# U.S. Bank National Association v. Kozikowski

> District Court, E.D. New York · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10308655

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308655

## How later opinions describe it (automated extraction)

- discussing non-jurisdictional defenses in the context of the Antiterrorism and Effective Death Penalty Act (AEDPA) and 28 U.S.C. § 2254 habeas petitions

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
U.S. BANK NATIONAL ASSOCIATION, :
NOT IN ITS INDIVIDUAL CAPACITY BUT :
SOLELY AS TRUSTEE FOR THE RMAC :
TRUST, SERIES 2016-CTT, :
: MEMORANDUM AND ORDER
Plaintiff, : ADOPTING IN PART
: REPORT & RECOMMENDATION
-against- :
: 19-CV-00783 (DLI) (CLP)
RYSZARD KOZIKOWSKI, et al., :
:
Defendants. :
----------------------------------------------------------------x
DORA L. IRIZARRY, United States District Judge:

On February 8, 2019, U.S. Bank National Association, not in its individual capacity but
solely as Trustee for the RMAC Trust, Series 2016-CTT (“Plaintiff”), commenced this action
pursuant to New York Real Property Actions and Proceedings Law (“RPAPL”) against Ryszard
Kozikowski, Anna Chelstowska, Czeslaw Chelstowski (together, “Individual Defendants”), the
Clerk of the Suffolk County District Court, and the Clerk of the Suffolk County Traffic and Parking
Violations Agency (together, “Suffolk County Defendants” and, collectively with the Individual
Defendants, “Defendants”), seeking to foreclose on a mortgage encumbering 99 Wilson Avenue,
Amityville, New York 11701 (the “Property”). See, Complaint (“Compl.”), Dkt. Entry No. 1.
Defendants did not appear or answer the Complaint. Plaintiff requested a certificate of default,
and the Clerk entered a notation of default against Defendants. See, Dkt. Entry Nos. 14-15.
On October 16, 2019, Plaintiff moved for a default judgment pursuant to Federal Rule of
Civil Procedure (“Fed. R. Civ. P.”) 55. See, Plf.’s First Mot., Dkt. Entry Nos. 20-21. The motion
was referred to the Honorable Cheryl L. Pollak, now Chief United States Magistrate Judge who,
on October 29, 2020, issued a Report and Recommendation (“R&R”) identifying deficiencies both
in Plaintiff’s proof of compliance with RPAPL § 1304’s pre-foreclosure notice requirement and in
Plaintiff’s proof of damages. See, R&R, Dkt. Entry No. 25. The magistrate judge recommended
that the Court deny Plaintiff’s default judgment motion without prejudice to renew pending
resolution of two certified questions submitted to the New York State Court of Appeals by the
Second Circuit in CIT Bank N.A. v. Schiffman, 948 F.3d 529 (2d Cir. 2020), certified questions

accepted, 34 N.Y.3d 1137 (2020) that concerned compliance with, inter alia, RPAPL § 1304. See,
R&R at 10-11.
In its objections to the R&R, Plaintiff contended that, pursuant to New York state
intermediate appellate court authority, compliance with RPAPL § 1304 is a non-jurisdictional
defense that must be raised by the defendant to a foreclosure action and, thus, the magistrate judge
erred by considering sua sponte Plaintiff’s compliance with RPAPL § 1304 in the default judgment
context. See, Plf.’s First Objs., Dkt. Entry No. 27. In ruling on Plaintiff’s objection, this Court
recognized that the New York state decisions Plaintiff cited were at odds with the disposition of
this issue by the federal courts in this district that have held that, even in the context of a

defendant’s default, a court should consider a plaintiff’s compliance with RPAPL § 1304 sua
sponte. Order dated March 31, 2021, Dkt. Entry No. 35, at 4-5. Given the split on this issue and
the potential clarification forthcoming in Schiffman, this Court held that “it would not be prudent
to decide this question prior to the resolution of Schiffman.” Id. at 5. Accordingly, over Plaintiff’s
objections, the Court adopted the R&R in substantial part, denying the motion without prejudice,
and modifying the R&R only to the extent that the Clerk of Court was directed to close the case
administratively, with leave to reopen upon Schiffman’s resolution. See, Id. at 9.
However, unlike Defendants here, the defendants in Schiffman had not defaulted; instead,
they had opposed the plaintiff’s summary judgment motion by raising, inter alia, plaintiff’s failure
to comply with RPAPL § 1304 as a defense. See, Schiffman, 36 N.Y.3d at 554. Thus, given
Schiffman’s procedural posture, neither the Second Circuit nor the New York State Court of
Appeals reached the question now before this Court of whether a court should assess independently
a plaintiff’s compliance with RPAPL § 1304 if the defendants did not appear or interpose an
answer, and, thus, defaulted.

Nonetheless, upon Schiffman’s resolution, Plaintiff filed a motion to reopen the case, which
the Court granted on September 7, 2021 giving Plaintiff leave to renew its default judgment
motion. See, CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550 (2021); Plf.’s Mot. to Reopen, Dkt. Entry
No. 38; Electronic Order dated September 7, 2021. The Court also directed Plaintiff to submit
supplemental documentation to support its damages claims given the deficient support Plaintiff
had submitted in connection with its first motion. See, Electronic Order dated September 7, 2021.
On October 5, 2021, Plaintiff filed its renewed motion for default judgment. See, Plf.’s
Renewed Mot., Dkt. Entry No. 40; Plf.’s Memorandum of Law in Support of its Renewed Motion
(“Plf.’s Mem.”), Dkt. Entry No. 41. Notably, and notwithstanding Plaintiff’s awareness that

Schiffman’s resolution failed to provide clarity as to whether a court should assess sua sponte a
plaintiff’s compliance with RPAPL § 1304 on a default judgment motion, Plaintiff did not raise
any argument contending that it is not required to demonstrate compliance with RPAPL § 1304 in
this case. See, Id. at 17-18. Instead, Plaintiff argued only that, “[a]lthough the defaulting
Defendants did not allege any statutory defenses, the Plaintiff through the Affidavit established
compliance with, inter alia, the pre-foreclosure notice requirements of RPAPL §1304[.]” Id.
Plaintiff’s renewed motion seeks default judgment against the Individual Defendants as
mortgagors, and against the Suffolk County Defendants as alleged subordinate lienholders and
necessary defendants. See, Id. It also requests a judgment of foreclosure and sale; damages under
the note, mortgage, and loan modification agreement (collectively, the “Loan Documents”); and
attorney’s costs related to the prosecution of this action. 1 See, Id. at 19-20. Defendants did not
oppose the motion. The motion was referred to the magistrate judge and, on May 10, 2022, the
Honorable Cheryl L. Pollak, Chief United States Magistrate Judge, issued the instant R&R,
recommending the Court deny the motion in its entirety without prejudice. 2 See, R&R, Dkt. Entry

No. 48. Plaintiff objected timely to the R&R.3 See, Plf.’s Objs., Dkt. Entry No. 50.
For the reasons set forth below, the R&R is adopted in part and rejected in part, and
Plaintiff’s motion for default judgment, including all damages and other relief requested therein,
is denied without prejudice to renew consistent with this Memorandum and Order.
LEGAL STANDARD
When a party objects to an R&R, a district judge must make a de novo determination with
respect to those portions of the R&R to which the party objects. See, Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”) 72(b)(3); 28 U.S.C. § 636(b)(1); See also, United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (citation omitted). Pursuant to the standard often

articulated by the district courts of this Circuit, “[i]f a party . . . simply relitigates his original
arguments, the Court reviews the Report and Recommendation only for clear error.” Antrobus v.
N.Y. City Dep’t of Sanitation, 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (internal
citations and quotation marks omitted); See also, Rolle v. Educ. Bus Transp., Inc., 2014 WL

1 Plaintiff’s motion also requests that this action be dismissed voluntarily pursuant to Fed. R. Civ. P. § 41(a)(2) against
DCFS Trust, which Plaintiff contends is a defendant that it never served because it determined it was not a necessary
defendant. See, Plf.’s Renewed Mot., at 1; Plf.’s Mem. at 2. However, DCFS Trust does not appear to have been
named as a defendant in the Complaint nor does DCFS Trust appear as a party on the docket. As such, this motion is
denied.

2 The Court assumes the parties’ familiarity with the facts and procedural posture of this case as set forth by the
magistrate judge in both the October 29, 2020 R&R and the instant May 10, 2022 R&R.

3 Unless otherwise noted, all references to “the R&R” made throughout the remainder of this Order refer to the second
R&R issued on May 10, 2022.
4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (“[A] rehashing of the same arguments set forth in the
original papers . . . would reduce the magistrate’s work to something akin to a meaningless dress
rehearsal.”) (internal citations and quotation marks omitted).
On the other hand, the Court of Appeals for the Second Circuit has suggested that a clear
error review may not be appropriate “where arguably ‘the only way for [a party] to raise . . .

arguments [is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 519 n.2 (2d Cir. 2017) (quoting
Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)). Nonetheless, a court
will not “ordinarily . . . consider arguments, case law and/or evidentiary material which could have
been, but [were] not, presented to the magistrate judge in the first instance.” Santiago v. City of
New York, 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016) (internal citation and quotation
marks omitted). Separately, when there is no objection “to a magistrate judge’s recommendation,
the recommendation is reviewed, at most, for ‘clear error.’” Barrera v. F & A Rest. Corp., 2021
WL 2138875, at *1 (E.D.N.Y. May 25, 2021) (citing Fed. R. Civ. P. 72(b), Advisory Committee’s
Notes (1983)). After its review, the district court then may “accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3); See also, 28 U.S.C. § 636(b)(1).
DISCUSSION
RPAPL § 1304 instructs that, at least ninety days before commencing a foreclosure action,
a plaintiff must send notice “by registered or certified mail and also by first-class mail to the last
known address of the borrower, and to the residence that is the subject of the mortgage.” RPAPL
§§ 1304(1), (2). “‘Proper service of RPAPL 1304 notice on the borrower or borrowers is a
condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden
of establishing satisfaction of this condition.’” Schiffman, 948 F.3d at 533 (quoting Deutsche Bank
Nat. Tr. Co. v. Spanos, 102 A.D.3d 909, 961 (2d Dep't 2013)). However, it remains unsettled
whether compliance with RPAPL § 1304 is a defense that must be raised by the defendant to a
foreclosure action, as intermediate New York state courts have held, or whether, in the context of
a default by the defendant, a court should review compliance with RPAPL § 1304 independently,
as a number of federal courts in the Second Circuit, and particularly in this district, have held. See,

Order dated March 31, 2021, at 5 (citing Windward Bora, LLC v. Thompson, 2020 WL 1242828,
at *4 n.6 (E.D.N.Y. Mar. 16, 2020)).
Here, the magistrate judge explained that, absent any argument in Plaintiff’s renewed
motion as to whether or why this Court should not follow the federal precedent requiring a sua
sponte assessment of a plaintiff’s compliance with RPAPL § 1304 on a default judgment motion,
such an assessment would ensue. See, R&R at 11-12. In undertaking such an assessment, the
magistrate judge found Plaintiff’s proof of compliance with RPAPL § 1304 insufficient and, thus,
recommended that the Court deny Plaintiff’s renewed default judgment motion in its entirety on
that ground. Id. at 13. The magistrate judge also found that Plaintiff’s proof of damages remained

deficient and, thus, further recommended that, even if the Court were to find in Plaintiff’s favor
on the RPAPL § 1304 notice requirement, the motion still should be denied in its entirety without
prejudice to renew upon the submission of additional evidence to support the damages requested
under the Loan Documents. Id. at 13-15.
Plaintiff objects to the R&R on two grounds. First, Plaintiff contends that the magistrate
judge erred by considering Plaintiff’s compliance with RPAPL § 1304 sua sponte. Plf.’s Objs. at
2-7. Second, Plaintiff contends that it has submitted sufficient evidence to substantiate the
requested damages and, therefore, its default judgment motion should be granted. Id. at 7-8.
Plaintiff did not object to portion of the R&R that considered and found Plaintiff’s proof
concerning compliance with RPAPL § 1304’s notice requirement insufficient to support granting
the default judgment motion. See, R&R at 12-13.
For the reasons set forth below, and upon due consideration of the R&R and Plaintiff’s
objections thereto, the Court finds that: (1) Plaintiff’s compliance with RPAPL § 1304 should not
be considered sua sponte and, thus, Plaintiff’s failure to establish compliance with RPAPL § 1304

does not preclude it from prevailing on its default judgment motion; and (2) although Plaintiff has
established liability against the Individual Defendants, Plaintiff has failed to submit sufficient
evidence to substantiate any of its requested damages. Accordingly, the R&R is rejected as to the
magistrate judge’s recommendation that the motion be denied for Plaintiff’s failure to establish
compliance with RPAPL § 1304, and is adopted as to the magistrate judge’s recommendation that
Plaintiff’s default judgment motion be denied without prejudice to renew upon the submission of
additional evidence to substantiate the requested damages.
I. Plaintiff’s First Objection: Consideration of RPAPL § 1304
In support of its first objection as to the magistrate judge’s sua sponte consideration of its

compliance with RPAPL § 1304, Plaintiff cites to New York intermediate appellate court decisions
finding that the failure to comply with RPAPL § 1304 is a non-jurisdictional defense and, thus, a
plaintiff is not required to show, nor should a court consider sua sponte, compliance with RPAPL
§ 1304 where the borrower does not raise it as a defense. See, Plf.’s Objs. at 4-5 (collecting cases).
Plaintiff asserts that a federal court construing New York law is bound by the law as interpreted
by the New York State Court of Appeals, but where, as here, the New York State Court of Appeals
has not addressed an issue, federal courts may consider state intermediate appellate court precedent
as a helpful indicator of how the New York State Court of Appeals may rule. Id. at 4. Plaintiff
also cites to RPAPL § 1302(2), which refers to a violation of RPAPL § 1304 as a “defense” to a
mortgage foreclosure action. Id. Plaintiff contends that the magistrate judge’s reliance on the
federal decisions from this district was misplaced because those decisions are inconsistent with
both the statutory text and “unequivocal” New York intermediate appellate court precedent. Id. at
6-7. Plaintiff also asserts that the New York intermediate appellate court precedent is consistent
with Second Circuit precedent finding generally that courts should not raise sua sponte non-

jurisdictional defenses not raised by the parties and that the Court here is bound by the doctrine of
stare decisis to adhere to such precedent. Id. at 6-7 (citing Acosta v. Artuz, 221 F.3d 117, 122 (2d
Cir. 2000) (discussing non-jurisdictional defenses in the context of the Antiterrorism and Effective
Death Penalty Act (AEDPA) and 28 U.S.C. § 2254 habeas petitions)).
Although Plaintiff’s arguments may have some merit, they are raised improperly for the
first time on objection, and, thus, the Court is under no obligation to consider them. See, Faison
v. Comm’r of Soc. Sec., 2020 WL 1528152, at *2 (S.D.N.Y. Mar. 31, 2020). As mentioned above,
a party may not oppose an R&R by asserting new arguments and case law that could have been
presented to the magistrate judge in the first instance but were not. See, Ferreira v. Carranza,

2022 WL 34610, at *2 (E.D.N.Y. Jan. 4, 2022) (citation omitted); E. Sav. Bank, FSB v. Johnson,
2020 WL 1452461, at *1 (E.D.N.Y. Mar. 25, 2020); Iacob v. http://re.brooklyn-
flatbush.com/midtown-renter-hit-with-300k-lawsuit-for-using-airbnb/, 2020 WL 2570358, at *2
(S.D.N.Y. May 21, 2020) (citation omitted).
Here, Plaintiff’s objection regarding RPAPL § 1304 differs significantly from the argument
it presented to the magistrate judge in its opening default judgment motion. Compare Plf.’s Mem.
at 17-18 with Plf.’s Objs at 4-7. As discussed above, Plaintiff did not raise in its opening motion
any argument contending that it is not required to demonstrate compliance with RPAPL § 1304.
See, Plf.’s Mem. at 17-18. Nor did Plaintiff cite any of the cases on which it now relies and that
were available to it at that time. See, Id. Plaintiff’s failure to raise these arguments in its opening
motion is inexcusable for two reasons. First, Plaintiff already was aware of, and intimately familiar
with, many of the arguments it now raises on objection because it raised them before this Court in
connection with its objections to the first R&R issued on October 29, 2020. Compare Plf.’s First
Objs at 1-3 with Plf.’s Objs at 4-7. Second, Plaintiff was on notice that these arguments would

have continued relevance upon renewal of its motion because, as Plaintiff itself notes in its
objections to the instant R&R, Schiffman “did not address the question of whether a court should
consider sua sponte if there was compliance with RPAPL §1304 in the context of a default by the
defendant.” See, Plf.’s Objs. at 4. For these reasons, the Court finds that the arguments and case
law raised in this objection could, and should, have been brought before the magistrate judge.
Not only should these arguments and case law have been brought before the magistrate
judge, but the magistrate judge’s analysis and findings also were based in part on the absence of
the very arguments that Plaintiff now raises on objection. As explained above, the magistrate
judge had prefaced the decision to assess Plaintiff’s proof compliance with RPAPL § 1304 by

pointing out the absence of any argument in Plaintiff’s moving papers as to whether or why the
Court should not undertake such an assessment.4
Notwithstanding the fact that, for the foregoing reasons, the Court need not consider
Plaintiff’s arguments in support of this objection, the Court finds that Plaintiff’s objection and
some of the arguments raised therein have merit in light of intervening case law. In particular, the
Court finds persuasive a recent decision issued by the Honorable Kiyo A. Matsumoto, United

4 Plaintiff contends that the R&R “is silent with respect to the litany of New York State intermediate appellate
precedent or why such axiomatic decisional law should be disregarded and ignored,” but this ignores the fact that the
magistrate judge explicitly had proceeded to analyze RPAPL § 1304’s requirements because of Plaintiff’s own failure
to raise such arguments in its moving papers. See, R&R at 10-12; Plf.’s Objs at 7. Notably, Plaintiff otherwise fails
to provide any explanation for not making these arguments in its renewed motion before the magistrate judge initially.
States District Judge of this Court, wherein Judge Matsumoto held that the plaintiff was “not
required to demonstrate its compliance with RPAPL 1304 in order to obtain a default judgment,
since the failure to comply with RPAPL 1304 is not a jurisdictional defect, and that defense was
not raised by [the defendants], who failed to answer the complaint.” Secretary of U.S. Dep’t of
Housing and Urban Dev. v. Rhodie as Co-Trustee of Lornice Rhodie Revocable Living Trust, 2022

WL 3213048, at *4 (E.D.N.Y. Aug. 9, 2022) (citing to New York State Second Department
Appellate Division cases) (internal quotation marks and citations omitted). Judge Matsumoto
explained that, “[t]his court ‘is bound to apply [state] law as interpreted by a state’s intermediate
appellate courts unless there is persuasive evidence that the state’s highest court would reach a
different conclusion’” and found New York State Second Department Appellate Division cases
persuasive given the absence of any guidance from the New York State Court of Appeals on this
issue. Id. (quoting Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 499 (2d Cir. 2020) (citation
omitted). In recognizing, but declining to follow, other courts in this district that have reviewed
compliance with RPAPL § 1304 in the default judgment context, Judge Matsumoto pointed out

that “none of th[o]se courts ha[s] engaged…with the countervailing Appellate Division cases” that
Judge Matsumoto found persuasive. Id. (citation omitted).
Thus, despite Plaintiff’s failure to raise its arguments regarding RPAPL § 1304 in its
opening motion, and despite finding no clear error as to the magistrate judge’s unopposed finding
that Plaintiff provided insufficient proof of RPAPL § 1304 notice, the Court adopts the analysis
set forth by Judge Matsumoto and holds that, because the failure to comply with RPAPL § 1304
is a non-jurisdictional defect, “Plaintiff’s failure to establish compliance with [RPAPL §] 1304
does not preclude the entry of default judgment.” See, Rhodie, 2022 WL 3213048, at *4. Given
the frequency with which this issue arises, this Court respectfully submits that the issue is one that
should be certified as a question to the New York State Court of Appeals.
However, a defendant’s default “does not necessarily conclusively establish…[a]
defendant[s’] liability.” Rhodie, 2022 WL 3213048, at *2 (internal quotations marks and citations
omitted). Instead, “the court must determine whether the plaintiff's allegations establish the

defendant’s liability” or, in other words, “whether the plaintiff has stated a cause of action.” Id.;
Freedom Mortg. Corp. v. Jett, 2019 WL 3714795, *2-4 (E.D.N.Y. May 23, 2019) (internal
quotation marks and citations omitted), report & recommendation adopted, 2019 WL 3805103
(E.D.N.Y. Aug. 13, 2019). Thus, prior to addressing damages, the Court must determine if
Plaintiff has made a prima facie showing of Defendants’ liability as to warrant default judgment.
Although the magistrate judge made no determination as to Defendants’ liability, the Court
has reviewed the Complaint and documentation submitted by Plaintiff and finds that, for the
following reasons, Plaintiff adequately has pled a prima facie case against the Individual
Defendants, but not against the Suffolk County Defendants. As such, Plaintiff’s default judgment

motion as to the Suffolk County Defendants is denied without prejudice to renew upon the
submission of further information consistent with this Memorandum and Order.
Furthermore, for the reasons set forth in Section II, below, the Court concurs with the
magistrate judge’s finding that Plaintiff failed to submit sufficient evidence to substantiate any of
its requested damages. Thus, although Plaintiff established a prima facie case as to liability against
the Individual Defendants, Plaintiff’s motion for default judgment as to the Individual Defendants
also is denied without prejudice to renew upon the submission of further evidence to substantiate
the damages and other costs requested consistent with this Memorandum and Order. See, Onewest
Bank, N.A. v. Hawkins, 2015 WL 5706945, at *4 (E.D.N.Y. Sept. 2, 2015) (“The court has
significant discretion and may consider a number of factors in deciding whether to grant a default
judgment,” including, inter alia, “whether the facts alleged in the complaint state a valid cause of
action [and] whether there are unresolved questions regarding material issues of fact as to liability
or damages[.]”) report & recommendation adopted, 2015 WL 5706953, at *1-2 (E.D.N.Y. Sept.
28, 2015).

A. Liability
As to the Individual Defendants, Plaintiff seeks default judgment on its foreclosure claim.
“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.” Rhodie, 2022 WL 3213048, at *3
(internal quotation marks and citations omitted). First, Plaintiff has demonstrated the existence of
the Mortgage and Note. 5 Mortgage, Dkt. Entry No. 8, at 12-31; Note, Dkt. Entry No. 8, at 4-11.
Second, Plaintiff has established ownership over the Mortgage and Note by documenting the
assignments from Mortgage Electronic Registration Systems Inc. (“MERS”), as nominee for

Approved Funding Corp., to BAC Home Loans Servicing; to Nationstar Mortgage LLC; and,
ultimately, to Plaintiff. See, Compl. ¶¶ 2-3, 15-18; Assignments, Dkt. Entry No. 8, at 32-37, 55.
Lastly, Plaintiff has established default under the provision of the Loan Modification Agreement
requiring the Individual Defendants to make payments in accordance with the Note and Mortgage
beginning on February 1, 2016, as the Complaint alleges that Defendants have failed to make such
requisite payments. See, Compl. ¶¶ 19-20; Loan Modification Agreement, Dkt. Entry No. 8, at
40; See, e.g., ARCPE Holding, LLC. v. 9Q4U5E LLC, et al., 2021 WL 8316275, at *3 (E.D.N.Y.

5 The Certificate of Merit attached to the Complaint, which was filed on February 8, 2019, purports to annex the Note,
Mortgage, Assignment, and Loan Modification Agreement, but those documents do not appear to have been so
annexed. See, Certificate of Merit, Dkt. Entry No. 1-3. Instead, those documents appear annexed to a version of the
Certificate of Merit that was filed on March 22, 2019. See, Dkt. Entry No. 8.
Aug. 11, 2021) (finding allegations of failure to make payments due by a date certain under the
terms of the note and mortgage sufficient to establish prima facie entitlement to foreclosure) report
& recommendation adopted, 1:19-cv-06417-DLI-RER, Electronic Order dated September 7, 2021.
Accordingly, Plaintiff has established a prima facie case against the Individual Defendants.
As to the Suffolk County Defendants, Plaintiff seeks default judgment on its claim to

extinguish their Property interests because they allegedly hold liens against the Property that are
subordinate to Plaintiff’s Mortgage. Compl. ¶ 9. In this regard, a complaint must allege “‘nominal
liability,’—i.e., that any judgments or liens a defendant may have against the property are
subordinate to the plaintiff's lien.” See, Jett, 2019 WL 3714795, at *3-4. Furthermore, pursuant
to RPAPL § 202-a, “‘[w]here a city or any department, bureau, board, commission, officer, agency
or instrumentality thereof is a defendant in an action affecting real property, the complaint shall
set forth:…[d]etailed facts showing the particular nature of the interest in or lien on the real
property and the reason for making such’ an entity a party to the action.” 6 Empire Cmty. Dev.,
LLC. v. Giambalvo-West, 2020 WL 9813022, at *6 (E.D.N.Y. Mar. 6, 2020) (quoting RPAPL §

202-a and analyzing allegations of nominal liability as to the Clerk of the Suffolk County District
Court and the Suffolk County Traffic and Parking Violations Agency under RPAPL § 202-a’s
heightened pleading requirement) report & recommendation adopted, 2:19-cv-05341-DLI-RLM,
Electronic Order dated March 27, 2020.
Here, the Complaint alleges only that each Suffolk County Defendant is “the holder of a
lien encumbering the Property, which is subject and subordinate to Plaintiff’s Mortgage.” Compl.

6 Although it is unclear whether the Suffolk County Defendants are considered state agencies or city agencies for
RPAPL purposes, the RPAPL provisions governing pleadings as to a state’s interest and a city’s interest both require
“[d]etailed facts showing the particular nature of the interest in or lien on the real property and the reason for making”
the state or city a party defendant. See, RPAPL §§ 202, 202-a.
¶¶ 8-9. “These bare allegations fail to satisfy the pleading requirement of N.Y. RPAPL § 202–a”
and it is otherwise unclear where, if anywhere, Plaintiff has provided supporting documentation
of the alleged liens. See, Onewest Bank, N.A. v. Cole, 2015 WL 4429014, at *4 (E.D.N.Y. July
17, 2015); Empire Cmty. Dev., LLC., 2020 WL 9813022, at *6-7 (finding allegations as to Suffolk
County agency defendants insufficient where complaint stated “neither the total sums of the liens

owed by these defendants nor the nature of the interest in or lien on the real property,” but still
granting default judgment because plaintiff submitted documents showing liens totaling a sum
certain for the agencies). Accordingly, Plaintiff has failed to establish a prima facie case against
the Suffolk County Defendants and, thus, Plaintiff’s default judgment motion as to the Suffolk
County Defendants is denied without prejudice to renew upon the submission of documentation
evidencing the alleged liens.
II. Plaintiff’s Second Objection: Sufficiency of Damages Evidence
Even if a plaintiff adequately alleges a defendant’s liability warranting default judgment, a
plaintiff still must prove damages. See, Eastern Sav. Bank, FSB v. Beach, 2014 WL 923151, at *9

(E.D.N.Y. Mar. 10, 2014) (explaining that courts may decide whether a plaintiff has submitted
sufficiently detailed affidavits and documentary evidence to support damages requested) (citations
omitted). Plaintiff’s second objection is that it has submitted sufficient evidence to support the
requested damages amounts. Plf.’s Objs. at 7-10. In support of the damages it requests under the
Loan Documents, Plaintiff has submitted the Affidavit of Anthony Younger and its exhibits (the
“Younger Affidavit”), which include, inter alia, a copy of the loan modification agreement setting
forth the principal balance and interest rate as modified by the agreement, copies of the other Loan
Documents, and computer printouts that appear to show customer account activity and transaction
history (together, the “transaction records”) related to the at-issue mortgage loan transaction. See,
Younger Aff., Dkt. Entry No. 42-6. 7
Plaintiff contends that the Younger Affidavit and transaction records are sufficient to
support all damages amounts requested for unpaid principal, deferred principal under the loan
modification agreement, interest, late charges, hazard insurance disbursements, tax disbursements,

and property inspection and preservation disbursements. Plf.’s Objs. at 8-10. However, the
magistrate judge found Plaintiff’s papers are insufficient to substantiate each such amount
requested. See, R&R at 13-15. Upon de novo review, this Court agrees.
As to the requests for unpaid principal and interest, Plaintiff fails to explain why the
requested amounts are warranted, how they were calculated, or how they are supported by
Plaintiff’s papers. See, Beach, 2014 WL 923151, at *9-10 (awarding principal amount requested
where it was corroborated by the transaction history submitted and awarding interest where
plaintiff provided a breakdown of how the interest was analyzed and calculated). Upon an
independent review of Plaintiff’s papers, the Court finds that the amounts set forth in the loan

modification agreement for unpaid principal and deferred principal appear to match the amounts
requested in the Younger Affidavit for the same, but Plaintiff has failed to show how its transaction
records support these amounts. The Younger Affidavit asserts that the amounts requested are due
through September 25, 2021, but Plaintiff submitted transaction records dated through August 26,
2021 only. Compare Younger Aff. at 3 with Id. at 65-132. Additionally, as noted in the R&R,
there is an unexplained reference on the transaction records to a “new loan” issued on October 19,
2012 in the amount of $286,106.04, which does not match any other of the loan information
provided. See, R&R at 14; See also, Lightning 1179 LLC v. Rodriguez, 2020 WL 7000902, at *7

7 Citations to “Younger Aff.” refer to the Younger Affidavit as well as its attached exhibits.
(E.D.N.Y. Sept. 18, 2020) (declining to award damages amounts requested in light of, inter alia,
“inconsistencies in the record”), report & recommendation adopted, 2020 WL 6042000, *1-2
(E.D.N.Y. Oct. 13, 2020). Furthermore, without an analysis of the interest that has accumulated
on the principal amounts sought or an explanation for how the requested interest figure was
computed, the Court cannot verify the amount of interest requested. See, R&R at 14; CIT Bank

N.A. v. Schiffman, 2022 WL 1085419, at *3 (E.D.N.Y. Feb. 16, 2022) (recommending award of
interest where Plaintiff’s affidavit provided its analysis and computations of the interest that had
accrued in order to show how the amount requested was reached), report & recommendation
adopted, 2022 WL 912520, at *1-2 (E.D.N.Y. Mar. 29, 2022). Plaintiff cannot expect the Court
to sift through its supporting documentation while engaging in guesswork to figure out how
Plaintiff reached the amounts stated in the Younger Affidavit.
The Court similarly finds that it is unable to verify the amounts requested for late charges,
hazard insurance disbursements, tax disbursements, property inspection disbursements, and
preservation disbursements. Plaintiff contends that the transaction records and Younger Affidavit

are sufficient to demonstrate that these amounts are due to Plaintiff because they itemize each
mortgage loan transaction and identify the type, date, and amount of each transaction. Plf.’s Objs.
at 9. However, while the transaction records appear to include notations for these categories of
charges, the Younger Affidavit fails to explain how the transaction records substantiate the total
amounts that Plaintiff requests as to each category or how these requested totals otherwise were
reached. See, Younger Aff. at 65-132. See, Hawkins, 2015 WL 5706945, at *8 (declining to award
requested damages where plaintiff “failed to sufficiently explain the figures on the screen-print”
submitted and otherwise failed to clearly set forth support for the amount requested),
Moreover, the Younger Affidavit fails to provide an itemization of the amounts requested
for any of these categories other than for hazard insurance and tax disbursements, and, even with
the itemization provided for those categories, Plaintiff fails to demonstrate how the transaction
records substantiate the sum Plaintiff seeks for them. See, Younger Aff. at 3-6. First, the charges
itemized for hazard insurance disbursements on the Younger Affidavit are dated through

September 21, 2021, yet the transaction records reflect transaction and account activity occurring
through August 26, 2021 only. Compare Id. at 3 with Id. at 80. Second, a significant number of
the itemized charges labeled on the Younger Affidavit as hazard insurance disbursements
inexplicably seem to correspond to flood insurance disbursement charges listed on the transaction
records, not to hazard insurance disbursement charges. Compare Id. at 3-6 (listing, for example,
a “hazard insurance” charge of $240.91 on August 20, 2021) with Id. at 80-132 (showing on the
attached transaction records that, on August 20, 2021, there was only a “flood insurance
disbursement” charge of $240.91). Third, the transaction records contain notations for “town tax”
disbursements as well as for “town/boro” charges, but Plaintiff fails to explain which charges

substantiate those itemized in the Younger Affidavit or why. Id. at 67-76, 83-129. Without any
indication as to how the amounts sought were calculated or how the transaction records Plaintiff
has now provided substantiate the amounts listed in the Younger Affidavit for each of these
categories, the Court cannot verify the damages sought. See, R&R at 13-15.
For these same reasons, Plaintiff cannot legitimately support its objection that the proof of
damages it has proffered is “substantially similar” to the proof this Court found sufficient in
Schiffman or that it is akin to the “itemizations and schedules of payments and transactions” found
sufficient in United States v. Scott. See, Plf.’s Objs. at 8-9 (citing Schiffman, 2022 WL 1085419,
at *3-4); Id. at 10 (citing United States v. Scott, 2021 WL 4942076, at *3 (N.D.N.Y. Oct. 22,
2021)). The plaintiff’s affidavit in Scott, unlike Plaintiff’s affidavit here, appended a “schedule”
that itemized the individual transactions, including identifying the date and amount of each
transaction, that it sought to recover for each category of damages requested, thus allowing the
Court to verify how the attendant transaction records substantiated the amounts requested on the
affidavit. Scott, 2021 WL 4942076, at *3. Similarly, the plaintiff in Schiffman, unlike Plaintiff

here, provided an additional affirmation that explained how each of the total amounts requested in
its affidavit were calculated or how the attendant transaction records otherwise substantiated those
amounts. See, Schiffman, 2022 WL 1085419, at *2-3 (finding “that the records support and are
consistent with the calculations in plaintiff's affidavits.”)
Notably, and for similar reasons, the Court finds meritless Plaintiff’s contention that
Freedom Mortgage Corp. v. Jett, cited in the R&R, “is distinguishable.” See, Plf.’s Objs. at 10;
R&R at 13-14 (citing Jett, 2019 WL 3714795, at *5-6). Plaintiff asserts that Jett is distinguishable
“because the foreclosing party did not submit business records in support of its request for
damages, while the Plaintiff did so here.” See, Plf.’s Objs. at 10. However, for the reasons

discussed above, the Court finds that Plaintiff’s submitted transaction records are insufficient to
verify the damages requested; more information or explanation from Plaintiff is required. Plaintiff
also contends, without any elaboration, that, “in Jett, the [c]ourt granted the [p]laintiff a substantial
sum of damages for unpaid principal and interest as well as late fees and disbursements.” 8 Id. To
the extent Plaintiff suggests that the Court should do the same here, the Court declines to do so.
First, the court in Jett granted the plaintiff’s requests for the unpaid principal and interest and “for
fees and disbursements in connection with the filing fee” in the action only; it did not grant the

8 The citation to Jett that Plaintiff provides in its objections in support of this contention appears inaccurate as the
LEXIS reporter included in the citation corresponds to a civil rights action filed in the Southern District of Indiana
titled Gupta v. Melloh, 2019 U.S. Dist. LEXIS 136863 (E.D.N.Y. Aug. 9, 2019). Plf.’s Objs. at 10 (citing to Freedom
Mortg. Corp. v. Jett, 2019 U.S. Dist. LEXIS 136863).
plaintiff’s request for late charges or any of the other fees or disbursements. See, Jett, 2019 WL
3714795, at *4-8. Second, for the reasons discussed above, the Court concurs with the magistrate
judge’s finding that more information is needed from Plaintiff to assess the accuracy of the
amounts requested, including for principal, interest, and late fees. See, R&R at 13-15.
Accordingly, Plaintiff’s objection as to its damages request is overruled and its default

judgment motion is denied without prejudice to renew upon submission of additional evidence
consistent with this Memorandum and Order. Additionally, while the magistrate judge did not
address Plaintiff’s separate request for attorney’s costs related to the prosecution of this action,
Plaintiff did not object to their omission from the R&R. See, Plf.’s Mem. at 20-21. Thus, upon
the resubmission of Plaintiff’s motion consistent with this Memorandum and Order, Plaintiff is
directed to clarify whether it maintains its request for such costs.
CONCLUSION
For the reasons set forth above, Plaintiff’s objections are sustained in part and overruled in
part, and the R&R is: (1) rejected as to the recommendation that Plaintiff’s motion be denied

without prejudice for failing to establish compliance with RPAPL § 1304; and (2) adopted as to
the recommendation that Plaintiff’s motion be denied without prejudice for failing to submit
sufficient evidence of its requested damages. Accordingly, as set forth in this Memorandum and
Order, Plaintiff’s default judgment motion: (1) is denied as to the Individual Defendants, including
as to Plaintiff’s requests for damages, attorney’s costs, a judgment of foreclosure and sale, and
appointment of a referee, without prejudice to renew upon the submission of further information
to substantiate the requested damages and costs; (2) is denied as to the Suffolk County Defendants
without prejudice upon the submission of further information regarding the alleged liens held; and
(3) is denied as to Plaintiff’s request that the action be dismissed voluntarily against DCFS Trust,
which never was joined as a party in this action. In renewing its motion for default judgment for
the third time, Plaintiff is well advised to cure the deficiencies as noted in this Memorandum and
Order. Plaintiff may not be granted any additional opportunities to cure its deficient filings in the
future.
SO ORDERED.

Dated: Brooklyn, New York
September 30, 2022

/s/
DORA L. IRIZARRY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308655. Public record. Not legal advice.