# Windward Bora LLC v. Rampersad

> District Court, E.D. New York · August 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10310268

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 28, 2023
- **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/10310268

## How later opinions describe it (automated extraction)

- holding conclusory denials are insufficient to satisfy defendant’s “burden of offering evidence sufficient to establish a complete defense”
- holding a defense which “is made only in conclusory terms and is not accompanied by any supporting evidence” is without merit

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
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.
--------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310268. Public record. Not legal advice.