Wells Fargo Bank v. Ogola et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
WELLS 	FARGO 	BANK, 	NATIONAL
ASSOCIATION, successor by merger to Wells
Fargo Bank Minnesota, National Association,
as 	Trustee 	f/k/a 	Norwest 	Bank 	Minnesota,
National 	Association, 	as 	Trustee 	for
Renaissance HEL Trust 2004-2,
Plaintiff, 	REPORT &
RECOMMENDATION
-against-
24-CV-8667 (NCM) (SDE)
PATIENCE OGOLA; JOHNSON OJO; NEW
YORK 	CITY 	ENVIRONMENTAL
CONTROL 	BOARD; 	NEW 	YORK 	CITY
TRANSIT ADJUDICATION BUREAU; NEW
YORK 	STATE 	DEPARTMENT 	OF
TAXATION 	AND 	FINANCE; 	and 	“JOHN
DOE #1” through “JOHN DOE #12”
Defendants.
---------------------------------------------------------- X
SETH D. EICHENHOLTZ, United States Magistrate Judge:
Plaintiff Wells Fargo Bank, National Association1 (“Wells Fargo”), as Trustee, brings
this action against Defendants Patience Ogola, Johnson Ojo, New York City Environmental
Control Board (“NYCECB”), New York City Parking Violations Bureau (“NYCPVB”), New
York City Transit Adjudication Bureau (“NYCTAB”), and John Does #1 through #12, seeking
foreclosure on a mortgage of the premises located at 13-99 Gipson Street, Far Rockaway, New
York 11691 (the “Property”). (Complaint, Dkt. No. 1 (“Compl.”).) Pending before the
undersigned on referral from the Honorable Natasha C. Merle, United States District Judge, is
1 Successor by merger to Wells Fargo Bank Minnesota, National Association, formerly
known as Norwest Bank Minnesota, National Association, as Trustee for Renaissance HEL Trust
2004-2.
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Wells Fargo’s motion for default judgment. (Motion for Default Judgment, Dkt. No. 39
(“Mot.”).) For the reasons set forth below, the undersigned respectfully recommends Wells
Fargo’s motion be granted as to Defendants Ogola and Ojo and denied as to all other Defendants.
The undersigned further recommends that the claims against the other Defendants be dismissed.
BACKGROUND
The following facts are taken from the Original and Amended Complaints, Wells Fargo’s
motion for default judgment, and the attachments filed in support of Wells Fargo’s motion for
default judgment. The facts are assumed to be true for the purposes of this report and
recommendation. See, e.g., Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry &
Constr., LLC, 779 F.3d 182, 188 (2d Cir. 2015).
I. 	Factual Background
On or around March 29, 2004, Patience Ogola and Johnson Ojo executed a note (the
“Note”) to borrow $382,000 note from lender Delta Funding Corporation. 2 (Compl. at Ex. A,
Dkt No. 1-2; Mot. at Ex. B, Dkt. No. 1-6 (“Note”).) The Note was secured by a mortgage (the
“Mortgage”) against the Property. (Compl. at Ex. B, Dkt. No. 1-3; Mot. at Ex. C, Dkt. No. 39-7
(“Mortg.”).) The Mortgage was executed on the same day in the principal amount of $382,000
with interest to Mortgage Electronic Registration Systems, Inc. as nominee for Delta Funding
Corporation. (Mortg. p. 3.) The Mortgage was recorded on May 21, 2004 in Queens County as
Instrument Number 2004000320031. (Mortg. p. 1.) After a series of assignments that began on
January 23, 2008, the Mortgage was ultimately assigned to Wells Fargo on April 1, 2020. (See
Declaration of Eric Sheidlower, Dkt. No. 39-2 (“Sheidlower Declaration”), p. 2–3; Affirmation
2 Patience Ogola exercised her power of attorney to sign on behalf of Johnson Ojo. (See
Note.)
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of Indebtedness, Dkt. No. 39-4 (“Lopez Affirmation”), ¶¶ 4–12.)
The Note’s terms required Defendants Ogola and Ojo to repay Delta Funding
Corporation the principal plus interest at an annual rate of 6.59 percent in monthly payments of
$2,437.15, beginning in May 2004. (Note § 2–3.) The terms of the Note further established that
if Defendants Ogola and Ojo failed to pay each monthly payment in full, they would be in
default. (Id. § 4(C).) Default would trigger the Note holder’s right to demand immediate
repayment of the full principal amount and any interest due. (Id.) The Note also allows for a
late charge for overdue payments in the amount of two percent of the overdue amount of each
payment. (Id. § 4(A).)
Beginning in 2007, Defendant Ogola and Ojo’s loan was modified six times by
agreement: once in 2007, twice in 2008, once in 2013, once in 2018, and once in 2020. (See
Mortg. pp. 14–46). Those loan modification agreements noted that Defendants Ogola and Ojo
were or would soon be in default due to financial hardship or insufficient assets, and the payment
schedule was accordingly modified. (See id.)
Defendants Ogola and Ojo still failed to make required payments beginning with the
September 1, 2021 payment. (Lopez Affirmation ¶ 13.) That default remains uncured. (Id.)
II. 	Procedural Background
Wells Fargo began this proceeding on December 19, 2024 and filed its Amended
Complaint on May 5, 2025. (Compl; Amended Complaint, Dkt. No. 24 (“Am. Compl.”).) Wells
Fargo seeks (i) foreclosure and sale of the Property with the proceeds applied to repay Wells
Fargo the amount due on the Note and Mortgage, (ii) appointment of a referee and a receiver;
(iii) attorneys’ fees and costs; (iv) a finding that it be allowed to enforce its liens on the Property;
and (v) reformation of the legal description of the Property. (Am. Compl. pp. 9–10).
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The Amended Complaint was served on all Defendants in May 2025. (See Summons,
Dkt. Nos. 26–34.) Wells Fargo obtained certificates of default on June 23, 2025. (Clerk’s Entry
of Default, Dkt. No. 37.) Wells Fargo subsequently moved for default judgment against
Defendants on July 23, 2025. (See generally Mot.) Wells Fargo served Defendants with its
motion on July 23, 2025. (Declaration of Mailing, Dkt. No. 39-23.)
LEGAL STANDARD
When a plaintiff seeks a default judgment, the request follows a “two-step process” under
Rule 55 of the Federal Rules of Civil Procedure. Priestley v. Headminder, Inc., 647 F.3d 497,
504 (2d Cir. 2011). First, the Clerk of Court enters a party's default after an affidavit or other
evidence shows that the “party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a); see also, e.g., Esquivel v. Lima Rest.
Corp., 20-CV-2914, 2023 WL 6338666, at *3 (E.D.N.Y. Sept. 29, 2023), (“when a party uses an
affidavit or other proof to show that a party has ‘failed to plead or otherwise defend’ against an
action, the clerk shall enter a default.”), report and recommendation adopted, Order dated
Nov. 30, 2023. After the entry of default, where the claim is not for “a sum certain or a sum that
can be made certain by computation,” a party must then move before the district court for a
default judgment. Fed. R. Civ. P. 55(b)(1); see also, e.g., United States v. Rankin Indus. Ltd.,
CV 09-3569, 2011 WL 1204751, at *1 (E.D.N.Y. Feb. 25, 2011), (recommending award of
default judgment under Rule 55(b)(1) for principal amount owed on note), report and
recommendation adopted, 2011 WL 1154475 (E.D.N.Y. Mar. 29, 2011).
A court “possesses significant discretion” in granting a motion for default judgment,
“including [determining] whether the grounds for default are clearly established.” Klideris v.
Trattoria El Greco, 10-CV-4288, 2011 WL 7114003, at *2 (E.D.N.Y. Sept. 23, 2011), report and
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recommendation adopted, 2012 WL 273078 (E.D.N.Y. Jan. 30, 2012). When considering a
motion for a default judgment, the district court must draw all reasonable inferences in favor of
the movant. See, e.g., Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).
As a “default is an admission of all well-pleaded allegations against the defaulting
party,” when considering a motion for a default judgment, "a district court must accept as true all
of the factual allegations of the non-defaulting party and draw all reasonable inferences in its
favor.” Belizaire v. RAV Investigative and Sec. Servs. Ltd., 61 F. Supp. 3d 336, 344 (S.D.N.Y.
2014). However, “a default . . . only establishes a defendant’s liability if those allegations are
sufficient to state a cause of action against the defendant.” Taizhou Zhongneng Imp. & Exp. Co.,
Ltd. v. Koutsobinas, 509 F. App’x 54, 56 (2d Cir. 2013). Therefore, the Court must ensure that
“Plaintiff’s allegations, when accepted as true, establish liability as a matter of law.” AVAIL 1
LLC v. Latief, 17-CV-581, 2020 WL 5633869, *2 (E.D.N.Y. Aug. 14, 2020). Even in that
circumstance, a court retains discretion to determine whether a final default judgment is
appropriate. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993); see also Taylor v.
312 Grand St. LLC, 15-CV-5410, 2016 WL 1122027, at *3 (E.D.N.Y. Mar. 22, 2016). In light
of the Second Circuit’s “oft-stated preference for resolving disputes on the merits,” default
judgments are “generally disfavored.” Enron, 10 F.3d at 95–96. Accordingly, when granting a
motion for a default judgment, the Court must conduct an analysis to establish damages to a
“reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d
Cir. 1999).
Local Rule 55.2 of the U.S. District Courts for the Southern and Eastern Districts of New
York sets forth certain additional requirements for parties seeking default judgment. Local Rule
55.2(b) requires the party seeking default judgment to include in their application (i) the Clerk’s
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certificate of default, (ii) a copy of the claim to which no response has been made, and (iii) a
proposed form of default judgment. Local Civ. R. 55.2(b). Local Rule 55.2(c) also requires that
“all papers submitted to the Court” in support of a motion for default judgment “be mailed to the
party against whom a default judgment is sought at the last known residence of such party (if an
individual) or the last known business address of such party (if a person other than an
individual).” Id. at 55.2(c).
DISCUSSION
I. 	Service & Notice Requirements
A. Wells Fargo Complied with Local Civil Rule 55.2
The undersigned first considers whether Wells Fargo has met the requirements for
seeking a default judgment set forth in the Local Rules. Wells Fargo attaches to his motion the
Clerk’s certificate of default, a copy of the complaint, and a proposed judgment of foreclosure
and sale. (See Mot. at Exs. L and H, Dkt. Nos. 39-16 and -12; Proposed Judgment, Dkt.
No. 39-1.) Wells Fargo also filed an affidavit confirming that its motion was served on
Defendants. (See Declaration of Mailing, Dkt. No. 39-23.) Thus, the undersigned concludes that
the requirements of Local Rule 55.2 have been met.
B. Wells Fargo Complied with Real Property Actions & Proceedings Law
Notice Requirements
The undersigned next considers whether Wells Fargo has met the various requirements to
establish its claims. Before commencing a residential foreclosure action, a lender must comply
with New York’s Real Property Actions & Proceedings Law (“RPAPL”). See, e.g., CIT Bank
N.A. v. Schiffman, 168 N.E.3d 1138 (2021). Article 13 of the RPAPL establishes procedural
requirements that must be met in a mortgage foreclosure action. See, e.g., Ditech Fin. LLC v.
Sterly, 15-CV-1455, 2016 WL 7429439, at *4 (N.D.N.Y. Dec. 23, 2016).
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Section 1304 of the RPAPL provides that, “with regard to a home loan, at least ninety
days before a lender, an assignee or a mortgage loan servicer commences legal action against the
borrower . . . such lender, assignee or mortgage loan servicer shall give notice to the borrower.”
RPAPL § 1304(1). The required notice must be sent to the borrower using specific statutory
language set out under RPAPL § 1304, and shall be sent by the lender, assignee, or mortgage
loan servicer to the borrower, by registered or certified mail, and also by first-class mail to the
last known address of the borrower. Id. § 1304(2). “Notice is considered given as of the date it
is mailed.” Id.
The Second Circuit has correspondingly recognized that “[p]roper service of RPAPL
[§] 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a
foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition.”
CIT Bank N.A. v. Schiffman, 948 F.3d 529, 533 (2d Cir.) (quoting Deutsche Bank Nat. Tr. Co. v.
Spanos, 961 N.Y.S.2d 200, 202 (App. Div. 2013)). A plaintiff-lender can demonstrate
compliance with § 1304 by showing “proof of the actual mailings, such as affidavits of mailing
or domestic return receipts with attendant signatures, or proof of a standard office mailing
procedure designed to ensure that items are properly addressed and mailed, sworn to by someone
with personal knowledge of the procedure.” Id. (quoting Citibank, N.A. v. Conti-Scheurer, 98
N.Y.S.3d 273, 277 (App. Div. 2019)).
Section 1306 of the RPAPL requires that a “lender, assignee or mortgage loan servicer
. . . file with the superintendent of financial services . . . within three days of mailing of the
[§ 1304 notice] . . . the information required by subdivision two of this section.” RPAPL
§ 1306(1). Subdivision 2 mandates that such a filing “include at a minimum, the name, address,
last known telephone number of the borrower, and the amount claimed as due and owing on the
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mortgage, and such other information as will enable the superintendent to ascertain the type of
loan at issue.” RPAPL § 1306(2).
The evidence establishes that the Note constitutes a “home loan” such that the notice
requirements of RPAPL § 1304 apply. (See generally Mot. at Ex. F, 90-Day Notice, Dkt. No.
39-10.) The evidence also establishes that Wells Fargo has complied with the § 1304 notice
requirement. (Id.) The 90-Day Notice submitted by Wells Fargo includes the prescribed
statutory language. (See id.; RPAPL § 1304(1).) Wells Fargo also submits certified mail
receipts and an affidavit of mailing. (See id.; see also Lopez Affirmation ¶ 19.) Wells Fargo
mailed these notices on March 5, 2024, more than 90 days before it commenced this action. (See
id. ¶ 20.) Wells Fargo also filed the necessary information with the New York Department of
Financial Services. (See Mot. Ex. H.) Thus, the undersigned concludes that Wells Fargo has
satisfied the requirements of the RPAPL.
II. 	The Factors Relevant to a Default Judgment Are Satisfied
Next, the undersigned considers whether Wells Fargo has established that a default
judgment is appropriate. When considering whether to grant a default judgment, a court must be
“guided by the same factors [that] apply to a motion to set aside entry of a default.” First
Mercury Ins. Co. v. Schnabel Roofing of Long Island, Inc., 10-CV-4398, 2011 WL 883757, at *1
(E.D.N.Y. Mar. 11, 2011). These factors include: (i) whether the default was willful; (ii)
whether ignoring the default would prejudice the opposing party; and (iii) whether the defaulting
party has presented a meritorious defense. See, e.g., Swarna v. Alawadi, 622 F.3d 123, 142 (2d
Cir. 2010); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).
As to the first factor, a defendant’s failure to respond to the complaint after service is
sufficient to demonstrate willfulness. See, e.g., Avail 1 LLC v. Latief, 17-CV-5841, 2020 WL
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5633869, at *8 (E.D.N.Y. Aug. 14, 2020) (defendant’s non-appearance and failure to respond
equated to willful conduct); Bds. of Trs. v. Frank Torrone & Sons, Inc., 12-CV-3363, 2014 WL
647098, at *4 (Feb. 3, 2014) (same), report and recommendation adopted, 2014 WL 674098
(E.D.N.Y. Feb. 21, 2014). Here, Defendants have failed to answer after proper service, nor have
they requested any extension to respond or otherwise indicated an intent to participate in this
proceeding.
As to the second factor, Defendants’ failure to respond or appear, combined with Wells
Fargo’s efforts to prosecute its case, are sufficient to demonstrate that ignoring the default would
prejudice Wells Fargo, “as there are no additional steps available to secure relief in this Court.
Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, 06-CV-14226, 2008 WL 5560868, at *2
(S.D.N.Y. Oct. 27, 2008)); see also, e.g., Welfare Fund v. Caesar Max Const., Inc., 18-CV-1339,
2019 WL 1130727, at *7, (Feb. 11, 2019) (collecting cases), report and recommendation
adopted, 2019 WL 1129430 (E.D.N.Y. Mar. 12, 2019).
Finally, as to the third factor, Defendants cannot establish a meritorious defense because
where they have not “filed an answer, there is no evidence of any defense.” Bridge Oil, 2008
WL 5560868, at *2 (citing Mason Tenders Dist. Council v. Duce Constr. Corp., 02-CV-9044,
2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003)). Accordingly, because all three factors are
satisfied, a default judgment would be proper in the present circumstances if the Complaint were
adequately pleaded.
III. 	Liability
The undersigned next considers whether the allegations in the Complaint, deemed
admitted, establish each Defendant’s liability. For the following reasons, the undersigned
respectfully recommends that the motion for a default judgment be granted as to Defendants
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Patience Ogola & Johnson Ojo but denied as to all other Defendants. The undersigned further
recommends that the claims against the other Defendants be dismissed.
A. Wells Fargo Establishes Standing
A plaintiff may establish standing in a mortgage foreclosure action “by demonstrating
that, when the action was commenced, it was either the holder or assignee of the underlying
note.” E. Sav. Bank, FSB v. Thompson, 631 F. App’x 13, 15 (2d Cir. 2015) (quoting Wells
Fargo Bank, N.A. v. Rooney, 19 N.Y.S.3d 543, 544, 132 A.D.3d 980 (2d Dep’t. 2015)). A
foreclosing lender can demonstrate a valid transfer of the obligation by written assignment or
physical possession. See, e.g., U.S. Bank, N.A. v. Collymore, 890 N.Y.S.2d 578, 580 (2d Dep’t
2009). The evidence demonstrates that Wells Fargo has standing to bring this action because the
Note and Mortgage were transferred to Wells Fargo prior to the commencement of this action.
(See Mot. at Ex. 8, Assignment of Mortgage, Dkt. No. 39-8.)
B. Foreclosure Against Borrowers Patience Ogola & Johnson Ojo Is
Appropriate
“A plaintiff is entitled to foreclosure . . . if it demonstrates the existence of an obligation
secured by a mortgage, and a default on that obligation.” CIT Bank v. Paganos, 14-CV-3986,
2016 WL 3945343, at *1 (E.D.N.Y. July 19, 2016) (first citing E. Sav. Bank, FSB v. Beach, 13-
CV-341, 2014 WL 923151, at *15 (E.D.N.Y. Mar. 10, 2014); and then citing United States v.
Freidus, 769 F. Supp. 1266, 1277 (S.D.N.Y. 1991)). “Once [the] plaintiff has established its
prima facie case by presenting the note, mortgage, and proof of default, the mortgagee has a
presumptive right to foreclose, which can only be overcome by an affirmative showing by the
mortgagor.” United Cent. Bank v. v. Shree Ganesh Properties, LLC, 10-CV-8116M, 2012 WL
5992803, at *2 (S.D.N.Y. Nov. 7, 2012) (citing Regency Sav. Bank, F.S.B. v. Merritt Park Lands
Assocs., 139 F. Supp. 2d 462, 465–66 (S.D.N.Y. 2001)). The Complaint adequately pleads each
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element: it establishes the existence of a debt (the Note), secured by the Mortgage, and
Defendant Ogola’s and Ojo’s default of their obligation to pay the debt. (See generally Am.
Compl.; Mot.) Wells Fargo has also provided evidence of Defendant Ogola and Ojo’s default
through the sworn affidavit of Claribel Lopez, a Contract Management Coordinator at PHH
Mortgage Corporation. Ms. Lopez’s affidavit affirms that Defendants Ogola and Ojo defaulted
on the Note beginning on September 1, 2021 and have not cured that default. (Lopez
Affirmation ¶ 13.) The undersigned concludes that Wells Fargo has established liability on its
claim and is entitled to foreclosure and respectfully recommends that the Court enter an order
affording such relief in the form Wells Fargo has submitted in its Proposed Order.
C. Liability of Subordinate Lienholders
The undersigned next considers whether Wells Fargo establishes liability as to the other
Defendants. Under New York law, the necessary parties to a mortgage foreclosure action
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.” RPAPL § 1311(3). Wells Fargo has
identified NYCEB, NYCPVB, and NYSDOTF, and twelve unidentified John Doe Defendants as
non-mortgagors who may hold a lien or judgment on the Property that is subsequent or adverse
to Defendants Ogola and Ojo. Am. Compl. ¶¶ 2–10.
i. 	The Allegations Against the City and State Agency Defendants Are
Insufficient
RPAPL imposes a heightened pleading standard where a city or state agency is named as
a defendant. The complaint must provide, for example, “[d]etailed facts showing the particular
nature of the interest in or lien on the real property and the reason for making” the agency a party
defendant. RPAPL §§ 202, 202-a.
Here, the Amended Complaint alleges that NYCEB, NYCPVB, and NYSDOTF
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(collectively, the “City and State Agency Defendants”) are necessary parties to this action
because “by virtue of lien(s) docketed in the County Clerk’s Office copies of which are
attached,” and “to the extend the judgments are not attached . . . because they may have an
interest in the property being foreclosed.” (Am. Compl. ¶¶ 5–7.) Upon review of the documents
attached to the Complaint, the Court finds no copies of liens that identify any of the City Agency
Defendants parties with an interest in the Property. Thus, the undersigned concludes that Wells
Fargo has failed to comply with the RPAPL § 202-a as to the City Agency Defendants and
respectfully recommends that the motion for default be denied as to the City Agency Defendants
and the claim against them dismissed without prejudice. See, e.g., JXB 84 LLC v. Khalil, 15-CV-
6251, 2017 WL 1184001, at *5 (E.D.N.Y. Feb. 17, 2017), report and recommendation adopted,
2017 WL 1184141 (E.D.N.Y. Mar. 29, 2017).
ii. 	The John Doe Defendants Should Be Dismissed
Wells Fargo’s Original Complaint named twelve unidentified John Doe Defendants.
(Compl. ¶ 8.) In its motion for default judgment, Wells Fargo seeks to remove John Does #1
through #12 as Defendants and strike their names from the caption, as they “[have not] been
served with copies of the Summons and Complaint, [and] are neither necessary nor proper party
defendants.” (Proposed Judgment p. 7)
If a defendant is not served within 90 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a specified time.” Fed. R. Civ. P.
4(m); cf. Gustavia Home, LLC v. Villatoro, 16-CV-2106, 2017 WL 3888606, at *2 (E.D.N.Y.
Aug. 17, 2017) (recommending dismissal of John Doe defendants under Rule 4(m) in mortgage
foreclosure action due to plaintiff's “failure to identify and serve these defendants within 120
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days after the filing of the complaint”), report and recommendation adopted, 2017 WL 3887888
(E.D.N.Y. Sept. 5, 2017). As Wells Fargo’s Amended Complaint was filed nearly 250 days ago
and has not been served on the John Doe Defendants, the undersigned respectfully recommends
John Does #1 through #12 be dismissed.
IV. 	Relief
Since the undersigned recommends granting a default judgment against Defendants
Ogola and Ojo, the next determination is what remedies and damages are properly granted to
Wells Fargo on default.
A. Remedies for Foreclosure
Wells Fargo requests the Court appoint a referee, Scott H. Siller Esq., to sell the Property.
(Proposed Judgment p. 3.) Courts in this Circuit have permitted such appointments where the
plaintiff established a prima facie case by presenting a note, a mortgage, and proof of default.
See, e.g., Avail 1 LLC v. Latief, 17-CV-5841, 2020 WL 5633869, at *8 (E.D.N.Y. Aug. 14,
2020); E. Sav. Bank, FSB v. Evancie, 13-CV-878, 2014 WL 1515643, at *4 (E.D.N.Y. Apr. 18,
2014). Accordingly, the undersigned respectfully recommends that Wells Fargo’s motion be
granted, and the Property be foreclosed and sold, with proceeds to be distributed according to the
Proposed Judgment and Sale. (See Proposed Judgment.)
The undersigned further recommends that the Court appoint a referee that it deems
appropriate to manage the sale of the property. “Courts in this Circuit have permitted such
appointments where the plaintiff ‘established a prima facie case by presenting a note, a
mortgage, and proof of default.’” Miss Jones LLC v. Brown, 17-CV-898, 2020 WL 5503535 at
*8 (E.D.N.Y. Sept. 11, 2020), vacated on other grounds, 17-CV-898, 2020 WL 13991023
(E.D.N.Y. Oct. 29, 2020).
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Wells Fargo requests that the Court appoint Scott H. Siller Esq., as referee and requests a
referee fee of $750. (See Proposed Judgment.) But Wells Fargo offers no information about Mr.
Siller and makes no arguments supporting why he should be selected. Moreover, the
undersigned was unable to confirm through its own research whether Mr. Siller has acted as a
referee in other mortgage foreclosure actions. Cf. Windward Bora LLC v. Thomas, 20-CV-5320,
2022 WL 14731628 (E.D.N.Y. Sept. 30, 2022). Thus, the undersigned respectfully recommends
that the Court direct Wells Fargo to produce, within twenty-one days of the adoption of the
undersigned’s Report and Recommendation, a letter listing three proposed referees (which may
include Mr. Siller) for the Court’s consideration. The letter should contain a brief description for
each of the proposed referees’ qualifications.
The undersigned recommends $750 to be an appropriate fee for the Referee. See
Windward Bora LLC v. Baez, 19-CV-5698, 2020 WL 4261130 (E.D.N.Y. July 24, 2020)
(approving a $750 referee fee and collecting cases).
B. Damages
In an action for foreclosure and sale, damages “‘should be determined under the terms of
the Notes and Mortgages.’” E. Sav. Bank, FSB v. Rabito, 2014 WL 4804872, at *1 (E.D.N.Y.
Sept. 10, 2014) (quoting Builders Bank v. Rockaway Equities, LLC, 08-CV-3575, 2011 WL
4458851, at *5 (E.D.N.Y. Sept. 23, 2011)), report and recommendation adopted, 2014 WL
4804901 (E.D.N.Y. Sept. 26, 2014). And those damages must be determined to a “reasonable
certainty.” Credit Lyonnais Sec. (USA) v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (quoting
Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)).
The plaintiff bears the burden of proving its right to the amount of damages claimed. J&J Sports
Prod., Inc. v. El Ojo Aqua Corp., 13-CV-6173, 2014 WL 4700014, at *2 (E.D.N.Y. Aug. 29,
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2014), report and recommendation adopted, 2014 WL 4699704 (E.D.N.Y. Sept. 22, 2014).
Here, Wells Fargo seeks an award of $420,944.11, which includes the unpaid principal
amount under the Note (382,000), together with all accrued and unpaid interest, late charges, and
other fees and costs permitted by the Note, Mortgage, and Modification Agreement
($420,944.11). (Lopez Declaration ¶ 22.) Further, Wells Fargo seeks attorneys’ fees in the
amount of $6,800 and costs in the amount of $1,685 for bringing this action. (Sheidlower
Declaration ¶ 18.) In support of these damages, Wells Fargo has submitted an affirmation by
Claribel Lopez, a Contract Management Coordinator at PHH Mortgage Corporation, attesting to
the amounts owed to Wells Fargo under the Notes and Mortgage. (See generally Lopez
Affirmation.) The undersigned addresses each of these damages components in turn.
i. 	Unpaid Principal & Late Fees
The original loan was in the amount of $382,000. (Mortg. p. 3.) In the event of default,
the Note requires immediate payment of the full amount of unpaid principal and all the interest
owed on that amount. (Note § 2–4.) Wells Fargo has demonstrated the existence of the
Mortgage and the Note and that it is the owner and holder of both. (See Mort. at Ex. D,
Assignment of Mortgage, Dkt. No 39-8; see also Sheidlower Declaration ¶¶ 2–9; Lopez
Affirmation ¶¶ 4–12.) Wells Fargo has adequately shown the payment history of the loan, and
that the Mortgagors are in default since September 1, 2021. (See Lopez Affirmation ¶¶ 4–12.)
Relatedly, Wells Fargo has submitted an affidavit showing the specific amounts owed by
Defendants under the Note. (See id. ¶ 22.) According to these submissions, the outstanding
principal balance as of January 31, 2025 is $359,096.04, which includes an unpaid principal
balance of $340,253.28 and a deferred principal balance of $18,842.76. (Sheidlower Declaration
¶ 17; Lopez Affirmation ¶22; Mot. at Ex. P, Dkt. No. 39-20 p. 2.) Thus, the undersigned
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respectfully recommends that Wells Fargo be awarded unpaid principal owed on the Mortgage in
the amount of $359,096.04.
The mortgage servicer’s affidavit asserts that Wells Fargo should be awarded $273.39 in
late fees along with the unpaid principal balance. (Lopez Affirmation ¶ 22.) But the affidavit
does not explain how the amount of late fees was calculated, nor does it present evidence that
Defendant Ogola’s and Ojo’s default resulted in this amount of late fees. Thus, given the lack of
evidence supporting them, the undersigned does not recommend Wells Fargo be awarded late
fees as part of a default judgment. See E. Sav. Bank, FSB v. Strez, 11-CV-1543, 2013 WL
6834806 (E.D.N.Y. Nov. 12, 2013) (recommending award of late fees when supported by
documentation), report and recommendation adopted, Order dated Dec. 20, 2013).
ii. 	Prejudgment Interest
Wells Fargo seeks pre-judgment interest from August 1, 2021 through January 31, 2025
in the amount of $23,801.02. The mortgage servicer’s affirmation identifies a per diem interest
of $18.64 and a date of default 2 percent. (Sheidlower Declaration ¶ 17; Lopez Affirmation
¶ 22.) But beyond identifying these dates and numbers, Wells Fargo’s motion provides no clear
explanation of how this amount was calculated. Nevertheless, the undersigned has reviewed the
evidence included in Wells Fargo’s motion and concludes Wells Fargo’s requested amount is
justified based on the evidence.
Pursuant to the Note, interest accrued at an annual rate of 6.59 percent. (Note § 2.) But
the final interest rate on the Mortgage after the 2020 loan modification agreement was 2 percent.
(2020 Loan Modification Agreement, Dkt. No. 39-7 p. 40.) Defendant Ogola’s and Ojo’s default
remained uncured as of September 1, 2021. (Lopez Affirmation ¶ 13.) Although the loan
servicer’s affirmation does not explicitly say so, the undersigned assumes interest began accruing
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as of August 1, 2021—presumably, the date of Defendant Ogola’s and Ojo’s last payment. (See
id. ¶ 22.)
Multiplying the principal balance of $340,253.28 by 0.02 calculates a yearly interest
amount of $6,805.07.3 Dividing that amount by 365 calculates a per diem interest of $18.65.
Multiplying that amount by 1,279, the number of days between August 1, 2021 and January 31,
2025, yields a total interest amount of $23,840.56. This amount is slightly higher than Wells
Fargo’s request for $23,801.02 in interest. As Wells Fargo’s request can be justified based on
the evidence in the record, the undersigned respectfully recommends that Wells Fargo be
awarded its requested amount of $23,801.02 in prejudgment interest. Cf. Windward Bora LLC v.
Thomas, 20-CV-5320, 2022 WL 14731628 (E.D.N.Y. Sept. 30, 2022) (recommending award of
prejudgment interest only after thoroughly analyzing plaintiff’s calculations).
iii. 	Post-Judgment Interest
Wells Fargo does not request that the Court award post-judgment interest. But pursuant
to 28 U.S.C. § 1961, “[t]he award of post-judgment interest is mandatory on awards in civil cases
as of the date judgment is entered.” Tru-Art Sign Co. v. Local 137 Sheet Metal Workers Int’l
Ass’n, 852 F.3d 217, 223 (2d Cir. 2017). As such, the undersigned respectfully recommends that
Wells Fargo be awarded post-judgment interest, which shall accrue at the federal statutory rate
from the entry of judgment until the judgment is paid in full. See, e.g., Freedom Mortg. Corp. v.
Jett, 18-CV-3306, 2019 WL 3714795, at *5 (E.D.N.Y. May 23, 2019) (awarding post-judgment
interest at the federal rate in action for judgment of foreclosure and sale), report and
recommendation adopted, 2019 WL 3805103 (E.D.N.Y. Aug. 13, 2019)).
3 In reverse-engineering Wells Fargo’s calculations, the undersigned observes that Wells
Fargo calculated prejudgment interest using the unpaid principal balance of $340,253.28,
excluding the deferred principal of $18,842.76.
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iv. 	Attorneys’ Fees
“A plaintiff in a foreclosure action may recover attorneys’ fees and costs against a
borrower-defendant if the note or mortgage provides for such an award.” U.S. Bank Nat’l Ass’n
v. Swezey, 20-CV-91, 2022 WL 1422841, at *10 (E.D.N.Y. Mar. 24, 2022), report and
recommendation adopted, 2022 WL 2390989 (E.D.N.Y. July 1, 2022). Wells Fargo seeks
attorneys’ fees in the amount of $6,800. (Sheidlower Declaration ¶ 18.) Wells Fargo’s counsel,
Eric Sheidlower, is an associate of the firm Robertson, Anschutz, Schneid, Crane & Partners,
PLLC. (Mot. at Ex. O, Affirmation of Services Rendered, Dkt. No. 39-19.) Mr. Sheidlower has
35 years of experience handling foreclosure proceedings and representing mortgagees.
Counsel’s request for fees is supported by a Declaration from Mr. Sheidlower. (Id.) Mr.
Sheidlower affirms that his average hourly rate for foreclosure matters is $330, and that he
worked a total of 25.50 hours performing legal services in connection with Wells Fargo’s
motion, which would calculate a fee of $8,415. (Id.) Mr. Sheidlower also attests Wells Fargo
paid a flat fee of $6,800 for legal services in connection with this motion. (Id.) Although Mr.
Sheidlower’s declaration provides an “itemization of the services rendered to date,” it does not
provide contemporaneous time records specifying the dates each service was performed. (Id.)
Generally, “courts in this Circuit will not award attorney’s fees assessed at a flat-rate
unless the supporting documentation is detailed enough to satisfy the Second Circuit's
requirement that attorneys’ fees must be based on contemporaneous time records specifying
relevant dates, time spent and work done.” Onewest Bank, N.A. v. Cole, 14-CV-03078, 2015
WL 4429014, at *6 (E.D.N.Y. July 17, 2015), as amended, 2016 WL 11395013 (E.D.N.Y. Jan.
19, 2016), report and recommendation adopted sub nom., 2016 WL 1069951 (E.D.N.Y. Mar. 18,
2016). Because Wells Fargo’s request for attorneys’ fees does not meet this standard, the
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undersigned respectfully recommends attorneys’ fees not be awarded.
v. 	Costs
Wells Fargo further seeks costs in the amount of $1,685. Those include a complaint
filing fee of $400, a notice of pendency filing fee of $35, service of process of $975, and a title
search of $275.00. (Mot. at Ex. M, Bill of Costs, Dkt. No. 39-17; see also Sheidlower
Declaration ¶ 17.) The terms of the Note allow the Note Holder to collect costs and reasonable
attorneys’ fees. (See Note § 4(C).) Moreover, Wells Fargo attests that the services for which the
fees have been charged were actually and necessarily performed. (Bill of Costs p. 2.) The
undersigned finds that these costs are reasonable and respectfully recommends the Court award
the requested amounts, totaling $1,690. See, e.g., Sec’y of U.S. Dep’t of Hous. & Urb. Dev. v.
Rhodie as Co-Tr. of Lornice Rhodie Revocable Living Tr., 21-CV-3165, 2022 WL 3213048
(E.D.N.Y. Aug. 9, 2022) (awarding similar costs of $1,323.04).
C. The Legal Description of the Property Should be Reformed
Finally, Wells Fargo requests the Mortgage be reformed to set forth the correct legal
description of the Property. (Am. Compl. ¶¶ 34–37.) In connection with this request, Wells
Fargo attaches to the Original Complaint Exhibit A, a Foreclosure Information Report produced
by a service provider that provides a revised description of the Property taken from the Subject
Mortgage. (Compl. at Ex. A, Dkt. No. 1-1.)
“Reformation, an equitable remedy, allows courts to align erroneous legal instruments
with the executing parties’ intent by transposing, rejecting, or supplying terms to correct or
clarify the document.” Onewest Bank, N.A. v. Denham, 24-CV-5529, 2015 WL 5562980, at *6
(quoting In re Cross Island Plaza, 12-CV-42491, 2015 WL 4610382, at *10 (E.D.N.Y. July 30,
E.D.N.Y. Aug. 31, 2015)). “Mistakes made in the description, quantity, or condition of land may
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provide a basis for deed reformation.” U.S. Bank National Association as Trustee for RMAC
Trust, Series 2016-CTT v. Christian, 19-CV-427, 2020 WL 3918566, at *7–8 (E.D.N.Y. Feb. 25,
2020) (citing Hadley v. Clabeau, 532 N.Y.S.2d 221, 225 (N.Y. Sup. Ct. 1988)). “Where there is
no mistake about the agreement and the only mistake alleged is in the reduction of that
agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred,
may be corrected.” Avail 1 LLC v. Latief, 17-CV-5841, 2020 WL 5633869, at *8 (E.D.N.Y. Aug.
14, 2020) (quoting Harris v. Uhlendorf, 24 N.Y.2d 463, 467 (1969)), report and recommendation
adopted, 2020 WL 5633099 (E.D.N.Y. Sept. 21, 2020)); see also Wilmington PT Corp. v.
Bonilla, 19-CV-2684, 2021 WL 7908030 (E.D.N.Y. Aug. 19, 2021) (recommending mortgage
be reformed to reflect correct legal description), report and recommendation adopted, Minute
Order (E.D.N.Y. Sept. 8, 2021).
The Original Complaint alleges that “[b]y mutual mistake of the mortgagor and
mortgagee,” the Mortgage was “recorded without a legal description.” (Am. Compl. ¶ 35.) The
copy of the Mortgage attached to Wells Fargo’s default motion includes no legal description of
the property. Instead, the legal description refers to Schedules A, A1, and A2. (See Mortg.)
None of those schedules were included in the motion nor the Complaints. However, the
undersigned has reviewed the Automated City Register Information System (“ACRIS”) and
found that the referenced deed does not include a legal description. See Stewart v. Loring
Estates LLC, 18-CV-2283, 2020 WL 3002363, at *9 (Feb. 26, 2020) (“Where, as here, a case
concerns real property located in the City of New York, the Court may take judicial notice of and
consider public documents relating to the real property at issue, such as those available at the
[ACRIS] Website.”). Thus, the undersigned respectfully recommends that Wells Fargo’s request
for reformation be granted, and that the Mortgage be reformed to reflect the legal description set
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forth in Exhibit A. See Avail 1 LLC v. Latief, 17-CIV-5841, 2020 WL 5633869 (E.D.N.Y. Aug.
14, 2020) (recommending reformation of correct incorrect legal description of property), report
and recommendation adopted, 2020 WL 5633099 (E.D.N.Y. Sept. 21, 2020).
CONCLUSION
For the reasons set forth above, the undersigned respectfully recommends that the Court
(i) enter a default judgment for damages against Defendants Ogola and Ojo and in favor of Wells
Fargo for $359,096.04, along with prejudgment interest of $23,801.02; (ii) order the foreclosure
and sale of the property, appointing an appropriate referee to monitor the sale and distribute the
proceeds; (iii) award Wells Fargo $1,685 in costs; (iv) order that the Mortgage be reformed to
include the legal description of the Property provided by Wells Fargo in Exhibit A of the
Complaint insofar as it reflects pre-existing legal descriptions of 13-99 Gipson Street, Far
Rockaway, New York 11691; (v) deny the motion for default judgment in all other respects,
including as to all remaining defendants; and (v) dismiss all remaining defendants from this
matter without prejudice.4 Wells Fargo is ordered to serve copies of this Report and
Recommendation on all named Defendants at all available addresses and to file the affirmation
of service on the docket within seven days.
OBJECTIONS
Any objections to this Report and Recommendation must be filed within 14 days after
service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(2); see also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for
an extension of time for filing objections must be directed to Judge Merle. Failure to file
4 As explained above, the undersigned also respectfully recommends that the Court order
Wells Fargo to submit a letter within 21 days of the adoption of this Report and Recommendation
listing three proposed referees for the Court’s consideration.
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objections within this period designating the particular issues to be reviewed waives the right to
appeal the district court's order. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Wagner &
Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92
(2d Cir. 2010) ((“[A] party [forfeits] appellate review of a decision in a magistrate judge's Report
and Recommendation if the party fails to file timely objections designating the particular
issue.”); Thomas v. Arn, 474 U.S. 140 (1985) (finding Federal Magistrates Act does not forbid
court of appeals from adopting rule conditioning appeal from district court’s judgment that
adopts magistrate judge’s recommendation upon filing of objections to magistrate judge’s report
identifying those issues on which further review is desired).
SO ORDERED.
Dated: Brooklyn, New York
January 7, 2026
/S/ SETH D. EICHENHOLTZ
SETH D. EICHENHOLTZ
United States Magistrate Judge
Eastern District of New York
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