The opinion
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
FREEDOM MORTGAGE CORPORATION,
Plaintiff, MEMORANDUM & ORDER
19-cv-05881 (JMA) (JMW)
-against- FILED
CLERK
PRISCILLA A. HABEEB, BIBI Z. SANKAR, and
SLOMINS INC, 9:05 am, Jul 0 2, 2024
U.S. DISTRICT COURT
Defendants. EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X LONG ISLAND OFFICE
AZRACK, United States District Judge:
Plaintiff Freedom Mortgage Corporation (“Plaintiff”) brought this action to foreclose on a
mortgage encumbering the property at 3077 Cornwell Place, Baldwin, New York 11510
(“Property”). (See Compl., ECF No. 1.) Presently before the Court is Plaintiff’s unopposed
motion for default judgment (“Motion”) against Defendant Slomins Inc. (See ECF No. 47.) For
the below reasons, Plaintiff’s Motion is GRANTED.
I. BACKGROUND
On February 6, 2015, Defendants Priscilla A. Habeeb and Bibi Z. Sankar, (“Mortgagors”)
executed and delivered to The Federal Savings Bank—a Federal Savings Bank—a Note (see ECF
No. 47-2) and a Mortgage (see ECF No. 47-3) in the amount of $439,814.00. (See ECF No. 47-1,
¶ 4 (“Monahan Decl.”).) The Mortgage secured repayment of the Note with a lien on the Property
and was recorded in the Nassau County Clerk’s Office on February 23, 2015, in Liber Book:
M40225, Page 357. (See ECF No. 47-6, ¶¶ 4–5 (“Younger Affidavit.”).)
The Mortgage was then assigned to Plaintiff by an assignment of mortgage dated October
7, 2019, and recorded October 16, 2019 at Liber Book: M 43739 Page: 457 Instrument No.: 2019-
89835. (See Monahan Decl. ¶ 5; see also Younger Affidavit ¶ 6.) On May 1, 2019, Mortgagors
defaulted on their obligations under the Note and Mortgage by failing to make the monthly
Monahan Decl. ¶ 6; see also Younger Affidavit ¶ 7.)
On June 27, 2019, Notices of Default under the terms of the Mortgage were sent in
compliance with Plaintiff’s standard procedures by certified mail and first-class mail to the
Mortgagors at 3077 Cornwell Place, Baldwin, New York 11510 (“Mortgaged Premises.”) (See
Monahan Decl. ¶ 7; see also ECF No. 47-1, ¶¶ 4-5 (“Affidavit of Mailing”).) Additionally, in
compliance with Real Property Actions and Proceedings Law (“RPAPL”) Section 1304, 90-Day
Notices, in at least 14-point type with a list of at least five housing counseling agencies, were
served on May 8, 2019, in a separate envelope from any other notices via certified and first-class
mail to the Mortgagors at the Mortgaged Premises. (See Monahan Decl. ¶ 8; see also Affidavit of
Mailing ¶¶ 4, 6.)
On October 17, 2019, Plaintiff began this foreclosure action against Mortgagors and
Defendant. (See Monahan Decl. ¶ 9.) Defendant was named as a defendant in this action because
it is the holder of a lien encumbering the Property in the amount of $1.968.93 dated November 21,
2016, and recorded on March 20, 2017, in the Nassau County Clerk’s Office with Document
Number 2017-00060372 that is subject to and subordinate to Plaintiff’s Mortgage. (See Monahan
Decl. ¶ 10; see also ECF No. 47-17 (“Slomins Inc Judgment”).) All Defendants were duly served
with the pleadings thereafter. (See Monahan Decl. ¶ 11; see also ECF No. 47-11.) On November
19, 2019, Defendant Priscilla A. Habeeb filed an answer with eight affirmative defenses. (See
Monahan Decl. ¶ 12; see also ECF No. 47-12.) On December 5, 2019, the Court issued a
Certificate of Default against Defendants Slomins Inc and Bibi Z. Sankar. (See Monahan Decl. ¶
13; see also ECF No. 47-13.) Following the commencement of this action, the Note and Mortgage
were sold and assigned to RMTP Trust. (See Monahan Decl. ¶ 15; see also Young Affidavit ¶ 8.)
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default judgment against Bibi Z. Sankar and Slomins Inc, and for appointment of a referee to
compute the sums owed to Plaintiff. (See ECF No. 39.) Priscilla A. Habeeb opposed Plaintiff’s
motion for summary judgment, and Plaintiff replied to Priscilla A. Habeeb’s opposition. (See ECF
Nos. 40–41.) On May 8, 2023, the Court referred the motion to Magistrate Judge James M. Wicks
for a report and recommendation. (See Elec. Order, May 8, 2023.)
On July 27, 2023, Magistrate Judge Wicks issued a report and recommendation
recommending the Court grant Plaintiff’s motion for summary judgment as to Prascilla A. Habeeb
and for default judgment against Bibi Z. Sankar. (See ECF No. 43.) Magistrate Judge Wicks
recommended the Court deny with leave to renew Plaintiff’s motion for default judgment against
Defendant for failure to demonstrate Defendant’s interest in the Property. (-Se-e- id-.) No objections
were filed to the Report and Recommendation. On August 11, 2023, the Court issued an Order
adopting the Report and Recommendation in its entirety. (See ECF No. 44.)
For the below reasons, Plaintiff has established entitlement to default judgment as to
Defendant.
II. LEGAL STANDARD
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
against the defendant, and provided the defendant failed to appear and move to set aside the default,
the court may, on a plaintiff’s motion, enter a default judgment. See FED. R. CIV. P. 55(b)(2).
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true and determine whether they establish the defendant’s liability as a matter of law. See
Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182,
187 (2d Cir. 2015). “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
quotation marks and alterations 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 quotation marks omitted).
III. DISCUSSION
A. Defendant Defaulted
As detailed above, Defendant was properly served with a summons and the Complaint but
failed to answer, file an appearance, or otherwise defend this action. See supra Section I. The
Clerk of the Court properly entered a certificate of default for Defendant on December 5, 2019.
(See ECF No. 11.)
B. Mortgagors’ 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)).
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(see Monahan Decl., Ex. B). Those documents establish the existence—and Plaintiff’s
ownership—of the Mortgage and Note. See, e.g., Nissan Motor Acceptance Corp. v. Nemet
Motors, LLC, No. 19-CV-3284, 2022 WL 4651667, at *3 (E.D.N.Y. Sept. 29, 2022) (“Where, as
here, the plaintiff is also the original lender, production of the mortgage and note establish
standing.”).
Plaintiff submitted evidence of Mortgagors’ default in the form of an affidavit by Anthony
Younger (see Monahan Decl., Ex. E ¶ 7) and a Loan History (see Monahan Decl., Ex D), which
evidences that Mortgagors defaulted on the loan on May 1, 2019, and have not cured their default.
Plaintiff also submitted the notices that it was required to send to the Mortgagors under the
Agreements, as well as proof that it complied with its obligations under the RPAPL. See supra
Section I. This documentary evidence, together with the allegations in the Complaint, are
sufficient to establish a prima facie case for foreclosure. Thus, RMTP Trust has established its
right to foreclose upon the Property.
C. Defendant’s 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 quotation marks omitted). Accordingly,
Plaintiff seeks to extinguish the subordinate lien on the Property held by Defendant. Plaintiff bears
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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 Wells Fargo Bank, N.A. v. Landi, No. 13-CV-
5822, 2015 WL 5657358, at *3 (E.D.N.Y. Sept. 22, 2015)), report and recommendation adopted,
2020 WL 5503535 (E.D.N.Y. Sept. 11, 2020).
Plaintiff submitted documents confirming in detail that Defendant holds a subordinate lien
on the Property. (See Monahan Decl., Ex. P ¶ 10.) For example, Plaintiff established that
Defendant has an interest in the property through a judgment for $1.968.93 dated November 21,
2016, and recorded on March 20, 2017 in the Nassau County Clerk’s Office with Document
Number 2017-00060372. (See Monahan Decl., Ex. P ¶ 10). Plaintiff also alleged in the Complaint
that Defendant’s lien is subject and subordinate to Plaintiff’s Mortgage. (See Monahan Decl., Ex.
I ¶ 9). Moreover, Defendant’s lien was recorded two years after Plaintiff’s Mortgage. (See
Monahan Decl., Ex. B ¶ 4.) As such, Plaintiff established “nominal liability” sufficient for
judgment against Defendant extinguishing its interest 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).
Moreover, Plaintiff submitted the affidavit of service demonstrating that Defendant was
duly served with the pleadings in this action. (See Monahan Decl., Ex. J.) Specifically, on October
25, 2019, Plaintiff effected service of process on Defendant Slomins Inc. through an authorized
agent under CPLR § 311. (See id.) Defendant neither answered nor responded in any way to the
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expired. There is no sign that the Defendant’s failure to respond to the Complaint, despite being
properly served, was anything but deliberate. Accordingly, default judgment should be entered.
IV. CONCLUSION
For the above reasons, the Motion for Default Judgment against Defendant Slomins Inc. is
GRANTED. (See ECF No. 47.) The Clerk of Court is respectfully directed to serve a copy of this
Order on the Defendant at its address of record.
SO ORDERED.
Dated: July 2, 2024
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE
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