United States District Court, E.D. New York
Windels Marx Lane & Mittendorf, LLP Co-Counsel for the
Plaintiff Andrew Lawrence Jacobson, Esq., Sean Kevin Monahan,
Esq., Of Counsel.
Knuckles Komolinski & Elliot LLP Co-Counsel for the
Plaintiff John E. Brigandi, Esq., Of Counsel.
Young Law Group., PLLC Attorneys for the Defendants Ivan E.
Young, Esq., Of Counsel.
MEMORANDUM OF DECISION & ORDER
D. Spatt United States District Judge.
April 10, 2017, CIT Bank, N.A. (the “Plaintiff”)
commenced this action to foreclose a mortgage encumbering
property located at 3 Aspen Circle, St. James, New York 11780
(the “Mortgaged Property”).
before the Court are the parties' cross-motions for
summary judgment pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P” or “Rule”) 56. For
the following reasons, the Court denies the Plaintiff's
motion for summary judgment and grants the Defendants'
motion for summary judgment.
18, 2007, to meet certain financial obligations with the
Mortgaged Property, the Defendants entered into a mortgage
transaction with IndyMac Bank, F.S.B.
(“IndyMac”), wherein Francis L. Donnatin, Jr.
(the “Borrower”), executed and delivered a
promissory note (the “Note”) evidencing a loan
made to the Borrower in the amount of $450, 000, secured by a
mortgage executed by all Defendants and recorded against the
Mortgaged Property by Mortgage Electronic Registration
Systems, Inc. (“MERS”), as nominee for IndyMac
(the “Mortgage”). The Plaintiff, under its
predecessor name OneWest Bank, FSB, acquired the Mortgage
from IndyMac pursuant to a Loan Sale Agreement executed on
March 19, 2009.
occupying the Mortgaged Property as their primary residence
for at least a year, Francis L. Donnatin and Rose Marie
Donnatin thereafter moved into their current home and
residence located in Nassau County at 15 Oak Place,
Albertson, New York 11507 (the “Nassau
1, 2016, the Defendants defaulted under the terms of the Note
and the Mortgage by failing to tender the monthly installment
payment due on that date, and have failed to make a single
monthly payment since that date.
August 10, 2016, the Plaintiff sent 30-day notices of default
to the address of the Mortgaged Property via first class mail
and by certified mail.
August 12, 2016, the Plaintiff sent 90-day foreclosure
notices to the address of the Mortgaged Property via
certified mail and first class mail.
April 10, 2017, the Plaintiff commenced the present action by
filing the Complaint. It is undisputed that the Plaintiff
failed to serve notices upon Francis L. Donnatin and Rose
Marie Donnatin at the Nassau Property before filing the
Complaint. It is also undisputed that the notices failed to
contain at least five housing counseling agencies serving
Suffolk County, where the Mortgaged Property is located.
Instead, the notices listed six housing counseling agencies
serving the “Long Island Region, ” only three of
which serve Suffolk County.