and Local Rule 55.1. See Dkt. No. 18. On
April 13, 2016, the Clerk of the Court entered the requested
default. See Dkt. No. 20.
6, 2016, the Court granted an extension of time until June
13, 2016 for the Frantz Defendants to respond to the
complaint. See Dkt. No. 22. The Frantz Defendants
appeared before the Court on June 9, 2016 in exchange for
Plaintiff's stipulation waiving a deficiency judgment
against them. See Dkt. No. 24. Plaintiff requested
entry of default with respect to John and Laura Frantz on
June 16, 2016. See Dkt. No. 26 at 1. On June 21,
2016, the Clerk of the Court entered the requested default.
See Dkt. No. 29. Plaintiff now asks the Court for
entry of default judgment against all named Defendants.
See Dkt. No. 30 at 1.