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Ditech Financial LLC v. Frantz

United States District Court, N.D. New York

March 29, 2017

DITECH FINANCIAL LLC, formerly known as GREEN TREE SERVICING LLC, Plaintiff,
v.
JOHN F. FRANTZ; LAURA J. FRANTZ; USAA FEDERAL SAVINGS BANK; ST. JOSEPH'S HOSPITAL CENTER, Defendants.

          GROSS POLOWY, LLC Attorneys for Plaintiff GROSS POLOWY, LLC Attorneys for Plaintiff BOND, SCHOENECK & KING, PLLC Attorneys for Defendants John and Laura Frantz

          OF COUNSEL AMY E. POLOWY, ESQ. DENNIS JOSE, ESQ. STEPHEN J. VARGAS, ESQ. JOSEPH ZAGRANICZNY, ESQ.

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge:

         I. INTRODUCTION

         Plaintiff 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")[1]and St. Joseph's Hospital Center ("St. Joseph's")[2] have not appeared in this action.

         Presently 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.

         II. BACKGROUND

         According 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.[3] 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.

         At the 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. Id.

         On 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.

         Defendants 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.

         On June 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.

         III. DISCUSSION

         A. ...


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