U.S. Bank National Association v. Whittle

EASTERN DISTRICT OF NEW YORK

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U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE

FOR STRUCTURED ADJUSTABLE RATE

MORTGAGE LOAN TRUST, MORTGAGE

PASS-THROUGH CERTIFICATES, SERIES 2007-8,

MEMORANDUM & ORDER

Plaintiff, 22-CV-05484 (JMA) (SIL)

-against- FILED

CLERK

H. CHRISTOPHER WHITTLE; 100 BRIAR PATCH, 11:17 am, No  v 27, 2023

LLC; GOLDEN EAGLE INTERNATIONAL

TRADING LIMITED, A HONG KONG U.S. DISTRICT COURT

CORPORATION; PURE EAST GLOBAL EASTERN DISTRICT OF NEW YORK

INVESTMENTS LIMITED, A BRITISH VIRGIN LONG ISLAND OFFICE

ISLANDS COMPANY; RICHARD B. MONTANYE AS

SUCCESSOR TRUSTEE OF THE PIRA TRUST BY

APPOINTMENT DATED DECEMBER 15, 2007;

AVENUES GLOBAL HOLDINGS LLC; and

NEW YORK STATE DEPARTMENT OF TAXATION,

Defendants.

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AZRACK, United States District Judge:

Plaintiff U.S. Bank National Association brought the instant action to foreclose on a

mortgage encumbering the property at 100 Briar Patch Road, East Hampton, New York 11937 (the

“Property”). See Compl., ECF No. 1. Presently before the Court is Plaintiff’s unopposed motion

for (1) default judgment against all non-appearing defendants and (2) summary judgement against

the two defendants who have appeared (the “Motion”). See ECF No. 45. Plaintiff seeks recovery

of outstanding principal and interest due on the mortgage note, as well as entry of a judgment of

foreclosure and sale of the Property. Plaintiff’s motion is GRANTED IN PART and DENIED IN

PART as set forth herein.

For the unopposed motion for default judgment, the Court accepts as true Plaintiff’s factual

assertions that are well-pled in the Complaint. See Bricklayers & Allied Craftworkers Local 2 v.

Moulton Masonry & Constr., LLC, 779 F.3d 182, 187 (2d Cir. 2015) (per curiam) (holding that

courts must accept well-pled factual allegations as true on a motion for default judgment). For the

unopposed motion for summary judgment, the Court accepts as true Plaintiff’s factual assertions

that are supported by undisputed documentary evidence. See Vt. Teddy Bear Co. v. 1-800

BEARGRAM Co., 373 F.3d 241, 244, 246 (2d Cir. 2004) (holding the district court may “accept

the movant’s factual assertions as true” when adjudicating an unopposed summary judgment

motion).

A. The Note and Mortgage

On November 6, 2006, defendant H. Christopher Whittle (“Borrower”) executed a note in

favor of nonparty Lehman Brothers Bank, FSB in the amount of $8,250,000.00 (the “Note”). ECF

No. 45-6. That same day, Borrower executed a mortgage on the Property to secure the Note (the

“Mortgage”). ECF No. 45-7. On December 18, 2006, the Mortgage was recorded in the Suffolk

County Clerk’s Office. Id. On July 17, 2013, the Mortgage was assigned to nonparty Nationstar

Mortgage LLC; this assignment was recorded in the Suffolk County Clerk’s Office on February

21, 2014. See ECF No. 45-3 ¶ 6; ECF No. 45-8.

Since September 1, 2021, Borrower has breached the Note and Mortgage (the

“Agreements”) by failing to make the required monthly payments. See ECF No. 45-3 ¶ 10. On

November 3, 2021, Borrower was sent a default notice via first class mail, which stated that the

total amount in arears was $192,917.73 and Borrower must correct the default. See ECF No. 45-

10. The default notice further stated that the Borrower’s failure to cure the default by December

8, 2021, would permit acceleration of the loan and foreclosure and sale on the Property. See id.

That same day, Borrower was sent via first class and certified mail the 90-day notice required by

45-11. Consistent with RPAPL Section 1306, the Superintendent of the New York State

Department of Financial Services was notified within three days that Borrower had been sent the

90-day notice. See ECF No. 45-3 ¶ 16; ECF No. 45-12. On May 31, 2022, the Mortgage was

assigned to Plaintiff; this assignment was recorded in the Suffolk County Clerk’s Office on

February 3, 2023. See ECF No. 45-3 ¶ 7; ECF No. 45-8.

B. Additional Relevant Parties

Defendant 100 Briar Patch LLC has been a 50% record owner of the Property since

November 30, 2017. See ECF No. 45-15 (showing that Borrower transferred 50% of his interest

in the Property to nonparty Priscilla Ratazzi Whittle on November 26, 2013, and that Ms. Whittle

later transferred that interest to 100 Briar Patch LLC on November 30, 2017). Three Defendants

hold subordinate mortgages on the Property: (1) Golden Eagle International Trading Limited, a

Hong Kong Corporation (“Golden Eagle”); (2) Pure East Global Investments Limited, a British

Virgin Islands Company (“Pure East”); and (3) Richard B. Montanye as Successor Trustee of the

PIRA Trust (by appointment dated December 15, 2017) (“PIRA”). See ECF No. 45-14

(documenting Golden Eagle’s mortgage); ECF No. 45-16 (documenting Pure East and PIRA’s

mortgages). Defendant Avenues Global Holdings LLC (“Avenues Global”) allegedly holds a

junior lien of an unspecified type on the Property. See ECF No. 1 ¶ 8. Defendant New York State

Department Of Taxation And Finance (“NYSDTF” and together with Borrower, 100 Briar Patch

LLC, Golden Eagle, Pure East, PIRA, and Avenues Global, collectively “Defendants”) is “a

necessary party to this action by virtue of the fact that there may be possible unpaid franchise taxes

due to the State of York.” Id. ¶ 9.

On September 14, 2022, Plaintiff filed the Complaint with the special summonses required

by RPAPL Section 1320.1 Compare ECF Nos. 1-8, with N.Y. REAL PROP. ACTS. LAW § 1320

(providing the summons required for a foreclosure action on a residential property with three or

fewer units). Defendants were duly served with summonses and copies of the Complaint. See

ECF Nos. 17-23. Golden Eagle and Avenues Global were the only defendants to file answers. See

ECF Nos. 25, 34. The Clerk of the Court entered certificates of default for all other defendants on

February 24, 2023. See ECF No. 29.

On July 26, 2023, Plaintiff, Golden Eagle, and Avenues Global stipulated to a briefing

schedule for the instant motion. See ECF No. 43. On August 24, 2023, those parties completed

discovery. See ECF No. 41 (setting that deadline); ECF No. 44 (joint confirmation that the

appearing parties conducted discovery as scheduled). On August 31, 2023, Plaintiff filed the

instant motion consistent with the stipulated schedule and served same by mail upon all defendants

in default. See ECF No. 45. None of the Defendants opposed this motion.

III. LEGAL STANDARDS

A. Default Judgment

The Federal Rules of Civil Procedure prescribe a two-step process for a plaintiff to obtain

a default judgment. First, “[w]hen a party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the

clerk must enter the party’s default.” FED. R. CIV. P. 55(a). Second, after a default has been entered

1 The Complaint named, in addition to Defendants, twelve unknown John Doe defendants alleged to be

necessary parties because they “hold[]or claim[]to hold certain leaseholds, tenancies, sub-tenancies, possessory or

other interests . . . in and to any judgment or liens upon” the Property. ECF No. 1 ¶ 10; see REAL PROP. ACTS. LAW

§ 1311(1) (requiring such parties to be defendants in a foreclosure action). On October 30, 2023, the Court granted

Plaintiff’s request to dismiss the John Doe Defendants because “Plaintiff has not identified any John Doe defendants

that need to be joined in the action . . . .” ECF No. 46; Oct. 30, 2023 Order Dismissing Parties.

the court may, on a plaintiff’s motion, enter a default judgment. See FED. R. CIV. P. 55(b)(2).

Before imposing a default judgment, the district court must accept well-pled allegations as

true and determine whether they establish the defendant’s liability as a matter of law. Bricklayers,

779 F.3d at 187. “While a party’s default is deemed to constitute a concession of all well pleaded

allegations of liability, it is not considered an admission of damages.” Id. at 189 (internal

alterations and quotations omitted). Instead, the plaintiff must establish to a “reasonable certainty”

entitlement to the relief requested. Cement & Concrete Workers Dist. Council Welfare Fund,

Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors

Inc., 699 F.3d 230, 234 (2d Cir. 2012) (internal quotations omitted).

B. Summary Judgment

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “No genuine

dispute of material fact exists when the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party.” McKinney v. City of Middletown, 49 F.4th 730, 737 (2d

Cir. 2022) (internal quotations omitted). “The moving party bears the initial burden of showing

that there is no genuine dispute as to a material fact.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir.

2018) (internal quotations omitted). For any burden of proof that rests with the nonmoving party,

the movant can “point[] to a lack of evidence to go to the trier of fact on an essential element of

the nonmovant’s claim.” Id. (internal quotations and alterations omitted). Once the moving party

carries its burden, “the nonmoving party must come forward with evidence that would be sufficient

to support a jury verdict in its favor.” McKinney, 49 F.4th at 738 (internal quotations omitted). In

this analysis, the Court must “construe the evidence in the light most favorable to the non-moving

party and draw all reasonable inferences in its favor.” ING Bank N.V. v. M/V Temara, 892 F.3d

511, 518 (2d Cir. 2018). Ultimately, “[t]he role of the district court on summary judgment is ‘not

tried.’” McKinney, 49 F.4th at 738 (quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)).

IV. DISCUSSION

A. Five Of The Defendants Defaulted

As detailed above, Borrower, 100 Briar Patch LLC, Pure East, PIRA, and NYSDTF each

were properly served with a summons and the Complaint but failed to answer, file an appearance,

or otherwise defend this action. See supra Part II. The Clerk of the Court properly entered a

certificate of default for those defendants on February 24, 2023. See ECF No. 29.

B. Borrower’s Liability

Under New York law, “a plaintiff in an action to foreclose a mortgage [must] demonstrate:

‘the existence of the mortgage and mortgage note, ownership of the mortgage, and the defendant’s

default in payment.’” Gustavia Home, LLC v. Bent, 321 F. Supp. 3d 409, 414 (E.D.N.Y. 2018)

(quoting Campaign v. Barba, 805 N.Y.S.2d 86, 86 (2d Dep’t 2005)). “Once the plaintiff submits

the mortgage, the unpaid note, and evidence of the default, it has demonstrated its prima facie case

of entitlement to judgment.” Id. (citing Fleet Natl. Bank v. Olasov, 793 N.Y.S.2d 52, 52 (2d Dep’t

2005)).

Here, Plaintiff submitted copies of the Agreements and chain of assignments, (ECF Nos.

1-2, 1-3, 1-4), which together establish the existence—and Plaintiff’s ownership—of the Mortgage

and Note. See OneWest Bank, N.A. v. Melina, 827 F.3d 214, 222 (2d Cir. 2016) (“[A] written

assignment of the underlying note . . . prior to the commencement of the foreclosure action is

sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable

incident.” (quoting U.S. Bank, N.A. v. Collymore, 890 N.Y.S.2d 578, 580 (2d Dep’t 2009)).

Plaintiff submitted evidence of Borrower’s default in the form of an affidavit by Britney

Wilson, Document Execution Associate of Nationstar Mortgage LLC, Plaintiff’s mortgage

servicer, which states that Borrower defaulted on the Agreements on September 1, 2021. See ECF

under the terms of the Agreements, as well as proof that it complied with its obligations under the

RPAPL. See supra Part I.A (detailing, inter alia, Plaintiff’s compliance with its contractual

obligations and RPAPL §§ 1304, 1306); ECF Nos. 2-8 (showing summonses compliant with

RPAPL § 1320); ECF No. 45-23 (reflecting the Notice of Pendency filed consistent with RPAPL

§ 1331).

This documentary evidence, together with the allegations in the Complaint, are sufficient

to establish Borrower’s liability. Thus, Plaintiff has established its right to foreclose upon the

Property. Accordingly, a judgment of foreclosure and sale will be entered.

C. 100 Briar Patch LLC’s Liability

Under New York law, “[w]hen a mortgagor conveys property burdened by a mortgage, as

a matter of law, the grantee takes title subject to the mortgage of record.”2 2 Bergman on New

York Mortgage Foreclosures § 12.04 (2023); see Andy Assocs., Inc. v. Bankers Tr. Co., 49 N.Y.2d

13, 20 (1979) (holding that a purchaser of property after a mortgage is recorded “has no cause for

complaint . . . when its interest is upset as a result of a prior claim against the land the existence of

which was apparent on the face of the public record at the time it purchased”); Courchevel 1850

LLC v. Mohammed Alam, 464 F. Supp. 3d 475, 482 (E.D.N.Y. 2020) (explaining that one who

acquirers a New York property subject to a recorded mortgage obtains said property “burdened by

the lien” (internal quotations omitted)).

As explained above, the Mortgage was recorded in 2006, Borrower transferred 50%

ownership of the Property to nonparty Priscilla Ratazzi Whittle in 2013, and Ms. Whittle

transferred that interest to defendant 100 Briar Patch LLC in 2017. See ECF No. 45-6 (reflecting

2 This is because “[t]he recording of a transaction involving real property provides potential subsequent

purchasers and encumbrancers with notice of previous conveyances and encumbrances that might affect their

interests.” Miller v. Stillwell Rd., Inc., 166 N.Y.S.3d 643, 647 (2d Dep’t 2022) (internal quotations omitted).

transfers to 100 Briar Patch LLC). Accordingly, default judgment against 100 Briar Patch LLC—

limited to only foreclosure on the Property—is warranted given Plaintiff’s above-described

entitlement to foreclosure.3 See Miss Jones, LLC v. Bisram, No. 16-CV-7020, 2018 WL 2074200,

at *3 (E.D.N.Y. Feb. 5, 2018) (recommending grant of default judgment and order of foreclosure

and sale against record owner of property not alleged to have been a signatory to the note or

mortgage), report and recommendation adopted, 2018 WL 2074205 (E.D.N.Y. Feb. 22, 2018); JXB

84 LLC v. Khalil, No. 15-CV-6251, 2017 WL 1184001, at *4 (E.D.N.Y. Feb. 17, 2017) (same),

report and recommendation adopted, 2017 WL 1184141 (E.D.N.Y. Mar. 29, 2017).

D. Other Defendants’ Nominal Liability

Under the RPAPL, the necessary parties to a mortgage foreclosure include “[e]very person

having any lien or incumbrance upon the real property which is claimed to be subject and

subordinate to the lien of the plaintiff.” REAL PROP. ACTS. LAW § 1311(3). “The rationale for

joinder of these interests derives from the underlying objective of foreclosure actions—to

extinguish the rights of redemption of all those who have a subordinate interest in the property and

to vest complete title in the purchaser at the judicial sale.” 71-21 Loubet, LLC v. Bank of Am.,

N.A., 174 N.Y.S.3d 400, 404 (2d Dep’t 2022) (internal quotations omitted). Plaintiff seeks to

extinguish the subordinate liens on the Property held by Golden Eagle, Pure East, PIRA, Avenues

Global, and the NYSDTF. Plaintiff must therefore establish this “nominal liability” for each

defendant. E.g., Onewest Bank N.A. v. Louis, No. 15-CV-00597, 2016 WL 3552143, at *12

(S.D.N.Y. June 22, 2016) (internal quotations omitted). “To plead nominal liability, a plaintiff

must allege ‘in great detail’ the nature of a defendant’s interest in the subject property.” Miss Jones

LLC v. Brown, No. 17-CV-898, 2020 WL 13889871, at *7 (E.D.N.Y. Aug. 14, 2020) (quoting

3 100 Briar Patch LLC is not liable to pay the debt underlying the Mortgage because it is not a signatory to the

Note or any other document obligating it to pay the Note debt. See Courchevel, 464 F. Supp. 3d at 482.

2015)), report and recommendation adopted, 2020 WL 5503535 (E.D.N.Y. Sept. 11, 2020).

Plaintiff submitted documents confirming that Golden Eagle, Pure East, and PIRA hold

subordinate mortgages on the Property. See ECF No. 45-14 (documenting Golden Eagle’s

mortgage); ECF No. 45-15 (documenting Pure East and PIRA’s mortgages). As such, Plaintiff

established “nominal liability” sufficient for judgment against those defendants extinguishing their

interests in the Property. See, e.g., CIT Bank, N.A. v. Howard, No. 14-CV-7470, 2018 WL

3014815, at *13 (E.D.N.Y. June 15, 2018) (imposing nominal liability against defendants after

reviewing documents confirming their subordinate property interests).

The Court reaches a different conclusion with respect to the two remaining defendants.

Plaintiff did nothing more than allege, in conclusory fashion, that Avenues Global “holds a junior

lien against the Subject Property” and NYSDTF “may” have an interest in the Property due to

“possible” unpaid taxes owed to New York State. ECF No. 1 ¶¶ 8-9. “Lacking here are well-

pleaded allegations of nominal liability on [Avenues Global and NYSDTF’s] part” such as how or

when either of them “came about its lien on the Property demonstrating that [said] lien or interest

is subordinate to the Mortgage.”4 Freedom Mortg. Corp. v. Habeeb, No. 19-CV-05881, 2023 WL

5181444, at *13 (E.D.N.Y. July 27, 2023), report and recommendation adopted, 2023 WL 5179668

(E.D.N.Y. Aug. 11, 2023). Plaintiff also did not submit documents with the Motion concerning

the purported liens of these two defendants.5 See id. (finding nominal liability against a defendant

4 Plaintiff’s allegations against NYSDTF are deficient for the similar but independent reason that they lack

“[d]etailed facts showing the particular nature of the [NYSDTF’s] interest in or lien on the real property” as the RPAPL

requires. REAL PROP. ACTS. LAW § 202; compare id. (requiring complaints naming the NYSDTF as a defendant in a

foreclosure action to allege certain facts depending on NYSDTF’s lien type), with ECF No. 1 ¶ 9; see CIT Bank, N.A.

v. Paganos, No. 14-CV-3987, 2015 WL 13731361, at *6 (E.D.N.Y. Sept. 25, 2015) (declining to impose nominal

liability against NYSDTF because “Plaintiff offers no further detail or documents describing the alleged ‘possible’

lien, nor does Plaintiff explain its failure to obtain such information”), report and recommendation adopted in relevant

part, 2016 WL 3945343 (E.D.N.Y. July 19, 2016).

5 This shortcoming stands in contrast to Plaintiff’s submission documenting the subordinate nature of Golden

Eagle, Pure East, and PIRA’s respective interests in the Property. See ECF No. 45-14; ECF No. 45-15.

defendant’s supposedly subordinate interest in the property); Landi, 2015 WL 5657358, at *3

(declining to impose nominal liability against a defendant because the plaintiff failed to adequately

describe that defendant’s interest in the property or submit documentation for it). For these

reasons, the Court declines to impose liability against Avenues Global and NYSDTF.

E. Damages

In addition to the foreclosure and sale of the Property, Plaintiff requests from Borrower

$8,160,308.42 composed of (1) $8,144,675.42 in compensatory damages for amounts owed under

the Agreements, (2) $13,050.00 in attorney’s fees in connection with this action, and (3) $2,583.00

in costs in connection with this action. See ECF No. 45-2 ¶¶ 23-24. The Court may, without

holding a hearing, rely on documentary evidence to determine damages. See Bricklayers, 779 F.3d

at 189 (affirming default judgment’s award of damages calculated without a hearing based on

briefs, audits, and affidavits); Metro Found. Contractors, 699 F.3d at 234-35 (holding that default

judgment damages may be based on “detailed affidavits and documentary evidence” and affirming

default judgment damages so awarded). The Court finds, for the reasons set forth herein, that

Plaintiff’s submissions adequately support the requests for compensatory damages and costs but

are insufficient to support the request for attorney’s fees. Accordingly, Plaintiff is awarded a total

of $8,147,258.42

1. Compensatory Damages

The Court finds that Plaintiff’s submissions, including the affidavit from Brittney Wilson,

establish its requested compensatory damages to a reasonable certainty. See ECF No. 45-3 ¶ 17

(reporting amounts owed for principal balance, interest, and advancements); ECF No. 45-13

(detailing underlying transactions and calculations in support of amounts owed). Accordingly,

Plaintiff is awarded $8,144,675.42 in compensatory damages.

In a diversity action, as here, state law controls the availability and calculation of attorney’s

fees. See, e.g., Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d

168, 177 (2d Cir. 2005) (applying New York law to evaluate attorney’s fees awarded in connection

with a breach of contract claim). The Mortgage is governed by New York law. See ECF No. 45-

7 ¶ 16. “Since there is no statute in New York authorizing the recovery of an attorney’s fee in a

mortgage foreclosure action, such a fee may only be recovered if it is contractually authorized.”

Vigo v. 501 Second St. Holding Corp., 994 N.Y.S.2d 354, 356 (2d Dep’t 2014). The intent to

award attorney’s fees must be “unmistakably clear from the language of the contract.” Bank of

N.Y. Tr. Co. v. Franklin Advisers, Inc., 726 F.3d 269, 283 (2d Cir. 2013) (internal quotations

omitted). That is the case here. The Agreements expressly authorize reasonable attorney’s fees

necessary to enforce the Agreements. See ECF No. 45-6 ¶ 7(e); ECF No. 45-7 ¶ 22.

Plaintiff, however, has not adequately supported the instant request for attorney’s fees. An

attorney’s fee award under New York law must be “reasonable and warranted for the services

actually rendered” based on factors such as “the time, effort, and skill required; the difficulty of

the questions presented; counsel’s experience, ability, and reputation; the fee customarily charged

in the locality; and the contingency or certainty of compensation.”6 Vigo, 994 N.Y.S.2d at 356.

“New York courts put the burden of establishing fees’ reasonableness on the party seeking fees.”

Exec. Risk Indem., Inc. v. Fieldbridge Assocs. LLC, 642 F. App’x 25, 26 (2d Cir. 2016) (collecting

cases). Yet Plaintiff’s memorandum of law in support of the Motion does not address Plaintiff’s

request for attorney’s fees. See generally ECF No. 45-4. And the declaration from Plaintiff’s

6 The standard for awarding attorney’s fees under federal law is similar. See Arbor Hill Concerned Citizens

Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 184 (2d Cir. 2008) (setting

forth the factors relevant to determining a reasonable hourly rate, including “the complexity and difficulty of the case”

and its “timing demands”); Cruz v. Loc. Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir.

1994) (instructing courts to consider hourly rates “prevailing in the community for similar services of lawyers of

reasonably comparable skill, experience, and reputation” (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)).

when work was performed, by whom, or the role and experience of each person at the time they

performed the reported task. See ECF No. 45-29 ¶¶ 4-5 (seeking to recover a $300 hourly rate for

the cumulative time reportedly spent across unspecified dates on tasks performed “by this firm and

Plaintiff’s prior counsel”). “Absent such a showing, the plaintiff cannot establish that the

attorney’s fees are reasonable and warranted for the services actually rendered . . . .’’ People’s

United Bank v. Patio Gardens III, LLC, 38 N.Y.S.3d 262, 264 (2d Dep’t 2016) (internal quotations

omitted); see Exec. Risk Indem., 642 F. App’x at 26 (affirming denial of attorney’s fees under New

York law because plaintiff “failed to provide the district court with sufficient information”

regarding counsel’s “experience, ability and reputation”).

In addition to lacking sufficient support, the attorney’s fee request is overly broad. Plaintiff

impermissibly seeks to recover future attorney’s fees. See ECF No. 45-29 ¶ 4 (seeking to recover

six hours of work “[e]stimated to be performed” once foreclosure and sale are authorized);

Onewest Bank, N.A. v. Cole, No. 14-CV-03078, 2015 WL 4429014, at *7 (E.D.N.Y. July 17, 2015)

(denying requested attorney’s fees for “tasks that have not yet occurred, including ‘Post sale

activity’ despite the Court not yet ordering sale”). Plaintiff also seeks attorney’s fees for twelve

hours of time spent to “research and respond to” the Court’s October 6, 2022, Order To Show

Cause. See ECF No. 45-29 ¶ 4. That effort resulted from Plaintiff’s failure to properly allege

subject matter jurisdiction in the Complaint—a shortcoming Plaintiff could have avoided through

proper pleading. See Oct. 6, 2022 Order To Show Cause. Accordingly, Plaintiff cannot recover

attorney’s fees for its response to the Order To Show Cause. See Raja v. Burns, 43 F.4th 80, 87

(2d Cir. 2022) (affirming that courts should exclude unnecessary time expenditures from attorney’s

fee awards); Marshall v. Randall, No. 10-CV-2714, 2013 WL 12347282, at *10 (E.D.N.Y. Jan. 24,

2013) (excluding from fee award time spent researching, conferring about, and preparing a certain

222, 231 (2d Cir. 2019) (explaining that an attorney’s fees award must reflect “that a reasonable,

paying client wishes to spend the minimum necessary to litigate the case effectively” (internal

quotations omitted)).

This is not the first time that a court in this Circuit has—for the above-described reasons

—denied a request for attorney’s fees from Battista or on behalf of Plaintiff. The court in

Nationstar Mortg. LLC v. Kadlec found the attorney’s fee request deficient because Battista,

among other things, “elected not to provide dates on which the tasks were performed,” did not

“denote who performed the tasks or indicate whether he had the assistance of a paralegal,” and

“erroneously requests fees for activities that have not yet occurred.” No. 20-CV-363, 2021 WL

7906568, at *7 (E.D.N.Y. Jan. 11, 2021). Likewise, in U.S. Bank Tr., N.A. v. Dingman,

notwithstanding that the amount claimed “seem[ed] reasonable,” the court denied Plaintiff’s

attorney’s fee request for lack of sufficient support. No. 16-CV-1384, 2016 WL 6902480, at *6

(S.D.N.Y. Nov. 22, 2016); see also U.S. Bank Tr., N.A. v. Monroe, No. 15-CV-1480, 2017 WL

923326, at *1 n.1 (N.D.N.Y. Mar. 8, 2017) (instructing Plaintiff “not to include requests for

attorney’s fees in any subsequent motion for default judgment” absent the requisite support).

The Second Circuit has held that “acceptance of additional evidentiary submissions in

connection with” an attorney’s fee request governed by New York law is “a matter within the

district court’s discretion.” Exec. Risk Indem., 642 F. App’x at 26 (citing Williams v. Citigroup,

Inc., 659 F.3d 208, 214 n.3 (2d Cir. 2011) (per curiam)). As Plaintiff and Battista were on notice

of the deficiencies in the instant attorney’s fee request, the undersigned will not allow Plaintiff to

supplement its fee application. See id. (affirming district court’s refusal to accept and consider

additional materials in support of attorney’s fee request).

The Agreements obligate Borrower to pay all costs and disbursements, to the fullest extent

allowed by law, in connection with enforcing the Agreements. See ECF No. 45-6 ¶ 7(E); ECF No.

45-7 ¶ 22. “[O]ut-of-pocket litigation costs are generally recoverable if they are necessary for the

representation of the client.” Prot. One Alarm Monitoring, Inc. v. Exec. Prot. One Sec. Serv., LLC.,

553 F. Supp. 2d 201, 210 (E.D.N.Y. 2008) (internal quotations and alteration omitted); see

LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (similar). Plaintiff accordingly

requests $2,583.00 for costs incurred in connection with this action, such as (among other things)

the filing fee and service of process. See ECF No. 45-28. “Such relief is routinely granted in

foreclosure actions where,” as here, they are “provided for in the relevant agreements.” U.S. Bank

Nat’l Ass’n v. 2150 Joshua's Path, LLC, No. 13-CV-1598, 2017 WL 4480869, at *5 (E.D.N.Y.

Sept. 30, 2017).

Plaintiff “bears the burden of adequately documenting and itemizing the costs requested.”

Kadlec, 2021 WL 7906568, at *6 (internal quotations omitted). “Court fees reflected on the

Court’s docket and costs for which a claimant provides extrinsic proof, such as an invoice or

receipt, are considered sufficiently substantiated, as is a sworn statement or declaration under

penalty of perjury that certain amounts were expended on particular items.” Antoine v. Brooklyn

Maids 26, Inc., 489 F. Supp. 3d 68, 105 (E.D.N.Y. 2020). Plaintiff’s Bill of Costs, in which Battista

swears under penalty of perjury to itemized costs Plaintiff seeks to recover (see ECF No. 45-28),

substantiates the relief requested therein. See, e.g., Mendoza v. CGY & J Corp., No. 15-CV-9181,

2017 WL 4685100, at *3 (S.D.N.Y. Oct. 17, 2017) (awarding certain costs because counsel

“attested under penalty of perjury” to them).

V. CONCLUSION

For the reasons stated above, the Motion is GRANTED IN PART and DENIED IN PART

as follows. Plaintiff’s motion for default judgment is (1) granted as to Borrower, 100 Briar Patch

for summary judgment is granted as to Golden Eagle and denied as to Avenues Global, with leave

to renew. If it does not seek to renew the motions against NYSDTF and Avenues Global, Plaintiff

shall file a proposed judgment consistent with this Order by December 11, 2023.

SO ORDERED.

Dated: November 27, 2023

Central Islip, New York

/s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE