Eastern Savings Bank, FSB v. Johnson et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EASTERN SAVINGS BANK, FSB,
Plaintiff,
-against-
LINFORD W. JOHNSON, INDIVIDUALLY,
AND 	AS 	ADMINISTRATOR 	OF 	THE
ESTATE OF MULVINA ECCLESTON; NEW
YORK 	CITY 	ENVIRONMENTAL
CONTROL BOARD, MICHAEL JOHNSON,
WILLIAM 	ROBINSON, 	ARLENE
WILLIAMSON, 	KALICH 	WILLIAMSON,
and AGATHA JOHNSON,
Defendants.
REPORT AND RECOMMENDATION
13-cv-6070 (AMD)(ST)
TISCIONE, United States Magistrate Judge:
This attenuated foreclosure action began in 2013. To summarize, Mulvina Eccleston had
two secondary mortgages and notes dated April 26, 2007, in favor of Plaintiff, Eastern Savings
Bank (“ESB”) in the sum of $113,500.1 Aff. in Supp. of Mot. for Writ ¶¶ 3-5, ECF No. 161-2.
Linford Johnson is the guarantor. Id. ¶ 5. Eccleston defaulted on one mortgage April 1, 2008, and
defaulted on the second December 1, 2009. Id. ¶ 6.2 Both mortgages matured May 1, 2010. Id.
The loans remain outstanding.
ESB filed this foreclosure action November 1, 2013. See ECF No. 1. After a series of
delays and flurry of motion practice, summary judgment of foreclosure and sale was entered in
favor of ESB on March 15, 2023. See ECF No. 150; id. ¶ 9.
A foreclosure auction and sale were initially scheduled for August 24, 2023. Id. ¶ 15.
However, it was halted due to a Chapter 13 Bankruptcy Petition. Id. The Bankruptcy Petition was
1 The mortgaged property is 356 East 31st Street, Brooklyn, NY 11226 (Block: 4947, Lot: 30).
2 Mulvina Eccleston passed away on June 10, 2014, and has since been removed from the case.
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dismissed on November 1, 2023, and the auction rescheduled for December 21, 2023. Id. All
occupants were notified of the auction. See ECF No. 158. ESB purchased the property at auction
and assigned its winning bid to an ESB subsidiary Quartz Enterprises, Inc. See ECF No. 160.
On March 26, 2025, with the occupants showing no sign of voluntarily vacating, ESB
filed a motion for an Order to Show Cause for a Writ of Assistance pursuant to 28 U.S.C. § 1651.
See ECF No. 161. ESB specifically requests the United States Marschalls eject all occupants
from 356 East 31st Street, Brooklyn, NY 11226. On March 31, 2025, Judge Donnelly referred
the motion to this Court for a report and recommendation. A hearing was held on April 7, 2025.
Defendants failed to appear. See Minute Order dated April 7, 2025, ECF No. 162. A show cause
hearing was scheduled for June 17, 2025. Both parties appeared. This Court issued an order
directing Defendants to respond to the Motion for a Writ of Assistance by July 1, 2025. See
Minute Order dated June 20, 2025, ECF No. 165. Defendants failed to file a response.
To date, the occupants have not vacated the property, and the Writ of Assistance remains
unopposed. ESB has sent three letters to this Court requesting the writ of assistance be issued,
dated July 25, 2025, October 2, 2025, and November 13, 2025. See ECF Nos. 166, 168, and 170.
This Court has no hesitation issuing a report and recommendation grating ESB’s request.
The All Writs Act authorizes “[t]he Supreme Court and all courts established by Act of Congress
[to] issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651. Likewise, Rule 70 reads, in relevant part,
“[i]f a judgment requires a party to convey land, to deliver a deed or other document, or to
perform any other specific act and the party fails to comply within the time specified, the court
may order the act to be done[.]” Fed. R. Civ. P. 70. “Rule 70 provides for the enforcement of the
specific terms of a judgment[.]” Manway Const. Co. v. Hous. Auth. of City of Hartford, 711 F.2d
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501, 505 (2d Cir. 1983). Moreover, where an underlying judgment affects title, possession, or
judgement of a property, N.Y. Real Property Acts Law (“RPAPL”) § 221 authorizes courts to
“require the sheriff to put [judgment holders] into possession.”
Here, ESB holds a judgement from this Court stating the occupants are “forever barred
and foreclosed of all right, title, claim, interest, lien and equity of redemption in said mortgaged
premises and each and every part thereof,” and “that the purchaser at such sale be let into
possession on production of the referee’s deed[.]” ECF No. 150. The occupants have, however,
refused to vacate the subject property. Further, nothing about this foreclosure proceeding
appears untoward. All parties have been repeatedly notified of all foreclosure proceedings and
ESB’s filings/motions. See generally Aff. in Supp. of Mot. for Writ.
At bottom, ESB holds a valid judgment granting it possession of the property. The
occupants are in violation of that judgment. Accordingly, this Court finds it appropriate for the
District Court to issue a Writ of Assistance removing the occupants from granting ESB access to
the subject property.
CONCLUSION
This Court respectfully recommends the District Court issue a Write of Assistance in
accordance with the above report and recommendation.
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OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure, 	the 	parties 	shall 	have 	fourteen 	(14) 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 	Failure to file timely objections shall constitute a
waiver of those objections both in the District Court and on later appeal to the United States
Court of Appeals. See Marcella v. Cap. Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d
Cir. 2002); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); see also
Thomas v. Arn, 474 U.S. 140 (1985).
SO ORDERED.
/s/
Steven Tiscione
United States Magistrate Judge
Eastern District of New York
Dated: Central Islip, New York
December 9, 2025
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