The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
WILMINGTON SAVINGS FUND SOCIETY, FSB,
D/B/A CHRISTIANA TRUST, , not individually but as
trustee for Carlsbad Funding Mortgage Trust,
M EMORANDUM DECISION
AND ORDER
Plaintiff,
2 :17-cv-02288 (AMD) (JMW)
- against -
LENA WHITE; PEOPLE OF THE STATE OF NEW
YORK C/O THE INCORPORATED VILLAGE OF
WILLISTON PARK; JOSEPH MICELI; CITIBANK
(SOUTH DAKOTA), N.A.; FAIRFIELD TOWN
CENTRE LLC, “JOHN DOE #1” through “JOHN DOE
#10,”
Defendants.
ANN M. DONNELLY, United States District Judge:
The plaintiff filed this action in April 2017 to forec lose on a mortgage on real property
against the defendant Lena White, who lives in the home.1 (ECF No. 2.) The plaintiff moved
for summary judgment, (ECF No. 34), and Magistra te Jud g e Steven Locke recommended
granting default judgment against the non-mortgagor defe ndants but denied summary judgment
as to Ms. White. (ECF No. 37.) Judge Roslyn Mauskopf adopted that report and
recommendation and referred the case for pre-trial proceedings.2 (ECF No. 61.) When the
defendant did not appear for pretrial conferences, Judge Wicks ordered her to show cause as to
why her answer should not be stricken based on her continued nonappearance and
noncompliance. (ECF No. 72.) The defendant did not respond. I adopted Judge Wicks’
1 The plaintiff also sued other entities and individuals.
2 The case was reassigned to Magistrate Judge James Wicks on May 13, 2021, and to me on July 2, 2021.
recommendation that the answer be stricken and directed the plaintiff to seek a default judgment.
(ECF No. 78.) The plaintiff’s successor in interest, U.S. Bank, filed a timely motion for default
judgment, which I referred to Judge Wicks on February 22, 2022.
Judge Wicks issued a comprehensive Report and Recommendation on July 27, 2022
recommending that I grant the plaintiff’s motion in part and award the outstanding balance of
$132,046.76 plus $32,247.07 in interest, and an additional $12.14 in per diem interest until the
date on which judgment is entered. (ECF No. 85.) However, he recommended that I deny the
plaintiff’s request for costs and attorney’s fees. Judge Wicks determined that the plaintiff did not
substantiate the amount it sought in costs and did not meet the minimum documentation
requirements to recover a flat fee for attorney services. (Id. at 20-21.)
The plaintiff filed a timely objection to Judge Wicks’ report, claiming that it has provided
sufficient evidence to recover advanced and other costs, as well as attorney’s fees. (ECF No.
86.) I address each objection in turn.
STANDARD OF REVIEW
A district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A party’s objections
must be specific; where a party “makes only conclusory or general objections, or simply
reiterates [the] original arguments, the Court reviews the [r]eport and [r]ecommendation only for
clear error.” Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting Barratt v.
Joie, No. 96-CV-324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)) (internal quotation
marks omitted). The district judge must evaluate proper objections de novo and “may accept,
reject, or modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).
“[E]ven in a de novo review of a party’s specific objections,” however, “the court will not
consider ‘arguments, case law and/or evidentiary material which could have been, but were not,
presented to the magistrate judge in the first instance.’” Brown v. Smith, No. 09-CV-4522, 2012
WL 511581, at *1 (E.D.N.Y. Feb. 15, 2012) (alterations omitted) (quoting Kennedy v. Adamo,
No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)). Moreover, “the district
court is ‘permitted to adopt those sections of a magistrate judge’s report to which no specific
objection is made, so long as those sections are not facially erroneous.’” Sasmor v. Powell, No.
11-CV-4645, 2015 WL 5458020, at *2 (E.D.N.Y. Sept. 17, 2015) (quoting Batista v. Walker,
No. 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)).
I. Advanced and Other Costs
Counsel requested $107,245.83 for “advanced money for payment of taxes, insurance,
etc.” (ECF No. 86.) As Judge Wicks explained, the mortgage instrument included a provision
for the lender to recover costs: “In any lawsuit for foreclosure and sale, lender will have the right
to collect all costs and disbursements and additional allowances allowed by applicable law and
will have the right to add all reasonable attorneys’ fees to the amount [owed].” (EFC 84-5 at
¶22.) These costs are routinely awarded in foreclosure actions. See, e.g., Nationstar Mortg. LLC
v. Kadlec, No. 20-CV-363, 2021 WL 7906568, at *5 (E.D.N.Y. Jan. 11, 2021); Freedom Mortg.
Corp. v. Weisblum, No. 19-CV-2033, 2020 WL 5881235, at *11 (E.D.N.Y. Aug. 19, 2020),
report and recommendation adopted as modified, No. 19-CV-2033, 2020 WL 5878262
(E.D.N.Y. Oct. 2, 2020).
Judge Wicks determined that the plaintiff did not give a sufficient basis for an award of
$107,425.83 in costs (aggregate sum and interest less unpaid principle). The plaintiff has
provided additional clarifying information in its objection and explains that the amount is for
“funds due and owing to it for advances for taxes, hazard insurance, property inspections and
property preservation services.” (ECF No. 86.) The plaintiff cites two exhibits as well as an
addendum to an affidavit attached to their motion for default judgment that includes a
computation of the amount due, including a breakdown of total advances by annual tax advances,
and amounts paid for hazard insurance, property inspection and property preservation. (Id.) The
numbers summarized in the affidavit are substantiated by a “customer account activity
statement” and a “judgment figures” statement. (ECF No. 84-9, 10.) Specifically, that balance
consists of $10,385.78 for hazard insurance, $1,145.50 for property inspections, $1,154.59 for
property preservation expenses, and $96,710.18 for taxes since 2013. Each tax payment from
January 2013 through January 2022 is documented. This documentary evidence adequately
explains the basis for plaintiff’s request. See CIT Bank, N.A. v. Ayers, No. 15-CV-7256, 2017
WL 3822083, at *3 (E.D.N.Y. July 18, 2017), report and recommendation adopted, No. 15-CV-
7256, 2017 WL 3726042 (E.D.N.Y. Aug. 24, 2017). Accordingly, I modify the Report and
Recommendation to award the plaintiff $107,425.83 in costs.
II. Attorney’s Fees
The plaintiff also requested $4,950.00 in attorney’s fees. (ECF No. 84-19.) Judge Wicks
found that the plaintiff is contractually entitled to recover reasonable attorney’s fees, but it did
not provide sufficient documentation for this request. (ECF No. 85 at 21.) The plaintiff
maintains that it submitted an affidavit of services rendered, providing “breakdown and
description of the work performed . . . as well as the time spent or to be spent on work in this
case.” (ECF No. 86 at 3.) I agree with Judge Wicks that the plaintiff’s submission does not
substantiate an award for attorney’s fees.
“The starting point for determining a reasonable fee is to calculate the lodestar amount by
multiplying the number of hours reasonably expended on the litigation . . . by a reasonable
hourly rate.” Wells Fargo Bank, N.A. v. Barnes, No. 16-CV-00533, 2018 WL 6028050, at *6
(N.D.N.Y. Nov. 16, 2018). “The law in this circuit is that no award for attorneys’ fees is
appropriate where the attorney failed to maintain contemporaneous time records.” Kottwitz v.
Colvin, 114 F. Supp. 3d 145, 150 (S.D.N.Y. 2015). “A recreation of time records based on
documents, calendars and other extrinsic evidences is insufficient.” Id.
The plaintiff submitted an affirmation of services rendered, enumerating task descriptions
that are “typical of foreclosure proceedings and have or will be performed.” The list includes
“anticipatory services to be rendered.” Although the descriptions include an amount of time
expended, these appear to be estimates based on the “typical” or “anticipated” needs of a
foreclosure case. None of the descriptions include the date the services were performed, or name
of the attorney responsible. These do not appear to be “contemporaneous records,” as required
in this Circuit. There is also no indication that the submission is specific to this case. Moreover,
the affirmation provides no hourly rate against which I can assess the reasonableness of the “flat
fee agreement.” On this record, Judge Wicks was correct to deny an award of attorney fees.
Accordingly, I deny the plaintiff’s motion for attorney's fees without prejudice with leave to
resubmit a more detailed affidavit in support of the application.
CONCLUSION
Accordingly, plaintiff’s motion for default judgment and judgment of foreclosure and
sale is granted in part and denied in part as follows:
1. The caption is amended to reflect U.S. Bank as the proper plaintiff as successor in
interest to Wilmington;
2. The claims as against the Doe Defendants are dismissed without prejudice;
3. A judgment of foreclosure and sale pursuant to RPAPL § 1351 and default
judgment against Ms. White is granted; and
4. The plaintiff is awarded the principal sum of $132,046.76, plus $32,247.07 in
interest, $107,425.83 in costs and an additional $12.14 in per diem interest until
the date on which judgment is entered.
5. The plaintiff may resubmit their application for attorney’s fees within 30 days of
this judgment.
Judgment will be entered at the appropriate time and the Property will be foreclosed and
sold, with the proceeds to be applied to the amount owed on the Note.
SO ORDERED.
___s/_A__n_n_ _M__. _D__o_n_n_e_l_ly________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
September 14, 2022