Wilmington Savings Fund Society, FSB v. Bernash et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WILMINGTON SAVINGS FUND SOCIETY,
FSB, NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLELY AS OWNER TRUSTEE OF THE
ASPEN HOLDINGS TRUST, A DELAWARE
STATUTORY TRUST,
Plaintiff,
v.
BRYANT F. BERNASH A/K/A BRYANT
BERNASH, LISA BERNASH, CAPITAL ONE
BANK (USA), N.A.,
Defendants.
1:23-cv-00485 (AMN/DJS)
APPEARANCES: 	OF COUNSEL:
MARGOLIN, WEINREB & NIERER, LLP 	ALAN H. WEINREB, ESQ.
575 Underhill Blvd. – Suite 224
Syosset, New York 11791
Attorneys for Plaintiff
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On April 19, 2023, Plaintiff Wilmington Savings Fund Society, FSB, Not In Its Individual
Capacity But Solely As Owner Trustee Of The Aspen Holdings Trust, A Delaware Statutory Trust
commenced this diversity action under Article 13 of the New York Real Property Actions and
Proceedings Law (“RPAPL”), §§ 1301-1391, against Bryant F. Bernash a/k/a Bryant Bernash,
Lisa Bernash, and Capital One Bank (USA), N.A. (collectively “Defendants”), seeking to foreclose
on a mortgage encumbering the property located at 2532 Route 67, Saratoga Springs, NY 12866
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a/k/a 2532 Route 67, Charlton, NY 12866 (the “Subject Property”). Dkt. No. 1. On July 31, 2023,
Plaintiff filed a motion for default judgment of foreclosure and sale under Rule 55(b) of the Federal
Rules of Civil Procedure (“Fed. R. Civ. P.”), see Dkt. No. 13, which this Court denied without
prejudice on March 26, 2024. Dkt. No. 15. On April 25, 2024, Plaintiff amended its complaint
with leave of the Court, see Dkt. No. 16, and filed a second motion for default judgment of
foreclosure and sale under Fed. R. Civ. P. 55(b). Dkt. No. 22. This Court denied Plaintiff’s second
motion for default judgment of foreclosure and sale without prejudice on November 20, 2024, see
Dkt. No. 23, and on December 4, 2024, Plaintiff amended its complaint a second time with leave
of the Court. 	See Dkt. No. 24. 	To date, Defendants have neither appeared in this action nor
responded to any filing. See generally Docket Sheet.
Presently before the Court is Plaintiff’s third motion for a default judgment of foreclosure
and sale. See Dkt. No. 35 (the “Motion”). For the reasons set forth below, Plaintiff’s Motion is
granted.
II. 	BACKGROUND
For a full recitation of the factual background, the Court refers the Parties to its
Memorandum-Decision and Order on Plaintiff’s initial motion for default judgment. See Dkt. No.
15 at 2-4.1
A. Plaintiff’s Original Motion for Default Judgment and the Court’s March 26, 2024
Order
Plaintiff’s original motion for default judgment was denied without prejudice based on
Plaintiff’s failure to sufficiently establish: (1) subject matter jurisdiction; (2) statutory liability
pursuant to RPAPL §§ 1302(1)(b), 1304(1)-(2), 1331 and New York Civil Practice Law and Rules
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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(“CPLR”) § 6511(a); and (3) damages. 	See Dkt. No. 15 at 6-13. Those deficiencies aside, the
Court also noted that Plaintiff adequately satisfied the common law elements of a mortgage
foreclosure action and had standing to bring this action. See id. at 9.
B. Plaintiff’s Second Motion for Default Judgment and the Court’s November 20,
2024 Order
Plaintiff’s second motion for default judgment was denied without prejudice based on
Plaintiff’s failure to sufficiently establish: (1) statutory liability pursuant to RPAPL § 1331 and
CPLR § 6511(a); and (2) damages. See Dkt. No. 23 at 8-10. Furthermore, Plaintiff removed the
name of its previously proposed Referee, Kimberly F. Wallace, Esq., and replaced it with a blank
space. Id. at 10. Those deficiencies aside, the Court noted that Plaintiff adequately established
subject matter jurisdiction and statutory liability pursuant to RPAPL § 1302(1)(b) and § 1304(1)-
(2). See id. at 5-9.
C. Plaintiff’s Second Amended Complaint and Third Motion for Default Judgment
On December 4, 2024, Plaintiff filed a Second Amended Complaint, which alleged that
Plaintiff complied with the notice of pendency requirement pursuant to RPAPL § 1331 and CPLR
§ 6511(a) by filing the notice of pendency simultaneously with the Summons and Complaint in
the Saratoga County Clerk’s Office. See Dkt. No. 24 ¶ 22. Plaintiff further alleged that it elected
to accelerate the loan by filing the original Complaint on April 19, 2023, which served as notice
to Defendant that the principal balance and accrued interest were due. See id. ¶ 23 (citing Albertina
Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472 (1932) and Freedom Mortg. Corp. v. Engel, 37
N.Y.3d 1 (2021)). 	Additionally, Plaintiff’s Declaration of Regularity in Support of Default
Judgment of Foreclosure and Sale (“Declaration”), annexed to the Motion, proposed to appoint
Kimberly F. Wallace, Esq. as Referee, whom Plaintiff previously proposed, see Dkt. No. 13-3 at
2, and included a description of her qualifications. See Dkt. No. 35-1 ¶ 14. Lastly, the Second
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Amended Complaint includes a copy of the Notice of Pendency as filed to the Saratoga County
Clerk along with a letter to the Saratoga County Clerk confirming the submission of the Notice of
Pendency. See Dkt. No. 24-1 at 130-34.
On January 3, 2025, Plaintiff requested an entry of default and submitted a supporting
affirmation. See Dkt. No. 28. That same day, the Clerk entered default against Defendants. See
Dkt. No. 29. On May 16, 2025, the instant Motion was filed, including a memorandum of law,
supporting declaration, and various exhibits. 	See Dkt. No. 35. 	The Motion’s supporting
declaration now annexes copies of the Borrower Statement of Account and the Loan Reinstatement
Calculation as exhibits, which detail the calculation of amounts due under the loan. See Dkt. No.
35-4. Also, unlike the prior motions, the instant Motion annexes a copy of the Saratoga County
Clerk’s index record confirming the filing of the Notice of Pendency with the Summons and
Complaint, along with copies of the Notice of Pendency, Summons, and Complaint as filed to the
Saratoga County Clerk. See Dkt. No. 35-6.
III. 	STANDARD OF REVIEW
Rule 55 of the Federal Rules of Civil Procedure “provides a ‘two-step process’ for the entry
of judgment against a party who fails to defend: first, the entry of a default, and second, the entry
of a default judgment.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir.
2011) (citing New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)). The first step is governed by
Rule 55(a), which provides that “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party’s default.” 	Id. (quoting Fed. R. Civ. P. 55(a)); see also N.D.N.Y.
L.R. 55.1 (setting forth affidavit requirements). 	Entry of a default “formalizes a judicial
recognition that a defendant has, through its failure to defend the action, admitted liability to the
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plaintiff.” Mickalis, 645 F.3d at 128. The second step “requires the plaintiff to seek a judgment
by default under Rule 55(b).” 	Priestley v. Headminder, Inc., 647 F.3d 497, 505 (2d Cir. 2011).
Entry of a default judgment “converts the defendant’s admission of liability into a final judgment
that terminates the litigation and awards the plaintiff any relief to which the court decides it is
entitled[.]” 	Mickalis, 645 F.3d at 128. A default judgment “ordinarily must be entered by the
district judge, rather than by the clerk of court, except in certain circumstances[.]” Id.; see also
N.D.N.Y. L.R. 55.2 (setting forth requirements for requesting a default judgment).
“Before entering a default judgment, the court ‘must ensure that (1) jurisdictional
requirements are satisfied, (2) the plaintiff took all the required procedural steps in moving for [a]
default judgment, and (3) the plaintiff’s allegations, when accepted as true, establish liability as a
matter of law.’” 	Windward Bora, LLC v. Brown, No. 21-cv-03147, 2022 WL 875100, at *2
(E.D.N.Y. Mar. 24, 2022) (alteration in original) (quoting Jian Hua Li v. Chang Lung Grp. Inc.,
No. 16-cv-6722, 2020 WL 1694356, at *4 (E.D.N.Y. Apr. 7, 2020)). Additionally, “[t]here must
be an evidentiary basis for the damages sought by plaintiff, and a district court may determine
there is sufficient evidence either based upon evidence presented at a hearing or upon a review of
detailed affidavits and documentary evidence.” Cement & Concrete Workers Dist. Council Welfare
Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found.
Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citations omitted). When evaluating a request
for a default judgment, a “district court is empowered under Rule 55(b)(2), in the exercise of its
discretion, to ‘conduct hearings or make referrals’ as may be necessary, inter alia, to determine the
amount of damages or establish the truth of the plaintiff’s allegations.” Mickalis, 645 F.3d at 129
(quoting Fed. R. Civ. P. 55(b)(2)(B)-(C)).
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While a court may enter a default judgment if the requisite standard is satisfied, the Second
Circuit has cautioned that default judgments “are generally disfavored and are reserved for rare
occasions[.]” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). “Because we have ‘a
strong preference for resolving disputes on the merits,’ and because ‘a default judgment is the most
severe sanction which the court may apply,’ . . . we have characterized a district court’s discretion
in proceeding under Rule 55 as ‘circumscribed.’” Mickalis, 645 F.3d at 129 (first quoting Green,
420 F.3d at 104; then quoting Enron, 10 F.3d at 95; and then citing State St. Bank & Tr. Co. v.
Inversiones Errazuriz Limitada, 374 F.3d 158, 168 (2d Cir. 2004)).
IV. 	DISCUSSION2
A. Statutory Liability
In its prior Order, the Court found that Plaintiff had failed to satisfy the notice of pendency
requirement pursuant to RPAPL § 1331 and CPLR § 6511(a) because Plaintiff had not made clear
whether a copy of the Complaint was filed alongside the Notice of Pendency. See Dkt. No. 23 at
8-9. RPAPL § 1331 requires that a plaintiff file “a notice of pendency . . . in the clerk’s office of
[the] county where the mortgaged property is situated at least twenty days before a final judgment
directing a sale is rendered, along with a copy of the complaint unless the complaint has already
been filed in that county.” See U.S. Bank Trust, N.A. v. Valade, No. 17-cv-173, 2020 WL 6196150,
at *6 (N.D.N.Y. Oct. 22, 2020) (citing inter alia RPAPL § 1331 and CPLR § 6511).
Here, the declaration annexed to the Motion states that the original Complaint was filed on
April 19, 2023, and the Notice of Pendency was filed the following day, on April 20, 2023, in the
Saratoga County Clerk’s Office, together with a copy of the Summons and Complaint. Dkt. No.
2 For the avoidance of doubt, the Court previously ruled that Plaintiff had established subject matter
jurisdiction through complete diversity pursuant to 28 U.S.C. § 1332. See Dkt. No. 23 at 5-8.
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35-1 ¶ 4. 	Plaintiff also annexed a copy of the Saratoga County Clerk’s Index Record to the
Motion—which evidences the filing of the Notice of Pendency with the Summons and
Complaint—together with copies of the filed Notice of Pendency, Summons, and Complaint. See
Dkt. No. 35-6.
Plaintiff contends that it was not required to file a new notice of pendency alongside its
Second Amended Complaint because the Second Amended Complaint did not amend the
description of the Subject Property or expand the relief sought. See Dkt. No. 35-1 ¶ 4. The Court
agrees. “[T]he original complaint sufficed to support a notice of pendency.” 	U.S. v. Rivieccio,
661 F. Supp. 281, 298 (E.D.N.Y. 1987) (noting that where the claim in the original complaint is
identical to the corresponding claim in the amended complaint, the original complaint suffices to
support a lis pendens); see also U.S. through Farmers Home Admin., U.S. Dep’t of Agric. v.
Opportunities for Chenango, Inc., No. 18-cv-1230, 2020 WL 1025191, at *4 (N.D.N.Y. Mar. 3,
2020) (denying motion for default judgment and instructing plaintiff to refile its motion either with
proof that it filed its original complaint with the existing notice of pendency, or file a new notice
of pendency with a copy of an amended complaint). For these reasons, the Court finds that Plaintiff
has successfully satisfied the notice of pendency requirement pursuant to RPAPL § 1331 and
CPLR § 6511(a). Accordingly, Plaintiff now complies with all relevant statutory requirements to
establish liability.
B. Relief
The Court also held in its prior Order that Plaintiff had not provided sufficient information
for the Court to determine damages to a reasonable certainty, because Plaintiff had not provided
any information or exhibits as to whether it accelerated the loan. See Dkt. No. 23 at 9-10. Courts
have held that “[i]f the mortgage and note make acceleration an option, some affirmative action
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must be taken evidencing the holder’s election to take advantage of the accelerating provision . . .
the borrower must be provided with notice of the holder’s decision to exercise the option to
accelerate the maturity of a loan and such notice must be clear and unequivocal.” Miss Jones LLC
v. Shahid, No. 17-cv-716, 2022 WL 4642716, at *3 (E.D.N.Y. Sept. 30, 2022) (internal quotation
marks and citation omitted).
Here, the Second Amended Complaint finally states that Plaintiff accelerated the loan upon
the filing of the original Complaint on April 19, 2023. See Dkt. No. 24 ¶ 23. Plaintiff specifically
states that the commencement of the foreclosure action and demand for the full balance of the loan
constituted an unequivocal election to accelerate the loan, and that the filing of the original
Complaint “served as notice to the Defendant that the entire principal balance and all accrued
interest under the Note and Mortgage were immediately due and payable.” 	Id. 	Accordingly,
Plaintiff has successfully remedied its previous deficiency, i.e., it has provided the Court with
sufficient information to determine damages to a reasonable certainty.
Accordingly, the Court finds that Plaintiff now complies with all relevant requirements to
establish relief.
C. Appointment of Referee
Plaintiff once again designates Kimberly F. Wallace, Esq. as Referee to effectuate the
foreclosure sale, and includes a brief description of Ms. Wallace’s experience and qualifications.
See Dkt. No. 35-1 ¶ 14; see also Nationstar Mortg. LLC v. Dolan, No. 16-cv-1360, 2018 WL
3323526, at *6 (N.D.N.Y. July 6, 2018) (requesting Plaintiff provide a brief description of the
requested referee). According to Plaintiff’s declaration, Ms. Wallace is a partner at Wallace Turner
Law in Glens Falls, New York and has over twenty years of experience handling real estate, title,
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and foreclosure matters. Dkt. No. 35-1 ¶ 14. She is also admitted to practice law in New York and
has served as a referee in numerous state and federal foreclosure actions. Id.
Plaintiff also requests that the Referee be paid $750 to conduct the sale. See Dkt. No. 35-
8 at 3. The Court finds $750 to be an appropriate fee pursuant to CPLR § 8003(b). See OneWest
Bank, N.A. v. Conklin, 310 F.R.D. 40, 46 (N.D.N.Y. 2015) (ordering $750 payment to referee for
conducting the sale); Freedom Mortg. Corp. v. Redman, No. 22-cv-875, 2023 WL 6283066, at *2
(N.D.N.Y. Sept. 25, 2023) (same).
Accordingly, the Court appoints Kimberly F. Wallace, Esq. as Referee, who shall be paid
a fee of $750 from the proceeds of the sale of property.
D. Damages
“On an inquest for damages following a default, plaintiff bears the burden of proof and
must introduce sufficient evidence to establish the amount of damages with reasonable certainty.”
RGI Brands LLC v. Cognac Brisset-Aurige, S.a.r.l., 2013 WL 1668206, at * 6 (S.D.N.Y. Apr. 18,
2013), report and recommendation adopted, 2013 WL 4505255 (S.D.N.Y. Aug. 23, 2013). 	To
establish damages with reasonable certainty, district courts cannot rely entirely on a plaintiff’s
statement as to the amount of damages without additional corroborating evidence. Id.; see also
House v. Kent Worldwide Mach. Works, Inc., 359 F. App’x 206, 207 (2d Cir. 2010). In foreclosure
actions, the note and mortgage, as the governing instruments, determine any default damages.
OneWest Bank, 310 F.R.D. at 45 (citing Builders Bank v. Rockaway Equities, LLC, No. 08-cv-
3575, 2011 WL 4458851, *6 (E.D.N.Y. Sept. 23, 2011)). Pursuant to the terms of the note, Plaintiff
has the right to recover the unpaid principal and accrued interest in the event of default. See Dkt.
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No. 24-1 at 13. 	The mortgage provides language permitting similar recovery in the event of a
default. See id. at 7.
Here, Plaintiff has submitted sufficient documentation to support its request for damages.
Plaintiff seeks a total of $188,940.87 for the unpaid principal balance, accrued interest, and late
fees. See Dkt. No. 35-7 at 9. In addition to providing copies of the note, mortgage, and default
notice, Plaintiff submitted an affidavit from its administrator, Aspen Properties Group, LLC, in
addition to business records prepared by Plaintiff’s loan servicer, FCI Lender Services, Inc. See
Dkt. No. 35-4 at 2-17. 	These records set forth the applicable interest rate schedule, document
Defendant’s monthly payment history, and summarize the outstanding principal balance, accrued
interest, and late charges through April 10, 2025. Id. These records show that $126,523.60 of the
principal balance remains unpaid, $61,187.82 interest has accrued as of May 10, 2025, and
$1,299.45 in late charges also remain unpaid. See id. ¶¶ 7-11.
For these reasons, the Court finds that the affidavit and supporting documentation
sufficiently substantiate Plaintiff’s request for damages as to the unpaid mortgage principal, unpaid
interest, and other fees and costs.3 See, e.g., E. Sav. Bank, FSB v. Whyte, No. 13-cv-6111, 2015
WL 790036, at * 6 (E.D.N.Y. Feb. 24, 2015) (finding that affidavits affirming the outstanding
principal, together with a payment log and accrued interest schedule, were sufficient to establish
3 In its motion for default judgment, Plaintiff states that it does not seek to recover attorneys’ fees
associated with this action, see Dkt. No. 35-1 ¶ 9; Dkt. No. 35-7 at 9, and accordingly it has not
submitted any attorney billing records. As such, the Court does not award attorneys’ fees. See,
e.g., OneWest Bank, N.A. v. Denham, No. 14-cv-5529, 2015 WL 5562980, at *10 (E.D.N.Y. Aug.
31, 2015) (The absence of contemporaneous records specifying, for each attorney, the date, the
hours expended, and the nature of the work done, “precludes any fee award in all but the most
extraordinary of circumstances.”) (internal quotation marks and citation omitted); see also
Freedom Mortg. Corp. v. Wagner, No. 23-cv-41, 2024 WL 3300268, at *3 (N.D.N.Y. July 2, 2024).
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damages). 	Accordingly, the Court finds that Plaintiff is entitled to damages in the amount of
$188,940.87.
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that Plaintiff’s Motion, Dkt. No. 35, is GRANTED; and the Court further
ORDERS that judgment of foreclosure and sale be entered against Defendants; and the
Court further
ORDERS that Plaintiff be awarded damages in the amount of $188,940.87, consisting of
the unpaid principal balance, accrued interest, and late charges as of May 10, 2025; and the Court
further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules, enter Judgment, and close the case.
IT IS SO ORDERED.
Dated: December 11, 2025
Albany, New York
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