Ruiz

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CIT BANK, N.A., formerly known as One

West Bank, N.A.,

Plaintiff,

MEMORANDUM & ORDER

-against-

14-CV-3207 (NRM) (RML)

MARCO RUIZ; MERCEDES RUIZ;

PNC BANK, NATIONAL

ASSOCIATION, successor by merger to

National City Bank; CITY OF NEW

YORK PARKING VIOLATIONS

BUREAU; NEW YORK CITY

ENVIRONMENTAL CONTROL

BOARD; NEW YORK CITY TRANSIT

ADJUDICATION BUREAU; MR.

ARTINEZ; MARIA COLON; and

MONICA LOPEZ,

Defendants.

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NINA R. MORRISON, United States District Judge:

This is a foreclosure action brought pursuant to the Court’s diversity

jurisdiction under 28 U.S.C. § 1332. Presently before the Court are (1) Plaintiff’s

unopposed motion for summary judgment against Defendants Mercedes Ruiz and

Marco Ruiz (the “Ruiz Defendants”), ECF No. 147; and (2) Plaintiff’s motion for

default judgment against the other non-appearing Defendants, ECF No. 80. For the

reasons outlined below, Plaintiff’s motion for summary judgment is GRANTED in

part and DENIED in part, and the motion for default judgment is GRANTED in part

and DENIED in part.

BACKGROUND

The history of this case is long and complicated. The parties’ familiarity with

the factual and procedural background is assumed.

For present purposes, it is sufficient to note that Defendants Marco Ruiz and

Mercedes Ruiz (the “Defendants”) obtained a $492,000 mortgage loan from IndyMac

Bank, F.S.B., on July 23, 2007. ECF No. 1-9 at 4–9.1 This loan was secured by a

mortgage on real property located at 134-09 Hawtree Street in Ozone Park, New

York. Id. The mortgage was recorded in the Office of the City Register of the City of

New York on August 28, 2007. Id. at 10–11. Defendants subsequently executed and

delivered a loan modification agreement, which modified the promissory note and

mortgage, on August 18, 2009. ECF No. 150-9 at 2, 40–47.

Defendants defaulted on the mortgage loan by failing to make payments owed

beginning on December 1, 2010. Id. at 2, 48–149. Thereafter, on November 12, 2013,

Plaintiff mailed Defendants the ninety-day notices that are required under New York

law, id. at 150–259; see also N.Y. Real Prop. Acts. L. § 1304, and filed the required

notice with the Superintendent of Financial Services on November 14, 2013, ECF No.

150-9 at 260–62; see also N.Y. Real Prop. Acts. L. § 1306(2). Plaintiff also mailed a

contractual pre-acceleration notice of default to Defendants on or about April 27,

2011. ECF No. 150-9 at 263–99.

Plaintiff commenced this action on May 22, 2014. ECF No. 1. At that time,

Plaintiff possessed the original promissory note. ECF No. 150-9 at 2. First Citizens

1 All page references are to ECF pagination unless otherwise noted.

Bank is the mortgage loan servicer and successor by merger to CIT Bank, N.A., and

had possession of the promissory note as of July 23, 2025. Id. at 2; ECF No. 150-11.

Plaintiff filed an amended complaint on October 3, 2014, ECF No. 20, and the Ruiz

Defendants answered the amended complaint on April 3, 2018, ECF No. 50.

The instant motion for default judgment and supporting papers were filed with

the Court on January 31, 2022. ECF Nos. 80, 81, and 82. The instant motion for

summary judgment against the Ruiz Defendants and supporting papers were served

upon Defendants by First Class Mail on August 7, 2025. ECF No. 144. The motion

and supporting papers were then filed with the Court on September 15, 2025. ECF

Nos. 147, 148, 149, 150 & 151.

Following its receipt of the motion for summary judgment, the Court directed

Plaintiff to explain (1) its position as to whether the Court’s resolution of the

summary judgment motion against the Ruiz Defendants depends upon a

determination of the rights of the non-appearing Defendants named in this

proceeding; and (2) what steps Plaintiff would take to resolve this proceeding against

the non-appearing Defendants, in the event the Court granted the motion for

summary judgment. Dkt. Order dated Apr. 15, 2026. On April 17, 2026, Plaintiff

filed a letter in response to the Court’s Order “request[ing] that the Court decide the

pending motion for Summary Judgment [] as it pertains to the Ruiz defendants, as

well as the pending motion for default judgment as it pertains to the non-appearing

defendants.” ECF No. 152 at 1.

LEGAL STANDARD

I. Unopposed motion for summary judgment

“The court shall grant summary judgment if the movant shows that 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). At summary judgment, the Court must “ensure

that each statement of material fact is supported by record evidence sufficient to

satisfy the movant’s burden of production even if the statement is

unopposed.” Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014). While Federal

Rule of Civil Procedure 56 “requires that a grant or denial of summary judgment is

accompanied by an explanation[,] . . . absent some indication of a material issue being

overlooked or an incorrect legal standard being applied, [the Second Circuit] do[es]

not require district courts to write elaborate essays using talismanic phrases.” Id. at

196–97.

The Court must “examin[e] the moving party’s submission to determine if it

has met its burden of demonstrating that no material issue of fact remains for trial.

If the evidence submitted in support of the summary judgment motion does not meet

the movant’s burden of production, then summary judgment must be denied even if

no opposing evidentiary matter is presented.” Wells Fargo Bank, N.A. v. 840

Westchester Ave. NMA, LLC, 786 F. Supp. 3d 586, 595 (S.D.N.Y. 2025) (quoting D.H.

Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006)). “In foreclosure actions

where a motion for summary judgment is fully unopposed but the non-movant has

previously filed an Answer, courts consider whether the affirmative defenses raised

genuine disputes of material fact that defeat the prima facie case.” Green Mountain

Holdings (Cayman) LTD v. 501 Lafayette Ave LLC, No. 21-CV-5844 (MKB), 2025 WL

2494292, at *7 (E.D.N.Y. Aug. 28, 2025) (citation omitted).

II. Motion for default judgment

Where a movant seeks default judgment on a claim that is not for a sum

certain, it must apply for such judgment with a court following the clerk’s entry of

default. Fed. R. Civ. P. 55(b)(2). A defendant’s default constitutes “an admission of

all well-pleaded allegations against the defaulting party.” Vt. Teddy Bear Co. v. 1-

800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). However, the court is still

“required to determine whether the [plaintiff]’s allegations establish [defendant]’s

liability as a matter of law.” Finkel v. Romanowicz, 577 F.3d 79, 85 (2d Cir. 2009).

DISCUSSION

I. Plaintiff is entitled to summary judgment against the Ruiz

Defendants, and the affirmative defenses asserted by the Ruiz

Defendants in their answer do not raise genuine disputes of

material fact

“In a mortgage foreclosure action under New York law, a lender must prove

(1) the existence of a debt, (2) secured by a mortgage, and (3) a default on that debt.”

U.S. Bank, N.A. v. Squadron VCD, LLC, 504 F. App’x 30, 32 (2d Cir. 2012) (summary

order) (first citing R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 n.2 (2d Cir. 1997);

and then citing United States v. Freidus, 769 F. Supp. 1266, 1277 (S.D.N.Y. 1991)).

“Under New York law, a plaintiff in a foreclosure action establishes prima facie

entitlement to summary judgment ‘by producing evidence of the mortgage, the unpaid

note, and the defendant’s default.’” CIT Bank N.A. v. Donovan, 856 F. App’x 335, 336

(2d Cir. 2021) (summary order) (quoting Wells Fargo Bank, N.A. v. Walker, 35

N.Y.S.3d 591, 592 (N.Y. App. Div., 3d Dep’t 2016)); see, e.g., JPMorgan Chase Bank,

Nat’l Ass’n v. Weinberger, 37 N.Y.S.3d 286, 289 (N.Y. App. Div., 2d Dep’t 2016). “This

creates a ‘presumptive right to foreclose that can only be overcome by an affirmative

showing by the mortgagor.’” Freedom Mortg. Corp. v. Heirs, No. 19-CV-01273 (KMK),

2020 WL 3639989, at *4 (S.D.N.Y. July 6, 2020) (quoting E. Sav. Bank, FSB v.

Evancie, No. 13-CV-00878 (ADS) (WDW), 2014 WL 1515643, at *4 (E.D.N.Y. Apr. 18,

2014)).

Here, Plaintiff has established its prima facie entitlement to summary

judgment through the affidavit of Default Analyst Samantha Davis and its

supporting documentation. ECF No. 150-9. This affidavit documents the note, id. at

8–13; the mortgage, id. at 15–39; a 2009 loan modification, id. at 41–47; and a

detailed payment history, id. at 49–301, which supports Plaintiff’s assertion that the

Ruiz Defendants failed to make payments due December 1, 2010 and thereafter, id.

at ¶ 7. This documentation is sufficient to establish Plaintiff’s “presumptive right to

foreclose.” 840 Westchester Ave. NMA, LLC, 786 F. Supp. 3d at 596 (2025) (quoting

Heirs, 2020 WL 3639989, at *4).

“The burden then shifts to [Defendants] to make any affirmative showing of a

bona fide defense to the action, such as fraud, duress, oppressive or unconscionable

actions, or bad faith.” Id. at 596–97 (citation modified). The Ruiz Defendants raised

four affirmative defenses to this action in their 2018 answer. ECF No. 50 at 1–4

(asserting that (1) this Court is without subject matter jurisdiction, (2) Plaintiff lacks

standing to bring this action, (3) the amended complaint fails to state a claim, and

(4) violations of New York Real Property Actions and Proceedings Law §§ 1303, 1304,

and 1306). However, these affirmative defenses, which are conclusory and wholly

without factual support, do not raise any genuine disputes of material fact that would

defeat summary judgment.

First, the record establishes that One West Bank, N.A., the Plaintiff at the

time this action was commenced, was a citizen of California, ECF No. 150-2 at 33,

and the Second Circuit previously acknowledged that One West Bank was a citizen

of California, OneWest Bank, N.A. v. Melina, 827 F.3d 214, 221 (2d Cir. 2016). The

complaint and amended complaint alleged complete diversity between the parties,

and Plaintiff has adduced sufficient evidence to establish by a preponderance of

evidence that complete diversity existed at the time of this proceeding’s

commencement.

Second, the record establishes that (1) IndyMac Bank assigned the mortgage

to One West Bank in 2012, ECF No. 150-2 at 33–36; and (2) One West Bank was in

physical possession of the note prior to the commencement of this proceeding, ECF

No. 150-9 ¶ 5. “New York courts have repeatedly held that proof of physical

possession [of the note]—such as the affidavits of OneWest’s corporate representative

and counsel in this case—is sufficient on its own to prove a plaintiff's standing to

foreclose on the mortgage associated with the note.” Melina, 827 F.3d at 223.

Finally, the record establishes Plaintiff’s compliance with the requirements of

New York Real Property Actions and Proceedings Law §§ 1303, 1304, and 1306. ECF

No. 15 (proof of service of Section 1303 notice contemporaneous with service of the

complaint and summons); ECF No. 150-10 ¶¶ 8–9 (proof of service of Section 1304 90-

day notices); id. at 11–119, 121 (same); id. ¶ 10 (proof of filing the 90-day notice with

the Superintendent of Financial Services pursuant to Section 1306(2)); id. at 123–24

(same).

Accordingly, because there is no genuine dispute of material fact as to the Ruiz

Defendants’ liability, Plaintiff has established its entitlement to summary judgment

against the Ruiz Defendants.

II. Default judgment is appropriate against some, but not all, non-

mortgagor Defendants

New York law provides that “[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” shall be joined as a necessary party to a foreclosure action. N.Y. Real

Prop. Acts. L. § 1311(3). “This rule 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.” NDF1, LLC v. Cunningham, 754 F. Supp. 3d 273, 285 (E.D.N.Y. 2024)

(citation modified).

“Entry of default judgment against non-mortgagor defendants is generally

appropriate where the complaint alleges ‘nominal liability,’ meaning that any

judgments or liens a defendant may have against the property are subordinate to the

plaintiff’s lien.” Id. (citation modified). “When a default judgment is entered against

a defendant with a ‘nominal interest’ in a property, any such interest in the relevant

property is terminated.” Id. (citation omitted). “Courts regularly enter default

judgments in foreclosure actions against defendants with ‘nominal interests’ in the

relevant property, including non-owner tenants.” CIT Bank, N.A. v. Mitchell, No. 17-

CV-1969 (ILG) (SMG), 2021 WL 54081, at *4 (E.D.N.Y. Jan. 6, 2021) (citation

modified).

For municipal defendants in default, courts apply a heightened pleading

standard to determine whether the plaintiff has established nominal liability,

requiring the complaint to allege “detailed facts showing the particular nature of the

interest in or lien on the real property and the reason for making the state or city

agency a party-defendant.” Windward Bora, LLC v. Thompson, No. 18-CV-1811

(NGG) (RML), 2020 WL 1242828, at *5 (E.D.N.Y. Mar. 16, 2020) (quoting N.Y. Real

Prop. Acts. L. §§ 202(1), 202-a(1)).

Here, Plaintiff has named seven non-mortgagor Defendants, Amended Compl.

¶¶ 5–11, ECF No. 20, all of whom have failed to appear. Plaintiff alleges that “[t]he

defendant(s) claim an interest or lien encumbering the property, which is either

subordinate to Plaintiff’s mortgage, or paid in full, equitably subordinated, or adverse

to Plaintiff’s mortgage.” Amended Compl. ¶ 12. The Court considers the

appropriateness of default judgment against each of these Defendants below.

a. Mr. Artinez

Plaintiff alleges that “Mr. Artinez” is a “tenant of the property” — or at least,

that he was a tenant of the property at the time the Amended Complaint was filed

back in 2014. Amended Compl. ¶ 5. Default judgment is not appropriate against Mr.

Artinez because the Clerk denied Plaintiff’s request for a certificate of default as to

this Defendant upon finding that he was not properly named. Dkt. Entry dated Jan.

22, 2015. A certificate of default is a necessary prerequisite to default judgment. See

Escobar v. Mahopac Food Corp., No. 19-CV-00510 (FB) (JRC), 2023 WL 2587680, at

*1 (E.D.N.Y. Mar. 21, 2023) (“An entry of default against a defendant is a prerequisite

of a default judgment.”). Accordingly, the Court denies Plaintiff’s motion for default

judgment as to Mr. Artinez. This denial is without prejudice to renew in the event

Plaintiff (1) obtains a certificate of default against Mr. Artinez or (2) voluntarily

dismisses its claims against Mr. Artinez.

b. Maria Colon and Monica Lopez

Plaintiff alleges that Maria Colon and Monica Lopez are “tenant[s] of the

property.” Amended Compl. ¶¶ 6–7. Unlike “Mr. Artinez,” Plaintiff did obtain

certificates of default from the Clerk against Colon and Lopez. Clerk’s Entry of

Default dated Jan. 22, 2015. Accordingly, Plaintiff’s allegations that Colon’s and

Lopez’s interests in the property are subordinate to Plaintiff’s mortgage are deemed

conceded. Mitchell, 2021 WL 54081, at *4. This establishes that Plaintiff is entitled

to a default judgment against Colon and Lopez, terminating these tenants’ nominal

interest in the property.

c. PNC Bank, National Association

Plaintiff alleges that PNC Bank, National Association (“PNC”) is “a corporation

or other business entity” and “the holder of a lien encumbering the property, which

is subject and subordinate to Plaintiff’s mortgage.” Amended Compl. ¶ 8. In an

attachment to the amended complaint, Plaintiff asserts that PNC is a “[h]older of a

mortgage.” ECF No. 20 at 8. Plaintiff obtained a certificate of default from the Clerk

against PNC. Clerk’s Entry of Default dated Jan. 22, 2015. Accordingly, Plaintiff’s

allegations that PNC’s mortgage interest in the property is subordinate to Plaintiff’s

mortgage is deemed conceded. See Wilmington Sav. Fund Soc’y, FSB as Tr. for

Carlsbad Funding Mortg. Tr. v. Cirincione, No. 17-CV-6708 (ENV) (ARL), 2019 WL

5088077, at *6 (E.D.N.Y. Aug. 12, 2019) (granting default judgment against a non-

appearing bank defendant in a foreclosure action), report and recommendation

adopted sub nom. Wilmington Sav. Fund Soc’y, FSB v. Cirincione, 2019 WL 5087160

(Oct. 10, 2019); ARCPE Holding, LLC v. 9Q4U5E LLC, No. 19-CV-6417 (DLI) (RER),

2021 WL 8316275, at *4 (E.D.N.Y. Aug. 11, 2021) (“A well-pleaded complaint is

sufficient to ascribe liability to non-government defendants even without elaborating

on the nature of their interest in the property.” (citation omitted)). Plaintiff’s

pleading establishes PNC’s nominal liability, and the Court therefore grants

Plaintiff’s motion for default judgment against PNC.

d. New York City Parking Violations Bureau, New York City

Environmental Control Board, and New York City Transit

Adjudication Bureau

Plaintiff alleges that the New York City Parking Violations Bureau (“PVB”),

the New York City Environmental Control Board (“ECB”), and the New York City

Transit Adjudication Bureau (“TAB”) are “city agenc[ies] existing under the laws of

New York” and “the holder[s] of [] lien[s] encumbering the property, which [are]

subject and subordinate to Plaintiff’s mortgage.” Amended Compl. ¶¶ 9–11. In an

attachment to the amended complaint, Plaintiff asserts that (1) ECB is a “[h]older of

possible judgments against Marco Ruiz and/or Mercedez Ruiz”; and (2) TAB is a

“[h]older of possible judgments against Marco Ruiz and/or Mercedez Ruiz,” but that

these “judgments cannot be certified since dockets books are missing.” ECF No. 20

at 9. Plaintiff also asserts that (3) PVB is a “[h]older of possible judgments against

Marco Ruiz and/or Mercedez Ruiz,” id., and attaches documentation of a potential

lien against Marco Ruiz that listed the mortgaged premises as the address of record,

id. at 10–11.

As to ECB and TAB, Plaintiff has not complied with the provisions of New York

law setting a higher pleading standard for default judgment against municipal

defendants in a foreclosure proceeding. See N.Y. Real Prop. Acts. L. § 202-a.

Plaintiff’s conclusory allegations that these agencies hold “possible judgments”

against the Ruiz Defendants is insufficient to establish their nominal liability. See

Cunningham, 754 F. Supp. 3d at 286 (denying default judgment against a

government creditor where the plaintiff did not comply with the pleading

requirements of Section 202-a).

However, Plaintiff has sufficiently pled PVB’s nominal liability through the

documents attached to the amended complaint. These documents, which indicate

that Marco Ruiz is a judgment debtor owing money to PVB because of traffic or

parking citations, ECF No. 20 at 10–11, outline the nature of PVB’s interest and

otherwise comport with the higher pleading standard for government creditors, see

Cunningham, 754 F. Supp. 3d at 286–87 (holding a plaintiff sufficiently alleged a

government creditor’s nominal liability by specifying the nature of the violation liens

against a mortgaged property and including records containing “the dates of the

violations, the penalty amounts, and their current status”). Thus, between the

allegations in the Amended Complaint and its supporting exhibits, Plaintiff has

sufficiently established “the particular nature of the interest in or lien on the real

property and the reason for making such city a party-defendant.” N.Y. Real Prop.

Acts. L. § 202-a(1).

Accordingly, the Court grants Plaintiff’s motion for default judgment against

PVB but denies, without prejudice to renew, Plaintiff’s motion for default judgment

against ECB and TAB. Plaintiff must establish its reason for making ECB and TAB

Defendants to this action, which it may do by setting forth in greater detail the nature

of any judgments actually held by these agencies against the mortgaged property and

documenting these allegations by, for example, attaching a title report indicating the

interests these agencies have. See Cunningham, 754 F. Supp. 3d at 286 (“[P]laintiff

must substantiate their allegations with documentation, such as a title report.”

(citation omitted)); Mitchell, 2021 WL 54081, at *4 (holding “a copy of a title search

reflecting any and all judgments that TAB holds against [the mortgagor]” sufficient

to establish a city agency’s nominal liability). If a title search reveals that these city

agencies do not presently have an interest in the mortgaged property, Plaintiff should

voluntarily dismiss them from this proceeding.

III. Entry of judgment of foreclosure and sale is not yet appropriate

Plaintiff has requested the Court enter a judgment of foreclosure and sale and

appoint a referee to effectuate such a sale; Plaintiff has filed a proposed judgment,

which names a proposed referee, to the docket. ECF No. 150-13. However, because

the Court denies Plaintiff’s motion for default judgment as to certain non-appearing

Defendants — whom Plaintiff alleges have, or may have, interests in the mortgaged

premises — entry of judgment of foreclosure and sale is not appropriate at this time.

See Toiny LLC v. Gill, No. 18-CV-40 (NGG) (VMS), 2022 WL 4118520, at *4 (E.D.N.Y.

Sep. 9, 2022) (“[T]he rights, interests and equities of all of the parties claiming an

interest in the mortgaged premises should be settled and determined before any

judgment of foreclosure and sale is entered.” (citation omitted)); Freedom Mortg.

Corp. v. Elmore-Hernandez, No. 18-CV-1840 (DRH) (SIL), 2019 WL 2779320, at *7

(E.D.N.Y. May 8, 2019) (denying without prejudice a judgment of foreclosure and sale

until plaintiff fully demonstrated their rights to foreclosure against all defendants),

report and recommendation adopted, 2019 WL 2775620 (July 2, 2019).

CONCLUSION

Plaintiff has established the Ruiz Defendants’ liability and that it is entitled

to summary judgment against them. However, Plaintiff has not established that it

is entitled to a default judgment against all of the presently-named non-mortgagor

Defendants. Accordingly, entry of a judgment of foreclosure and sale is premature at

this juncture.

Thus, Plaintiff’s motion for summary judgment against the Ruiz Defendants is

GRANTED as to liability and DENIED without prejudice as to (1) damages and

(2) the request for entry of a judgment of foreclosure and sale.

Plaintiff’s motion for default judgment is GRANTED as to Defendants Colon,

Lopez, PNC, and PVB and DENIED without prejudice as to Defendants Mr. Artinez,

ECB, and TAB. Should Plaintiff subsequently (1) establish that it is entitled to

default judgment against Mr. Artinez, ECB, and TAB, or (2) decide to dismiss those

defendants from this proceeding, the Court would at that point entertain a renewed

motion by Plaintiff to enter a judgment of foreclosure and sale and appoint a referee,

to be proposed by Plaintiff, to calculate damages and conduct a sale of the mortgaged

property.

Plaintiff is respectfully directed to file a letter to the docket, within fourteen

days of this Memorandum & Order, informing the Court of how it intends to proceed

with the unresolved issues outlined above.

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: July 21, 2026

Brooklyn, New York