United States District Court, W.D. New York
U.S. BANK TRUST, N.A., As Trustee for LSF9 Master Participation Trust, Plaintiff,
RICHARD R. GROSS, SR., and DEBBIE D. GROSS, Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge.
U.S. Bank Trust, N.A. ("Plaintiff) commenced this action
on September 20, 2016, pursuant to Article 13 of the New York
Real Property Actions and Proceedings Law
("RPAPL"), to foreclose a mortgage encumbering 401
Washington Avenue, Rochester, New York 14617, together with
the land, buildings, and other improvements located on the
property ("the Property"). (Dkt. 1 at ¶ 1).
Defendants Richard R. Gross, Sr. and Debbie D. Gross
(collectively, "Defendants") were served on October
7, 2016 (Dkt. 10-3), but have failed to answer the complaint
or otherwise appear in this action. On November 4, 2016, the
Clerk of Court entered a default against Defendants. (Dkt.
now moves for a default judgment and for foreclosure and sale
of the Property. (Dkt. 9). A copy of the instant motion was
served upon Defendants by mail on January 23, 2017. (Dkt.
reasons set forth below, the action is dismissed without
prejudice for lack of subject matter jurisdiction, and the
motion is denied.
about May 10, 2005, Defendant Richard executed and delivered
a note, promising to pay $103, 455.00, plus interest, on the
unpaid amount due ("the Note"). (Dkt. 1 at ¶
9). Defendants then executed and delivered a mortgage on the
Property in the amount of $103, 455.00 ("the
Mortgage"). (Id. at ¶ 10). The Mortgage
and the Note were subsequently assigned to Plaintiff.
(Id. at ¶ 11). Defendants failed to make the
payment due on October 1, 2010, and all payments thereafter.
(Id. at ¶ 12).
alleges that a principal balance of $95, 650.20, with 5.785%
interest accruing from September 1, 2010, is owed by
Defendants. (Id. at ¶ 13). Plaintiff further
contends that Defendants also owe "late charges, monies
advanced for taxes, assessments, insurance maintenance, and
preservation of the Property, and the costs, allowances,
expenses of sale, and reasonable attorney's fees for the
foreclosure." (Id.). Plaintiff also claims that
it has complied with the notice provisions of the Mortgage
and RPAPL § 1304, and that it has satisfied the filing
requirements of RPAPL § 1306. (Id. at ¶
to Plaintiffs affidavits of service, the summons and
complaint, together with a certificate of merit, a debt
validation letter, an RPAPL § 1303 notice, and an RPAPL
§ 1320 were served upon Defendants on October 7, 2016.
(Dkt. 10-3). Although Defendant's answers were due on
October 28, 2016 (Dkt. 5), Defendants failed to answer the
complaint or otherwise appear in this action. On November 3,
2016, Plaintiff requested that the Clerk of Court enter a
default against Defendants pursuant to Federal Rule of Civil
Procedure 55(a). (Dkt. 6). The Clerk entered a default on
November 4, 2016. (Dkt. 7).
January 23, 2017, Plaintiff filed the instant motion. (Dkt.
9). Plaintiff also requests that the Court appoint a referee
to oversee the sale of the Property and the disbursement of
proceeds. (Dkt. 10 at 4). Plaintiff has served the motion.
January 27, 2017, the Court issued a scheduling order
requiring Defendants to file any responsive papers to
Plaintiffs motion by February 16, 2017. (Dkt. 12). The Court
also ordered Plaintiff to serve Defendants with a copy of the
scheduling order and Plaintiffs motion papers by February 2,
2017. (Id.). Although Plaintiffs served the
scheduling order on January 31, 2017 (Dkt. 13), to date,
Defendants have not responded or appeared.
Subject Matter Jurisdiction
of a case for lack of subject matter jurisdiction ... is
proper 'when the district court lacks the statutory or
constitutional power to adjudicate it.'" Ford v.
D.C. 37 Union Local 1549,579 F.3d 187, 188 (2d Cir.
2009) (quoting Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). "Federal courts have a duty to
inquire into their subject matter jurisdiction sua sponte,
even when the parties do not contest the issue."
D'Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd.,756 F.3d 151, 161 (2d Cir. 2014). "A plaintiff asserting
subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists."
Fountain v. Karim,838 F.3d 129, 134 (2d Cir. 2016)
(internal quotations and citation ...