Opinion
22 Civ. 4046 (RPK) (VMS)
09-11-2024
EMPIRE COMMUNITY DEVELOPMEN LLC, Plaintiff, v. JHON CAMPOVERDE, MERS AS NOMINEE FOR INDYMAC BANK, FSB, Defendants.
REPORT AND RECOMMENDATION
Vera M. Scanlon, United States Magistrate Judge:
Plaintiff Empire Community Development, LLC (“Empire” or “Plaintiff”) commenced this foreclosure action against Defendants Jhon Campoverde (“Mr. Campoverde”) and senior lienholder MERS as nominee for Indymac Bank, FSB (“MERS”) (together, “Defendants”) concerning a piece of real property encumbered by a mortgage (the “Mortgage”) assigned to Plaintiff located at 33-27 99th Street, Corona, NY 11368 (the “Property”). See generally Compl., ECF No. 1.
On August 23, 2023, this Court respectfully recommended that the District Court deny Plaintiff's first motion for default of foreclosure and sale against Defendants without prejudice because 1) Plaintiff had failed to properly serve Mr. Campoverde with the summons and the complaint (the “Complaint”); 2) Plaintiff had not complied with the Servicemembers Civil Relief Act (the “SCRA”) with respect to Mr. Campoverde; and 3) granting Plaintiff's request to extinguish the interest of MERS in the Property would have been premature at the time. See ECF Nos. 19 & 20. The Court mailed its first report and recommendation (the “First R&R”) to Defendants MERS at 1901 East Voorhees St., Suite C, Danville, IL 61834-4512; MERS at 28 Liberty St., New York, NY 10005; Sharon McGann-Horstkamp as General Counsel for MERS at 1818 Library St., Suite 300, Reston, VA 20190; Matthew Martin as General Counsel for First Citizens Bancshares, Inc., at 4300 Six Forks Road, Raleigh, NC 27609; MERS at P.O. Box 2026, Flint, MI 48501-2026; MERS at 11819 Miami St., Suite 100, Omaha, NE 68164; and Jhon Campoverde, 33-27 99th St, First Floor, Corona, NY 11368. Objections to the First R&R were due by September 6, 2023. See ECF No. 20. On September 12, 2023, in light of Plaintiff's failure to timely object, the District Court adopted the First R&R and directed Plaintiff to “file a status letter within 30 days of the date of this order detailing its proposal as to future actions in this case as well as the results of its investigation as to the current addresses for [D]efendants.” Dkt. Order 9/12/2023.
Plaintiff's counsel timely filed a status report stating that “[w]e are working with our process server to obtain sufficient information to support Plaintiff's service on [Mr. Campoverde] to provide to the Court beyond the Affidavits of Service previously filed, in addition to proof of [Mr. Campoverde]'s non-military status.” ECF No. 21. Plaintiff requested leave to file a renewed motion for a default judgment of foreclosure and sale against Defendants within 60 days. See ECF No. 21. The District Court granted Plaintiff's request. See Dkt. Order 10/19/2023. Plaintiff timely filed the renewed motion for a default judgment and supporting exhibits. See Motion for Default, ECF No. 22.
Before this Court is Plaintiff's second motion for default judgment of foreclosure and sale against Defendants pursuant to Rule 55(a) of the Federal Rules of Civil Procedure (“FRCP”). See Motion for Default, ECF No. 22. Plaintiff moves for damages in the total amount of $286,679.35, plus additional interest, as well as equitable relief.
For the reasons set forth below, the Court respectfully recommends that the motion for a default judgment be granted.
I. BACKGROUND
The parties are referred to the First R&R for the factual and procedural history in this case. See ECF No. 20 at 1-5.
On August 27, 2024, this Court held a telephonic conference with Plaintiff's counsel Alyssa Kapner to discuss Plaintiff's claims regarding MERS's prior mortgage on the Property. See ECF Order 8/23/2024; 8/27/2024 Minute Entry. The Complaint alleges that MERS “holds a prior mortgage which is adverse to Plaintiff's interest .... The senior mortgage for MERS as nominee for Indymac Bank, FSB, appears to be prior and adverse to the mortgage being foreclosed and is subject to be [sic] declared invalid and extinguished pursuant to Article 15 of the Real Property Actions and Proceedings Law.” ECF No. 22 ¶¶ 27-28.
During the conference, Plaintiff's counsel referred the Court to the Consolidation, Extension and Modification Agreement of Mr. Del Pozo, the seller of the Property, with MERS, dated February 2, 2005 (the “Consolidation Agreement”). See Official Transcript from 8/27/2024 Status Conference, ECF No. 23 at 3:8-16; New York City Automated City Register Information System (“ACRIS”) Online Records on the Property, Consolidation Agreement, CFRN 2005000563921, recorded on Oct. 11, 2005. Under the Consolidation Agreement, MERS agreed to act as nominee for Indymac Bank, FSB with regard to two of Mr. Del Pozo's mortgages on the Property, which are listed in Exhibit A of the Consolidation Agreement (together, the “Del Pozo Mortgage”). See ACRIS Online Records on the Property, Consolidation Agreement, CFRN 2005000563921, recorded on Oct. 11, 2005.
Available at https://a836-acris.nyc.gov/DS/DocumentSearch/BBL (last visited on 9/2/2024).
As to the Del Pozo Mortgage, Plaintiff's counsel explained that it was fully satisfied at the time Mr. Del Pozo deeded the Property to Mr. Campoverde on December 29, 2005. See ECF No. 23 at 3:14-16. The deed transfer between Messrs. Del Pozo and Campoverde (the “Deed”) is recorded on New York City's ACRIS. See ACRIS Online Records on the Property, Deed, CFRN 2006000042939, recorded on Jan. 24, 2006. According to Plaintiff's counsel, the Del Pozo Mortgage was not properly discharged on ACRIS along with the recording of the transfer of the Deed. See ECF No. 23 at 5:6-23. ACRIS's records for the Property do not include a satisfaction of mortgage by Mr. Del Pozo to MERS as nominee for Indymac Bank, FSB. See Results for Online ACRIS Search Results for Property by Borough/Block/Lot.
Available at https://a836-acris.nyc.gov/DS/DocumentSearch/BBL (results for search criteria: Queens/01714/0049) (last visited on 8/30/2024).
ACRIS's online records regarding the Property do show a satisfaction of mortgage for a separate Del Pozo mortgage with CitiMortgage less than three months after Mr. Del Pozo deeded the Property to Mr. Campoverde on December 29, 2005. See ACRIS Online Records on the Property, Satisfaction of Mortgage, CFRN 2006000215119, dated March 10, 2006, recorded on Apr. 18, 2006.
ACRIS also shows that, at about the same time as the transfer of the Deed for the Property from Mr. Del Pozo to Mr. Campoverde, Mr. Campoverde executed two separate mortgages with MERS on December 29, 2005. See ACRIS Online Records on the Property, Mortgage, CFRN 2006000042940, recorded on Jan. 24, 2006; see ACRIS Online Records on the Property, Mortgage, CFRN 2006000042941, recorded on Jan. 24, 2006. Mr. Campoverde later executed two satisfactions of mortgage, one on October 26, 2006, see Satisfaction of Mortgage, CFRN 2006000620103, recorded on Nov. 6, 2006, and another on November 1, 2006, see Satisfaction of Mortgage, CFRN 2006000634710, recorded on Nov. 15, 2006, both of which involved MERS. MERS's involvement in these transactions shows that MERS was on notice of the activity related to the Property based on Mr. Campoverde's Mortgage and possession of the Property at least since December 29, 2005.
II. LEGAL STANDARD
FRCP Rule 55 establishes a two-step procedure by which a party may obtain a default judgment. See Bricklayers & Allied Craftworkers Local 2, Albany, NY Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 186 (2d Cir. 2015) (citing Fed.R.Civ.P. 55); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, if a party has failed to plead or otherwise defend against an action, the clerk of court must enter a certificate of default by making a notation on the record. See Fed.R.Civ.P. 55(a). Second, after this entry of default, if the defaulting party still fails to appear or move to set aside the default, the court may enter a default judgment if the complaint is well-pleaded. See Fed.R.Civ.P. 55(b). The trial court has “sound discretion” to grant or deny a motion for default judgment. See Enron Oil, 10 F.3d at 95.
The court must therefore ensure that (1) the plaintiff completed each of the required procedural steps to move for default judgment pursuant to Local Civ. R. 55.2(c); and (2) the plaintiff's allegations, when accepted as true, establish liability as a matter of law. See SAC Fund II 0826, LLC v. Burnell's Enter., Inc., 18 Civ. 3504 (ENV) (PK), 2019 WL 5694078, at *4 (E.D.N.Y. Sept. 7, 2019) (citing Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)).
In the First R&R, which was adopted, this Court found that Plaintiff had complied with Local Civil Rule 55.2(c). See ECF No. 20 at 14; ECF Order 9/12/2023. In the present motion for a default judgment, Plaintiff included the sworn affidavit of process server Gina Votta stating that Defendants were served with the notice of motion for a default judgment motion, as well as with the supporting papers and exhibits via first class mail on December 11, 2023. See ECF No. 22-9 at 1. The Court finds that Plaintiff properly served Defendants with the present motion for a default judgment.
The Court will now turn to whether (1) Plaintiff properly served Mr. Campoverde with the summons and Complaint; (2) the factors relevant to a default judgment are satisfied in this case; (3) Plaintiff has established Defendants' liability under New York law; and (4) the discharge of the Del Pozo Mortgage should be granted.
III. DISCUSSION
A. Service On Mr. Campoverde Is Complete
The First R&R determined that, based on the record before the Court, Plaintiff's service of the summons and Complaint on Mr. Campoverde was insufficient under New York law and FRCP Rule 4(e). See ECF No. 20 at 12-14; ECF Order 9/12/2023.
Under Federal Rule of Civil Procedure 4(e)(2), an individual may be served by “delivering a copy of the summons and of the complaint to the individual personally” or by “leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there.” Fed.R.Civ.P. 4(e)(2). Under the New York Civil Practice Law and Rules (“N.Y.C.P.L.R.” or “CPLR”), “[s]ervice of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person pursuant to CPLR 308.” Est. of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462, 464 (2d Dep't 2007) (internal quotation marks omitted).
Section 308 of the CPLR provides that service may be accomplished by (1) personal delivery of the summons “within the state to the person to be served,” N.Y. C.P.L.R. § 308(1); (2) delivery of the summons to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served” and “mailing the summons by first class to the person to be served at his or her actual place of business,” N.Y. C.P.L.R. § 308(2); (3) “delivering the summons within the state to the agent for service of the person to be served,” N.Y. C.P.L.R. § 308(3); or (4) “by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served” then mailing to either the person's last known address or actual place of business, only if “service under paragraphs one and two cannot be made with due diligence,” N.Y. C.P.L.R. § 308(4).
As stated in the First R&R, which was adopted, “[v]alid service of process is a prerequisite to a district court's assertion of personal jurisdiction over a defendant.” See Am. Inst. of Certified Pub. Accountants v. Affinity Card, Inc., 8 F.Supp.2d 372, 375 (S.D.N.Y. 1998); ECF No. 20 at 6; ECF Order 9/12/2023. To that end, “[a] court may not enter default judgment unless it has jurisdiction over the person of the party against whom the judgment is sought, which also means that he must have been effectively served with process.” Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation, Pension & Welfare Funds v. R. Baker & Son All Indus. Servs., Inc., No. 13 Civ. 4590 (JS) (GRB), 2014 WL 6606402, at *2 (E.D.N.Y. Aug. 4, 2014), report & recommendation adopted, 2014 WL 4536911 (E.D.N.Y. Sept. 11, 2014) (internal quotation marks omitted).
In the First R&R, which was adopted, this Court found that service of the summons and Complaint on Mr. Campoverde was incomplete because “Plaintiff failed to establish that it served Mr. Campoverde at his actual dwelling or usual place of abode.” ECF No. 20 at 12; see Dkt. Order 9/12/2023. The Court found that “[a]lthough the process server stated that the Property was Mr. Campoverde's place of residence, he did not state the basis for this belief. The presence of someone with Mr. Campoverde's family name at a location may be an indication of a connection to the person to be served, but it is not sufficient evidence of Mr. Campoverde's usual dwelling or place of abode.” Id. (internal citations & quotation marks omitted).
In support of the present motion for a default judgment, Plaintiff includes the sworn affidavit of Plaintiff's counsel, Alan Weinreb. See ECF No. 22 at 3. Mr. Weinreb states that he “conducted an online search of Defendant Jhon Campoverde using his social security number to confirm that [Mr.] Campoverde resides at the Subject Premises being foreclosed, 33-27 99thStreet, Corona, NY 11368, which is the address [Mr.] Campoverde was served with the Summons and Complaint, and he has resided at that address since 2006 until current day. See attached search at Exhibit ‘D'.” Id. ¶ 7. The affidavit also includes a statement that “pursuant to the Note at paragraph 6, ‘GIVING OF NOTICES' specifically states: ‘any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address[.]'” Id. ¶ 8 (citing ECF No. 1, Exh. C).
The Court reviewed Exhibit ‘D' of the renewed motion for default which lists the Property as Mr. Campoverde's address from November 1, 2006 through December 2, 2023. See ECF No. 22, Exh. ‘D'. The Court also reviewed paragraph 6 of the Note as referenced in counsel's affidavit and paragraph 15 of the Mortgage titled “AGREEMENT ABOUT GIVING NOTICES REQUIRED UNDER THIS MORTGAGE,” which provides that “. . . any notice that must be given to me under this Mortgage will be given by delivering it or by mailing by certified mail addressed to [Mr. Campoverde] at [the Property].” ECF No. 1-1 at 8. Based on this evidence, the Court finds that Plaintiff had sufficient reason to believe the Property was an appropriate location for service of the summons and Complaint on Mr. Campoverde on August 10, 2022. See ECF No. 13.
Plaintiff filed the second motion for default judgment on December 11, 2023. See ECF No. 22.
The Court also finds that Plaintiff properly notified Defendants of the renewed motion for a default judgment by mailing a copy of the renewed motion and supporting papers to Mr. Campoverde at the Property address and to MERS as nominee for Indymac Bank, FSB at 1901 E. Voorhees St., Suite C, Danville, IL 61834 on December 11, 2023. See ECF No. 22-9 at 1. The Court thus finds that Plaintiff properly served Defendants with the renewed motion for a default judgment and that service of process on Mr. Campoverde was complete.
B. Servicemembers Civil Relief Act
As stated in the First R&R, which was adopted, the SCRA provides that “[i]n any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit . . . stating whether or not the defendant is in military service and showing necessary facts to support the affidavit[.]” 50 U.S.C. § 3931(b)(1)(A); see ECF No. 20 at 15; Dkt. Order 9/12/2023. The First R&R found that the motion for a default judgment failed to comply with the SCRA in that the motion did “not contain an affidavit or similar document confirming a reasonable investigation into the question of whether Mr. Campoverde is on active military service.” ECF No. 20 at 16. This Court added that “Plaintiff was required to base any nonmilitary affidavit on an investigation conducted after Mr. Campoverde defaulted” and could not solely rely “upon the statement of the process server who delivered the summons and complaint, who stated that he asked Ms. Campoverde whether Mr. Campoverde ‘was active in military service and received a negative reply.'” ECF No. 20 at 17 (citing ECF No. 13).
The present motion for a default judgment includes a supplemental affirmation by counsel Alan Weinreb. See ECF No. 22, Exh. ‘E'. The affirmation states that on December 11, 2023, Mr. Weinreb “conducted a department of defense manpower data center database search as to the defendant Jhon Campoverde. Said search does not indicate that the defendant was or is in the military. See annexed.” Id. at 1 ¶ 2. The exhibit attached to the supplemental affirmation is a status report generated by the U.S. Department of Defense indicating that Mr. Campoverde was not active in military service as of December 11, 2023. See ECF No. 22, Exh. ‘E'at 2.
The Court finds that Plaintiff has satisfied the SCRA's requirement by filing an affidavit offering evidence that Mr. Campoverde is not in military service.
C. The Factors Relevant To A Default Judgment Are Satisfied
When considering whether to grant a default judgment, a court must be “guided by the same factors [that] apply to a motion to set aside entry of a default.” First Mercury Ins. Co. v. Schnabel Roofing of Long Island, Inc., 10 Civ. 4398 (JS) (AKT), 2011 WL 883757, at *1 (E.D.N.Y. Mar. 11, 2011); see Enron Oil, 10 F.3d at 96. These factors include: (1) whether the default was willful; (2) whether ignoring the default would prejudice the opposing party; and (3) whether the defaulting party has presented a meritorious defense. See Swarna v. Al-awadi, 622 F.3d 123, 142 (2d Cir. 2010); Enron Oil, 10 F.3d at 96; Trs. of Pavers & Rd. Builders Dist. Council Welfare, Pension, Annuity & Loc. 1010 Apprenticeship, Skill Improvement & Training Funds v. PCM Contracting Corp., No. 20 Civ. 1834 (FB) (SJB), 2022 WL 584536, at *3 (E.D.N.Y. Feb. 3, 2022), report & recommendation adopted, No. 20 Civ. 1834 (FB) (SJB), 2022 WL 580959 (E.D.N.Y. Feb. 24, 2022)).
As to the first factor, a defendant's failure to respond to the complaint after service is sufficient to demonstrate willfulness. See Bds. of Trs. v. Frank Torrone & Sons, Inc., No. 12 Civ. 3363 (KAM) (VMS), 2014 WL 647098, at *4 (Feb. 3, 2014) (the defendant's nonappearance and failure to respond equated to willful conduct), report & recommendation adopted, 2014 WL 674098 (E.D.N.Y. Feb. 21, 2014); Traffic Sports USA v. Modelos Restaurante, Inc., No. 11 Civ. 1454 (ADS) (AKT), 2012 WL 3637585, at *2 (E.D.N.Y. Aug. 1, 2012) (same), report & recommendation adopted, 2012 WL 3626824 (E.D.N.Y. Aug. 22, 2012); cf. Green, 420 F.3d at 109 (in the context of a motion to vacate a default judgment, the defendants' failure to respond to the complaint or “take action after receiving notice that the clerk had entered a default against them,” supported a finding of willfulness).
As described above, this Court finds that Plaintiff properly served Defendants with the summons and Complaint. Defendants failed to answer the Complaint and did not request an extension of time in which to respond or otherwise notify the Court of any intention to participate in this litigation. The Court thus finds that Defendants deliberately defaulted, establishing the requisite willfulness.
As to the second factor, Defendants' failure to respond or appear, combined with Plaintiff's efforts to prosecute its case, is sufficient to demonstrate that ignoring the default would prejudice Plaintiff, “as there are no additional steps available to secure relief in this Court.” Flanagan v. N. Star Concrete Const., Inc., No. 13 Civ. 2300 (JS) (AKT), 2014 WL 4954615, at *7 (E.D.N.Y. Oct. 2, 2014) (quoting Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No. 06 Civ. 14226 (RLC) (RLE), 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008)); Trs. of the Local 7 Tile Indus. Welfare Fund v. Caesar Max Const., Inc., No. 18 Civ. 1339 (FB) (LB), 2019 WL 1130727, at *7 (E.DN.Y. Feb. 11, 2019) (same) (collecting cases), report & recommendation adopted, 2019 WL 1129430 (E.D.N.Y. Mar. 12, 2019). If Plaintiff's renewed motion for a default judgment were to be denied, Plaintiff would have no alternative legal redress to recover the amounts owed under the Mortgage and the Note.
As to the third factor, Defendants cannot establish a meritorious defense because, where they have not “filed an answer, there is no evidence of any defense.” Bridge Oil, 2008 WL 5560868, at *2 (citing Mason Tenders Dist. Council v. Duce Constr. Corp., No. 02 Civ. 9044 (LTS) (GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003)).
As all three factors are satisfied, a default judgment would be proper in the present circumstances if the Complaint were adequately pleaded.
D. Complaint Allegations
This Court now considers whether the facts alleged in the Complaint establish Plaintiff's entitlement to foreclose on the Property, to extinguish subordinate liens, to award appropriate damages, and to discharge the Del Pozo Mortgage.
1. Standing
A plaintiff may establish standing in a mortgage foreclosure action “by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note.” Gustavia Home, LLC v. Rutty, 785 Fed.Appx. 11, 14 (2d Cir. Sep't. 16, 2019) (quoting JPMorgan Chase Nat'l Ass'n v. Weinberger, 142 A.D.3d 643, 644, 37 N.Y.S.3d 286, 288 (2d Dep't 2016)). “Thus, although assignment of a mortgage without the accompanying note does not provide the assignee with a right to the debt, the delivery or assignment of a note without the accompanying mortgage transfers the debt and can confer standing on the recipient.” E. Sav. Bank, FSB v. Thompson, 631 Fed.Appx. 13, 15 (2d Cir. 2015) (emphasis in original). A foreclosing lender can demonstrate a valid transfer of the obligation by written assignment or physical possession. See U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578, 580 (2d Dep't 2009) (“Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation and the mortgage passes with the debt as an inseparable incident.”).
In order to establish standing in this case, Plaintiff cites to Onewest Bank, N.A. v. Guerrero, No. 14 Civ. 3754 (NSR), 2016 WL 3453457 (S.D.N.Y. June 17, 2016). See ECF No. 22 at 12. In Onewest Bank, the district court held that, although affidavits lacking factual detail such as when the plaintiff received physical possession of the note are usually insufficient to establish possession, the plaintiff cured this deficiency by including a sworn statement of an assistant secretary of OneWest Bank, N.A. stating that the plaintiff “has been in possession of the original Note since at least May 1, 2014 and it is located at Deutsche Bank, Santa Ana.” 2016 WL 3453457, at *4.
In this case, the second motion for a default judgment and an exhibit to the Complaint include sworn statements attesting that Plaintiff is in physical possession of the Note and that Plaintiff has been in possession of the original Note since before the commencement of the action. As an exhibit to the Complaint, Plaintiff included a sworn affidavit of note possession by Priscilla Serrato, Assistant Secretary of Fay Servicing, LLC, as attorney-in-fact for Plaintiff, dated November 16, 2020, a year and a half before the commencement of this action. See ECF No. 1, Exh. C ¶ 1. Ms. Serrato states: “I can attest that Fay is in possession of the original Promissory Note . . ., on behalf of Empire. Empire is the owner and holder of the Note, with all corresponding allonges. Said note was and is held in Fay's office . . . where it remains today, on behalf of Empire.” Id. ¶¶ 8-9. In addition, ACRIS records reflect that the Mortgage was last assigned to Plaintiff. See ACRIS Online Records on the Property, Assignment of Mortgage, CFRN 20200000644956, recorded on Feb. 19, 2020.
New York's Real Property Actions & Proceedings Law (“RPAPL”) §§ 1304 and 1306 require certain notices to be provided to defendant borrowers and New York State, respectively, as a “condition precedent” to commencing legal foreclosure proceedings. See RPAPL §§ 1304(3), 1306(1). The § 1304 notices must be provided to borrowers “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against . . . borrowers at the property . . .” and must conform to certain form, procedural and substantive requirements. See RPAPL § 1304. The § 1306 notice or notices must be filed “with the superintendent of financial services . . . within three business days of the mailing of the [1304 notice].” RPAPL § 1306.
Plaintiff states that it complied with the 90-day notice requirement under RPAPL § 1304(1) and issued the notice to Mr. Campoverde on July 15, 2021. See ECF Nos. 22-1 ¶ 14 & Exh. E; 22-2 at 2. Plaintiff has also “complied with the registration requirements of RPAPL § 1306(1).” ECF Nos. 22-1 ¶ 14 & Exh. E.
The Court finds that Plaintiff has pled sufficient facts to show that it is the owner and holder of the Note and Mortgage, such that it was standing to bring this motion for a default judgment of foreclosure and sale against Defendants, and that it has satisfied the notice condition precedent to commence the action.
2. Liability
For the reasons noted above, this Court's First R&R, which was adopted, recommended that Plaintiff's first motion for a default judgment be denied. See ECF No. 20 at 18; Dkt. Order 9/12/2023; First Mot. for Default Judgment, ECF No. 19. At the time, the Court found that “Mr. Campoverde's liability is not yet established' and “[b]ecause extinguishing MERS's interest would be premature at this time, the Court respectfully recommends that the motion for a default judgment motion with respect to MERS be denied without prejudice” ECF No. 20 at 18. The Court will now look at whether Plaintiff's present motion for a default judgment sufficiently establishes Mr. Campoverde's liability and whether the Court should discharge Defendant MERS's interest in the Property as nominee.
a. Mr. Campoverde's Liabity
In order to “obtain a default judgment in ‘a mortgage foreclosure action under New York law, the lender must prove . . . the existence of an obligation secured by a mortgage, and a default on that obligation.'” Miami Home LLC v. Viera, No. 18 Civ. 1398 (NGG) (SJB), 2023 WL 5123888, at *6 (E.D.N.Y. Aug. 10, 2023) (citing & quoting Gustavia Home, LLC v. Rice, No. 16 Civ. 2353, 2016 WL 6683473 (BMC), at *2 (E.D.N.Y. Nov. 14, 2016) (internal quotation marks omitted)); see E. Sav. Bank, FSB v. Ferro, No. 13 Civ. 5882 (SJF) (GRB), 2015 WL 778345, at *6 (E.D.N.Y. Feb. 24, 2015). “[I]n a New York mortgage foreclosure action, a plaintiff makes a prima facie case . . . where the foreclosing party produces documentary evidence establishing the three elements of a foreclosure claim: (1) a mortgage, (2) a note, and (3) proof of default on the note by the mortgagor.” CIT Bank, N.A. v. Escobar, No. 16 Civ. 3722 (JFB) (SIL), 2017 WL 3614456, at *4 (E.D.N.Y. June 16, 2017) (quoting E. Sav. Bank, FSB v. Bright, No. 11 Civ. 1721 (ENV) (MDG), 2012 WL 2674668, at *3 (E.D.N.Y. July 5, 2012)), report & recommendation adopted, 2017 WL 3634604, at *1 (E.D.N.Y. Aug. 18, 2017); see U.S. v. Leap, No. 11 Civ. 4822 (DRH) (WDW), 2014 WL 1377505, at *2 (E.D.N.Y. Feb. 18, 2014) (“In the usual course, once a plaintiff mortgagee in a foreclosure action has established a prima facie case by presenting a note, a mortgage, and proof of default, it has a presumptive right to foreclose that can only be overcome by an affirmative showing by the mortgagor.”), report & recommendation adopted, No. 11 Civ. 4822 (DRH) (WDW), 2014 WL 1383139 (E.D.N.Y. Apr. 8, 2014); U.S. v. Watts, No. 13 Civ. 3211 (ADS) (WDW), 2014 WL 4275628, at *3 (E.D.N.Y. May 28, 2014) (same) (citing U.S. Bank, N.A. v. Squadron VCD, LLC, No. 10 Civ. 5484 (VB), 2011 WL 4582484 (S.D.N.Y. Oct. 3, 2011)).
As noted above, Mr. Campoverde executed a Note and Mortgage to Argent Mortgage Company, LLC for a sum of $160,000.00 on September 26, 2006. See ECF No. 1 ¶ 8 & Exh. B. Plaintiff is now the owner and holder of the Note. See id. at Exh. C ¶¶ 8-9. Although Plaintiff complied with the 90-day notice requirement under RPAPL § 1304(1) and issued the notice to Mr. Campoverde on July 15, 2021, see ECF Nos. 22-1 ¶ 14 & Exh. E; 22-2 at 2, Mr. Campoverde failed to respond to the default notice and the 90-day notice. See ECF No. 1 ¶ 17. Mr. Campoverde failed to make the monthly payments that were due under the Mortgage since July 1, 2016. See id. ¶ 13. As of November 7, 2023, Mr. Campoverde's outstanding unpaid principal balance under the Mortgage was $156,365.67, plus accrued interest as of November 7, 2023, in the amount of $130,313.68, for a total sum of $286,679.35. See ECF No. 22, Exh. C ¶¶ 5-8.
The Court finds that Plaintiff has established its ownership of the Mortgage and Note, the provisions of such documents and evidence of Mr. Campoverde's default thereunder, which is sufficient to establish Plaintiff's entitlement to foreclosure and sale of the Property in order to pay the outstanding damages.
b. Relief As To MERS
Under New York law,
Where the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons . . . to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom; provided, however, that no such action shall be maintainable in any case where the mortgagee . . . or the successor of [the mortgagee] shall be in possession of the affected real property at the time of the commencement of the action.N.Y. RPAPL § 1501(4) (omitting references to vendor's liens). “To discharge a mortgage pursuant to N.Y. RPAPL § 1501(4), a plaintiff must demonstrate: ‘ 1) that it has an estate or interest in the real property; 2) that all necessary parties to the action were joined; and 3) that the applicable statute of limitations for commencing a foreclosure action has expired without the commencement of a foreclosure action.'” 53rd St., LLC v. U.S. Bank Nat'l Ass'n, 8 F.4th 74, 78 (2d Cir. 2021) (citing & quoting Gustavia Home LLC v. Envt'l. Control Bd., No. 18 Civ. 6485 (MKB) (CLP), 2019 WL 4359549, at *5 (E.D.N.Y. Aug. 21, 2019)). The statute of limitations to commence a foreclosure action in New York is six years. See CPLR § 213(4); Gustavia Home, 2019 WL 4359549, at *8. “When a mortgage is payable in installments, the statute of limitations begins to run from the date of the acceleration of the mortgage.” Gustavia Home, 2019 WL 4359549, at *8 (citing & quoting Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138 (2d Dep't 1997). “Commencing a foreclosure action has been deemed clear notice that the mortgagee is accelerating the mortgage debt.” Id. (internal citations omitted). “Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge of record that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge of record the mortgage was commenced.” Bank of Am., N.A. v. Scher, 205 A.D.3d 985, 987-88, 169 N.Y.S.3d 639, 642 (2d Dep't 2022) (citing & quoting Scarso v. Wilmington Sav. Fund Socy., FSB, 200 A.D.3d 817, 818, 159 N.Y.S.3d 477, 477 (2d Dep't 2021).
As to the first element under RPAPL § 1501(4) and for the reasons stated above, the Court finds that Plaintiff has demonstrated that it has an interest in the Property in that it is the assignee of Plaintiff's Mortgage and is the holder of the Note since April 17, 2019. See ECF No. 1 ¶¶ 8-10. ACRIS's online records on the Property includes the assignment of mortgage dated April 17, 2019, whereby Plaintiff was assigned the Mortgage with all interests, liens and rights. See ACRIS Online Records on the Property, Assignment of Mortgage, CFRN 20200000644956, recorded on Feb. 19, 2020.
As to the second element, the Complaint identified Defendant MERS “as nominee for Indymac Bank, FSB” and a “necessary party defendant to this action because it held a prior [m]ortgage on the [P]roperty, which [m]ortgage was not satisfied, in error and requires a court order to discharge it.” ECF No. 1 ¶ 4. MERS was served with the summons and Complaint, see ECF Nos. 12 & 22-4 at 3-4, and has received multiple notices from this Court about the action, ECF Nos. 15, 19-20; Dkt. Order 9/21/2022.
As to the third element, ACRIS's online records include the Del Pozo Mortgage dated February 2, 2005 executed on the Property for a sum of $437,000.00 whereby MERS acted as nominee for lender Indymac Bank. See ACRIS Online Records on the Property, Assignment of Mortgage, CFRN 2005000563921, recorded on Oct. 11, 2005. During the August 27, 2024 Status Conference before this Court, Plaintiff's counsel stated that Mr. Del Pozo deeded the Property to Mr. Campoverde when the Property was sold to him. See ECF No. 23 at 3:9-12. The Deed, dated December 29, 2005, was recorded on January 24, 2006. See ACRIS Online Records on the Property, Deed, CFRN 2006000042939, recorded on Jan. 24, 2006. Although the Del Pozo Mortgage appears to have been satisfied upon transfer of the Deed, the Del Pozo Mortgage was never marked as discharged. See ECF No. 23 at 3:13-16; ECF No. 1 ¶ 4 (claiming that MERS is a necessary party because it held a prior mortgage on the Property, which mortgage “was not satisfied, in error and requires a court order to discharge it”). The ACRIS Record does not show any foreclosure action against Mr. Del Pozo. See generally, ACRIS Online Records on the Property. In addition, as noted above, MERS has had multiple interactions with this Property since the Deed transfer was recorded, see supra at p. 4-5, and notice of this lawsuit, so it is had sufficient notice of the lack of a filing of a satisfaction of the Del Pozo Mortgage. There is no record of MERS having ever taken any action to enforce the Del Pozo Mortgage. In addition, MERS is not in possession of the Property.
The Court thus respectfully recommends that Plaintiff's request to discharge MERS's prior mortgage on the Property be granted. See ACRIS Online Records on the Property, Consolidation Agreement, CFRN 2005000563921, recorded on Oct. 11, 2005.
E. Damages
“Upon a finding of liability, the court must conduct an inquiry sufficient to establish damages to a ‘reasonable certainty.'” Credit Lyonnais Sec. (USA) v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (quoting Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). “In an action for foreclosure and sale, damages ‘should be determined under the terms of the Notes and Mortgages[.]'” Khalil, 2017 WL 1184001, at *5 (citing & quoting E. Sav. Bank, FSB v. Rabito, No. 11 Civ. 2501 (KAM) (VVP), 2014 WL 4804872, at *1 (E.D.N.Y. Sept. 10, 2014)); see Avail 1 LLC v. Latief, No. 17 Civ. 5841 (FB) (VMS), 2020 WL 5633869, at *7 (E.D.N.Y. Aug. 14, 2020), report & recommendation adopted, No. 17 Civ. 05841 (FB) (VMS), 2020 WL 5633099 (E.D.N.Y. Sept. 21, 2020).
Here, Plaintiff submits the sworn affidavit of Jem Farmer, Assistant Secretary of Fay Servicing, LLC, which sets forth the basis for Plaintiff's request for damages. See ECF No. 226. Through this affidavit, Plaintiff establishes that the principal balance owed by Mr. Campoverde is $156,365.67, pursuant to the Loan he entered into with Plaintiff's predecessor-in-mortgagee's-interest. See id.; ECF No. 22-2 at 9. Pursuant to the Loan, the interest rate is 11.20%. See ECF Nos. 22, Exh. C; 22-6 ¶ 7. In order to calculate the per diem interest rate, Plaintiff multiplied the principal balance owed ($156,365.67) by 11.2% and divided that total by 365 days. See ECF No. 22-6 ¶ 7. Plaintiff then multiplied that total ($47.98) by the number of days that have passed between June 1, 2016, the date from which interest was owing because of the default, through November 7, 2023, the date on which Jem Farmer swore out her affidavit. See id; see Note, ECF No. 22, Exh. C ¶ 2. The interest owed from June 1, 2016 through November 7, 2023 totals $130,313.68. See id. Plaintiff does not request compound interest.
This Court respectfully recommends that judgment against Mr. Campoverde be entered in the amount of $286,679.35 as of November 7, 2023, with further accrued interest awarded at the per diem rate of $47.98 from November 8, 2023 until the date judgment is entered herein.
$156,365.67 + $130,313.68 = $286,679.35 20
As Plaintiff does not seek to recover attorneys' fees or costs, this Court respectfully recommends that neither be awarded. See ECF No. 22-1 ¶ 11.
F. Appointment Of Referee
Plaintiff also requests that the Court appoint Susan Ellen Rizos, Esq., as Referee to sell the Property. See ECF Nos. 22-1 at 4; 22-3 at 2. Although courts in this Circuit have permitted such appointments where the plaintiff “established a prima facie case by presenting a note, a mortgage, and proof of default,” E. Sav. Bank, FSB v. Evancie, No. 13 Civ. 878 (ADS) (WDW), 2014 WL 1515643, at *4 (E.D.N.Y. Apr. 18, 2014) (permitting a referee to be appointed), courts generally require that the party include the candidate(s)'s resume(s) and qualifications. See U.S. v. Carroll, No. 19 Civ. 1709 (JLS) (LGF), 2023 WL 3260128, at *8 (W.D.N.Y. Mar. 29, 2023), report & recommendation adopted, No. 19 Civ. 1709 (JLS) (LGF), 2023 WL 3254937 (W.D.N.Y. May 3, 2023); U.S. Bank Nat'l Ass'n as Tr. for RMAC Tr., Series 2016-CTT v. Christian, No. 19 Civ. 427 (CBA) (RML), 2020 WL 3918566, at *6 n.2 (E.D.N.Y. Feb. 25, 2020), report & recommendation adopted, 2020 WL 3893015 (E.D.N.Y. July 10, 2020); Miss Jones LLC v. Bisram, No. 16 Civ. 7020 (NGG) (SMG), 2018 WL 2074205, at *1 (E.D.N.Y. Feb. 22, 2018).
Under New York law, “[a] referee is entitled, for each day spent in the business of the reference, to three hundred fifty dollars unless a different compensation is fixed by the court or by the consent in writing of all parties not in default for failure to appear or plead.” N.Y. CPLR 8003. Courts in this Circuit have found $750.00 to be an appropriate fee for a referee in foreclosure cases. See Freedom Mortg. Corp. v. Trejo, No. 22 Civ. 7116, 2024 WL 3465241, at *1 (E.D.N.Y. July 19, 2024) (ordering that the referee receive $750.00 for conducting the sale); Windward Bora LLC v. Baez, No. 19 Civ. 5698 (PKC) (SMG), 2020 WL 4261130, at *6 (E.D.N.Y. July 24, 2020) (same); Amerino v. Fasano, No. 6 Civ. 3281 (JS), 2008 WL 5378393, at *2 (E.D.N.Y. Dec. 22, 2008) (ordering that the referee receive a sum not exceeding $750.00 for his fees, including the sale of the property and advertising expenses).
Here, Plaintiff's motion for a default judgment does not include information about Ms. Rizos's qualifications, her resume or the reasons why the Court should approve Ms. Rizos as referee in this matter. Nonetheless, the Court takes judicial notice of certain facts about Susan Ellen Rizos, Esq., which are available on New York State's online Fiduciary Directory. Part 36 of the Rules of the Chief Judge (22 NYCRR 36) of the New York Unified Court System governs the appointment made by any judge or justice of the Unified Court System, including referees (other than special masters and those otherwise performing judicial functions in a quasi-judicial capacity). See Part 36, Section 36.1. According to Section 36.3 of Part 36, the Chief Administrator establishes the “requirements of education and training for placement on the list of available applicants,” which requirements “consist, as appropriate, of substantive issues pertaining to each category of appointment-including applicable law, procedures, and ethics- as well as explications of the rules and procedures implementing the process established by [Part 36].” Part 36, Section 36.3.
New York State's Fiduciary Directory indicates that Ms. Rizos is eligible to be appointed as a referee in Kings, Queens and New York Counties. See Part 36 - Fiduciary Online Eligibility List, RIZOS, Susan Ellen (FID: 480564). As to Queens County, where the Property is located, the Fiduciary Directory indicates that Ms. Rizos is eligible to serve as a referee until November 18, 2024, and that her fees in 2024 are $750.00. See id. Under the New York State Attorney Directory, Ms. Rizos is listed as an attorney eligible to practice law since 1998. See Attorney Online Services - Search, RIZOS, Susan Ellen (Reg. No. 2882264).
Available at https://iapps.courts.state.ny.us/fiduciary/appointee (last visited on 8/30/2024).
Available at https://iapps.courts.state.ny.us/attorneyservices/wicket/page/SearchResultsPage?1 (last visited on 8/30/2024).
Given these qualifications, this Court respectfully recommends that, pursuant to Plaintiff's request, Susan Ellen Rizos, Esq., be appointed as Referee to effectuate the foreclosure and sale of the Property, and that a referee fee be paid in the sum of $750.00 from the proceeds of the sale.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully recommends that the District Judge: (i) order the foreclosure and sale of the Property, and the appointment of Susan Ellen Rizos, Esq. as Referee; (ii) enter a default judgment for damages against Mr. Campoverde and in favor of the Plaintiff for $286,679.35 as of November 7, 2023, with further accrued interest awarded at the per diem rate of $47.98 from November 8, 2023, until the date judgment is entered herein; (iii) declare MERS's prior mortgage on the Property to be invalid and extinguished pursuant to RPAPL Article 15; and (iv) order that the New York Real Property record be reformed to discharge MERS's prior mortgage on the Property.
The Court further respectfully recommends that judgment of foreclosure and sale be entered to reflect Plaintiff's proposed language included herein as Exhibit A.
V. OBJECTIONS
A copy of this report and recommendation will be mailed by chambers to Defendants at: Mortgage Electronic Registration Systems, Inc. s/h/a MERS as nominee for Indymac Bank, FSB, at 11819 Miami St., Suite 100, Omaha, NE 68164; Mortgage Electronic Registration Systems, Inc. s/h/a MERS as nominee for Indymac Bank, FSB, 28 Liberty St., New York, NY 10005; and Jhon Campoverde, 33-27 99th St, First Floor, Corona, NY 11368. Any objections to this report and recommendation must be filed with the Clerk of Court within seventeen (17) days of the date of this report and recommendation. Any request for an extension of time to file objections must be made to the Honorable Rachel P. Kovner, the district judge to whom this action is assigned. Failure to file objections within the specified time waives the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72; Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022) (stating that, “although Rule 72 applies only to the district court's review of a report and recommendation, this court has adopted the rule that when a party fails to object timely to a magistrate [judge]'s recommended decision, it waives any right to further review of that decision”) (internal citation & quotations omitted).
EXHIBIT A
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
EMPIRE COMMUNITY DEVELOPMENT LLC, Plaintiff, -against- JHON CAMPOVERDE, MERS AS NOMINEE FOR INDYMAC BANK, FSB, Defendants.
22 Civ. 4046 (RPK) (VMS)
[PROPOSED] JUDMENT OF FORECLOSURE AND SALE
The Honorable Rachel P. Kovner, United States District Judge
For the reasons stated in the report and recommendation issued on September 9, 2024 and adopted on [DATE], 2024, the Court orders as follows as to the real property described in Attachment A of this Order:
IT IS ORDERED AND ADJUDGED, that the mortgaged premises described in the Complaint and described in Attachment A annexed hereto be sold pursuant to this Judgment.
Together with all right, title and interest of the owner thereof, if any, in and to the land lying in the streets and road in front of the adjoining said premises, to the center line thereof.
Together with all fixtures and articles of personal property annexed to, installed in, or used in connection with the mortgage premises, all as more fully set forth in the aforementioned mortgage, attached as Attachment B annexed hereto, be sold in one parcel subject to the following any state of facts that an accurate survey may show; easements, covenants, restrictions or reservations or records, if any; zoning restrictions and any amendments thereto according to law now in force; existing violations and orders of the appropriate departments of any City, Town or Village, if any; the physical condition of the premises at the time of closing; and with any apportionments or adjustments, by and under the direction of Susan Ellen Rizos, Esq., who is hereby designated as Referee herein to sell the mortgaged premises in accordance with that purpose; at public auction to be held on the steps of the Brooklyn Courthouse of the Eastern District of New York, located at 225 Cadman Plaza East, Brooklyn, New York 11201 to be scheduled in consultation with the Clerk of Court or at a location identified by the Referee in the public notice of the sale within Queens County; that said Referee give public notice of the time and place of such sale in accordance with RPAPL § 231 in Newsday newspaper and in the case the Plaintiff shall become the purchaser at the said sale, Plaintiff shall not be required to make any deposit thereon, that said Referee or her duly appointed designee, execute to the purchaser or purchasers on such a sale a deed of the premises sold, that in the event a third party other than the Plaintiff becomes the purchaser or purchasers at such sale, the closing of title shall be had thirty days after such sale unless otherwise stipulated by all parties to the sale; and it is further
ORDERED that said Referee or her duly appointed designee then deposit the balance of said proceeds of the sale in her own name as Referee in an FDIC Insured Bank and shall thereafter make the following payments and her checks drawn for that purpose shall be paid by said depository:
1st The sum of $750.00 to said Referee for her fees herein.
2nd The expenses of the sale and the advertising expenses as shown on the bills presented to said Referee and certified by her to be correct, duplicate copies of which shall be left with said depository.
3rd And also the sum of $286,679.35 plus costs, which is the amount computed by the Court with interest from November 7, 2023, as well as further accrued interest awarded at the per diem rate of $47.98 from November 8, 2023 until the date judgment is entered herein. The final award should also include the amount of any sums expended by Plaintiff for taxes, assessments, water
rates and sewer rents, with interest and penalties accrued thereon as allowed by the Note and Mortgage, or so much thereof as the purchase money of the mortgaged premises will pay of the same; and it is further
ORDERED AND ADJUDGED, that said Referee or her duly appointed designee shall take the receipt of Plaintiff or its attorney for the amounts paid as directed in item marked “3rd”and shall file it with her report of sale. That said Referee or her duly appointed designee shall deposit the surplus monies, if any, with the aforesaid depository, within 5 days after the same shall be received and ascertainable, to the credit of this action, to be withdrawn only on the order of a Judge of this Court.
In the event that the Plaintiff or a governmental agency thereof is the purchaser of said mortgaged premises at said sale, or in the event that the rights of the purchaser at said sale and the terms of sale under this judgment shall be assigned to and be acquired by Plaintiff or any such governmental agency, and a valid assignment thereof be filed with the said Referee or her duly appointed designee shall not require Plaintiff or such governmental agency to pay in cash the amount bid at such sale, but shall execute and deliver to Plaintiff or such governmental agency a deed of the premises sold. Plaintiff or such governmental agency shall pay the amount specified in the items marked “1st” and “2nd” and shall also pay the amount of the aforesaid taxes, assessments, water rates, sewer rents and interest and penalties thereon, if any. Said Referee or her duly appointed designee shall apply the balance of the amount bid after deducting therefrom the aforesaid amount paid by Plaintiff or such governmental agency, to the amounts due Plaintiff in the item marked “3rd”, and if there be a surplus over and above said amounts due Plaintiff, Plaintiff shall pay to said Referee or her duly appointed designee upon delivery of said Referee's Deed, the amount of such surplus, and said Referee or her duly appointed designees shall deposit said surplus as hereinabove directed.
Said Referee or her duly appointed designee shall make her report of such sale and shall file it with the Clerk of the Court with all convenient speed but no later than 90 days after the sale of the property. If the proceeds of such sale be insufficient to pay the amount adjudged due to Plaintiff with the expenses, interests and costs as aforesaid, said Referee or her duly appointed designee shall specify the amount of such deficiency in her report of sale, the Plaintiff shall recover from Defendant Jhon Campoverde the whole deficiency of so much thereof as the Court may determine to be just and equitable of the residue of the mortgaged debt remaining unsatisfied after a sale of the mortgaged premises and the application of the proceeds thereof, provided a motion for a deficiency judgment shall be made as prescribed by section 1371 of the New York Real Property Actions and Proceedings Law within the time limited therein, and the amount thereof is determined and awarded by an order of this Court as provided for in said section; and it is further
ORDERED AND ADJUDGED, that the purchaser at said sale be let into possession on production of the said Referee or her duly appointed designee's deed; and it is further
ORDERED AND ADJUDGED, that each and all of the Defendants in this action, and all the persons claiming under them, or nay or either of them, after filing of the notice of the pendency of this action, be and hereby be forever barred and foreclosed of all right, title, claim, interest, lien and equity of redemption in said mortgaged premises and each and every party thereof; and it is further
ORDERED, ADJUDGED AND DECREED, that said premises is to be sold in one parcel in “as is” physical order and condition, subject to any state of facts that an inspection of the premises would disclose, any state of facts that an accurate survey of the premises would show; any covenants, restrictions, declarations, reservations, easements, rights of way and public utility agreements of record, if any; any building and zoning ordinances of the municipality in which the mortgaged premises is located and possible violations of same; any rights of tenants or person in possession of the subject premises; prior lien(s) of record, if any, except those liens addressed in section 1354 of the Real Property Actions and Proceedings Law. Said premises commonly known as 33-27 99th Street, Corona, NY 11368. A description of said mortgaged premises is annexed hereto and made a part hereof as Attachment A and it is further
ORDER, ADJUDGED and DECREED, that the prior mortgage which appears to be adverse to the mortgage being foreclosed, namely the prior mortgage of Defendant MERS as nominee for Indymac Bank, FSB is hereby declared invalid and extinguished pursuant to RPAPL Article 15 (ACRIS Online Records on the Property, Consolidation Agreement, CFRN 2005000563921, recorded on Oct. 11, 2005); and it is further
ORDER, ADJUDGED and DECREED, that Defendant MERS as nominee for Indymac Bank, FSB and all person or entities claiming by, through or under them, be and are hereby forever barred and foreclosed of and from all right, claim, lien, interest or equity of redemption in and to said mortgage premises; and it is further
ORDER, ADJUDGED and DECREED, that the New York record be reformed to reflect that the prior mortgage of Defendant MERS as nominee for Indymac Bank, FSB (ACRIS Online Records on the Property, Consolidation Agreement, CFRN 2005000563921, recorded on Oct. 11, 2005) invalid and extinguished.
ATTACHMENT A
SCHEDULE A DESCRIPTION
Block 1714 Lot 49
ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Corona, in the Second Ward of the Borough and County of Queens, City and State of New York, bounded and described as follows:
BEGINNING at a point on the Easterly side of 99th Street (formerly known as 42nd Street and also as Randall Street), distant 300 feet Northerly from the corner formed by the intersection of the Easterly side of 99th Street with the Northerly side of 34th Avenue (formerly known as Hayes Avenue), being the point where the Northerly line of land and premises belonging to the City of New York intersects said Easterly side of 99th Street;
RUNNING THENCE Northerly along said side of 99th Street, 25 feet;
THENCE Easterly at right angles to 99th Street, 112 feet 6 inches;
THENCE Southerly parallel with 99th Street, 25 feet to the Northerly line of said land of the City of New York;
THENCE Westerly along said land at right angles to 99th Street, 112 feet 6 inches to the point or place of BEGINNING.
TOGETHER with the benefits and subject to the burdens of a Right of Way Agreement in Uber 5029 Page 35.
Premises known as 33-27 99th Street, Corona, New York 11368
ATTACHMENT B
(Attachment Omitted)