Windward Bora LLC v. Rampersad

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WINDWARD BORA LLC,

Plaintiff, MEMORANDUM & ORDER

19-CV-5803 (JS)(AYS)

-against-

RICK RAMPERSAD, DRUPETEE

RAMPERSAD A/K/A DRUPATEE

RAMPERSAD, NEW YORK CITY

ENVIRONMENTAL CONTROL BOARD

Defendants.

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APPEARANCES

For Plaintiff: Alan H. Weinreb, Esq.

The Margolin and Weinreb Law Group, LLP

165 Eileen Way, Suite 101

Syosset, New York 11791

For Defendants: Stanislav Gomberg, Esq.

Rick Rampersad Gomberg Legal, P.C.

Drupetee Rampersad 1001 Avenue of the Americas, Suite 1222

New York, New York 10018

SEYBERT, District Judge:

Rick Rampersad (“Rick”), and Drupetee Rampersad

(“Drupetee” and collectively with Rick the “Defendants”)1 move,

pursuant to Rules 60(b)(1), (3), (4) and (6) of the Federal Rules

of Civil Procedure (“Rule”) to vacate the December 2, 2020 Default

Judgment of Foreclosure and Sale (the “Foreclosure Order”) in its

1 The New York City Environmental Control Board (the “NYCEB”) was

also a named defendant in this action; however, the NYCEB defaulted

and is not implicated in the instant motion. (See Clerk’s Entry

of Default, ECF No. 16.) For the reader’s convenience, therefore,

the Court uses the collective term “Defendants” to include only

Rick and Drupetee.

entirety (hereafter, the “Motion”). (See Foreclosure Order, ECF

No. 32; Motion, in toto, ECF No. 41.) For the reasons that follow,

Defendants’ Motion is DENIED.

BACKGROUND

The Court presumes familiarity with the facts underlying

this case which were summarized in Magistrate Judge Shields’ March

16, 2020 Report & Recommendation (the “R&R”). (See R&R, ECF No.

20 (adopted in its entirety by the Court in its entirety on October

20, 2020 (see Adoption Order, ECF No. 24)).) Consequently, the

Court recites only those facts necessary to resolve the instant

Motion.

On October 15, 2019, Windward Bora LLC (the “Plaintiff”)

filed its Complaint. (See Compl., ECF No. 1.) The Complaint was

served on Rick on October 24, 2019, at “104-12 121st Street, 2nd

Floor - Rear Door, South Richmond Hill, New York 11418” (the

“Richmond Hill Address”). (See Aff. of Serv., ECF No. 9.)

Likewise, Drupetee was served with the Complaint on October 31,

2019, also at the Richmond Hill Address. (See Aff. of Serv., ECF

No. 10.) On November 8, 2019, Rick moved to dismiss the Complaint

(the “Dismissal Motion”) arguing, inter alia, that the Court lacked

subject matter jurisdiction. (See Dismissal Motion at 4-9, ECF

No. 11.) Plaintiff countered that diversity jurisdiction existed

because all Defendants were citizens of New York while Plaintiff,

a single member Limited Liability Company (“LLC”), was a citizen

of Florida. (See Opp’n to Dismissal Motion at 3-5, ECF No. 17-

3.) Plaintiff annexed to its Opposition: (1) Plaintiff’s

Operating Agreement (see Operating Agreement, Ex. A, ECF No. 17-

1, attached to Opp’n to Dismissal Motion); and (2) a copy of a

Florida-issued driving license for Yonel Devico (hereafter

“Devico”), Plaintiff’s sole member (see Proof of Citizenship, Ex.

B, ECF No. 17-2, attached to Opp’n to Dismissal Motion.) On

November 27, 2019, Plaintiff obtained Clerk’s Certificates of

Default against Defendants NYCECB and Drupetee for their failure

to respond to the Complaint. (See Clerk’s Entry of Default, ECF

No. 16.)

On January 27, 2020, then presiding Judge Sandra J.

Fuerstein2 referred Rick’s Dismissal Motion to Magistrate Judge

Anne Y. Shields for a Report and Recommendation. (See Jan. 27,

2020 Order Referring Motion.) The R&R, in pertinent part, denied

Rick’s Dismissal Motion, finding:

Plaintiff Windward is a limited liability

company with a single member. For purposes of

diversity jurisdiction, a limited liability

company has the citizenship of its

membership. . . . Plaintiff’s sole member is

Yonel Devico, who is domiciled in

Florida. . . . Plaintiff submitted

Windward’s operating agreement which shows

that Mr. Devico is the sole member of the

limited liability company, as well as Mr.

Devico’s driver’s license which lists a

Florida residence.

2 This case was reassigned to the undersigned on June 2, 2021.

(See June 2, 2021 Reassignment Order.)

(R&R at 5.) The Court found it “[n]otabl[e], [that] Defendant

[did] not argue[] or allege[] that Plaintiff [was] not a citizen

of Florida.” (Id.)

Subsequently, on October 20, 2020, the Court adopted the

R&R in its entirety. (See Adoption Order.) As part of the Court’s

Adoption Order, Rick was directed to file “a responsive pleading

within fourteen (14) days after notice of th[e] [Adoption] Order.”

(Id. at 3.) Defendants were served a copy of the Court’s Adoption

Order on October 21, 2020, “by First Class Mail,” at: “10738 120th

Street a/k/a 107-38 120th Street, Jamaica, N[ew] Y[ork] 11419,”

and the Richmond Hill Address. (See Affs. of Serv., ECF Nos. 25,

26.) Ultimately, Defendants failed to file a responsive pleading

and Plaintiff requested a Certificate of Default against Rick from

the Clerk of Court. (See Req. for Cert. of Default, ECF No. 27.)

A Clerk’s Entry of Default was entered on November 10, 2020. (See

Clerk’s Entry of Default, ECF No. 28.) In the Adoption Order,

Defendants were advised in the Adoption Order that there would be

“[a] hearing on plaintiff’s motion for entry of a default judgment

against defendants . . . on December 2, 2020, at 11:00 a.m” (the

“Default Hearing”). (Adoption Order at 3.)

On November 17, 2020, Plaintiff filed the aforementioned

Motion for Default Judgment of Foreclosure and Sale (the “Default

Motion”). (See Default Motion, ECF No. 30.) It was served on

Defendants “by First Class Mail” at both the Jamaica Address and

the Richmond Hill Address. (See Aff. of Service, ECF No. 30-7,

attached to Default Motion.) On December 2, 2020, at the Default

Hearing, Defendants failed to appear. (See Min. Order for

Proceedings, ECF No. 31.) Consequently, Plaintiff’s Default

Motion was granted, the case was closed, and the Foreclosure Order

was entered. (See id.; see also Foreclosure Order, ECF No. 32.)

On January 12, 2021, Defendants filed an “Emergency

Motion to Reopen” this Case (the “Motion to Reopen”). (See Motion

to Reopen, ECF No. 34.) In the Motion to Reopen, Defendants

averred:

We were not made aware of an upcoming auction

nor foreclosure nor a transfer in our loan.

We never received a summons and complaint

because we do not live at the referenced

property. . . . Our deed was just stolen by

our non-paying tenant who happened to be our

CPA. . . . She forged our signatures and

signed our deed over to herself. . . . We want

to hire an attorney to return our deed to us

as well as get an attorney to help us address

the upcoming foreclosures.

(Motion to Reopen at 1 (emphasis in original).) Ultimately, the

Court denied the Motion to Reopen finding that:

The application is . . . without basis. The

affidavits of service indicate that defendants

were served with a summons and the complaint

at a different address than the “referenced

property,” to wit 104-12 121st Street, 2nd

Floor, rear door, South Richmond Hill, NY,

which is the address listed on defendants’

current motion. Moreover, defendant Rick

Rampersad clearly received the complaint since

he filed a motion to dismiss the complaint on

11/9/2019.

(Jan. 12, 2021 Elec. Order.) A copy of the Court’s denial was

mailed to Defendants at the Richmond Hill Address.

On May 13, 2021, Defendants, by and through Counsel,

filed a Motion for a Pre-Motion Conference (the “PMC Request”).

(See PMC Request, ECF No. 36.) Defendants indicated that they

sought “leave to file a Motion Seeking an Order setting aside and

vacating the [Foreclosure Order].” (PMC Request at 1.) On June

2, 2021, the Court waived its Pre-Motion Conference requirement

and granted Defendants leave to file the instant Motion. (See

June 2, 2021 Elec. Order.) On June 8, 2021, Defendants filed an

Emergency Motion for Temporary Restraining Order (the “TRO

Motion”) (see TRO Motion, ECF No. 39), along with a Covid Hardship

Declaration (see Hardship Decl., Ex. B, ECF No. 39-2, attached to

TRO Motion.) On the same day, this Court ordered Plaintiff “to

show cause in writing why the pending Foreclosure Sale should not

be stayed under CEEFPA3 until August 31, 2021.” (See June 8, 2021

Elec. Order.) In response, Plaintiff agreed that the action should

be stayed. (See June 10, 2021 Response Letter, ECF No. 40). The

parties were advised that the briefing schedule previously set by

3 “CEEFPA” is the acronym for the COVID-19 Emergency Eviction and

Foreclosure Prevention Act of 2020.

the Court on Defendants’ Motion would remain in effect. (See June

11, 2021 Elec. Order.)

PROCEDURAL HISTORY

On June 16, 2021, Defendants filed the instant Motion.

Plaintiff filed its Opposition to the Motion on July 9, 2021 (see

Opp’n, ECF No. 46), to which Defendants replied on July 23, 2021

(see Reply, ECF No. 47.)

Defendants’ Motion outlines three primary bases for

vacating the Foreclosure Order. First, Defendants argue the

Foreclosure Order should be vacated pursuant to Rule 60(b)(1)

because Plaintiff failed to adequately demonstrate its entitlement

to judgment or to produce specific loan payment history in support

of its Default Motion. (Motion at 13-14.) Second, Defendants

argue that, pursuant to Rule 60(b)(4), the Foreclosure Order must

be vacated because complete diversity did not exist among the

parties rendering the judgment void. (Id. at 15-16.) Finally,

Defendants aver that, pursuant to Rule 60(b)(3), the Foreclosure

Order should be vacated due to alleged fraudulent misconduct on

the part of Plaintiff’s member, Devico. (Id. at 17-19.)

DISCUSSION

I. Legal Standard

A. Rule 60(b) Motion to Vacate4

Pursuant to Rule 55(c), “[t]he court may set aside an

entry of default for good cause, and it may set aside a final

default judgment under Rule 60(b).” FED. R. CIV. P. 55(c).

Defendants move to vacate the default judgment entered in this

action pursuant to Rule 60(b)(1), (3), (4) and (6) which provide,

in relevant part:

On motion and just terms, the court may

relieve a party or its legal representative

from a final judgment, order, or proceeding

for the following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect;

* * *

(3) fraud (whether previously called

intrinsic or extrinsic),

misrepresentation, or misconduct by an

opposing party;

(4) the judgment is void;

* * *

4 Defendants’ argument that the Foreclosure Order “granted on

default in this action must be vacated pursuant to [Rule] 55(c)”

is incorrect (see Motion at 2); since the default judgment in this

case has already been entered, the Motion should be treated as one

to set aside the default Judgment under Rule 60(b). See State

Farm Mut. Auto Ins. Co. v. Cohan, 409 F. App’x 453, 456 (2d Cir.

2011) (identifying that the more forgiving standards of Rule 55(c)

applies to motions to vacate administrative defaults); Local 78,

Asbestos, Lead & Hazardous Waste Laborers, AFL-CIO v. Termon

Const., Inc., No 01-CV-5589, 2003 WL 22052872, at *3 (S.D.N.Y.

Sept. 2, 2003) (analyzing defendants’ motion filed pursuant to

Rule 55(c) and 60(b) under Rule 60(b) “[s]ince a default judgment

against [defendant] ha[d] already been entered”) (collecting

cases)).

(6) any other reason that justifies relief.

FED. R. CIV. P. 60(b)(1)-(6). Under Rule 60(b) a motion “must be

made within a reasonable time.” FED. R. CIV. P. 60(c)(1). Moreover,

when made pursuant to Rule 60(b) (1), or (3), such motion must be

made “no more than a year after the entry of the judgment or order

or the date of the proceeding.” Id.; accord Sec. and Exch. Comm’n

v. Penn, No. 14-CV-0581, 2021 WL 1226978, at *4 (S.D.N.Y. Mar. 31,

2021) (“One year is the outer limit; what is reasonable depends on

the facts and circumstances of the particular case.” (quoting

Chiulli v. Internal Revenue Serv., No. 03-CV-6670, 2006 WL 3008084,

at *3 (S.D.N.Y. Oct. 20, 2006))). “Rule 60(b) provides ‘a

mechanism for extraordinary judicial relief [available] only if

the moving party demonstrates exceptional circumstances,’ and

relief under the rule is discretionary.” Motorola Credit Corp. v.

Uzan, 561 F.3d 123, 126 (2d Cir. 2009) (quoting Ruotolo v. City of

N.Y., 514 F.3d 184, 191 (2d Cir. 2008)). “Rule 60(b) will ‘be

broadly construed to do substantial justice,’ while respecting

that ‘final judgments should not be lightly reopened.’” Thai-Lao

Lignite (Thai.) Co., Ltd. v. Gov’t of Lao People’s Democratic

Republic, 864 F.3d 172, 183 (2d Cir. 2017) (quoting Nemaizer v.

Baker, 793 F.2d 58, 61 (2d Cir. 1986)). Indeed, “[r]elief under

Rule 60(b) is ‘generally not favored and is properly granted only

upon a showing of exceptional circumstances.’” Ins. Co. of N. Am.

v. Pub. Serv. Mut. Ins. Co., 609 F.3d 122, 131 (2d Cir. 2010)

(quoting United States v. Int’l Bhd. of Teamsters, 247 F.3d 370,

391 (2d Cir. 2001)).

The Second Circuit has emphasized that:

[w]hen a district court decides a motion to

vacate a default judgment pursuant to the

provisions of Rule 60(b), the court's

determination must be guided by three

principal factors: (1) whether the default was

willful, (2) whether the defendant

demonstrates the existence of a meritorious

defense, and (3) whether, and to what extent,

vacating the default will cause the

nondefaulting party prejudice.

New York v. Green, 420 F.3d 99, 108 (2d Cir. 2005) (citations and

internal quotations omitted).

II. Analysis

A. The Rule 60(b)(1) Arm of Defendants’ Motion is Untimely

“[A] judge’s errors of law are . . . ‘mistake[s]’ under

Rule 60(b)(1).” Kemp v. United States, 142 S. Ct. 1856, 1860

(2022); see also In re 310 Assocs., 346 F.3d 31, 35 (2d Cir. 2003)

(“In two early cases, this Court established a principle that Rule

60(b)(1) was available for a district court to correct legal errors

by the court.”) Such errors need not be “obvious legal mistakes.”

Kemp, at 1861 (internal quotation marks omitted). “[C]ourts have

[also] long found that excusable neglect may involve legal error.”

Id. at 1863 (collecting cases). Likewise, courts “have a similar

history of granting relief based on ‘judicial inadvertence.’” Id.

(emphasis in original) (first quoting Larson v. Heritage Square

Assocs., 952 F.2d 1533, 1536 (8th Cir. 1992), then citing O'Tell

v. N.Y, New Haven & Hartford R.R. Co., 236 F.2d 472, 475 (2d Cir.

1956)).

“A Rule 60(b)(1) motion based on judicial mistake of law

must be filed within the time that would be permitted for an appeal

of the judgment being challenged.” Munn v. APF Mgmt. Co., LLC,

No. 19-CV-10791, 2021 WL 2355308, at *2 (S.D.N.Y. June 9, 2021)

(quoting Leonard v. Lowe’s Home Ctrs., Inc., 83 F. App’x 402, 403

(2d Cir. 2003) (summary order)); see also Brooks v. Doe Fund, Inc.,

No. 17-CV-3626, 2020 WL 5706451, at *4 (E.D.N.Y. Sept. 24, 2020)

(“‘Rule 60(b)(1) motions . . . based on district court mistakes

are generally deemed untimely if made after the deadline for filing

a notice of appeal’ which is within thirty days after the entry of

judgment.” (quoting Niederland v. Chase, 425 F. App’x 10, 12 (2d

Cir. 2011) (summary order)); Klein v. Aicher, No. 19-CV-9172, 2022

WL 61352, at *3 (S.D.N.Y. Jan. 6, 2022) (acknowledging that while

“[m]otions under Rule 60(b)(1) must be made ‘within a reasonable

time,’ and . . . must be made no later than one year from the entry

of judgment[,]” that “[i]n addition to this ‘absolute’ one-year

period, Rule 60(b)(1) motions ‘based on district court mistakes

are generally deemed untimely if made after the deadline for filing

a notice of appeal’” (citing Niederland, 425 F. App’x at 12

(further citation omitted))). “One of the reasons for not

permitting Rule 60(b)(1) motions to correct court errors after the

deadline for appeal is to prevent the rule from becoming a vehicle

to assert an otherwise time-barred appeal.” Niederland, 425 F.

App’x at 12 (citing In re 310 Assocs., 346 F.3d at 35).

In the Rule 60(b)(1) portion of their Motion, Defendants

argue that the Court erred in entering the Foreclosure Order

against them because Plaintiff failed to “proffer admissible,

nonhearsay evidence to prove” Plaintiff’s default. (Motion at 13-

14.) Defendants aver that Plaintiff’s reliance upon the affidavit

of Devico (the “Devico Affidavit”), to prove Defendants’ default

was legal error since Plaintiff was required to submit “specific

loan payment history or business records” in support of its Motion

for Default Judgment. (Id. at 14.) This is especially true,

according to Defendants, since “Devico does not claim to have

relied upon any specific loan payment history or business records.”

(Id.) Regardless, Defendants state further that the Devico

Affidavit, “cannot be accepted on its face” considering, what

Defendants argue, is the affiant’s perjury. (Id.; see also infra

Part II.B.) As to Plaintiff’s standing, Defendant argues that

“Plaintiff cannot establish standing” in this case “with regard to

the HELOC and Credit Line Mortgage by production of undated

allonges in blank.” (Motion at 14.)

Plaintiff counters that, as an initial matter,

Defendant’s Rule 60(b)(1) motion is time barred because Defendants

moved for relief under Rule 60(b)(1) after their deadline for

filing a notice of appeal had passed. (Opp’n at 8-9.)

Specifically, Plaintiff notes that the Foreclosure Order was

entered on December 2, 2020, “and Defendant’s Motion was filed on

June 16, 2021, more than six months after entry of the [Foreclosure

Order].” (Id. at 9.) Even if the Court opted to use the date of

Defendants’ PMC Request, Plaintiff highlights that the PMC Request

was filed on “May 13, 2021, more than [five] months after the entry

of the [Foreclosure] Order.” (Id.) Regarding standing, Plaintiff

states that it had previously proven standing with documentary

evidence “annexed to its Complaint.” (Id.) Plaintiff emphasizes

that its documentary evidence established “a clear chain of

recorded Assignments of [the] Mortgage, in addition to a clear

chain of allonges to the Note.” (Id.) On the adequacy of

Plaintiff’s evidence of default, Plaintiff highlights that

Defendant raises this argument for the first time. (Id. at 10.)

Plaintiff appears to rely upon the fact that the Court previously

found its evidence of Defendants’ default sufficient without

addressing Defendants’ argument on the issue. Nevertheless,

Plaintiff vehemently disputes Defendants’ characterization of

Devico as a perjurer and therefore opposes Defendants’ attack on

the Devico Affidavit on those grounds. (See id. at 15-16; see

also infra Part II.B.)

Here, the Court agrees with Plaintiff that, to the extent

Defendants’ Rule 60(b)(1) Motion is premised upon judicial

mistake, it is untimely having been filed 196 days after the date

of entry of the Foreclosure Order. As Plaintiff aptly argues,

Defendants’ Motion would remain untimely even if the Court measured

timeliness from the date upon which they filed their PMC Request.

Nevertheless, even if Defendants’ Rule 60(b)(1) Motion were not

untimely, the Court further finds that there was no judicial

mistake in this case, and additionally, that the discretionary

factors counsel against vacatur.

1. Even if the Rule 60(b)(1) Motion Was Timely, There

Was No Judicial Mistake

Defendants’ contention that the Devico Affidavit is

fatally flawed because it did not attest reliance upon specific

loan payment history or business records is incorrect. On the

contrary, the Devico Affidavit explicitly affirmed that Devico,

“ha[d] access to [Plaintiff’s] business records including the

business records relating to the loan of” the Defendants, and that

his affidavit was made “based upon [his] review and examination of

the records relating to the Defendants’ loan and from [his] own

personal knowledge of how they are kept and maintained in the

regular course of [Plaintiff’s] business.” (Devico Affidavit, Ex.

C, ECF No. 30-5, attached to Default Motion.) Devico attested

further that “[i]t [wa]s the regular course of [Plaintiff’s]

business to keep and maintain such records.” (Id.) Courts in

this circuit routinely permit employees to submit, as evidence of

default, factual affidavits which are based upon the employee’s

examination of relevant company business records. See, e.g., CIT

Bank, N.A. v. Schiffman, No. 16-CV-5772, 2018 WL 6161971, at *5

(E.D.N.Y. Aug. 24, 2018) (rejecting defendants’ argument that

plaintiff’s employee’s sworn affidavit was insufficient to

establish defendants’ default and highlighting, “lenders routinely

rely on factual affidavits by their employees, whose sworn

statements, usually based on an examination of the institution's

business records, serve to authenticate those documents and place

them before the court in support of the motion”) (collecting

cases), report & recommendation adopted, 2018 WL 4804644 (E.D.N.Y.

Oct. 3, 2018); see also CIT Bank, N.A. v. Valerio, No. 16-CV-6644,

2019 WL 7862489, at *4 (E.D.N.Y. Oct. 19, 2019) (finding that an

affidavit submitted by “an Assistant Secretary” at plaintiff’s

servicing agent was prima facie evidence of default where the

affiant was “familiar with [the] business records maintained by

the company for the purpose of servicing mortgage loans” and where

the affiant attested that “the Mortgagors [were] in default under

the terms and conditions of the . . . Note and Mortgage, because

the January 1, 2016 and subsequent payments were not made”

(internal citations omitted)); Gustavia Home, LLC v. Cudjoe, No.

16-CV-3992, 2019 WL 13171158, at *4 (E.D.N.Y. Mar. 1, 2019)

(finding that sworn affidavit attesting to defendant’s “default

under the terms of the Note and Mortgage,” which was submitted by

plaintiff’s sole member, constituted prima facie evidence of

defendant’s default).

Similarly, Plaintiff correctly highlights that it

established standing in this action by annexing to its Complaint

a copy of the mortgage note, along with a clear chain of recorded

assignments and allonges to the note that establish it was the

assignee of the note at the time the action was commenced.5 (See

Exs. B-D, ECF No. 1-1, attached to Complaint). See also Courchevel

1850 LLC v. Alam, No. 17-CV-0785, 2019 WL 9656366, at *9 (E.D.N.Y.

Oct. 30, 2019) (“Under New York law, a plaintiff establishes

standing in a mortgage foreclosure action by demonstrating that it

is both the holder or assignee of the subject mortgage and the

holder or assignee of the underlying note at the time the action

[was] commenced. Significantly, being a holder or assignee of the

underlying note is sufficient for standing to foreclose, because

the mortgage passes with the debt as an inseparable incident.”

(internal citations and quotations omitted)); see also Gustavia

Home, LLC v. Bent, 321 F. Supp. 3d 409, 415 (E.D.N.Y. 2018)

(finding that plaintiff established ownership of the note where it

5 The case that Defendants rely upon to attack Plaintiff’s standing

to bring the foreclosure action is factually inapposite.

Regardless, Plaintiff did not simply provide an undated allonge

endorsed in blank to prove its ownership of the note.

submitted “copies of the Mortgage, Note, allonges, and chain of

assignments”).

To the extent not explicitly addressed, the Court has

considered the remainder of Defendants’ arguments on this point,

and it finds them to be without merit.

2. Even if Timely, the Discretionary Factors Counsel

Against Vacatur of the Foreclosure Order

a) Defendants’ Default Was Willful

Since “[t]he basic purpose of default judgment is to

protect parties from undue delay-harassment[,]” Green, 420 F.3d at

108 (quotations and citation omitted), the Second Circuit has “held

that willfulness in the context of a judgment by default requires

‘something more than mere negligence,’ such as ‘egregious or

deliberate conduct,’ although ‘the degree of negligence in

precipitating a default is a relevant factor to be considered.’”

Id. (quoting Am. Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92

F.3d 57, 60-61 (2d Cir. 1996)); see also S.E.C. v. McNulty, 137

F.3d 732, 738 (2d Cir. 1998) (“We have interpreted ‘willfulness,’

in the context of a default, to refer to conduct that is more than

merely negligent or careless.”). “On the other hand, the court

may find a default to have been willful where the conduct of

counsel or the litigant was egregious and was not satisfactorily

explained.” McNulty, 137 F.3d at 738; accord Bricklayers & Allied

Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry

& Constr., LLC, 779 F.3d 182, 186 (2d Cir. 2015). “Whether the

defendants’ default was ‘willful’ is the most important factor a

district court must consider on a motion to vacate a default

judgment.” Gil v. Frantzis, No. 17-CV-1520, 2019 WL 4784674, at

*5 (E.D.N.Y. Oct. 1, 2019) (citing De Curtis v. Ferrandina, 529

F. App’x 85, 86 (2d Cir. 2013) (“Of these factors, willfulness

carries the most weight.”)).

Here, Defendants were personally served with the Summons

and Complaint on October 24, 2019, and October 31, 2019, at the

Richmond Hill Address; as such, the contention that they were

unaware of this action against them is specious. In the case of

Rick, the contention seems especially contrived given that he filed

the Dismissal Motion on November 8, 2019. Tellingly, Defendants’

January 12, 2021 Motion to Reopen, in which they claimed not to

have been served, was post-marked as coming from the Richmond Hill

Address. Furthermore, on September 30, 2020, Defendants were

served with a copy of Magistrate Judge Shields’ R&R recommending

the Court dismiss Rick’s Dismissal Motion; on October 21, 2021,

Defendants were served with copies of the Adoption Order. (See

Affs. of Serv., ECF Nos. 22, 25, 26.) Further, Drupetee offers no

explanation why her failure to appear at all in this action was

anything other than willful. (See Motion, in toto; see also Reply,

in toto.) Likewise, Rick does not explain his decision not to

file a responsive pleading, after being directed by the Court to

do so upon the denial of his Dismissal Motion. (Id.) Under such

circumstances, the Court finds that Defendants willfully

defaulted. See Green, 420 F.3d at 109 (holding that default was

willful where defendants “offered no explanation for their

counsel’s failure to appear or seek an extension of time to respond

to the complaint” nor “any justification for their failure to take

action after receiving notice that the clerk had entered default

against them”).

b) Defendants Have Not Provided Evidence of a

Meritorious Defense6

“In order to make a sufficient showing of a

meritorious defense in connection with a motion to vacate a default

judgment, the defendant need not establish his defense

conclusively, . . . but he must present evidence of facts that, if

proven at trial, would constitute a complete defense[.]” McNulty,

137 F.3d at 740 (quotations and citations omitted); accord State

St. Bank and Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d

158, 167 (2d Cir. 2004); United States v. Chesir, 526 F. App’x 60,

6 The Court notes that having found that the Defendants’ default

to be willful, it is not required to evaluate whether Defendants

have a meritorious defense or whether there would be prejudice to

Plaintiff. See Dave’s Specialty Imps., Inc. v. Roduce for Less,

Inc., No. 19-CV-7136, 2021 WL 1207121, at *2 (E.D.N.Y. Mar. 31,

2021) (“The Court’s determination that the default was willful is

alone sufficient to support the denial of [a] motion to vacate,

and the Court need not consider the other two factors” (citing

Jaramillo v. Vega, 625 F. App’x 76, 76 (2d Cir. 2017))).

Nevertheless, for the sake of completeness, the Court will evaluate

Defendants’ proffered defense.

62-63 (2d Cir. 2013). “A defendant seeking to vacate an entry of

default must present some evidence beyond conclusory denials to

support his defense.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90,

98 (2d Cir. 1993); see, e.g., Bricklayers, 779 F.3d at 187 (holding

conclusory denials are insufficient to satisfy defendant’s “burden

of offering evidence sufficient to establish a complete defense”);

McLean v. Wayside Outreach Dev. Inc., 624 F. App’x 44, 45 (2d Cir.

2015) (holding a defense which “is made only in conclusory terms

and is not accompanied by any supporting evidence” is without

merit). “The test of such a defense is measured not by whether

there is a likelihood that it will carry the day, but whether the

evidence submitted, if proven at trial, would constitute a complete

defense.” Enron Oil, 10 F.3d at 98; accord State St. Bank, 374

F.3d at 167. “This standard applies regardless of whether there

has been an evidentiary hearing or an opportunity for discovery.”

State St. Bank, 374 F.3d at 167.

Here, Defendants’ proffered defense, that the subject

mortgage was previously paid off, is nothing more than a conclusory

statement made in a self-serving affidavit for which Defendants

have provided no documentary evidence that the Court can review.7

7 The Court is wary of accepting Defendants’ statement at face

value, given that they had previously represented to the Court

that they were unaware of this action, and had been the victims of

deed theft (See Motion to Reopen at 1), but fail to expand upon

this earlier deed theft claim in the present Motion.

See Sony Corp. v. Elm State Elecs., Inc., 800 F.2d 317, 320-21 (2d

Cir. 1986) (holding “[a]lthough in an answer general denials

normally are enough to raise a meritorious defense, the moving

party on a motion to reopen a default must support its general

denials with some underlying facts” and “[t]he affidavits that

defendants filed” in that case “were no more than sworn conclusory

denials” which were insufficient); see also Weifang Xinli Plastic

Prods. v. JBM Trading Inc., No. 11-CV-2710, 2014 WL 4244258, at

*15 (E.D.N.Y. Aug. 26, 2014) (finding that where “[t]he only

evidence defendant offer[ed] in support of his defense [was] his

own self-serving testimony[,]” such testimony was insufficient to

establish a meritorious defense); E-Bus. Holdings, LLC v.

Webgenius.com, Inc., No. 02-CV-10308, 2004 WL 2884311, at *3

(S.D.N.Y. Dec. 9, 2004) (finding defendant failed to establish a

meritorious defense where he offered no evidence beyond the

conclusory statements in his own affidavit to support his

position).

B. Defendants Have Failed to Show How the Alleged Fraud

Prevented Them from Fairly & Fully Presenting Their Case

“Rule 60(b)(3) affords the court discretion to relieve

a party from a final judgment on the grounds of fraud committed by

an adverse party.” Miller v. Shelton, No. 99-CV-2006, 2006 WL

753187, at *2 (W.D.N.Y. Mar. 20, 2006) (citing FED. R. CIV. P.

60(b)(3)). “To succeed on a Rule 60(b)(3) motion, ‘a movant must

show that the conduct complained of prevented the moving party

from fully and fairly presenting his case.’” United States ex

rel. Brutus Trading, LLC v. Standard Chartered Bank, No. 18-CV-

11117, 2021 WL 4772142, at *6 (S.D.N.Y. Oct. 13, 2021) (quoting

State St. Bank, 374 F.3d at 176). “[A] Rule 60(b)(3) motion cannot

be granted absent clear and convincing evidence of material

misrepresentations.” Bell v. Carson, No. 19-3461, 2021 WL 4022726,

at *1 (2d Cir. Sept. 3, 2021) (quoting Fleming v. N.Y. Univ., 865

F.2d 478, 484 (2d Cir. 1989)). “These same principles apply when

a movant seeks to set aside a judgment on the basis of fraud on

the court.” Salamone v. Douglas Marine Corp., No. 19-CV-1213,

2022 WL 111774, at *4 (N.D.N.Y. Jan. 12, 2022) (quoting State St.

Bank, 374 F.3d at 176). However, fraud upon the court, pursuant

to Rule 60(d)(3), “is limited to fraud which seriously affects the

integrity of the normal process of adjudication.”8 King v. First

8 While Defendants do not move pursuant to Rule 60(d)(3), which

governs vacatur based upon fraud on the court, their Motion

frequently uses the term “fraud on the court.” Regardless, the

conduct complained of in Defendants’ Motion does not rise to the

level of fraud contemplated by Rule 60(d)(3). See, e.g., Gleason

v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988) (holding that “fraud

on the Court involves far more than an injury to a single

litigant”) (internal quotations omitted)); Azkour v. Little Rest

Twelve, No. 10-CV-4132, 2017 WL 1609125, at *8 (S.D.N.Y. Apr. 28,

2017) (“[B]ribery of a judge, jury tampering, or retention of an

attorney ‘for the purpose of influencing a judge are examples of

fraud upon the Court,’ but ‘nondisclosure during pretrial

discovery,’ ‘after-discovered evidence of alleged perjury by a

witness,’ and the existence of ‘other fabricated evidence’ are

insufficient’.”) (quoting LinkCo v. Akikusa, 615 F. Supp. 2d 130,

135 (S.D.N.Y. 2009), aff’d, 367 F. App’x 180 (2d Cir. 2010).

Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002) (quoting

Gleason, 860 F.2d at 558).

In sum, Defendants’ fraud arguments relate to the

alleged perjury of Plaintiff’s sole member, Devico. in other court

actions. Specifically, Defendants highlight three instances

supporting their perjury claims. First, Defendants aver that in

Windward Bora v. Barrie9, “Plaintiff admitted in court filings to

fabricating a mortgage loan payment history in attempts to

foreclose on a second mortgage.” (Motion at 18.) Next, Defendants

contend that Plaintiff submitted an affidavit from Devico, “[i]n

Windward Bora v. 21st Mortgage Servicing10,” in which Devico

falsely swore that Plaintiff “own[ed] a Note and Mortgage since

December 18, 2013, in order to convince the court that a subsequent

mortgage assignee’s recorded satisfaction of mortgage should be

deemed void ab initio.” (Id.) That affidavit was submitted

despite Plaintiff not being formed until “August 8, 2017.” (Id.)

Finally, Defendants bring to the Court’s attention an affidavit

submitted by Devico in Windward Bora v. Zavelina11, in which Devico

9 The case is Windward Bora LLC v. Mamadu I. Barrie et al., No.

19-CV-7272 (E.D.N.Y. 2019).

10 The case is Windward Bora LLC v. 21st Mortgage Corporation, No.

701610/2020 (Queens County Sup. Ct. 2020)

11 The case is Windward Bora LLC v. Zavelina, No. 2020-007661-CA-

01 (Fla. Miami-Dade County Ct. 2020)

swore “that Windward Bora received an assignment of a mortgage

loan on July 18, 2015, when it is[,]” again, “undisputed . . . that

Windward Bora LLC was only formed on August 8, 2017.” (Id.)

Plaintiff avers that “Defendant’s counsel has cherry-

picked arbitrary items with no context . . . from cases that are

completely irrelevant and unrelated to [this] . . . action in [an]

attempt to discredit Plaintiff and claim the [Foreclosure Order]

should be vacated due to ‘fraud.’” (Opp’n at 16.) To the extent

Defendants argue that the mortgage at issue was paid in full,

Plaintiff notes that Defendants “fail[] to support this assertion

with any documentary evidence.” (Id. at 15.) Finally, Plaintiff

highlights that, despite Defendants’ contentions, “Devico[] has

never been found by a court of law to have committed perjury.”

(Id. at 16.)

Here, the evidence proffered by Defendants falls well

short of demonstrating, by clear and convincing evidence, that the

alleged material misrepresentations unfairly prevented Defendants

from fully presenting their case. Indeed, Defendants do not

address this issue at all in any of their supporting memoranda.

(See Motion, in toto; Reply, in toto.) The procedural history of

this case reflects a willful decision by the Defendants to default

despite being served with all requisite notices. (See supra Part

II.A.2.a).) Even if the Court were to assume arguendo that all of

Defendants’ allegations of perjury in the unrelated cases are true,

to succeed on a Rule 60(b)(3) motion, the alleged

misrepresentations made must have, in some way, prevented

Defendants from fairly and fully presenting their own case. See,

e.g., Caswell v. Racetti, No. 12-CV-0153, 2014 WL 1278942, at *3

(E.D.N.Y. Mar. 27, 2014) (denying Rule 60(b)(3) motion where

alleged “fraud and misrepresentation” occurred in another case

and that, regardless, plaintiff failed to “demonstrate that such

fraud or perjury detrimentally impacted the case”); Chnapkova v.

Koh, No. 88-CV-6144, 1992 WL 203906, at *3 (S.D.N.Y. Aug. 7, 1992)

(accepting as true defendant’s accusation that plaintiff committed

perjury but declining to grant Rule 60(b)(3) relief because “the

defendant . . . failed to demonstrate that this fraud prevented

him from ‘fully and fairly’ presenting his case”). Had Defendants

not willfully abandoned their defense of this action, they would

have been able to present any contradictory evidence they had

demonstrating that the mortgage at issue had been satisfied.

Defendants cannot escape the fact that they were afforded a full

and fair opportunity to defend this action in a timely manner, but

deliberately chose not to do so.12

12 While Defendants’ argument that the Court solely relied upon the

representations of Devico to determine the existence of diversity

jurisdiction is not true (see infra Part II.C), even if it were,

their argument that this would warrant relief under Rule 60(b)(3)

is likewise flawed in that, had they chosen to do so, Defendants

could have challenged the existence of jurisdiction or otherwise

presenting the merits of their case. Indeed, Rick was afforded,

and took advantage of, the opportunity to present arguments as to

C. The Foreclosure Order is Not Void Pursuant to Rule

60(b)(4) Because the Court Had a Reasonable Basis for

Exercising Jurisdiction Over the Matter

“Rule 60(b)(4) authorizes courts to ‘relieve a

party . . . from a final judgment’ when ‘the judgment is void.’”

Sec. & Exch. Comm’n v. Romeril, 15 F.4th 166, 171 (2d Cir. 2021)

(quoting FED. R. CIV. P. 60(b)(4)). “Rule 60(b)(4) applies only in

two situations: ‘where a judgment is premised either on a certain

type of jurisdictional error or on a violation of due process that

deprives a party of notice or the opportunity to be heard.’” Id.

(quoting United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,

271 (2010)); see also Grace v. Bank Leumi Tr. Co. of N.Y., 443

F.3d 180, 193 (2d Cir. 2006) (“A judgment is void under Rule

60(b)(4) . . . ‘only if the court that rendered it lacked

jurisdiction of the subject matter, or of the parties, or if it

acted in a manner inconsistent with due process of law.’” (quoting

Texlon Corp. v. Mfrs. Hanover Com. Corp., 596 F.2d 1092, 1099 (2d

Cir. 1979))). “In the context of a Rule 60(b)(4) motion, a

judgment may be declared void for want of jurisdiction only when

the court ‘plainly usurped jurisdiction,’ or, put somewhat

differently, when ‘there is a total want of jurisdiction and no

why the Complaint should be dismissed for lack of subject matter

jurisdiction. Nothing in Plaintiff’s opposition to Rick’s

Dismissal Motion interfered with or prevented Rick from presenting

whatever evidence he had on the issue of Plaintiff’s citizenship

for diversity purposes.

arguable basis on which it could have rested a finding that it had

jurisdiction.’” Langford v. Beck, No. 20-CV-4980, 2021 WL 1393120,

at *1 (S.D.N.Y. Apr. 12, 2021) (quoting Cent. Vt. Pub. Serv. Corp.

v. Herbert, 341 F.3d 186, 190 (2d Cir. 2003)) (further citation

omitted); see also Steiner v. Atochem, S.A., 70 F. App’x 599, 599-

600 (2d Cir. 2003) (“We have held in Nemaizer v. Baker that a Rule

60(b)(4) motion will not be granted where the district court had

a ‘reasonable basis’ for exercising jurisdiction, although the

court may have erred in fact as to the existence of that

jurisdiction.”).

Notwithstanding the Court’s prior determination that it

had subject matter jurisdiction over this action, Defendants seek

to relitigate that issue. Defendants maintain that while

Plaintiff’s Complaint alleged that its sole member was “a citizen

of the Kingdom of Morocco and lawfully admitted for permanent

residence in the United States [with a] domicil[e] in the State of

Florida, . . . [a] review of Plaintiff’s corporate documents and

court filings reveals otherwise.” (Motion at 15 (internal

citations omitted).) Specifically, Defendants argue that Devico

“owns property as an individual in New York,” to wit: a condominium

“located at 273 North Newbridge Road, Unit D2, Levittown,

Hempstead, N[ew] Y[ork] 11756” (the “New York Property”) (see Board

of Managers Complaint, Ex. Z, ECF No. 41-27, attached to Motion).

(Id.) Defendants further highlight that: “Plaintiff’s Sublease

Agreement demonstrates that its alleged Florida office is

subleased for $0 monthly rent with a security deposit of $10;”

Devico, “executed the sublease agreement as both Sublessee for

Plaintiff and Sublessor;” and the sublessor “maintains offices in

New York” (see Florida Lease, Ex. AA, ECF No. 41-28, attached to

Motion). (Id. at 16.) Defendants further aver that Plaintiff’s

appointment of an agent for service of process in New York and the

fact that its Operating Agreement lists a principal place of

business other than Florida support their position that Plaintiff

is not a Florida domiciliary. (Id.) Finally, Defendants present

a March 8, 2021 Letter, filed in Barrie, that Defendants allege

shows Plaintiff had more than one member. (Id. (citing Barrie

Letter, Ex. A, ECF No. 41-2, attached to Motion).)

Plaintiff counters by highlighting that the issue of

subject matter jurisdiction “has [already] been litigated and

decided with full and fair opportunity to Defendant.” (Opp’n at

12.) Plaintiff underscored that during this prior adjudication,

Plaintiff underscores that it provided “documentary evidence of

Plaintiff’s member[’s] . . . citizenship for the purposes of

establishing diversity jurisdiction.” (Id. at 13.) As to

Defendants arguments that Devico owns property in New York, or

that Plaintiff enjoys favorable lease terms for its Florida

offices, Plaintiff contends these issues are irrelevant.

In determining the citizenship of the parties Magistrate

Judge Shields previously found:

Plaintiff Windward is a limited liability

company with a single

member . . . Plaintiff’s sole member is Yonel

Devico, who is domiciled in Florida.

Plaintiff properly alleged in its Complaint

that Mr. Devico is a citizen of

Florida. . . . Additionally . . . Plaintiff

submitted Windward’s operating agreement

which shows that Mr. Devico is the sole member

of the limited liability company, as well as

Mr. Devico’s driver’s license which lists a

Florida residence.

(R&R at 5 (emphasis added).) The Magistrate Judge’s analysis of

this issue was shaped by her review of the documentary evidence

annexed to the Complaint; which was unrefuted by Defendants. As

such, Defendants’ present contention, that the Court relied only

upon the statements of Devico to conclude that Plaintiff’s

citizenship for diversity purposes was Florida, is meritless.

Further, Defendants’ proffered evidence in support of

their Rule 60(b)(4) motion does not change the Court’s opinion on

this matter. Citizenship for the purpose of determining diversity

jurisdiction is determined at the outset of the action. See

Wynston Hill Cap., LLC v. Crane, 628 F. Supp. 3d 540, 545 (S.D.N.Y.

2022) (“For purposes of diversity jurisdiction, a person’s

citizenship is determined by his domicile at the time the complaint

was filed.” (quoting Velez v. MAM Trucking Servs. Inc., No. 21-

CV-0316, 2021 WL 1625411, at *2 (S.D.N.Y. Apr. 27, 2021))). None

of Defendants’ proffered evidence calls into question Plaintiff’s

citizenship as of the date this action began, i.e., as of October

15, 2019. For example, the Barrie Letter is dated March 8, 2021;

thus, the extent to which Plaintiff may have had more than one

member at the time of the Barrie action commenced is not germane

to the analysis in this case. Similarly, the extent to which

Devico owns property in New York is not dispositive to the issue

of Devico’s citizenship as the location of real property is only

one indicator of domiciliary intent. See Ceglia v. Zuckerberg,

772 F. Supp. 2d 453, 456 (W.D.N.Y. 2011). Furthermore, to the

extent Plaintiff’s Operating Agreement lists a principal place of

business that is not Florida, or appoints an agent for service of

process in New York, such facts are irrelevant for determining the

citizenship of the Plaintiff LLC. See Kenshoo, Inc. v. Aragon

Advert., LLC, 586 F. Supp. 3d 177, 182 (E.D.N.Y. 2022) (“[T]he

citizenship of an LLC has nothing to do with its state of formation

or principal place of business; rather, the citizenship of an LLC

consists of the imputed citizenship of each one of its members.”).

In sum, there was a sufficiently reasonable basis in

this case for the Court’s decision to exercise jurisdiction

considering Plaintiff’s Operating Agreement showed that

Plaintiff’s sole member was Devico, who provided his Florida-

issued driver’s license as proof of his Florida residence.

D. No Extraordinary Circumstances Exist Warranting Relief

Under 60(b)(6)

“Rule 60(b)(6) is a catchall provision that applies when

there is ‘any other reason that justifies relief.’” Penn, 2021 WL

1226978, at *3 (quoting Fed. R. Civ. P. 60(b)(b)(6)). “Motions

pursuant to Rule 60(b)(6) may only be brought if no other

subsection is applicable.” Id. (citation omitted); see also PRC

Harris, Inc. v. Boeing Co., 700 F.2d 894, 898 (2d Cir. 1983) (“Rule

60(b)(6) is a broadly drafted ‘umbrella provision,’ which must be

read in conjunction with the other sections of that Rule, and is

applicable only where the more specific provisions do not apply.”)

(collecting cases).

Defendant offers no substantive argument as to what

extraordinary circumstances exist in this case that would

implicate Rule 60(b)(6). Indeed, Defendant recognizes that Rule

60(b)(6) is a catch-all provision that may only be invoked where

the “asserted ground for relief is not recognized in Rules

60(b)(1)-(5).” (Motion at 12.) Plaintiff argues that Defendant’s

claim of “judicial mistake falls under Rule 60(b)(1),” and, as

such, “Defendant is barred from obtaining relief under Rule

60(b)(6).” (Opp’n at 11.)

Here, the Court agrees with Plaintiff in that since all

of Defendants’ arguments are germane to either Rule 60(b)(1), (3),

or (4), the Motion must be evaluated pursuant to those provisions

and not pursuant to Rule 60(b)(6). See Penn, 2021 WL 1226978, at

*4 (finding that “[b]ecause Rule 60(b)(6) is a provision of last

resort,” “were Rule 60(b)(1) to apply” to defendant’s motions,

“the motions would have to be evaluated pursuant to [Rule 60(b)(1)]

and not under Rule 60(b)(6)”).

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that

Defendants’ Motion to Vacate the Foreclosure Order (ECF No. 41) is

DENIED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: August 28, 2023

Central Islip, New York