Avail 1 LLC v. Cynthia Erhard, Linda Erhard, as heirs and next of kin to the Estate of Patricia W. Johnson and Conrad F. Johnson

Opinion

RIES DISTRIGF UNITED STATES DISTRICT COURT EE ws WESTERN DISTRICT OF NEW YORK (cranes AVAIL 1 LLC, Gnd Plaintiff, v. 24-CV-144 (JLS) (MJR) CYNTHIA ERHARD, LINDA ERHARD, as heirs and next of kin to the Estate of Patricia W. Johnson and Conrad F. Johnson, Defendants.

DECISION AND ORDER Plaintiff Avail 1 LLC filed a complaint in the instant case on February 13, 2024, seeking a judgment of foreclosure and a sale on a mortgage encumbering 6619 Plank Road, Mayville, New York, 14757, pursuant to Article 13 of the New York Real Property Actions and Proceedings Law (““RPAPL”). See Dkt. 1. The case has been referred to United States Magistrate Judge Michael J. Roemer for all proceedings under 28 U.S.C. §§ 6386(b)(1)(A),(B) and (C). Dkt. 12. On March 28, 2024, Plaintiff moved for an entry of default under Federal Rule of Civil Procedure 55(a), which the Clerk of Court entered. Dkt. 8; Dkt. 9. On December 30, 2024, Plaintiff moved for default judgment, seeking a judgment of foreclosure and sale under Federal Rule of Civil Procedure 55(b). Dkt. 11. The motion was served on both Defendants. Dkt. 11-8. Judge Roemer set a briefing schedule, which was mailed to Defendants, but neither of them filed a response to Plaintiffs motion or “or otherwise contacted the Court.” Dkt. 13; Dkt. 15 at 4.

On September 9, 2025, Judge Roemer issued a Report and Recommendation (“R&R”), addressing the Plaintiffs motion for default judgment (Dkt. 11). Dkt. 15. First, he recommends that this Court grant Plaintiffs motion for default judgment. Id. at 8. Second, he recommends this Court award Plaintiff the damages, fees, and costs Plaintiff requested. See id. at 7-8 (describing how Plaintiff seeks to recover a total of $179,064.38, a sum consisting of “unpaid principal,” “accrued unpaid interest,” “mortgage insurance premiums,” and “property preservation fees”); see also Dkt. 11-1 {8 (Plaintiffs request for the fees). Third, he recommends that this Court grant Plaintiff a judgment of foreclosure and sale pursuant to Federal Rule of Civil ' Procedure 55 and that this Court sign Plaintiffs proposed Judgment of Foreclosure and Sale. Id.; see also Dkt. 11-3. Neither party filed objections, and the time to do so | has expired. Dkt. 15. A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(8). A district court conduct a de novo review of those portions of a magistrate judge’s recommendation to which a party objects. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(8). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a | district court to review the recommendation of a magistrate judge to which no | objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). This Court carefully reviewed the R&R and, based on that review, and in the | absence of any objections, the Court accepts Judge Roemer’s recommendation. Thus, for the reasons in the R&R, Plaintiffs motion for default judgment (Dkt. |

11) is granted. Further, this Court will sign the proposed judgment. SO ORDERED. Dated: October 20, 2025 Buffalo, New York f

JOHN \AINATRA, JR. pat UNITED STATES DISTRICT JUDGE