United States District Court, S.D. New York
J. Ricciardi, Esq. Jack L. Glasser, Esq. Lawrence, NY Counsel
Nicholas E. Perciballi, Esq. Ross Eisenberg, Esq. Stephen J.
Vargas, Esq. Dennis Jose, Esq. Gross Polowy LLC Westbury, NY
Counsel for Plaintiff
Spino, Jr., Esq. Law of Office of Peter Spino, Jr., Esq.
White Plains, NY Counsel for Defendant Maria Garten
OPINION & ORDER
KENNETH M. KARAS, District Judge:
CIT Bank, N.A., brought this Action seeking to foreclose on a
mortgage encumbering 3 Apple Orchard Lane in Bedford, New
York 10506, together with the land, buildings, and other
improvements on the property (the “Property”).
(Dkt. No. 1.) Before the Court are Plaintiff's Motion for
Summary Judgment against Maria Garten (“Garten”)
and a Default Judgment against Portfolio Recovery Associates,
LLC (“Portfolio”). (See Dkt. No. 34.)
While Garten has answered and has opposed the pending Motion,
Portfolio has not answered the Complaint or otherwise
participated in this Action. For the following reasons, the
Motion is granted in part and denied in part.
Plaintiff filed a Statement of Material Facts Pursuant to
Local Rule 56.1, (see Dkt. No. 37), Garten did not
file a response to that statement. Where a party opposing
summary judgment has failed to respond to a Rule 56.1
statement, that statement “will be deemed to be
admitted for purposes of the motion.” L.R. Civ. P.
56.1(c); see also Giannullo v. City of New York, 322
F.3d 139, 140 (2d Cir. 2003) (“If the opposing party
then fails to controvert a fact so set forth in the moving
party's Rule 56.1 statement, that fact will be deemed
admitted.”). The Court is free, however, to disregard
assertions for which “there are no citations or where
the cited materials do not support the factual
assertions.” Holtz v. Rockefeller & Co.,
258 F.3d 62, 73 (2d Cir. 2001) (alteration and internal
quotation marks omitted). Plaintiff has not included any
citations in its Rule 56.1 statement, and thus the Court may
not deem those facts unopposed for the purposes of this
Motion. Instead, as Plaintiff has failed to follow the
procedures for drafting a Rule 56.1 statement, the Court will
have to conduct its own review of the record.
15, 2007, Garten executed a promissory note in the amount of
$810, 000.00. (See Aff'n of Regularity Ex. A
(“Edwards Aff.”) ¶ 3 (Dkt. No. 35); see
also Aff'n of Regularity Ex. E (“Certificate
of Merit”), at unnumbered 3-5.) The note is endorsed in
blank, (see Certificate of Merit, at unnumbered
3-6), and Plaintiff claims it had “possession of the
[p]romissory [n]ote on 6/29/07, ” (Edwards Aff. ¶
4). Also on June 15, 2007, Garten executed and delivered a
mortgage on the Property in order to secure the promissory
note. (See Edwards Aff. ¶ 5; see also
Certificate of Merit, at unnumbered 9-13.) The mortgage and
note were subsequently consolidated and assigned to Mortgage
Electronic Registration Systems, Inc. as the nominee for
IndyMac Bank, FSB. (See Edwards Aff. ¶ 5;
see also Certificate of Merit, at unnumbered 14.)
The consolidated mortgage was assigned to Plaintiff on
September 11, 2015. (See Certificate of Merit, at
has not made payments on the note since June 1, 2010.
(See Edwards Aff. ¶ 6.) Plaintiff affirms that
on or about July 20, 2015, a 90-day pre-foreclosure notice
was sent via first class and certified mail to Garten at the
Property. (See Id. ¶ 7; see also
Aff'n of Regularity Ex. B; Aff'n of Regularity Ex.
H.) Pursuant to New York Real Property Actions and
Proceedings Law § 1306, Plaintiff filed notice of the
pre-foreclosure notice with the Superintendent of Financial
Services within 3 days of mailing the notice to Garten.
(See Edwards Aff. ¶ 8; see also
Aff'n of Regularity Ex. I.) On or about July 20, 2015,
pursuant to the terms of the mortgage, a notice of default
was mailed to Garten, (see Edwards Aff. ¶ 9;
see also Aff'n of Regularity Ex. C; Aff'n of
Regularity Ex. G), but unlike the 90-day pre-foreclosure
notice, Plaintiff has not included any certified mailing
receipt with respect to the notice of default.
to Plaintiff, the total amount due-inclusive of taxes,
interest, and fees-is $1, 174, 198.52. (See Edwards
Aff. ¶ 10.)
filed the Complaint on November 3, 2015. (See
Compl.) Garten filed her Answer on January 4, 2016.
(See Dkt. No. 10.) Portfolio has not appeared in
this Action. On March 16, 2016, Plaintiff requested leave to
file a motion for summary judgment. (See Dkt. No.
13.) Before the Court held a conference regarding
Plaintiff's application, Plaintiff requested and obtained
a certificate of default as to Portfolio. (See Dkt.
Nos. 19-20.) On April 26, 2016, the Court held a conference
wherein it set a schedule for discovery. (See Dkt.
(minute entry for Apr. 26, 2016); see also Order
(Dkt. No. 23).) Following discovery, Plaintiff again
requested leave to file a motion for summary judgment,
(see Dkt. No. 29), which Garten did not oppose,
(see Dkt. No. 31). The Court held a conference on
September 16, 2016, at which none of Defendants appeared,
(see Dkt. (minute entry for Sept. 16, 2016)), and
thereafter set a briefing schedule, (see Dkt. No.
filed its Motion for Summary Judgment and accompanying papers
on November 4, 2016. (See Dkt. Nos. 34-38.) In its
motion papers, Plaintiff also requested that the Court enter
default judgment against Portfolio. (See Dkt. No.
34.) Garten filed an opposition to the Motions on December
14, 2016, ...