United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. COGAN, U.S.D.J.
CIT Bank, N.A., as successor by merger to OneWest Bank, N.A.
(“OneWest”), brings this action based on
diversity jurisdiction to foreclose on a mortgage. None of
the interest holders of record have appeared, defaults have
been entered against them, and plaintiff has moved for a
judgment of foreclosure and sale. The motion is granted.
default constitutes an admission of all well-pleaded factual
allegations in the complaint, except those relating to
damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L.
Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However,
before a court enters a default judgment, it must determine
whether the allegations in the complaint establish liability
as a matter of law. See Finkel v. Romanowicz, 577
F.3d 79, 84 (2d Cir. 2009). Additionally, the plaintiff still
bears the burden of proving a “reasonable basis”
for the damages requested. E. Sav. Bank, FSB v.
Robinson, 13-CV-7308, 2016 WL 3365091, at *4 (E.D.N.Y.
May 9, 2016). An evidentiary hearing is not required so long
as the plaintiff's affidavits and other documentary
evidence provide a basis for the damages awarded.
Transatlantic Marine Claims Agency v. Ace Shipping
Corp., 109 F.3d 105, 111 (2d Cir. 1997).
mortgage foreclosure action under New York law, “the
lender must prove . . . the existence of an obligation
secured by a mortgage, and a default on that
obligation.” R.B. Ventures, Ltd. v. Shane, 112
F.3d 54, 59 n.2 (2d Cir. 1997) (internal quotation marks
omitted); see also E. Sav. Bank, FSB v. Ferro, No.
13-CV-5882, 2015 WL 778345, at *6 (E.D.N.Y. Feb. 24, 2015).
“[O]nce a plaintiff mortgagee in a foreclosure action
has established a prima facie case by presenting a note, a
mortgage, and proof of default, it has a presumptive right to
foreclose that can only be overcome by an affirmative showing
by the mortgagor.” E. Sav. Bank, FSB v.
Evancie, No. 13-cv-00878, 2014 WL 1515643, at *4
(E.D.N.Y. April 18, 2014); see also Fleet Nat'l Bank
v. Oslav, 16 A.D.3d 374, 793 N.Y.S.2d 52 (2d Dep't
2005) (holding that the plaintiff “established its
prima facie entitlement to a judgment” by submitting
the mortgage, the unpaid note, and evidence of the
regularly enter default judgments in foreclosure actions
against defendants with “nominal interests” in
the relevant property, including subordinate lien holders
like defendants the New York City Parking Violations Bureau
and the New York City Environmental Control Board. See,
e.g., E. Sav. Bank, FSB v. Strez, No.
11-cv-1543, 2013 WL 6834806, at *6 (E.D.N.Y. Dec. 20, 2013)
(entering default judgment against the Environmental Control
Board, who was a holder of a subordinate lien on the
premises); Christiana Bank & Trust Co. v.
Dalton, No. 06-CV-3206, 2009 WL 4016507, at *5 (E.D.N.Y.
Nov. 17, 2009) (entering default judgment against, among
others, the New York City Parking Violations Bureau and New
York City Environmental Control Board). “When a default
judgment is entered against a defendant with a ‘nominal
interest' in a property, any such interest in the
relevant property is terminated.” Robinson,
2016 WL 3365091, at *4.
documents submitted on the motion show that plaintiff has
established a prima facie case and is entitled to a judgment
of foreclosure and sale. The original mortgage and note were
executed by defendant Paula Guy, as borrower, in favor of
Sterling National Mortgage Company (“Sterling”),
a subsidiary of Federally Chartered Bank, on December 27,
2006 for $472, 000. By allonge dated the same day, Sterling
endorsed the note to Indymac Bank, FSB
(“Indymac”). By allonge also dated the same day,
the Federal Deposit Insurance Corporation, acting as receiver
for Idymac, endorsed the note to OneWest. The mortgage caught
up with the note by assignments from Sterling to Indymac on
August 9, 2007, and from Indymac to OneWest on June 17, 2010.
The loan went into default, at the latest, on February 1,
seeks the following damages: (1) $621, 344.42, representing
an unpaid principle amount of $453, 996.95, plus late charges
and 8.125% interest on the unpaid principal; (2) $1, 475 for
fees and disbursement costs in connection with filing and
litigating this action; and (3) $5, 745.00 in attorneys'
fees. Except for its request for attorneys' fees,
plaintiff has sufficiently established its damages.
documents submitted by plaintiff support that $453, 996.95 is
the outstanding principle amount and that the mortgage
provides for an interest rate of 8.125% on the unpaid
principle and charges imposed for late fees. The mortgage
also provides that in the event that the mortgagee has to
bring a lawsuit to collect the remaining unpaid amount as a
result of the mortgagor's default, the mortgagee will
have the right to collect all costs and disbursements in
connection with the lawsuit.
the mortgage also provides that the mortgagee will have the
right to recover reasonable attorneys' fees in connection
with the lawsuit, plaintiff has failed to meet its burden to
“demonstrate the reasonableness and necessity of hours
spent and rates charged.” Finkel v. Omega
Commc'n Svs., Inc., 543 F.Supp.2d 156, 164 (E.D.N.Y.
2008). Plaintiff has submitted an affidavit of one of its
attorneys, in which the attorney attests that a flat fee of
$4, 950.00 will be charged to plaintiff upon completion of
this action, and because counsel is charging plaintiff a flat
fee, “individual time sheets are not maintained.”
Nonetheless, the affidavit itemizes various tasks completed
and the amount of time spent to complete each task. The
affidavit, however, fails to identify the names of the
attorneys and paralegals who worked on the case, the
experience of the attorneys who worked on each task, the date
on which each task was completed, or the hourly rate from
which the flat fee derives. Without this information, a flat
attorneys' fee cannot be awarded. See OneWest Bank,
N.A. v. Cole, No. 14-CV-3078, 2015 WL 4429014, at *6
(E.D.N.Y. July 17, 2015) (“In general, courts in this
Circuit will not award attorneys' fees assessed at a
flat-rate unless the supporting documentation is detailed
enough to satisfy the Second Circuit's requirement that
attorneys' fees must be based on contemporaneous time
records specifying relevant dates, time spent and work
done.”) (internal quotation marks omitted)
the affidavit only accounts for a total of 10.4 hours
paralegal time and 7 hours attorney time. This is
insufficient to support an award of almost $5, 000 in
attorneys' fees, especially without any details as to the
experience level of the attorney or attorneys who worked on
this matter. See Claudio v. Mattituck-Cutchogue Union Fee
Sch. Dist., No. 09 Civ 5251, 2014 WL 1514235, at *14
(E.D.N.Y. 2014) (collecting cases and finding that the
maximum prevailing rate for experienced attorneys in this
district range is $450 per hour); OneWest, N.A. v.
Denham, No. CV 14-5529, 2015 WL 5562980, at *12
(E.D.N.Y. Aug. 31, 2015) (finding that a range of $70 to $100
per hour is a reasonable rate for a paralegal).
addition to the flat fee, plaintiff also seeks an additional
$795 in attorneys' fees, consisting of $150 for preparing
and filing the Lis Pendens and $645 for counsel's
preparation for and appearance at the status conference held
by this Court. It is impossible for the Court to determine
whether these fees are reasonable as the affidavit fails to
even identify the amount of time spent on either of these
tasks. Plaintiff will therefore not be awarded any
plaintiffs motion for default judgment is granted. A judgment
of foreclosure and sale, with damages in the amount of ...