United States District Court, N.D. New York
POLOWY, LLC, Attorneys for Plaintiff.
STEPHEN J. VARGAS, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino U.S. District Judge.
Wells Fargo Bank, N.A., commenced this action on June 13,
2016, pursuant to Article 13 of the New York Real Property
Actions and Proceedings Law ("R.P.A.P.L.") to
foreclose a mortgage encumbering 177 Pinnacle Hill Road,
Fulton, New York 13069, together with the land, buildings,
and other improvements located on the property (the
"Mortgaged Property"). See Dkt. No. 1 at
¶ 1. Defendants Carole M. Paul, John Paul, Tina Paul,
Capital One Bank ("Capital One"),  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. 26 at 1.
to the complaint, Defendant Carole M. Paul executed and
delivered a note promising to pay $101, 000.00 plus interest
to the lender, Wells Fargo. See Dkt. No. 1 at ¶
12. Defendants Carole M. Paul, John Paul, and Tina Paul (the
"Paul Defendants") also executed and delivered a
mortgage on the property as security for payment of the note.
See Id. at ¶ 13. The Paul Defendants defaulted
under the terms of the note and mortgage by failing to tender
the monthly payment due on July 1, 2015, and all subsequent
monthly payments. See Id. at ¶ 14. Pursuant to
the terms of the note and mortgage, Plaintiff accelerated the
payments and declared due the entire amount owed on the note.
See Id. At the time of the complaint, Plaintiff
claimed that the Paul Defendants owed a principal balance of
$86, 559.11 with interest at the rate of 6.625% accruing from
June 1, 2015. See Id. at ¶ 15.
7, 2016, Plaintiff filed affidavits of service attesting that
the summons and complaint, together with the notice required
by R.P.A.P.L. section 1303, a debt validation letter, and a
certificate of merit were properly served on the Paul
Defendants, Capital One, and St. Joseph's. See
Dkt. No. 11. Capital One and St. Joseph's were served by
a process server delivering a copy of the summons, complaint,
and certificate of merit on a registered agent authorized to
accept service. See Dkt. No. 7. The Paul Defendants
were also served with copies of the summons, complaint, and
certificate of merit. See Dkt. Nos. 8, 9, 10. All
Defendants have failed to respond to the complaint or
otherwise appear in this action. On July 20, 2016, Plaintiff
requested that the Clerk of the Court enter a certificate of
entry of default against all Defendants pursuant to Rule
55(a) of the Federal Rules of Civil Procedure and Local Rule
55.1. See Dkt. No. 13. On July 20, 2016, the Clerk
of the Court entered the requested default. See Dkt.
No. 14. Plaintiff now moves for default judgment and judgment
of foreclosure and sale. See Dkt. No. 26 at 1.
Subject Matter Jurisdiction
Fargo asserts federal subject matter jurisdiction on the
basis of diversity of citizenship pursuant to 28 U.S.C.
§ 1332. Dkt. No. 1 at ¶ 11. "Under the
standard diversity jurisdiction statute, 28 U.S.C. §
1332(a), there must be 'complete' diversity among the
parties, meaning that each defendant must be a citizen of a
different state from each plaintiff." U.S. Bank Tr.,
N.A. v. Dupre, No. 15-CV-558, 2016 WL 5107123, *2
(N.D.N.Y. Sept. 20, 2016) (citing Caterpillar Inc. v.
Lewis, 519 U.S. 61, 67-68 (1996)). In this case,
however, the complaint does not sufficiently allege Wells
Fargo's citizenship, and the Court therefore cannot
determine whether complete diversity exists.
complaint attempts to establish Wells Fargo's citizenship
by asserting that its principal place of business is in South
Dakota. See Dkt. No. 1 at ¶ 2. But because
Wells Fargo is a national banking association, its
citizenship is not determined by its principal place of
business. See U.S. Bank Tr., N.A. v. Monroe, No.
15-CV-1480, 2017 WL 923326, *4 (N.D.N.Y. Mar. 8, 2017)
("[T]he Second Circuit has expressly held that the
principal place of business is not to be considered when
determining the citizenship of a national banking
association.") (citing OneWest Bank, N.A. v.
Melina, 827 F.3d 214, 218-21 (2d Cir. 2016)). Instead,
Wells Fargo's citizenship is determined by the location
of its main office as designated in its articles of
association. See Melina, 827 F.3d at 218 ("The
Supreme Court has held unequivocally that a national bank is
'located, ' for diversity jurisdiction purposes, in
the state designated in its articles of association as the
locus of its main office . . . .") (citing Wachovia
Bank v. Schmidt, 546 U.S. 303, 307 (2006)).
counsel-Gross Polowy, LLC-should be well aware of the
requirements for pleading the citizenship of a national
banking association. In just the past year, Gross Polowy has
had multiple default judgment motions denied in this district
for failure to properly allege the citizenship of a national
banking association. See Monroe, 2017 WL 923326, at
*4; U.S. Bank Tr., N.A. v. Dupre, No. 15-CV-558,
2016 WL 5107123, *3 (N.D.N.Y. Sept. 20, 2016). Since
Plaintiff has failed to establish that the Court has subject
matter jurisdiction over this action, the complaint is
dismissed without prejudice. See Receivables Exch., LLC
v. Hotton, No. 11-CV-292, 2011 WL 239865, *1 (E.D.N.Y.
Jan. 21, 2011) ("[W]hen a complaint fails to plead
subject matter jurisdiction, the Court is obligated to
dismiss is sua sponte.") (citing Fed.R.Civ.P.