Windward Bora LLC v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WINDWARD BORA, LLC,

Plaintiff, Memorandum and Order

v. 21-CV-03147(KAM)(RER)

TANIKI A. BROWN,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pending before the Court is Plaintiff Windward Bora

LLC’s (“Plaintiff”) motion for default judgment of foreclosure

and sale. (ECF No. 11.) To date, despite being properly served

with process and notice of the motion for default judgment,

Defendant Taniki A. Brown (“Defendant”) has not defended or

otherwise appeared in the instant action, which seeks

foreclosure of Ms. Brown’s premises and mortgage encumbering a

property at 190 East 91st Street, Brooklyn, New York 11212

(“Subject Property”). For the reasons set forth below,

Plaintiff’s motion for entry of a default judgment is GRANTED.

Background

I. Factual Background

The following facts are taken from Plaintiffs’

complaint, supporting affidavits, declarations, and exhibits,

and are undisputed.1 In considering a motion for default

judgment, the Court accepts as true all well-pleaded factual

allegations in the complaint, except those relating to damages.

See Nero v. Law Office of Sam Streeter, P.L.L.C., 655 F. Supp.

2d 200, 204 (E.D.N.Y. 2009) (“[W]hen the court determines that

defendant is in default, the factual allegations of the

complaint, except those relating to the amount of damages, will

be taken as true.” (internal quotation marks and citation

omitted)).

On August 8, 2005, a mortgage (“the Mortgage”) was

executed by Defendant Taniki A. Brown, a resident and citizen of

New York, to First Franklin, a Division of National City Bank of

Indiana (“First Franklin”) in order to secure the sum of

$88,580.00 and interest for the Subject Property. (Compl. ¶¶ 2,

7.) On that date, Defendant executed and delivered a Promissory

Note to First Franklin in the amount of $88,580.00. (Id. at ¶

8; ECF No. 1-1, Ex. C (Exhibit “C” includes a copy of the Note

1 (See ECF No. 1, Compl.; ECF No. 1-1—1-2; ECF No. 11, Mot.; ECF No. 11-1,

Declaration of Regularity in Support of Default Judgement by Alan H. Weinreb,

Esq. (“Weinreb Decl.”); ECF Nos. 11-1, 11-4—11-5, 11-7; ECF No. 11-6, Ex. C,

Affidavit of Amounts Due.)

with endorsements, security agreement, Allonge, and the

Affidavit of Note Possession, evidencing Plaintiff’s possession

of the Note and Mortgage.).) The Mortgage was recorded in the

Kings County Clerk’s Office on August 31, 2005, and covers the

Subject Property at 190 East 91st Street, Brooklyn, New York

11212. (Compl. ¶ 7; ECF No. 1-1, Ex. B, Mortgage.) Plaintiff

is the owner and holder of the Note, and came into possession of

the original Note “on or about December 9, 2019.” (Compl. ¶ 10;

ECF No. 1-1, Ex. C, Affidavit of Note Possession, p. 31, ¶¶ 7-

8.) Plaintiff is a single member Delaware LLC whose sole member

is a citizen of the Kingdom of Morocco and a resident of

Florida. (Compl. ¶ 2.) Accordingly, the Court has diversity

subject matter jurisdiction.

As alleged in the complaint, Defendant has failed to

comply with the terms and provisions of the Mortgage by failing

to make the monthly payments due on January 1, 2017 and

thereafter. (Id. ¶ 11.) Defendant’s default on payments

continues to date. (Id.) Plaintiff further alleges that

Plaintiff has complied with the Mortgage’s contractual

provisions, including by sending Defendant all required notices.

(Id. at ¶ 12.) The required Notice of Default was issued on

February 26, 2021, to Defendant. (See ECF No. 1-1, Ex. D, pp.

34-37 (Notice of Default and proof of mailing).) The Notice of

Default advised Defendant of possible acceleration of the loan,

and further advised that continued default and failure to cure

arrears would allow Plaintiff to declare immediately payable the

outstanding principal balance due under the Note and all accrued

interest. (Id.) Plaintiff further alleges compliance with the

“90-day notice” (the “90 Day Notice”) provided by New York Real

Property Actions and Proceedings Law (“RPAPL”) Section 1304(1),

and under RPAPL Section 1306(1). (Compl. ¶ 12.) The 90 Day

Notice was issued on February 26, 2021, to Defendant. (See ECF

No. 1-1, Ex. D, pp. 38-44 (copies of the 90 Day Notice with

proof of mailing and registration).) Plaintiff alleges that it

has also complied with the COVID-19 Emergency Eviction and

Foreclosure Prevention Act of 2020, (S.9114/A.1181). (See Compl.

¶ 13; ECF No. 1-1, Ex. E pp. 45-53.) Plaintiff also alleges

that it has complied with all applicable provisions of New York

Banking Law Sections Nine-X, 595a, and 6-1; and, RPAPL Sections

1302 and 1304. (Compl. ¶¶ 14-15.)

As of the date of the filing of the complaint,

Defendant had failed to respond to the Default Notice and the 90

Day Notice. (Compl. ¶ 16.) Accordingly, as alleged in the

complaint, Defendant is indebted to Plaintiff pursuant to the

terms of the Note and Mortgage for: (1) the unpaid principal

amount due under the Note and all accrued and unpaid interest

and late charges; (2) attorney’s fees and other costs and

disbursements, payable to Windward Bora LLC under the terms of

the Note, which will accrue until the amount due and payable

under the Note is paid in full;2 and, (3) any and all additional

fees that are due or may become due and payable as provided

under the terms and conditions of the Note and Mortgage.

(Compl. ¶¶ 17-17(c).)

II. Procedural Background

On June 3, 2021, Plaintiff commenced this mortgage

foreclosure action. (See ECF No. 1, Compl.) Additionally on

June 3, 2021, a summons was issued to Defendant Taniki A. Brown,

who was served with process on July 7, 2021, as indicated by the

executed return, filed on July 21, 2021. (ECF No. 5; ECF No.

8.) Defendant’s answer was due on July 28, 2021. (See Jul. 21,

2021, Dkt. Entry.) On July 29, 2021, Plaintiff requested a

certificate of default. (ECF No. 9.) On August 4, 2021, the

Clerk of Court entered a Certificate of Default against all

Defendants. (ECF No. 10.)

Plaintiff filed the instant motion for default

judgment of foreclosure and sale on August 17, 2021. (ECF No.

11.) Plaintiff also filed an Affidavit of Service confirming

that a copy of its default judgment motion, along with the

supporting papers and exhibits, had been served on Defendant via

2 Though Plaintiff’s complaint states that Defendant is indebted for

attorney’s fees, Plaintiff’s Declaration of Regularity in Support of Default

Judgment of Foreclosure and Sale states that “Plaintiff does not request to

recover attorneys’ fees associated with the pursuit of this action.”

(Weinreb Declaration, ¶ 7.)

First Class Mail on August 17, 2021.3 (ECF No. 11-7, Affidavit

of Service.) To date, Defendants have not appeared, filed an

answer to the complaint, or filed a response to Plaintiff’s

motion for default judgment of foreclosure and sale.

Legal Standard

Federal Rule of Civil Procedure 55 (“Rule 55”) governs

the applicable procedure for default judgments in civil

litigation. See Fed. R. Civ. P. 55; see also City of New York

v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011).

Rule 55 provides “a ‘two-step process’ for the entry of judgment

against a party who fails to defend.” Id.; see also GuideOne

Specialty Mut. Ins. Co. v. Rock Cmty. Church, Inc., 696 F. Supp.

2d 203, 208 (E.D.N.Y. 2010). First, when a defendant “has

failed to plead or otherwise defend,” the Clerk of Court enters

the defendant’s default. Fed. R. Civ. P. 55(a). Second, the

plaintiff must “apply to the court for a default judgment.”

Fed. R. Civ. P. 55(b)(2).

“[J]ust because a party is in default, the plaintiff

is not entitled to a default judgment as a matter of right.”

GuideOne Specialty Mut. Ins. Co. at 208. Because a default

judgment is an extreme remedy, “[d]efault judgments ‘are

3 In compliance with Local Civil Rule 55.2(b), the Plaintiff’s supporting

papers and exhibits included copies of (1)the Clerk’s certificate of default,

(2) a copy of the claim to which no response has been made, and (3) a

proposed form of default judgment. (ECF Nos. 11-3—11-5.)

generally disfavored and are reserved for rare occasions.’”

State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374

F.3d 158, 168 (2d Cir. 2004) (quoting Enron Oil Corp. v.

Diakuhara, 10 F.3d 90, 98 (2d Cir.1993)). Before entering a

default judgment, the court “must ensure that (1) jurisdictional

requirements are satisfied, (2) the plaintiff took all the

required procedural steps in moving for [a] default judgment,

and (3) the plaintiff’s allegations, when accepted as true,

establish liability as a matter of law.” Jian Hua Li v. Chang

Lung Grp. Inc., No. 16-cv-6722, 2020 WL 1694356, at *4 (E.D.N.Y.

Apr. 7, 2020) (citations omitted).

On a default judgment motion, the defendant is deemed

to have admitted all well-pleaded factual allegations in the

plaintiff’s complaint, except for claims relating to damages.

See Cement & Concrete Workers Dist. Council Welfare Fund v.

Metrofoundation Contractors, Inc., 699 F.3d 230, 234 (2d Cir.

2012); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d

Cir. 1981); see also Greyhound Exhibitgroup, Inc. v. E.L.U.L.

Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); see generally

Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014)

(under both a motion to dismiss and a motion for default, the

plaintiff must proffer well-pleaded allegations). Once the

defendant is found to be in default, the plaintiff bears the

burden of showing that she is entitled to recovery. See Danser

v. Bagir Int’l, 571 F. App’x 54, 55 (2d Cir. 2014); Taizhou

Zhongneng Imp. & Exp. Co., Ltd v. Koutsobinas, 509 F. App’x 54,

58 (2d Cir. 2013); State Farm Mut. Auto. Ins. Co. v. Kalika, No.

04 Civ. 4631, 2007 WL 4326920, at *7 (E.D.N.Y. Dec. 7, 2007).

When damages for a default judgment are “not

susceptible to simple mathematical calculation, Federal Rule of

Civil Procedure 55(b)(2) gives courts discretion to determine

whether an evidentiary hearing is necessary or whether to rely

on detailed affidavits or documentary evidence.” Antoine v.

Brooklyn Maids 26, Inc., 489 F. Supp. 3d 68, 91 (E.D.N.Y. 2020)

(internal citations omitted)). Therefore, a court may rely on

“detailed affidavits and documentary evidence,” in addition to

the plaintiff’s complaint, to determine the sufficiency of a

default judgment claim. Transatlantic Marine Claims Agency v.

Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997); see Cement

& Concrete Workers, 699 F.3d at 234. The amount of damages

awarded, if any, must be ascertained “with reasonable

certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183

F.3d 151, 155 (2d Cir. 1999); see Cement & Concrete Workers, 699

F.3d at 232.

Discussion

I. Procedural Requirements of Default Judgment

As reflected supra, Plaintiff has complied with all

procedural requirements for seeking a default judgment.

Defendant was served with a copy of the summons and complaint,

and has not answered, appeared, or otherwise moved to defend the

instant action. (ECF No. 8, Summons Returned Executed.) The

Clerk of Court entered a certificate of default on August 4,

2021. (ECF No. 10.) Plaintiff has also established compliance

with Local Civil Rule 55.2(b), as Plaintiff’s papers and

exhibits in support of its motion for default judgment included

copies of (1) the Clerk’s certificate of default, (2) a copy of

the claim to which no response has been made, and (3) a proposed

form of default judgment. (ECF Nos. 11-3—11-5.) Plaintiff has

also demonstrated, through an Affidavit of Service, that its

motion for default judgment and all supporting papers were

mailed to Defendant. (ECF No. 11-7.)

II. Foreclosure

“Under New York law, a plaintiff seeking to foreclose

upon a mortgage must demonstrate ‘the existence of the mortgage

and mortgage note, ownership of the mortgage, and the

defendant’s default in payment’ on the loan secured by the

mortgage.” Windward Bora LLC v. Baez, No. 19-cv-5698(PKC)(SMG),

2020 WL 4261130, at *3 (E.D.N.Y. July 24, 2020) (citing Windward

Bora LLC v. Valente, No. 18-CV-4302 (JS) (SIL), 2019 WL 3872853,

at *3 (E.D.N.Y. July 16, 2019) (quoting Gustavia Home, LLC v.

Bent, 321 F. Supp. 3d 409, 414 (E.D.N.Y. 2018))). “[O]nce 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.” United

States v. Watts, No. 13-cv-3211 (ADS) (WDW), 2014 WL 4275628, at

*2 (E.D.N.Y. May 28, 2014) (citations omitted), report and

recommendation adopted, No. 13-cv-3211 (ADS) (WDW), 2014 WL

4293815 (E.D.N.Y. Aug. 28, 2014).

Plaintiff, through its well pleaded complaint and

supporting documents, has established a diversity subject matter

jurisdiction and a prima facie entitlement to a default judgment

against Defendant. (Compl. ¶¶ 2, 3, 5.) First, Plaintiff has

established the existence of the Mortgage and the Note. (See

ECF No. 1-1, Ex. B, Mortgage; ECF No. 1-1, Ex. C (copy of the

Note with endorsements, security agreement, Allonge, and the

Affidavit of Note Possession.).) The exhibits appended to

Plaintiff’s complaint demonstrate that the Mortgage was recorded

in the Kings County Clerk’s Office on August 31, 2005, and

covers the Subject Property at 190 East 91st Street, Brooklyn,

New York 11212. (ECF No. 1-1, Ex. B, Mortgage.) Second,

Plaintiff has also alleged ownership of the Note prior to June

3, 2021, the date of the commencement of the instant action.

Plaintiff “came into possession of the original Promissory Note

with endorsements and Allonge[...] on or about December 9, 2019.

(ECF No. 1-1, Ex. C, Affidavit of Possession, pp. 30-3.)

Plaintiff’s demonstrated possession of the Note grants Plaintiff

the rights to enforce the corresponding Mortgage and to initiate

the foreclosure action. See In re Escobar, 457 B.R. 229, 240,

n. 10 (Bankr. E.D.N.Y. 2011) (citing Deutsche Bank Nat’l Trust

Co. v. Pietranico, 33 Misc. 3d 528, 928 N.Y.S.2d 818 (2011)

(finding under New York law the owner or holder of the

promissory note holds the rights to enforce the associated

mortgage and to commence a foreclosure action; mere physical

possession of the promissory note endorsed in blank provides

presumptive ownership of the note by the holder, and the holder

of the note is the presumptive owner of the underlying

mortgage); Weaver Hardware Co. v. Solomovitz, 235 N.Y. 321, 331–

32, 139 N.E. 353 (N.Y.1923) (“[A] mortgage given to secure notes

is an incident to the latter and stands or falls with them[.]”);

Smith v. Wagner, 106 Misc. 170, 178, 174 N.Y.S. 205

(N.Y.Sup.Ct.1919) (“[A]ssignment of the debt carries with it the

security therefor, even though such security be not formally

transferred in writing”)).

Third and finally, Plaintiff has established a

default in the contractually required payments by Defendant. As

alleged in the complaint, Defendant has failed to comply with

the terms and provisions of the Mortgage by failing to make the

monthly payments due on January 1, 2017. (Id. ¶ 11.)

Defendant’s default on payments continues to date. (Id.) The

Note provides that Defendant may be required “to pay immediately

the entire amount then remaining unpaid under the Note and under

this Mortgage[,]” if Defendant, the borrower, “fails to keep

promises and agreements[,]” under the Note. (ECF No. 1-1, Ex.

B, Mortgage, p. 11, ¶ 20.) Plaintiff complied with the

Mortgage’s related contractual provisions, including by sending

Defendant all required notices following Defendant’s default.

(Id. at ¶ 12.) Plaintiff further alleges that it has complied

with all of its corresponding statutory obligations, including

under New York Banking Law, New York RPAPL, and the COVID-19

Emergency Eviction and Foreclosure Prevention Act of 2020.4

(Compl. ¶¶ 12-15.)

As demonstrated by the record, Plaintiff complied with

all the procedural requirements for seeking a motion for default

judgment. Defendant has not appeared, answered Plaintiff’s

complaint, or opposed the instant motion. Defendant has failed

to challenge or rebut Plaintiff’s prima facie case that it is

entitled to a default judgment. Accordingly, Plaintiff’s motion

for a default judgment of foreclosure and sale is granted.

III. Damages and Remedies

4 As referenced supra, Plaintiff has demonstrated that Defendant was issued:

(1) a Notice of Default on February 26, 2021 (see Compl. ¶ 12; ECF No. 1-1,

Ex. D, pp. 34-37 (Notice of Default and proof of mailing)); a 90 Day Notice,

issued on February 26, 2021 (see Compl. ¶ 12; ECF No. 1-1, Ex. D, pp. 38-44

(copies of the 90 Day Notice with proof of mailing and registration)); a

Hardship Declaration pursuant to the COVID-19 Emergency Eviction and

Foreclosure Prevention Act of 2020 (see Compl. ¶ 13; ECF No. 1-1, Ex. E pp.

45-53 (COVID-19 Hardship Declaration).)

The Court may not accept as true Plaintiff’s factual

allegations related to damages. J & J Sports Prods., Inc. v. LX

Food Grocery Inc., No. 15-cv-6505 (NGG) (PK), 2016 WL 6905946,

at *2 (E.D.N.Y. Nov. 23, 2016) (citing Au Bon Pain Corp. v.

Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). “The court must

be satisfied that Plaintiff has met the burden of proving

damages to the court with ‘reasonable certainty.’” Id. (quoting

Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151,

155 (2d Cir. 1999)). “Although requests for damages are usually

established by the plaintiff in an evidentiary hearing, the

court can make such a determination without a hearing when

supported by sufficiently detailed affidavits and documentary

evidence.” Id. (citing Transatlantic Marine Claims Agency, Inc.

v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)).

First, Plaintiff seeks a judgment of foreclosure and

sale of the Subject Property at 190 East 91st Street, Brooklyn,

New York 11212. The Court grants the requested relief, as

Plaintiff has demonstrated the existence of the Note and

Mortgage and Defendant’s default on the corresponding loan. See

OneWest Bank, N.A. v. Denham, No. 14-CV-5529 (DRH) (AKT), 2015

WL 5562980, at *14 (E.D.N.Y. Aug. 31, 2015) (internal quotation

marks and citation omitted), report and recommendation adopted,

No. 14-cv-5529 (DRH) (AKT), 2015 WL 5562981 (E.D.N.Y. Sept. 21,

2015) (“A plaintiff is entitled to foreclose on a property if it

demonstrates the existence of an obligation secured by a

mortgage, and a default on that obligation.”)

Plaintiff relatedly seeks a specific amount due on the

Note and Mortgage, and computes that amount as $117,943.11,

including interest, as of August 12, 2021. (ECF No. 11-3,

Proposed Judgment, p. 1.) In support of its request for

damages, Plaintiff submits an Affidavit of Amounts due to

Plaintiff by Yonel Devico (“Devico Aff.”), the sole Member of

Windward Bora LLC, signed on August 16, 2020.5 (ECF No. 11-6,

Ex. C, Devico Aff.) Here, Plaintiff requests $117,943.11 in

damages (id. at ¶ 8), comprised of: (1) $82,198.83 for the

principal amount due on the Note (id. at ¶ 5); and (2)

$35,744.28 for the total past due interest calculated from

December 1, 2016, through August 12, 2021. (Id. at ¶ 6-7 (the

rate of interest, pursuant to the loan terms, is 9.25%, equaling

$20.83 per diem interest.6) The Court awards $117,943.11 to

Plaintiff for the unpaid principal balance on the Note,

including per diem interest of $20.83 as of August 12, 2021, and

5 Though the Declaration signed by Plaintiff’s counsel (ECF No. 11-1, Weinreb

Decl. ¶ 5) states that the Devico Affidavit was “sworn on the 16th day of

August 2021,” the Court notes that the notarized Acknowledgment accompanying

the Devico Affidavit provides that the Devico Affidavit was sworn on “the 16

day of August in the year 2020[.]” (ECF No. 11-6, Devico Aff., p. 4.) The

Court will accept counsel’s representation, given that the Devico Affidavit

plainly references dates in 2021.

6 As confirmed by the Court’s independent calculations, the amount of interest

is calculated by taking the principal balance of $82,198.83, and multiplying

it by 9.25%, then dividing the number by 365 to obtain the per diem interest

rate of $20.83.

continuing the per diem interest until the date of entry of

judgment.

Plaintiff also appears to request pre- and post-

judgment interest. (Compl. at at p. 6 (requesting that Plaintiff

be “paid with interest and late charges to the time of such

payment and the expenses of such sale”); ECF No. 11-1, Weinreb

Decl. at p. 3 (requesting “that this Court ascertain and compute

the amount due to Plaintiff for principal and interest[.]”).)

The Court awards Plaintiff per diem pre-judgment interest of

$20.83, starting from August 12, 2021 until the date on which

judgment is entered, and post-judgment interest at the statutory

rate under 28 U.S.C. § 1961(a), running from the date judgment

is entered until the judgment is satisfied, presumably by the

foreclosure sale. See Windward Bora LLC v. Sterling, No. 18-cv-

1727 (DRH) (SIL), 2018 WL 5839797, at *5 (E.D.N.Y. Nov. 8, 2018)

(awarding per diem pre-judgment interest and post-judgment

interest at the statutory rate), report and recommendation

adopted, No. 18-cv-1727 (DRH) (SIL), 2018 WL 6706311 (E.D.N.Y.

Dec. 19, 2018).

Additionally, Plaintiff requests an order that the

Subject Property be sold as one parcel, and that the foreclosure

and sale of the Subject Property be conducted through the

appointment of Referee Susan Ellen Rizos, Esq., by the Court.

(ECF No. 11-3, Proposed Judgment, p. 2.) The Court grants this

relief, and notes that courts regularly appoint referees in

cases of mortgage foreclosures and sales. See Baez, 2020 WL

4261130, at *5 (quoting Valente, 2019 WL 3872853, at *4

(E.D.N.Y. July 16, 2019) (“[c]ourts routinely appoint referees

to effectuate the sale of foreclosed properties.”) (collecting

cases)).

Lastly, Plaintiff seeks payment, from the proceeds of

the sale, of additional costs related to the Subject Property.

(ECF No. 11-3, Proposed Judgment, pp. 2-3 (requesting “the sum

of $750.00 to said Referee for his fees[,]” the “expenses of the

sale and the advertising expenses as shown on the bills

presented to said Referee[,]” and “taxes, assessments, water

rates and sewer rents, with interest and penalties accrued

thereon[.]”).) Plaintiff did not expressly seek this relief in

its complaint, (see Compl. at p. 6 (generally requesting “the

expenses of such sale[.]”)), and when granting default judgment,

courts generally are not permitted “to award damages that exceed

what the plaintiff requested in its complaint.” Castiglione,

2019 WL 2435670, at *5 (citing Finkel v. Universal Elec. Corp.,

970 F. Supp. 2d 108, 121 (E.D.N.Y. 2013)). Here, however, given

that Plaintiff did seek “the expenses of such sale[,]” the Court

finds that this phrase “logically includes” Plaintiff’s stated

costs, and thus grants Plaintiff these expenses as requested in

the proposed judgment. Baez, 2020 WL 4261130, at *6 (granting

reimbursement of foreclosure and sale expenses sought in

proposed judgment that were not explicitly requested in the

complaint where catch-all term “expenses of the sale” was used

in the complaint.) (collecting cases).

Conclusion

For the foregoing reasons, the Court grants

Plaintiff’s motion for default judgment. The Court awards

Plaintiff damages consisting of: (1) $82,198.83 for the

principal balance owed by Defendant pursuant to the Loan entered

into by and between Defendant and Plaintiff’s predecessor-in-

interest; (2) $35,744.28 accrued interest from the date interest

is owed (i.e., December 1, 2016) through August 12, 2021; (3)

per diem, pre-judgment interest of $20.83, starting from August

13, 2021 until the date on which judgment is entered; (4) post-

judgment interest at the statutory rate under 28 U.S.C. §

1961(a) from the date judgment is entered until the date the

judgment is satisfied; (5) the appointment of Referee Susan

Ellen Rizos, Esq., to effectuate the foreclosure and sale of the

Subject Property as one parcel; and, (6) other costs related to

the sale of the Subject Property, as specified in the endorsed

Judgment accompanying the instant memorandum and order.

Plaintiff is ordered to serve a copy of this Memorandum and

Order and the forthcoming Judgment on Defendant and file proof

of service on the docket. The Clerk of the Court is

respectfully requested to enter judgment in favor of Plaintiff

and close the case.

SO ORDERED.

Dated: Brooklyn, New York

March 24, 2022

____________/s/______________

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York