United States District Court, E.D. New York
MEMORANDUM AND ORDER
Glasser, Senior United States District Judge:
action, plaintiff Gustavia Home, LLC
(“Gustavia”), is seeking to foreclose on a
mortgage made by defendant Jose A. Perez
(“Perez”) covering premises located at 25-42
100th Street, East Elmhurst, New York 11369 (the
“Premises”). Also named in the complaint as
defendants are creditors whose liens on the premises, if any,
are subject and subordinate to Gustavia's mortgage.
Jurisdiction is proper under 28 U.S.C. §
1332. Gustavia's unopposed motion for
summary judgment against defendant Perez is currently before
the Court. For the foregoing reasons, the motion is GRANTED.
following facts are undisputed. On December 9, 2005,
defendant Perez executed a mortgage on the Premises (the
“Mortgage”). ECF 22-1, Affidavit of Jared Dotoli
(“Dotoli Aff.”) at ¶ 3; see also
ECF 1, Complaint (“Complt.”), at ¶ 12
(attached with exhibits to the Dotoli Aff. at Ex. A). The
Mortgage was recorded in the Office of the Registrar of the
City of New York, County of Queens, on January 4, 2006.
Dotoli Aff. at ¶ 3. Perez issued the Mortgage to the New
Century Mortgage Corporation to secure a December 9, 2005
note for $84, 000 (the “Note”). 56.1 St. at
¶ 3; Dotoli Aff. at ¶ 3; Complt. at Ex. C. The
Mortgage and Note were assigned to Gustavia on December 27,
2015. 56.1 St. at ¶ 4; Dotoli Aff. at ¶ 4. The
assignment was recorded in the Office of the Registrar of the
City of New York, County of Queens, on January 11, 2016.
Id. at ¶ 4; Complt at Ex. D.
Note required Perez to make monthly payments in the amount of
$780.97 until January 1, 2036, the maturity date.
Id. at Ex. C. If Perez failed to make a payment by
the fifteenth day of the month, and if the note holder met
certain notice requirements, Perez could be immediately
liable for the entire unpaid balance of indebtedness.
Id. On December 1, 2008, Perez ceased to make
payments due on the Note, and has failed to make payments
since. Dotoli Aff. at ¶ 7. In writing on October 7,
2015, Gustavia notified Perez that his failure to cure the
arrears within 30 days would result in Gustavia declaring the
outstanding principal balance, and accrued interest thereon,
immediately due. Id. at ¶ 10; 56.1 St. at
¶ 5; Complt. at Ex. E. On October 28, 2015, Gustavia
sent the required N.Y. Real Prop. Acts. Law § 1304
notice, and waited the minimum 90 days required to initiate
legal proceedings. Id.; Dotoli Aff. at ¶ 11.
Gustavia commenced this action on March 1, 2016, seeking (1)
the unpaid principal, accrued interest, and late charges
under the Note, totaling $149, 966.66 as of September 1,
2015, and (2) attorney's and other fees. Complt at ¶
21; 56.1 St. at ¶ 11; Dotoli Aff. at ¶ 13. Perez,
appearing pro se, answered the Complaint on July 16,
2016. ECF 16, Answer (“Ans.”).
November 1, 2016, Gustavia moved for summary judgment, to
which it attached the required Local Civil Rule 56.2 Notice
to Pro Se Litigant form. ECF 22, 22-8. Over the next
four months, Magistrate Judge Gold granted Perez numerous
extensions of time to retain counsel and oppose the motion,
held a number of in-person conferences, and connected Perez
with a pro se legal assistance group. ECF Entries
dated Nov. 22, 2016, Dec. 19, 2016 and Dec. 22, 2016.
Finally, the Magistrate ordered Perez to submit a letter by
March 13, 2017 indicating whether he would oppose this motion
and if so, giving him until April 10, 2017 to do so. ECF 35.
Perez did not submit the required letter by March 13, 2017.
On March 21, 2017, Magistrate Judge Gold recommended that the
summary judgment motion be deemed submitted and unopposed.
ECF Entry Dated Mar. 21, 2017. The motion is now before this
the Court is sympathetic to Perez's challenges obtaining
appropriate legal counsel, it is also mindful that
Plaintiff's motion has been held in abeyance for over
five months, and that Perez was given ample opportunity to
obtain counsel or oppose the motion pro se. He did
not pursue the assistance of the pro se legal
assistance group to which he was referred by Magistrate Judge
Gold. Considering this history, and in the interest of
fairness to the Plaintiff, the motion is deemed submitted and
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. § 56(a). A genuine factual issue exists if
there is sufficient evidence favoring the nonmovant such that
a jury could return a verdict in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
deciding a motion for summary judgment, the court must
construe the facts in the light most favorable to the
nonmoving party and resolve all ambiguities and draw all
reasonable inferences against the movant. Id. at
255; see also Regency Sav. Bank, F.S.B. v. Merritt Park
Lands Assoc., 139 F.Supp.2d 462, 465 (S.D.N.Y. 2001).
New York law, summary judgment is appropriate in a mortgage
foreclosure action if the note and mortgage are produced,
“along with proof that the mortgagor has failed to make
payments due under the note.” Builders Bank v.
Warburton River View Condo LLC, 09-cv-5484, 2011 WL
6370064 at *2 (S.D.N.Y. Dec. 20, 2011); see also Eastern
Sav. Bank v. Bowen, 13-CV-3633, 2016 WL 2888997 at *4
(E.D.N.Y. May 17, 2016) (collecting cases). Here, Gustavia
has submitted the Note and Mortgage, and has submitted
documents proving that the Mortgage was assigned to it.
Complt. at Exhs. B, C. Gustavia's principal, Jared
Dotoli, submits a sworn affidavit in which he states that
“Defendant breached his obligations under the Note . .
. by failing to pay the regular monthly payment which came
due on December 1, 2008 . . . and all subsequent
payments.” Dotoli Aff., at ¶ 7. Because Perez
failed to tender the required payments, the Note entitles
Gustavia to accelerate and demand repayment of the full
amount due, plus interest. This evidence is sufficient to
establish Gustavia's prima facie case.
plaintiff has established its prima facie case by presenting
the note, mortgage, and proof of default, the mortgagee has a
presumptive right to foreclose, which can only be overcome by
an affirmative showing by the mortgagor.” Eastern
Sav. Bank, FSB v. Rabito, 11- CV-2501, 2012 WL 3544755
at *5 (E.D.N.Y. Aug. 16, 2012) (quotations and citations
omitted); see also Bowen, 2016 WL 2888997 at *4
(“When a plaintiff meets its prima facie
burden and the defendant does not contest those facts, a
presumptive right to collect the overdue amount exists, which
can only be overcome by evidence demonstrating the existence
of a meritorious affirmative defense.”).
the motion is unopposed, and Perez has not offered any
evidence to overcome this presumption. The only defenses on
the record appear in the Answer's “Defense”
section, in which Perez expresses an interest in settling the
case and states that he did not know the Mortgage and Note
had been assigned to Gustavia. Ans. at p. 3. Even if those
defenses were supported by evidence, they are insufficient to
overcome Gustavia's prima facie case. “[A]
mortgagor is bound by the terms of his contract as made and
cannot be relieved from his default, if one exists, in the
absence of waiver by the mortgagee, or estoppel, or bad
faith, fraud, oppressive or unconscionable conduct on the
latter's part.” Nassau Trust Co. v. Montrose
Concrete Prods. Corp., 56 N.Y.2d 175, 1269 (1982)
(quotations omitted). Perez has not raised a general issue of
material fact or a legitimate affirmative defense to overcome
reasons stated herein, Plaintiff's motion for summary
judgment is granted. Plaintiff is directed to submit
supporting documentation and calculations to enable the Court
to assess the amount currently due and outstanding. Plaintiff
is also directed to submit a proposed judgment, ...