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U.S. Bank Trust, N.A. v. Gross

United States District Court, W.D. New York

June 14, 2017

U.S. BANK TRUST, N.A., As Trustee for LSF9 Master Participation Trust, Plaintiff,
v.
RICHARD R. GROSS, SR., and DEBBIE D. GROSS, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD United States District Judge.

         INTRODUCTION

         Plaintiff 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. 7).

         Plaintiff 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. 11).

         For the reasons set forth below, the action is dismissed without prejudice for lack of subject matter jurisdiction, and the motion is denied.

         BACKGROUND

         On or 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).

         Plaintiff 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 ¶ 15).

         According 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).

         On 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. (Dkt. 11).

         On 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.

         LEGAL STANDARD

         I. Subject Matter Jurisdiction

         "Dismissal 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 ...


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