Nationstar Mortg. LLC v. Atanas

285 F. Supp. 3d 618
CourtDistrict Court, W.D. New York
DecidedJanuary 29, 2018
Docket6:16–CV–06832 EAW
StatusPublished
Cited by13 cases

This text of 285 F. Supp. 3d 618 (Nationstar Mortg. LLC v. Atanas) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationstar Mortg. LLC v. Atanas, 285 F. Supp. 3d 618 (W.D.N.Y. 2018).

Opinion

ELIZABETH A. WOLFORD, United States District Judge

BACKGROUND

Plaintiff Nationstar Mortgage LLC ("Plaintiff") commenced this action on December 20, 2016, pursuant to Article 13 of the New York Real Property Actions and Proceedings Law ("RPAPL"), to foreclose a mortgage encumbering 573 Bay Road, Webster, New York 14850, together with the land, buildings, and other improvements located on the property ("Property"). (Dkt. 1 at ¶ 1). Defendants Eric L. Atanas, also known as Eric Atanas, and Kathleen M. Pink, also known as Kathleen Pink (collectively, "Defendants"), have not appeared in this action. (Dkt. 8). On March 16, 2017, Plaintiff filed a motion for a default judgment and for foreclosure and sale of the Property. (Dkt. 9; see Dkt. 10). On May 23, 2017, the Court denied that motion without prejudice and granted Plaintiff the opportunity to file a renewed motion for a default judgment to cure the *621deficiencies described therein. (Dkt. 13). On July 6, 2017, Plaintiff timely filed a renewed motion for a default judgment and for foreclosure and sale of the Property. (Dkt. 16; see Dkt. 17; Dkt. 18). The Court issued a motion scheduling order the same day, setting a briefing schedule and directing Plaintiff to serve that order and Plaintiff's motion papers upon Defendants. (Dkt. 20). On July 10, 2017, Plaintiff filed an affidavit of service, demonstrating that Plaintiff had served Defendants with the Court's motion scheduling order and Plaintiff's motion papers. (Dkt. 21). To date, Defendants have not answered the motion papers or otherwise appeared in this action. The Court assumes familiarity with the factual background and procedural history of this case, as set forth in its May 23, 2017, Decision and Order. (See Dkt. 13 at 1-3).

Currently before the Court is Plaintiff's renewed motion for a default judgment and for foreclosure and sale of the Property. (Dkt. 16). For the reasons set forth below, Plaintiff is granted default judgment, Plaintiff's counsel's request for attorney's fees is denied, and a judgment of foreclosure and sale of the Property is denied without prejudice with leave to renew.

DISCUSSION

I. Default Judgment

Federal Rule of Civil Procedure 55 sets forth the procedural steps for entry of a default judgment. First, a plaintiff must seek entry of default where a party against whom it seeks affirmative relief has failed to plead or defend in the action. Fed. R. Civ. P. 55(a). Here, Plaintiff has already obtained entry of default as to Defendants. (Dkt. 8). "Having obtained a default, a plaintiff must next seek a judgment by default under Rule 55(b)." New York v. Green , 420 F.3d 99, 104 (2d Cir. 2005) ; see also Fed. R. Civ. P. 55(b) (providing for entry of default judgment by the clerk where the "plaintiff's claim is for a sum certain" or by the court in "all other cases").

"In determining whether to enter a default judgment, courts have cautioned that a default judgment is an extreme remedy that should only be granted as a last resort." La Barbera v. Fed. Metal & Glass Corp. , 666 F.Supp.2d 341, 347 (E.D.N.Y. 2009). In light of the Second Circuit's "strong preference for resolving disputes on the merits, and because a default judgment is the most severe sanction which the court may apply," the Second Circuit has "characterized a district court's discretion in proceeding under Rule 55 as circumscribed." City of New York v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 129 (2d Cir. 2011) (citations and quotations omitted). "[B]ecause defaults are generally disfavored and are reserved for rare occasions, when doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party." Enron Oil Corp. v. Diakuhara , 10 F.3d 90, 96 (2d Cir. 1993). Ultimately, "[t]he decision whether to enter default judgment is committed to the district court's discretion." Greathouse v. JHS Sec. Inc. , 784 F.3d 105, 116 (2d Cir. 2015).

II. Mortgage Foreclosure

"In a mortgage foreclosure action under New York law, a lender must prove (1) the existence of a debt, (2) secured by a mortgage, and (3) a default on that debt." U.S. Bank, N.A. v. Squadron VCD, LLC , 504 Fed.Appx. 30, 32 (2d Cir. 2012) ; see also Ditech Fin. LLC v. Sterly , No. 5:15-CV-1455(MAD/TWD), 2016 WL 7429439, at *4 (N.D.N.Y. Dec. 23, 2016) ;

*622OneWest Bank, N.A. v. Conklin , 310 F.R.D. 40, 44 (N.D.N.Y. 2015).

Article 13 of the RPAPL also sets forth various procedural requirements in a mortgage foreclosure action. Sterly , 2016 WL 7429439, at *4 ; Conklin , 310 F.R.D. at 42. For example, § 1303 requires the foreclosing party to serve a mortgagor with the specific notice entitled, "Help for Homeowners in Foreclosure," as set out in that statute, along with the summons and complaint, before commencing a foreclosure action. RPAPL § 1303. Section 1304 requires the mortgage loan servicer to serve the borrower with a notice entitled, "You May be At Risk of Foreclosure," at least ninety days before commencing an action. Id. at § 1304. Section 1306 requires a lender to file certain information with the Superintendent of the New York State Department of Financial Services, within three days of mailing the pre-litigation notice required under § 1304.

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285 F. Supp. 3d 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationstar-mortg-llc-v-atanas-nywd-2018.