Jemerson v. FCI Lender Servs. Inc.

2025 NY Slip Op 33970(U)

• Court: New York Supreme Court, Orange County
• Decided: October 24, 2025
• Docket: Index No. EF005740-2025
• Status: Unpublished

Opinion

Jemerson v FCI Lender Servs. Inc. 2025 NY Slip Op 33970(U) October 24, 2025 Supreme Court, Orange County Docket Number: Index No. EF005740-2025 Judge: Sherri L. Eisenpress Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: ORANGE COUNTY CLERK 10/27/2025 02:33 PM INDEX NO. EF005740-2025 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 10/27/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE --------------------------------------------------x DARROD JEMERSON,

Plaintiff, DECISION AND ORDER

-against- Index No.: EF00S740-2025 FCI LENDER SERVICES INC., WILMINGTON Motion #1 SAVINGS FUND SOCIETY FSB, AND DOES 1-10,

Defendants. ---------------------------------------------------x Sherri L. Eisenpress, J. The following papers, electronically filed on the NYSCEF system as documents

numbered 1-14, were considered In connection with Defendants FCI Lender services, Inc. and

Wilmington Savings Fund Society, FSB, as owner Trustee of the Residential Credit

Opportunities Trust VIII-C, incorrectly identified herein as Defendant Wilmington Savings

Fund Society FSB's (''Defendantsn) Notice of Motion for an Order dismissing the action

pursuant to CPLR § 3211(a)(S) and (a)(8).

Upon the foregoing papers, the Court now rules as follows:

Plaintiff commenced the instant action on June 19, 2025, with respect to

property located at 804 Hawthorn Way, New Windsor, NY, and asserts causes of action for

violations of Title 12 C.F.R. § 1024.40 for failing to provide a homeowner with foreclosure

options and/or alternatives and violations of 12 C.F.R. § 1024.41 for no written

acknowledgment of receipt of a loan modification application and for failing to make a

determination on a loan modification application within 30 days and violation of Title 15 U.S.C.

§ 1641(9) as against Wilmington Saving Fund Society, for failing to disclose to Plaintiff that it

Is the new beneficiary of the Ded of Trust within 30 days of the assignment.

Defendants move to dismiss this action on the grounds of res judicata and lack

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of service. Defendants state that on December 10, 2013, Plaintiff Jemerson, duly executed

and delivered to Wilmington's predecessor-In-Interest a Note in the sum of $288,895.00,

which was encumbered by a mortgage on property located at 804 Hawthorn Way, New

Windsor, NY. On or about August 8, 2016, Jemerson and Wilmington's predecessor-in-interest

entered into a loan modification agreement. Said Note, Mortgage and Modification

("collectively the "Loan") were subsequently assigned to Wilmington on March 26, 2024.

Plaintiff Jemerson failed to comply with the terms of the Loan by failing to make

monthly payments beginning October 1, 2020. Due to the default on the Loan, Wilmington's

predecessor-in-interest commenced a Foreclosure Action on July 3, 2023, under Orange

County Index No. EF004289-2023. An Order of Reference and a default judgment against

Plaintiff was granted by Order dated December 19, 2023 (Zuckerman, J.). Wilmington filed

its motion to confirm the Referee's Oath and Report and for a Judgment of Foreclosure and

Sale which was granted on September 3, 2024, and entered on September 18, 2024. Notice

of Entry was served upon Plaintiff on October 2, 2024, and no Notice of Appeal was filed . The

mortgaged property was sold at auction on February 21, 2025. Defendant Wilmington having

placed the highest bid, signed the Terms of Sale, and acquired title to the Mortgage Premises

by Referee's Deed, which was recorded with the Orange County Clerk on May 8, 2025.

Discussion

Pursuant to CPLR § 321l{a)(5), a party may move to dismiss a cause of action

based on the doctrine of res judicata. Tracey v. Deutsche Bank National Trust Co., 187 A.D.3d

815, 130 N.Y.S.3d 322 (2d Dept. 2020). "Under the doctrine of res judicata, 'once a claim is

brought to a final conclusion, all other claims arising out of the same transaction or series of

transactions are barred, even if based upon different theories or if seeking a different

remedy."' Jones v. Flushing Bank, 212 A.D.3d 791, 793, 183 N.Y.S.3d 458 (2d Dept. 2023);

See also O'Brien v Syracuse, 54 N.Y.2d 353, 357 (1981); Cira/do v JPMorgan Chase Bank,

NA, 140 A.D.3d 912, 913 (2d Dept 2016). As the Court of Appeals held in Ryan v New Yark

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Telephone, 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823 (1984):

[l]t is for the interest of the community that a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination. Justice requires that every cause be once fairly and impartially tried; but the public tranquility demands that, having been once so tried, all litigation of that question, and between those parties, should be closed forever [Internal citations omitted.]

"A judgment of foreclosure and sale entered against a defendant is final as to

all questions at issue between the parties, and concludes all matters of defense which were

or might have been raised in the foreclosure action." Jones, 212 A.D.3d at 460; Eaddy v. U.S.

Bank National Association, 180 A.D.3d 756, 758, 119 N.Y.S.3d 212 (2d Dept. 2020); Long

Island Sav. Bank, FSB v. Mihalios, 269 A.D.2d 502, 503, 704 N.Y.S.2d 483 (2d Dept. 2000).

"A judgment by default that has not been vacated is conclusive for res judicata purposes and

encompasses the issues that were raised or could have been raised in the prior action."

Tracey, 187 A.D.3d at 815; Sancar Management v. OneWest Bank, FSB, 165 A.D.3d 1306,

84 N.Y.S.3d 794 (2d Dept. 2018).

In the instant matter the Court finds that granting Plaintiff the relief he seeks

in the present action would destroy or impair the rights established by the judgment of

foreclosure in the prior action. See 551 Development of Sheepshead Bay I, LLC v.

Amalgamated Bank, 128 A.D.3d 674, 675-676, 10 N.Y.S.3d 105 (2d Dept. 2015). Plaintiff

defaulted in the underlying foreclosure action and said default was not vacated. Moreover, a

Judgment of Foreclosure and Sale was entered on September 18, 2024, and was not appealed,

and accordingly is final. Thus, the instant action is barred by res judicata and is dismissed on

that ground. As the Court has dismissed the action as barred by res judicata, it need not

address Defendants' CPLR § 3211(a)(8) motion to dismiss for lack of service of process.

Accordingly, it is hereby

ORDERED that Defendant' Notice of Motion to dismiss the action pursuant to

CPLR § 3211(a)(S) is GRANTED and the action dismissed.

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The foregoing constitutes an Order of this Court on Motion #1.

Dated: Goshen, New York October 24, 2025

TO: All parties (via NYSCEF)

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