Eastern Savings Bank, FSB v. Robinson et al, No. 2:2013cv07308 - Document 75 (E.D.N.Y. 2016)
Court Description: ORDER granting 60 Motion for Default Judgment; adopting 67 Report and Recommendations; Based on the foregoing, the Homeowners objections to the May 9, 2016 Report and Recommendation by United States Magistrate Judge Steven I. Locke are overrul ed in their entirety. Therefore, on Judge Lockes recommendation, the Court grants the Banks motion for a default judgment against the Defaulting Defendants pursuant to Fed. R. Civ. P. 55, and holds that the interests of those parties in the Residence , if any, are hereby extinguished. Further, the Court grants the Banks motion for a judgment of foreclosure and sale, which will issue under separate cover in a form substantially similar to the proposed judgment submitted by the Bank. On Judge Locke s recommendation, the Court will appoint Lara Harmel, Esq. as the referee of the sale. Finally, on Judge Lockes recommendation, the Court grants the Bank the following damages, which it is entitled to recover to the extent possible through a foreclo sure and sale of the Residence: see order. Except for the limited purpose of issuing a final Judgment of Foreclosure and Sale, this case is now closed. SEE ATTACHED ORDER for further details. So Ordered by Judge Arthur D. Spatt on 6/2/2016. cm by cm/ecf to counsel; cm by fcm to Americredit Financial Services, Inc., LI Anesthesiologist, PLLC and Quinn Robinson. (Coleman, Laurie)
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Eastern Savings Bank, FSB v. Robinson et al Doc. 75 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------------------x EASTERN SAVINGS BANK, FSB, FILED CLERK 6/2/2016 2:53 pm U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE ORDER 13-cv-7308 (ADS)(SIL) Plaintiff, -againstRICHARD ROBINSON A/K/A RICHARD A. ROBINSON, GAIL ROBINSON, AMERICREDIT FINANCIAL SERVICES, INC., LI ANESTHESIOLOGIST PLLC, and QUINN ROBINSON, Defendants. -----------------------------------------------------------------------------x APPEARANCES: Kriss & Feuerstein, LLP Attorneys for the Plaintiff 360 Lexington Avenue, Suite 1200 New York, NY 10017 By: Jerold C. Feuerstein, Esq., Of Counsel Craig D. Robins, Esq. Attorney for the Defendants Richard Robinson a/k/a Richard A. Robinson and Gail Robinson 180 Froehlich Farm Blvd. Woodbury, NY 11797 NO APPEARANCE: Americredit Financial Services, Inc. Defendant LI Anesthesiologist PLLC Defendant Quinn Robinson Defendant On December SPATT, District Judge: , , the Plaintiff Eastern Savings Bank, FSB Plaintiff or the Bank commenced this diversity mortgage foreclosure action under Article York Real Property Actions and Proceedings Law 1 of the New RPAPL , seeking to foreclose its Dockets.Justia.com a/k/a Richard A. Robinson and Gail Robinson the (omeowners , located at 734 Carlton security interest in a parcel of real property owned by the Defendants Richard Robinson Road in West Babylon the Residence . )nc. Americredit , LI Anesthesiologist PLLC L) Anesthesia , and Quinn Robinson In addition to the Homeowners, the Plaintiff named Americredit Financial Services, (together with Americredit and LI Anesthesia, the Defaulting Defendants as nominal Defendants in this action, whose interests in the Residence, if any, the Bank seeks to extinguish in order to quiet title to the property. On January 22, 2015, the Homeowners filed an answer to the complaint and asserted various affirmative defenses and counterclaims. To date, the Defaulting Defendants have not submitted answers to the complaint, or Defaulting Defendants default. otherwise appeared in this action. On July 1, 2015, the Clerk of the Court noted the Fed. R. Civ. P. for summary judgment on its complaint, and dismissal of the Also on July 1, 2015, the Plaintiff moved under Federal Rule of Civil Procedure (omeowners affirmative defenses and counterclaims. On October 23, 2015, the Homeowners cross-moved under Rule 56 for summary judgment against the Bank on one of their counterclaims, namely, a cause of action based on an alleged breach of a bankruptcy discharge order, and sought to dismiss the complaint and recover associated monetary damages. the Bank s motion for summary judgment in its entirety; dismissed the (omeowners By Memorandum of Decision and Order dated February 4, 2016, this Court granted affirmative defenses and counterclaims; and denied the (omeowners cross-motion for 2 summary judgment in all respects. See E. Sav. Bank, FSB v. Robinson, 2016 U.S. Dist. LEXIS judgment of foreclosure and sale for the Court s review within days of that order. 13529 (E.D.N.Y. Feb. 4, 2016) (Spatt, J.). The Court directed the Bank to submit a proposed Further, the Court held that, to the extent the Bank intended to pursue default judgments against the Defaulting Defendants, the case would remain open for that limited purpose. On February 12, 2016, the Bank filed a motion under Fed. R. Civ. P. 55, seeking the Court s directive, the Bank also submitted a proposed judgment of foreclosure and sale entry of a default judgment against the Defaulting Defendants. In accordance with the purporting to resolve this case in its entirety. Judge Steven I. Locke for a recommendation as to whether the Bank s motion for a default On February 16, 2016, the Court referred this matter to United States Magistrate judgment should be granted, and if so, the relief to be granted, including whether the On May 9, 2016, Judge Locke issued a Report and Recommendation (the R&R , proposed judgment of foreclosure and sale properly resolves this matter. recommending that: (i) the Bank s motion for a default judgment be granted; (ii) the Defaulting Defendants interest in the Residence, if any, be extinguished; and (iii) the Bank be awarded damages totaling $385,639.85, representing the unpaid principal balance due deferred amounts, attorneys fees, and costs. See E. Sav. Bank v. Robinson, 2016 U.S. Dist. on the underlying promissory note, together with interest, late charges, escrow advances, LEXIS 62005 (E.D.N.Y. May 9, 2016). However, as the Court noted in its previous opinion, in light of a discharge order obtained by the Homeowners in a bankruptcy proceeding, the Bank is only entitled to collect these amounts to the extent possible through a foreclosure 3 and sale of the Residence, and may not seek to recover a personal judgment against the Homeowners for any deficiency remaining after the sale. Judge Locke also recommended that a judgment of foreclosure and sale in a form substantially similar to that proposed by the Bank should be entered, and that Lara Harmel, Esq. be appointed as referee to effectuate the sale of the Residence. Presently before the Court is a series of written objections, timely filed by the Homeowners on May 24, 2016, pursuant to 28 U.S.C. § 636(b)(1), I. Discussion The relevant facts and procedural history of this case were set forth in detail in the prior opinion of this Court and the R&R by Magistrate Judge Locke, and will not be repeated here. The Court will discuss the underlying motion record only to the extent necessary to resolve the present objections. A. The Standard of Review To the extent that the Homeowners make specific and timely written objections to made. See Leser v. U.S. Bank Nat l Ass n, No. 09-cv-2362, 2013 U.S. Dist. LEXIS 32464, at *6 the R&R, the Court must review de novo those portions of the report to which objection is b C . )n this regard, [d]e novo review requires that the court give fresh consideration to those issues to which specific objections (E.D.N.Y. Mar. 7, 2013) (quoting 28 U.S.C. § have been made and examine the entire record, and make an independent assessment of the magistrate judge s factual and legal conclusions. Singleton v. Caron, No. 03-cv-455, 2006 U.S. Dist. LEXIS 49117, at *5-*6 (N.D.N.Y. July 18, 2006) (quoting Almonte v. N.Y. State After a review, the district court may accept, reject, or modify, in whole or in part, the Div. of Parole, No. 04-cv-484, 2006 U.S. Dist. LEXIS 2926, at *15 (N.D.N.Y. Jan. 18, 2006)). 4 findings or recommendations made by the magistrate judge. Leser, 2013 U.S. Dist. LEXIS (owever, where the objecting party makes only conclusory or general objections, 32464, at *6 (quoting 28 U.S.C. § 636(b)(1)). recommendation strictly for clear error. or simply reiterates the original arguments, the Court will review the report and No. 10-cv-3771, 2012 U.S. Dist. LEXIS 64291, at *4 (E.D.N.Y. June 18, 2012), aff d, 529 F. App x d Cir. Id. at *6-*7 (quoting Zaretsky v. Max-Aids, Inc., . In this regard, it has been noted that: It is improper for an objecting party to attempt to relitigate the entire content of the hearing before the Magistrate Judge by submitting papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a second bite at the apple when they file objections to a Report and Recommendation, as the goal of the federal statute providing for the assignment of cases to magistrates is to increase the overall efficiency of the federal judiciary. McCarthy v. Manson, 554 F. Supp. 1275, 1286 (D. Conn. 1982), aff d, 714 F.2d 234 (2d Cir. 1983) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982) (en banc)) footnote omitted . The purpose of the Federal Magistrates Act is to relieve courts of unnecessary work. Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980). There is no increase in efficiency, and much extra work, when a party attempts to relitigate every argument which it presented to the Magistrate Judge. d Cir. Merely referring the court Camardo v. GM Hourly-Rate Emples. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); see Mario v. P & C Food Mkts., 313 F.3d 758, 76 b or Local Civil Rule . a to previously filed papers or arguments does not constitute an adequate objection under As courts in this Circuit have observed, either Fed. R. Civ. P. [c]lear error review is especially . appropriate where the objections are merely copied verbatim from the objecting party s earlier briefing. Holloway v. Colvin, No. 14-cv-5165, 2016 U.S. Dist LEXIS 44366, at *3 (S.D.N.Y. Mar. 31, 2016) (citations omitted); see King v. City of New York, Nos. 12-cv-2344 5 objections for clear error where, [n]ot only [were they] simply an attempt to rehash the & 13-cv-0037, 2014 U.S. Dist. LEXIS 140790, at *11 (E.D.N.Y. Sept. 30, 2014) (reviewing of [the objector s] brief [was] in fact identical – word for word – to the equivalent portion same arguments that the magistrate judge considered and found deficient, [but a] section of his opposition to the underlying motion); Brooks v. Hogan, No. 09-cv-743, 2013 U.S. warranted by a party s submission, which was filed as an objection, but was in fact, a Dist. LEXIS 44739, at *2-*3 (N.D.N.Y. Mar. 28, 2013) (finding that de novo review was not near-verbatim recitation of his earlier-filed response in opposition to the underlying motion); Weinrauch v. N.Y. Life Ins. Co., No. 12-cv-5010, 2013 U.S. Dist. LEXIS 37142, at *6 rehashe[d] his previous arguments to the Magistrate Judge, and indeed, the majority of (S.D.N.Y. Mar. 18, 2013) (reviewing objections for clear error where the objector his objection [was] verbatim quotation from his previous submission . Further, the Second Circuit has held that bare statement[s], devoid of any reference unsupported by legal authority, are insufficient to warrant de novo review. Mario, 313 to specific findings or recommendations to which [the plaintiff] objected and why, and F.3d at 769; see Rothenberger v. N.Y. City Police Dep t, No. 06-cv-868, 2008 U.S. Dist. LEXIS , at * E.D.N.Y. June , finding the plaintiff s objections to be insufficient where they consisted of little more than a list of documents and facts that he believe[d] the court should have considered in arriving at its findings and failed to provide any reasoning – legal or otherwise – to support his argument that [the] Magistrate Judge [ ] recommendation . erred either in her consideration of the evidence or in arriving at any conclusion or 6 With these standards in mind, the Court will turn to the (omeowners specific objections. B. As to the Sufficiency of the Bank’s Supporting Affidavit which the Bank submitted in support of its request for damages, was defective insofar as The Homeowners contend that the affidavit of Senior Asset Manager Terry Brown, it lacked a proper evidentiary foundation. In this regard, the Homeowners appear to contend that Brown failed to adequately demonstrate that she is proficient in reading and interpreting the computerized mortgage files relied upon by the Bank in computing the Further, the Homeowners argue that, although Judge Locke concluded that Brown s amounts due under the note and mortgage. affidavit was sufficient to permit a calculation of the Bank s damages with reasonable certainty, they believe that absolute certainty should be the only acceptable standard. See Objections, DE [69], at 5. The Court finds that both of these contentions are without merit. First, the (omeowners argument regarding the evidentiary value of Brown s affidavit is a near-verbatim reproduction of the argument the Homeowners unsuccessfully submitted to Judge Locke, and is therefore insufficient to warrant de novo review at this juncture. Compare Defs. Partial Opp. to Pl. Mot. for Def. J., DE [65], at 2-5, with Objections, DE [69], at 2-3. Rather, the Court reviews this portion of the R&R for clear error, and finding none, now concurs in both its reasoning and its result. In this regard, the Court notes that Judge Locke thoroughly addressed this precise issue, writing that: 7 In opposition, the Robinsons argue that Plaintiff should not be awarded damages because the Affidavit of Eastern s Senior Asset Manager Terry Brown contains numerous defects as it lacks a foundation and is based on computerized records which also lack a foundation. Defs. Opp n ¶ 1. According to the Robinsons, Brown fails to state that she has actual personal knowledge; [and] instead, [s]he states that [s]he has personal knowledge of the facts and circumstances by virtue of [her] employment at Eastern in the ordinary course of business . . . Id. at ¶ 3. Relying on E. Sav. Bank, FSB v. Rabito, No. 11-CV-2501, 2013 WL 5423786, at *4 (E.D.N.Y. Sept. 26, 2013), in which Magistrate Judge Viktor V. Pohorelsky deemed an affidavit submitted by Brown to be wholly conclusory, the Robinson s argue that her instant Affidavit is also flawed and deficient. See id. at ¶¶ 1-6. However, in Rabito, the court acknowledged that a mortgage bank s senior manager would be a person with actual knowledge, and observed that, because Brown s statements [were] made under penalty of perjury . . . [it did] not have a reason to doubt the veracity of the assertions . . . WL , at * . Moreover, unlike Rabito, where Brown did not provide a factual basis to substantiate the amounts requested, id., here, Brown has submitted, among other things: (i) an Account History documenting the payments made on the Note; (ii) a Late Charge Schedule summarizing the fees incurred as a result of late monthly payments; and (iii) an Escrow Advance Schedule, as well as documentation substantiating the amounts requested. See Brown Aff. ¶¶ 8, 16-18. Finally, to the extent the Homeowner Defendants argue that Brown lacks actual personal knowledge, in a Reply Affidavit, Brown affirms that she has actual personal knowledge of the facts of this case and the events that transpired to date . . . See Reply Affidavit of Terry Brown in Further Support of Statement of Damages . . ., DE [66-1], ¶ 1. The Homeowners argue conclusorily that, notwithstanding Judge Locke s R&R at 12-13. exceptionally thorough, meticulous, and comprehensive R&R, it remains true that Brown s affidavit lacks a proper foundation because she fail[ed] to indicate that she is experienced in reviewing computerized information. See Objections at 2, 5. However, the trustworthiness of Brown s calculations or the documentation upon which they rest. In Homeowners fail to raise any particularized challenges to the authenticity or fact, other than her apparent failure to explicitly state that she has proficiency in reviewing the relevant computer files, the Homeowners provide no specific basis for doubting the overall veracity of her affidavit. In this regard, they do not argue that any particular figure 8 was incorrectly computed, or that a particular document maintained by the bank is note and mortgage. Instead, notwithstanding Judge Locke s reasoned conclusion to the inaccurate. Nor do they offer their own calculation of the amounts allegedly due under the contrary, the Homeowners argue that Bank should be awarded no damages whatsoever because Brown did not adequately describe her training as it pertains to reviewing digitally-maintained mortgage files. might support this position. Nor do they specify what aspects of Judge Locke s reasoning or However, the Homeowners do not identify any relevant caselaw that they contend that, for the exact same reasons already argued to Judge Locke, Brown has still failed to consideration of the evidence they believe constituted clear error. They contend simply establish a sufficient foundation in order for her affidavit to be probative. Id. The Court (omeowners objection. disagrees, and under these circumstances, discerns no clear basis for sustaining the standard when he determined that Brown s affidavit permitted a calculation of damages Further, the Homeowners imply that Judge Locke utilized the incorrect legal with reasonable certainty. They state, without citation to facts or legal authority, that an absolute certainty standard would be more appropriate. However, this contention is contrary to controlling law, and is therefore without merit. See, e.g., Bank of the West v. on a motion for a default judgment, a district court must [ ] conduct an inquiry in order to Sailing Yacht Serendipity, 101 F. Supp. 3d 238, 246 (E.D.N.Y. 2015) (noting that, in passing ascertain the amount of damages with reasonable certainty (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). 9 quoting Credit Lyonnais Sec. Accordingly, to the extent the Homeowners object to the R&R on the ground that it improperly relied upon the affidavit of Terry Brown, their objection is overruled. C. As to the Calculation of Attorneys’ Fees The Homeowners also challenge Judge Locke s computation of the award of attorneys fees to which the Bank is entitled under the relevant mortgage documents. As described more fully below, this argument is totally without merit, and similarly fails to warrant a de novo review. In a thorough and highly-detailed discussion, Judge Locke undertook to review the Feuerstein, LLP K&F , and made the following findings: billing records submitted by counsel for the Bank, namely, the law firm of Kriss & (1) Four attorneys from K&F, including one partner and three associates, worked on this case. Partner Jerold F. Feuerstein, Esq. billed for 22.6 hours of his time; and associates Greg Friedman, Jason Liebowitz, and Joseph Vozza billed for 34.3, 25.6, and 3.25 hours of their time, respectively. All four attorneys billed their time to the Bank at a rate of $300 per hour. Thus, the initial fee application sought the following: Title Partner Associate Associate Associate Name J. Feuerstein G. Friedman J. Liebowitz J. Vozza Hourly Rate $300 $300 $300 $300 Hours Spent 22.6 34.3 25.6 3.25 Total Total Charge $6,780 $10,290 $7,680 $975 $25,725 (2) Judge Locke found that, although $300 per hour was a reasonable hourly rate for work performed by Mr. Feuerstein, namely, a Partner in the firm with 22 years of relevant legal experience, this rate was excessive for the associates. After reviewing the applicable caselaw, Judge Locke concluded that $250 per hour was appropriate for Messrs. Friedman, Liebowitz, and Vozza. (3) Judge Locke further conducted an extensive review of the billing records submitted by K&F, and concluded that certain entries for work performed were redundant, unreasonable, or excessive, and determined that a 10% across-the-board reduction in the number of hours expended by each attorney was warranted, as follows: 10 Title Partner Associate Associate Associate Name J. Feuerstein G. Friedman J. Liebowitz J. Vozza Original Hours 22.6 34.3 25.6 3.25 Reduced Hours 20.34 30.87 23.04 2.93 (4) Then, by multiplying the attorneys adjusted hourly rates by the reduced number of hours expended, Judge Locke appropriately included the following chart in the R&R: Title Partner Associate Associate Associate Name J. Feuerstein G. Friedman J. Liebowitz J. Vozza Hourly Rate $300 $250 $250 $250 Hours Spent 20.34 30.87 23.04 2.93 Adjusted Total Total Charge $6,102 $7,717.50 $5,760 $732.50 $20,312 Bank an award of reasonable attorneys fees in the reduced amount of $ , . In this Based on these calculations, Judge Locke recommended that this Court grant the regard, the reasoning in the R&R was abundantly clear and well-supported by the evidence in the record. Nevertheless, strangely, the Homeowners objected on the ground that: Plaintiff originally billed out both partner-level attorneys and associate attorneys at the same hourly rate – $300. However, the Magistrate Judge determined that while the partner-level attorney was entitled to that hourly rate, associate attorneys were not. Yet, the R&R does not indicate that the time and billing discrepancy was addressed. As indicated above, this objection is totally without merit. )n the Court s view, it Objections at 6 (emphasis supplied). would have been almost impossible to read the R&R with any level of care and reach the conclusion, as the Homeowners apparently did, that Judge Locke failed to address any discrepancies in the materials supporting the fee award. There certainly is no basis for finding that Judge Locke clearly erred in computing these amounts. 11 improperly computed the award of attorneys fees payable to the law firm of Kriss & Accordingly, to the extent the Homeowners object to the R&R on the ground that it Feuerstein LLP, their objection is overruled. Based on the foregoing, the (omeowners objections to the May , II. Conclusion Report and Recommendation by United States Magistrate Judge Steven I. Locke are overruled in their Therefore, on Judge Locke s recommendation, the Court grants the Bank s motion entirety. for a default judgment against the Defaulting Defendants pursuant to Fed. R. Civ. P. 55, and Further, the Court grants the Bank s motion for a judgment of foreclosure and sale, holds that the interests of those parties in the Residence, if any, are hereby extinguished. On Judge Locke s recommendation, the Court will which will issue under separate cover in a form substantially similar to the proposed judgment submitted by the Bank. Finally, on Judge Locke s recommendation, the Court grants the Bank the following appoint Lara Harmel, Esq. as the referee of the sale. damages, which it is entitled to recover to the extent possible through a foreclosure and sale of the Residence: (1) $224,128.81 representing the outstanding principal balance due on the underlying promissory note; plus (2) $64,621.43 in unpaid interest accrued on the outstanding principal through May 9, 2016, namely, the date that the R&R issued; plus (3) Continuing per diem interest on the outstanding principal balance at a rate of $58.27 per day from May 10, 2016 until judgment is entered; plus (4) $4,157.59 for unpaid late charges incurred between June 16, 2008 and December 18, 2013; plus 12 (5) $30,276.70 for certain unpaid escrow advances provided for in the relevant mortgage documents; plus (6) $4,821.73 in unpaid interest accrued on the unpaid escrow advances through May 9, 2016; plus (7) Continuing per diem interest on the unpaid escrow advances at a rate of $7.87 per day from May 10, 2016 until judgment is entered; plus (8) (9) (10) (11) $35,402.05 for certain deferred amounts provided for in a June 21, 2011 Note Modification executed by the parties; plus $ , for reasonable attorneys fees; plus $1,919.54 in costs; and post-judgment interest at the contractual rate of 9.49% to accrue from the date judgment is entered. Except for the limited purpose of issuing a final Judgment of Foreclosure and Sale, this case is now closed. SO ORDERED Dated: Central Islip, New York June 1, 2016 /s/ Arthur D. Spatt____________________________________ ARTHUR D. SPATT United States District Judge 13
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