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CIT Bank, N.A. v. Donnatin

United States District Court, E.D. New York

January 16, 2020

CIT BANK, N.A., Plaintiff,
v.
FRANCIS L. DONNATIN A/K/A FRANCES L. DONNATIN, ROSE MARIE DONNATIN, FRANCIS L. DONNATIN JR. A/K/A, FRANCES L. DONNATIN JR., JULIE DONNATIN, A/K/A JULIE A. DONNATIN, Defendants.

          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.

          The Young Law Group., PLLC Attorneys for the Defendants Ivan E. Young, Esq., Of Counsel.

          MEMORANDUM OF DECISION & ORDER

          Arthur D. Spatt United States District Judge.

         On 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”).

         Presently 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.

         I. BACKGROUND.

         On May 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.

         After 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 Property”).

         On June 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.

         On 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.

         On August 12, 2016, the Plaintiff sent 90-day foreclosure notices to the address of the Mortgaged Property via certified mail and first class mail.

         On 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.

         II. ...


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