HSBC Bank USA, National Association, as Trustee for ACE Securities Corp. Home Equity Loan Trust, Series 2006-OP2 v. Bell et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR ACE
SECURITIES CORP. HOME EQUITY LOAN
TRUST, SERIES 2006-OP2,
Plaintiff,
-against-
REPORT AND
RECOMMENDATION
24 CV 7671 (NRM)(PCG)
SANDRA BELL, et al.,
Defendants.
----------------------------------------------------------X
CROSS-GOLDENBERG, United States Magistrate Judge:
On November 1, 2024, plaintiff HSBC Bank USA, National Association, as Trustee for
ACE Securities Corp. Home Equity Loan Trust, Series 2006-OP2 (“HSBC”), commenced this
action against defendants Sandra Bell, the New York City Environmental Control Board, New
York City Parking Violations Bureau, New York City Transit Adjudication Bureau, the New York
State Department of Taxation and Finance, Property Occupant, and several John Does,1 seeking
to foreclose on a mortgage encumbering the property located at 187-30 Mangin Avenue, Saint
Albans, New York 11412 (the “Subject Property”), pursuant to New York Real Property Actions
and Proceedings Law, Section 1301 et seq. (ECF No. 1 (“Compl.”)).
Despite proper service,2 defendants failed to file an answer or otherwise respond to the
Complaint and on January 15, 2025, the Clerk of Court entered default against defendants Sandra
1 The initial complaint did not list Property Occupant or the New York State Department of Taxation and
Finance. The Court amended the caption to add those parties upon plaintiff’s request. (See Electronic
Order, dated 12/2/2024; Electronic Order, dated 2/18/2025).
2 On November 8, 2024, defendants Sandra Bell and the New York City Transit Bureau were served with a
copy of the summons and Complaint and the 1303 Notice – Help for Homeowners in Foreclosure, in
compliance with RPAPL 1303, 1320. (ECF Nos. 8, 11). Defendants New York City Parking Violations
Bureau and New York City Environmental Control Board were served with the same on November 12,
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Bell, New York City Environmental Control Board, Property Occupant, New York City Parking
Violations Bureau, and New York City Transit Adjudication Bureau. (ECF No. 19). The Court
Ordered plaintiff to file its motion for default judgment by February 15, 2025. (See Electronic
Order, dated 1/19/2025). On February 17, 2025, plaintiff reported that it had “discovered that the
New York State Department of Taxation and Finance is a necessary party to this action by virtue
of its lien on the property” and it served the New York State Department of Taxation and Finance
on March 24, 2025. (ECF Nos. 20, 27). When the New York State Department of Taxation and
Finance also failed to answer or otherwise respond to the Complaint despite being properly
served, the Clerk of Court entered default in favor of plaintiff on April 28, 2025. (ECF No. 29).
On April 30, 2025, plaintiff, through its servicer, PHH Mortgage Corporation (“PHH”), moved
for default judgment (ECF No. 30), and the motion was then referred to the undersigned on May
5, 2025 to prepare a Report and Recommendation. (Electronic Order, dated 5/5/2025).
For the reasons set forth below, it is respectfully recommended that plaintiff’s motion for
default judgment be granted.
STATEMENT OF FACTS
Plaintiff alleges that it is organized under the laws of the United States and a citizen of
the State of Virgina. (Compl. ¶ 2). Defendant Sandra Bell, the record owner of the Subject
Property and obligor of the mortgage being foreclosed, is a resident and citizen of the State of
New York, residing at 187-30 Mangin Avenue, Saint Albans, New York 11412. (Id. at ¶ 3). The
remaining defendants are alleged to be New York City or State agencies with liens and possible
other interests in the Subject Property. (Id. ¶¶ 4-8).
2024. (ECF Nos. 9, 10). Property Occupant was served on December 17, 2024 and defendant New York State
Department of Taxation and Finance was served on March 24, 2025. (ECF Nos. 17, 27).
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According to the Complaint, on May 20, 2006, defendant Sandra Bell and nonparty Katie
Sue Harris3 executed a Note and Mortgage to Contour Mortgage Corporation in the amount of
$352,750. (Id. ¶ 11, Ex. C). The Mortgage was recorded on June 16, 2006 in Queens County
(CRFN:2006000339720) (the “Mortgage”). (Id., Exs. D, E). The Mortgage was thereafter
assigned to Option One Mortgage Corporation on March 29, 2007 and then, on November 19,
2009 to plaintiff. (Id. ¶ 11(b), Ex. E). On August 1, 2013, defendant Bell entered into a Loan
Modification Agreement, in which the new principal balance was modified to $367,846.11. (Id.
¶¶ 12-13, Ex. F at 2–3). Defendant Bell entered into another Loan Modification Agreement on
July 9, 2018, in which the new principal balance was modified to $483,138.67 (Id. ¶¶ 12-13, Ex.
F at 7, Thurab Aff. 4 ¶ 8). Plaintiff alleges that it is the owner and holder of the Note and
Mortgage and has the authority to institute a mortgage foreclosure or has been delegated to do
so. (Id. ¶ 15).
Plaintiff alleges that defendant Bell failed to comply with the terms of the Mortgage by
failing to make the monthly payments that were due on July 1, 2018 and she has continued to
default on these obligations since that date. (Id. ¶ 17). Plaintiff further alleges that it has
complied with all of its contractual obligations, including serving defendant with a 30-day notice
to cure, and complying with all of the provisions of RPAPL §§ 1304, 1306, and Sections 595a
and 6-1 of the Banking Law. (Id. ¶¶ 20, 21, Ex. G). Plaintiff asserts that due to the default,
defendant owes the unpaid principal amount, due under the Note as modified, together with all
accrued and unpaid interest, late charges and other fees and costs permitted by the Note, the
Mortgage, and the Loan Modification Agreement. (Id. ¶ 23(a)). Plaintiff also seeks attorneys’
3 According to the Compliant, Katie Sue Harris died on or about January 13, 2022. (Compl. ¶ 16).
4 Citations to “Thurab Aff.” refer to the Affirmation of Indebtedness, submitted by Juliana Thurab, filed April 30,
2025. (ECF No. 30-12).
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fees and costs and any and all additional fees that are due or become payable under the Note and
the Mortgage. (Id. ¶¶ 23(b), (c)). The Complaint further seeks various conditions to be imposed
should the action proceed to a judgment of foreclosure and sale. (Id. ¶ 24(a)-(g)).
DISCUSSION
I. 	Default Judgment
A. Legal Standard
Rule 55(a) of the Federal Rules of Civil Procedure 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.” Rule 55 sets
forth a two-step process for an entry of default judgment. See Enron Oil Corp. v. Diakuhara, 10
F.3d 90, 95–96 (2d Cir. 1993). First, the Clerk of the Court automatically enters the default
pursuant to Rule 55(a) by notation of the party’s default on the Clerk’s record of the case. See id.
Second, after the Clerk of the Court enters default against a party, if that party fails to appear or
otherwise move to set aside the default pursuant to Rule 55(c), the Court may enter default
judgment. See Fed. R. Civ. P. 55(c).
Where the amount of damages owed requires a judicial finding, a default judgment may
be entered once the Court has conducted a hearing or made a determination as to damages. See
Fed. R. Civ. P. 55(b). That said, while “the court must ensure that there is a basis for the
damages specified in a default judgment, it may, but need not, make the determination through a
hearing.” Fustok v. Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988), aff’d,
873 F.2d 38 (2d Cir. 1989). Rather, “the court may rely on detailed affidavits or documentary
evidence . . . to evaluate the proposed sum.” Id., aff’d, 873 F.2d 38, 40 (2d Cir. 1989) (holding
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that “it was not necessary for the District Court to hold a hearing, as long as it ensured that there
was a basis for the damages specified in a default judgment”).
However, in determining whether a default judgment should be entered, the Second
Circuit has cautioned that a default judgment is an extreme remedy that “must remain a weapon
of last, rather than first, resort.” Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). While the
Second Circuit has recognized the “push on a trial court to dispose of cases that, in disregard of
the rules, are not processed expeditiously [and] . . . delay and clog its calendar,” it has held that
the district court must balance that interest with its responsibility to “[afford] litigants a
reasonable chance to be heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95–96. Thus, in light
of the “oft-stated preference for resolving disputes on the merits,” default judgments are
“generally disfavored,” and doubts should be resolved in favor of the defaulting party. Id.
Accordingly, plaintiff is not entitled to a default judgment as a matter of right simply because the
defendants are in default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162
(S.D.N.Y. 1993) (noting that courts must “supervise default judgments with extreme care to
avoid miscarriages of justice”).
The Court has significant discretion and may consider a number of factors in deciding
whether to grant a default judgment. These factors include: (1) whether the grounds for default
are clearly established; (2) whether the claims were pleaded in the complaint, thereby placing the
defendant on notice; and (3) the amount of money potentially involved – the more money
involved, the less justification for entering the default judgment. See Hirsch v. Innovation Int’l,
Inc., No. 91 CV 4130, 1992 WL 316143, at *2 (S.D.N.Y. Oct. 19, 1992); Fed. R. Civ. P. 54(c)
(stating “[a] default judgment must not differ in kind from, or exceed in amount, what is
demanded in the pleadings”); King v. STL Consulting LLC, No. 05 CV 2719, 2006 WL
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3335115, at *4–5 (E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding
damages that accrued during the pendency of a litigation, so long as the complaint put the
defendant on notice that the plaintiff may seek such damages). Additionally, a court may
consider whether the facts alleged in the complaint state a valid cause of action, whether there
are unresolved questions regarding material issues of fact as to liability or damages, whether
plaintiff has been substantially prejudiced by the delay involved, and how harsh an effect a
default judgment might have on the defendant. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d
61, 65 (2d Cir. 1981) (discussing factors); 10A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure, § 2685 (4th ed.).
B. Default Determination
Based upon a review of the allegations in the Complaint, which are undisputed at this
time, and for the reasons stated herein, the Court finds that plaintiff has sufficiently alleged a
basis for finding liability as to warrant entry of a default judgment in its favor.
1) 	Foreclosure Actions
Under New York law, a mortgage is “‘merely security for a debt or other obligation.’”
United States v. Freidus, 769 F. Supp. 1266, 1276 (S.D.N.Y. 1991) (quoting 77 N.Y. Jur. 2d,
Mortgages § 2 at 374); see also Rivera v. Blum, 98 Misc. 2d 1002, 1008, 420 N.Y.S.2d 304, 308
(N.Y. Sup. Ct. 1978) (noting that a mortgage is the security for a debt that represents a lien on the
mortgaged property). The “‘mortgagor is bound by the terms of his contract as made,’” and, in
the event of a default, cannot be relieved from the default unless waived by the mortgagee, or
where there is “‘estoppel, or bad faith, fraud, oppressive or unconscionable conduct’” on the part
of the mortgagee. United States v. Freidus, 769 F. Supp. at 1276 (quoting Nassau Tr. Co. v.
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Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183, 436 N.E.2d 1265, 1269, 451 N.Y.S.2d 663,
667 (1982)).
Thus, in an action to foreclose upon a mortgage, a plaintiff must demonstrate three
elements: (1) the existence of the mortgage and mortgage note, (2) ownership of the mortgage,
and (3) the defendant’s default in payment on the loan. Campaign v. Barba, 23 A.D.3d 327, 327,
805 N.Y.S.2d 86, 86 (2d Dep’t 2005); see also Secretary of United States Department of Housing
and Urban Dev. v. Robedee ex rel. Suffolk Cty. Dep’t of Soc. Servs., No. 22 CV 809, 2022 WL
18284844, at *4 (E.D.N.Y. Dec. 5, 2002) report and recommendation adopted, 2022 WL
17850116 (E.D.N.Y. Dec. 22, 2022); United States v. Freidus, 769 F. Supp. at 1277 (holding that
foreclosure actions require “proof of the existence of an obligation secured by a mortgage, and a
default on that obligation”). Once the plaintiff submits the mortgage, the unpaid note, and
evidence of the default, it has satisfied its prima facie entitlement to judgment, see Fleet Nat’l
Bank v. Olasov, 16 A.D.3d 374, 374, 793 N.Y.S.2d 52, 52 (2d Dep’t 2005) (citing cases), and the
burden shifts to the defendant to demonstrate that there is a triable issue of fact with respect to
the merits of the defenses and/or counterclaims. Id.; see also Gustavia Home, LLC v. Rutty, 720
F. App’x 27, 28 (2d Cir. 2017) (summary order); U.S. Bank Trust Nat’l Ass’n Tr. v. Butti, 16
A.D.3d 408, 408, 792 N.Y.S.2d 505, 506 (2d Dep’t 2005); Republic Nat’l Bank of N.Y. v.
O’Kane, 308 A.D.2d 482, 482, 764 N.Y.S.2d 635, 635 (2d Dep’t 2003).
2) 	Analysis
When a defendant defaults, the defendant is deemed to have admitted every well-pleaded
allegation of the complaint, “except those relating to damages.” See Au Bon Pain Corp. v.
Artect, Inc., 653 F.2d at 65; Wing v. East River Chinese Rest., 884 F. Supp. 663, 669 (E.D.N.Y.
1995); see also Gomez v. 4 Runners, Inc., 769 F. App’x 1, 2 (2d Cir. 2019) (summary order).
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The Court, however, must review the allegations in the complaint to determine if the elements of
each claim have been adequately pleaded. See Allstate Ins. Co. v. Tapper, No. 14 CV 5410, 2015
WL 6869702, at *2 (E.D.N.Y. Nov. 9, 2015).
In this case, plaintiff has alleged in the Complaint that it is the current holder of the Note
and Mortgage issued originally by Contour Mortgage Corporation. (Compl. ¶ 11). Although the
Note and Mortgage were originally issued to Contour, the Assignments of Mortgage attached to
the Complaint demonstrate that the Note and Mortgage were transferred first from Contour to
Option One Mortgage (recorded March 29, 2007) and then to plaintiff (recorded November 19,
2009). (Id. ¶ 11(b), Ex. E). Plaintiff has further alleged that defendant Bell is in default on the
loan and that plaintiff has complied with all relevant provisions of the RPAPL and the New York
Banking Law. (Compl. ¶¶ 17-22).
In addition to the allegations in the Complaint, which have not been refuted, plaintiff also
has submitted copies of the duly executed Note and Mortgage, the Schedule of Assignments, the
Loan Modification Agreements, and the Declaration in Support submitted by Orit Avraham, Esq.,
counsel to plaintiff, attesting to the chronology of events. (See Avraham Decl.;5 Compl., Exs. C,
D, E, F). Plaintiff has also provided the Affirmation of Indebtedness by Juliana Thurab, contract
management coordinator for PHH Corporation, the loan servicer, attesting to plaintiff’s
possession of the Note and Mortgage, the breach of obligation, and detailing the amounts due in
unpaid principal and unpaid interest. (See Thurab Aff. ¶¶ 4-9).
The allegations in the Complaint, which establish the existence of the mortgage held by
plaintiff, along with the unpaid note and evidence of the default, are sufficient to satisfy
plaintiff’s prima facie entitlement to judgment. While the law shifts the burden to defendants to
5 Citations to “Avraham Decl.” refer to the Declaration in Support submitted by Orit Avraham, dated April 29, 2025.
(ECF No. 30-2).
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demonstrate that there is a triable issue of fact, the defendants here have failed to appear to
contest the claims. In this case, it is beyond dispute that the defendants are in default since they
failed to file an answer to the Complaint and have failed to oppose plaintiff’s motion for a default
judgment. See Hirsch v. Innovation Int’l, Inc., 1992 WL 316143, at *2 (holding that “[the
defendant’s] default is crystal clear – it does not even oppose this motion”). Given the numerous
opportunities afforded defendants, and their lack of participation in these proceedings, the Court
finds no compelling reason to delay further.6
II. 	Judgment of Foreclosure and Sale and Referee Appointment
A. Foreclosure and Sale
Before turning to plaintiff’s request for damages, the Court considers plaintiff’s request
for foreclosure. As previously articulated, under New York Law, “a plaintiff is entitled to
foreclosure ‘as a matter of law through the production of the mortgage, the unpaid note, and
evidence of default.’” BH99 Realty, LLC v. Qian Wen Li, No. 10 CV 693, 2011 WL 1841530, at
*3 (E.D.N.Y. Mar. 16, 2011), report and recommendation adopted, 2011 WL 1838568 (E.D.N.Y.
May 13, 2011). Here, plaintiff has submitted copies of the Mortgage and the Note, including the
6 None of the other defendants have appeared in this action. Although the agency defendants appear to have been
properly served, none has appeared to assert rights or interests in the property. (See ECF Nos. 9, 10, 11, 27). They
are named as defendants for their interests in the Subject Property, which plaintiff alleges are subordinate to
plaintiff’s interest in the property. (Compl. ¶¶ 4-8). “[C]ourts have held that entry of a default judgment is
appropriate where the complaint alleges ‘nominal liability,’ i.e., that any judgment or liens a defendant may have
against the property are subordinate to the plaintiff’s judgment.” Eastern Savings Bank, FSB v. Beach, No. 13 CV
0341, 2014 WL 923151, at *8 (E.D.N.Y. Feb 12, 2014) (collecting cases), report and recommendation adopted, 2014
WL 923151 (E.D.N.Y. Mar. 10, 2014). Since plaintiff has alleged nominal liability, the Court thus respectfully
recommends that plaintiff’s motion for default judgment against the other government agency defendants be
granted. See Federal Home Loan Mortg. Corp. v. 41-50 78 th St. Corp., No. 92 CV 5692, 1997 WL 177862, at *3
(E.D.N.Y. Apr. 4, 1997) (granting default judgment and holding “there is no reason to anticipate that a default
judgment will have harsh effects. Had any of the defendants believed that their liens were not subordinate to the
plaintiff’s, they would have set forth their argument in an answer”); Greystone Bank v. Skyline Woods Realty, LLC,
817 F. Supp. 2d 57, 66 (N.D.N.Y. 2011) (entering a default judgment against the New York State Department of
Taxation and Finance where plaintiff alleged the NYSDTF’s interests were subordinate to plaintiff’s).
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Loan Modification Agreements, along with the Thurab Affirmation attesting to plaintiff’s
possession of the Note. (See Thurab Aff. ¶ 5; Compl., Exs. A, B).
Thus, plaintiff has shown the existence of the Mortgage, Note, the assignments, and
mortgage default, thereby establishing plaintiff’s presumptive right to foreclosure. See Arcpe
Holding v. 9Q4U5E LLC, No. 19 CV 6417, 2021 WL 8316275, at *3 (E.D.N.Y. Aug. 11, 2021)
(stating that “a plaintiff seeking to foreclose a mortgage it did not originate must show evidence
of: (1) the mortgage assignment; (2) the mortgage; (3) the note, and (4) the mortgage default”);
Windward Bora LLC v. Valencia, No. 19 CV 4147, 2022 WL 872506, at *1 (E.D.N.Y. Mar. 24,
2022). Accordingly, since plaintiff has established that it is the holder of the Mortgage and Note,
and that defendant has failed to make payments in accordance with the terms of the Mortgage, it
is respectfully recommended that plaintiff’s request for a judgment of foreclosure and sale be
granted.
B. Appointment of Referee
The Court may appoint a referee to effectuate a foreclosure and compute the amount due
to the plaintiff under the Note and Mortgage when a defendant defaults and fails to answer the
complaint. See RPAPL § 1321(1); § 1351(1); see also Windward Bora, LLC v. Brown, No. 21
CV 3147, 2022 WL 875100, at *5 (E.D.N.Y. Mar. 24, 2022).
In a proposed Judgment of Foreclosure and Sale, filed by plaintiff in conjunction with its
default judgment motion, plaintiff requests that the Court designate a referee, Scott H. Siller,
Esq., to conduct the foreclosure sale. (See Proposed J. at 3; Avraham Decl. at 6). “Courts
routinely appoint referees to effectuate the sale of foreclosed properties.” U.S. Bank N.A. v.
Christian, No. 19 CV 427, 2020 WL 3918566, at *6 (E.D.N.Y. Feb. 25, 2020) (citing cases),
report and recommendation adopted, 2020 WL 3893015 (E.D.N.Y. July 10, 2020).
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Plaintiff further requests the payment of the following from the proceeds of the sale: (1)
a $750.00 fee to the referee; (2) advertising expenses and expenses of the sale; and (3)
$592,010.84 which represents the principal allegedly owed, plus $166,699.12 in interest owed as
of December 23, 2024, plus interest accruing at the contractual rate of 2.00164% per annum7
through the date of entry of this Judgment and the date of the foreclosure sale, along with any
late charges, and sums expended by plaintiff for taxes, assessments, water rates and sewer rents,
with interest and penalties accrued. (Proposed J. at 2, 4–5).
Having already determined that plaintiff is entitled to a judgment of foreclosure, the
Court respectfully recommends the appointment of Scott H. Siller, Esq. as referee to effectuate
the foreclosure and sale of the Subject Property, and that plaintiff be awarded sums expended in
the sale. The Court further respectfully recommends that Scott H. Siller, Esq., be paid $750.00
from the proceeds of the sale. See Windward Bora, LLC v. Brown, 2022 WL 875100, at *6
(appointing referee pursuant to proposed judgment that provides $750.00 fee); cf. Windward
Bora LLC v. Valencia, 2022 WL 872506, at *1 (appointing a referee in a foreclosure action for
the fee of $750.00).
III. 	Default Damages
A. Legal Standard
When a default judgment is entered, the defendants are deemed to have admitted all well
pleaded allegations in the Complaint pertaining to liability. See Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993);
Montcalm Publ’g Corp. v. Ryan, 807 F. Supp. 975, 977 (S.D.N.Y. 1992) (citing United States v.
Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989)); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d at
7 See Compl., Ex. F (explaining that the interest rate under the July 9, 2018 Loan Modification Agreement is
2.00164% yearly).
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65. However, the plaintiff must still prove damages in an evidentiary proceeding at which the
defendants have the opportunity to contest the claimed damages. See Greyhound Exhibitgroup,
Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158. “‘While a default judgment constitutes an
admission of liability, the quantum of damages remains to be established by proof unless the
amount is liquidated or susceptible of mathematical computation.’” Levesque v. Kelly
Commc’ns, Inc., No. 91 CV 7045, 1993 WL 22113, at *4 (S.D.N.Y. Jan. 25, 1993) (quoting
Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)).
As previously mentioned, the Court may appoint a referee to compute damages due to the
plaintiff under the Note and Mortgage. RPAPL § 1321(1); see Greystone Bank v. Skyline Woods
Realty, LLC, 817 F. Supp. 2d at 65. However, RPAPL § 1321(1) does not require a court to
appoint a referee to do so. See id. (“If the defendant fails to answer within the time allowed or
the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall
ascertain and determine the amount due, or direct a referee to compute the amount due to the
plaintiff . . .”) (emphasis added); see also Windward Bora, LLC v. Brown, 2022 WL 875100, at
*5 (computing amount due on the note without appointing a referee). Plaintiff submitted
evidence in support of its damage calculations, whereas none of the defendants submitted any
papers. Since all of the defendants are in default and plaintiff’s evidence on damages is
undisputed, the Court calculates damages based on plaintiff’s submissions.
B. Damages Calculation
Plaintiff seeks entry of a judgment foreclosing on the loan and awarding plaintiff the
aggregate amount of $592,010.84. (Thurab Aff. ¶ 18). According to Ms. Thurab, this requested
amount consists of $483,138.65 in principal (comprising $425,311.72 in unpaid principal and
$57,826.93 deferred principal balance), $55,848.66 in unpaid interest as of December 23, 2024,
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$77.31 in late charges, $52,319.22 in escrow taxes and insurance, and $2,352.50 in property
expenses such as inspections and appraisals, servicer fees, and a title search, less $1,725.50 held
by plaintiff in a suspense balance account. (Id.) In addition, plaintiff seeks interest from
December 24, 2024 until the foreclosure sale calculated at the per diem rate of $23.32. (Id.).
Plaintiff also seeks attorneys’ fees and costs incurred in connection with this litigation. (Pl.’s
Mem.8 at 18–19).
1) 	Principal
According to the Affidavit of Juliana Thurab, plaintiff is owed $483,138.65 in principal
(comprising $425,311.72 in unpaid principal and $57,826.93 in deferred principal on the
mortgage as of February 6, 2025).9 (Thurab Aff. ¶ 18). Plaintiff alleges that defendant Bell
began missing payments on July 1, 2018 and the default continues to date. (Compl. ¶ 17). Thus,
the unpaid balance due remains the balance set in the modified loan agreement set on July 9,
2018, $483,138.65. (Compl., Ex. F). Pursuant to the terms of the July 9, 2018 Loan
Modification Agreement, the initial payment was due on July 1, 2018,10 after which the new
monthly payments of principal and interest began to accrue. (Id.). Plaintiff alleges that
defendant failed to tender the installment which became due and owing on July 1, 2018 and
failed to tender subsequent installments. (Compl. ¶ 17).
Having reviewed the plaintiff's submissions in support of its motion for damages, the
Court respectfully recommends that plaintiff be awarded the unpaid principal amount owed on
the Mortgage in the amount of $483,138.65.
8 Citations to “Pl.’s Mem.” refer to plaintiff’s Memorandum in Support, filed on April 30, 2025. (ECF No. 30-3).
9 Although Ms. Thurab’s affirmation was filed on April 30, 2025, it was notarized on February 6, 2025. (Thurab
Aff. at 8).
10 The loan modification was entered into on June 22, 2018 and stated that “Borrower promises to make monthly
payments of principal and interest of U.S. $1,288.32, beginning on 07/01/2018.” (Compl., Ex. F at 6-7), Plaintiff
provides no explanation why the agreement was not signed until July 9, 2018,
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2) 	Interest
In addition, plaintiff seeks an award of unpaid interest due under the terms of the Loan in
the amount of $55,848.66. (Thurab Aff. ¶ 18). According to the original Note, the annual rate
of interest was 6.6% (Compl., Ex. B), but pursuant to the Loan Modification Agreements, the
annual rate of interest on the unpaid principal balance of the loan became 2.00164%. (Compl.,
Ex. F). Plaintiff has calculated the interest owed from June 1, 2018 to December 23, 2024 as
$55,848.66 based on the 2.00164% rate. (Id.) The Court has independently run this calculation,
coming to the conclusion that 2.00164% interest charged over the 6.56 year period is $63,440.94.
Because plaintiff is seeking less than it is entitled to under the contract, the Court respectfully
recommends that plaintiff be awarded damages in past-due interest in the amount requested,
$55,848.66, and per diem pre-judgment interest in the amount of $23.3211 per day from
December 24, 2024 until judgment is entered. See Windward Bora, LLC v. Brown, 2022 WL
875100, at *6 (awarding per diem, prejudgment interest starting from August 13, 2021 where
plaintiff had calculated the amount of alleged interest due through August 12, 2021).
Finally, a plaintiff is also entitled to an award of post-judgment interest, pursuant to 28
U.S.C. § 1961(a), on damage awards issued by a district court. See Schipani v. McLeod, 541
F.3d 158, 165 (2d Cir. 2008). Thus, the Court also respectfully recommends that plaintiff be
awarded post-judgment interest at the federal statutory rate from the date judgment is entered
until it is paid. See Windward Bora, LLC v. Brown, 2022 WL 875100, at *6 (awarding
11 Daily interest is calculated as follows: daily interest rate = (outstanding principal * interest rate per annum)/365
days.” CIT Bank, N.A. v. Seeram, No. 16 CV 2608 (RRM)(LB), 2017 WL 8220204, at *5 n.11 (E.D.N.Y. Feb. 15,
2017), adopted by, 2018 WL 1308003 (E.D.N.Y. Mar. 13, 2018) (citation omitted). Here, plaintiff calculates per
diem interest based on the unpaid principal balance, not including any deferred principal balance. Accordingly, the
per diem interest is $23.32 per day.
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postjudgment interest pursuant to 28 U.S.C. § 1961(a) in granting motion for default judgment of
foreclosure and sale).
C. Late Charges and Expenses
According to the Ms. Thurab’s declaration, plaintiff is owed $77.31 in late fees,
$52,319.22 in escrow expenses such as taxes and insurance, and $2,352.50 in property expenses
such as inspections and appraisals, servicer fees, and a title search, less $1,725.50 held in a
suspense account. (Thurab Decl. ¶ 18). Having reviewed plaintiff’s submissions in support of
its motion, the Court respectfully recommends that plaintiff be awarded these expenses owed on
the Mortgage in the amount of $53,023.53.
D. Attorneys’ Fees and Costs
In addition to the amounts owed under the Mortgage, plaintiff seeks an award of
attorneys’ fees in the amount of $6,800 for legal work completed in connection with this
litigation. (Services Decl.12 at 2). Plaintiff also seeks $1,315 in costs associated with this
litigation. (Pl.’s Mem. at 4, Ex. L). According to the terms of the Mortgage, plaintiff is entitled
to recover “reasonable” attorneys’ fees in the event of a default. (Compl., Ex. C § 7(c)).
The party seeking reimbursement of attorneys' fees “bears the burden of proving the
reasonableness and necessity of hours spent and rates charged.” East Saving Bank v. Evancie,
No. 13 CV 0878, 2014 WL 1515643, at *4 (E.D.N.Y. Apr. 18, 2014) (citing New York State
Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). Indeed, in
connection with fee applications, courts generally require the party seeking fees to submit
detailed records, listing the services rendered in connection with the action, the name of each
12 Citations to the “Services Declaration” refer to the Declaration of Services Rendered, submitted by Orit Avraham,
Esq. on April 30, 2025. (ECF No. 30-14).
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attorney who worked on the matter, the date that services were performed, the hours spent
performing the services, and the hourly rate charged. See New York State Ass'n for Retarded
Children, Inc. v. Carey, 711 F.2d at 1148 (holding that an attorney “who applies for court-ordered
compensation ... must document the application with contemporaneous time records....
specify[ing], for each attorney, the date, the hours expended, and the nature of the work done”).
The Court then calculates a reasonable fee award by employing the “lodestar” method,
multiplying the number of hours reasonably spent by counsel on the matter by a reasonable
hourly rate. See Perdue v. Kenny A., 559 U.S. 542, 546, 551–52 (2010); Millea v. Metro-North
R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011); Arbor Hill Concerned Citizens Neighborhood Ass’n
v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); Cowan v. Ernest Codelia, P.C., No. 98 CV
5548, 2001 WL 30501, at *7 (S.D.N.Y. Jan. 12, 2001), aff’d, 50 F. App’x 36 (2d Cir. 2002).
Although there is a “strong presumption that this amount represents a reasonable fee,” the
resulting lodestar figure may be adjusted based on certain other factors. Cowan v. Ernest
Codelia, P.C., 2001 WL 30501 at *7; see also Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d
Cir. 1999).
1) 	Reasonable Hourly Rate
When assessing whether legal fees are reasonable, the Court determines the
“presumptively reasonable fee” for an attorney’s services by looking to what a reasonable client
would be willing to pay. See Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of
Albany, 522 F.3d at 18384. To calculate the presumptively reasonable fee, a court must first
determine a reasonable hourly rate for the legal services performed. Id. To determine the
reasonable hourly rate applicable, the Court looks to rates prevailing in the community (i.e., the
district) in which the reviewing court sits. Gesualdi v. Dove Mason Supply Co., Inc., No. 19 CV
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1181, 2020 WL 1538746, at *6 (E.D.N.Y. Mar. 11, 2020). In Arbor Hill, the Second Circuit
adopted the following factors to guide the Court’s inquiry as to what constitutes a reasonable
hourly rate:
1) the time and labor required; 2) the novelty and difficulty of the
questions; 3) the level of skill required to perform the legal
service properly; 4) the preclusion of employment by the attorney
due to acceptance of the case; 5) the attorney’s customary hourly
rate; 6) whether the fee is fixed or contingent; 7) the time
limitations imposed by the client or the circumstances; 8) the
amount involved in the case and the results obtained; 9) the
experience, reputation, and ability of the attorneys; 10) the
“undesirability” of the case; 11) the nature and length of the
professional relationship with the client; and 12) awards in similar
cases.
Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d at 187 n.3
(citation omitted). A number of courts within the Second Circuit have applied these factors
when awarding attorney’s fees. See Manzo v. Sovereign Motor Cars, Ltd., No. 08 CV 1229,
2010 WL 1930237, at *7 (E.D.N.Y. May 11, 2010); Adorno v. Port Auth. of New York & New
Jersey, 685 F. Supp. 2d 507, 511 (S.D.N.Y. 2010); Cruz v. Henry Modell & Co., Inc., No. 05 CV
1450, 2008 WL 905351, at *3 (E.D.N.Y. Mar. 31, 2008). See also Lochren v. Cty. of Suffolk,
344 F. App'x 706, 709 (2d Cir. 2009) (noting that district courts need not “recite and make
separate findings as to all twelve” factors in awarding fees).
Among other things, the Second Circuit has instructed courts to balance:
the complexity and difficulty of the case, the available
expertise and capacity of the client’s other counsel (if any), the
resources required to prosecute the case effectively[,] . . . the
timing demands of the case, whether the attorney might have
an interest (independent of that of his client) in achieving the
ends of the litigation or might initiate the representation
himself, whether the attorney might have initially acted pro
bono[,] . . . and other returns (such as reputation, etc.) the
attorney might expect from the representation.
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Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d at 184. See
also Heng Chan v. Sung Yue Tung Corp., No. 03 CV 6048, 2007 WL 1373118, at *2 (S.D.N.Y.
May 8, 2007) (applying the aforementioned considerations). In awarding attorney’s fees, the
Court is guided by the fact that motions for default judgment are relatively simple legal matters,
taking into account the attorney’s degree of skill and the Court’s own experience dealing with
similar claims.
Here, counsel charged plaintiff a flat fee of $6,800 which was charged for 21.75 hours of
work. (See Services Decl. ¶¶ 4-5). Thus, he seeks a rate of $312.64 per hour.13 The work was
completed by Orit Avraham, Esq., an attorney with approximately 26 years of experience, two of
which have been spend handling foreclosure proceedings and representing mortgagees.
(Services Decl. ¶ 6). 	The Court finds Mr. Avraham’s rates are aligned with reasonable hourly
rates for cases of this nature in this District. See Moore v. Rubin, 766 F. Supp. 3d 423, 428
(E.D.N.Y. Feb. 14, 2025) (finding that, “[a]fter an extensive and well-documented discussion of
the impact of inflation on the cost of living…the reasonable hourly rates in this district are now
$450 to $650 for partners, $300 to $450 for senior associates, $150 to $300 for junior associates,
and $100 to $150 for paralegals”).
Accordingly, the Court respectfully recommends that counsel be awarded fees at the rate
of $312.64 per hour.
13 Mr. Avraham stated his rate averaged over the time spent on this matter would be $330. (Services Decl. ¶ 5).
This seems to be a mathematical error. A flat rate of $6,800 divided by 21.75 hours worked results in an hourly rate
of $312.64.
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2) 	Reasonable Number of Hours
The next step in awarding attorney’s fees is determining the reasonableness of the hours
expended by counsel. See, e.g., Irving v. G. & G. Instrument Corp., 19 CV 1597, 2020 WL
1536325 at *5 (E.D.N.Y. Mar. 31, 2020); LaBarbera v. Empire State Trucking, Inc., No. 07 CV
669, 2008 WL 746490, at *4–5 (E.D.N.Y. Feb. 26, 2007). In reviewing a fee application, the
Court should exclude “excessive, redundant, or otherwise unnecessary” hours. Bliven v. Hunt,
579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983));
Gesualdi v. Dove Mason Supply Co., Inc., 2020 WL 1538746, at *6. If the Court finds “that
some of the time was not reasonably necessary . . . it should reduce the time for which
compensation is awarded accordingly.” Louis Vuitton Malletier, S.A. v. LY USA, Inc., 676 F.3d
83, 111 (2d Cir. 2012); see also Struthers v. City of New York, No. 12 CV 242, 2013 WL
5407221, at *89 (E.D.N.Y. Sept. 25, 2013) (reducing fees because those requested for
responding to motion papers were “excessive”); Jemine v. Dennis, 901 F. Supp. 2d 365, 393
(E.D.N.Y. 2012) (reducing requested fees 10% because the “quality and complexity of the
submissions and calculations” did not reflect the hours expended); Ehrlich v. Royal Oak Fin.
Servs., No. 12 CV 3551, 2012 WL 5438942, at *3–4 (E.D.N.Y. Nov. 7, 2012) (reducing
attorneys’ fees because the attorney’s litigation of the suit made apparent his “lack of
experience” and because his billing record contained duplicative entries); Quinn v. Nassau Cnty.
Police Dep’t., 75 F. Supp. 2d 74, 78 (E.D.N.Y. 1999) (reducing one attorney’s fees by 20% and
another’s by 30% for unnecessary and redundant time).
Here, counsel has submitted an extraction of his billing records. (Services Decl. ¶ 4).
The Court notes that, although the Second Circuit requires a fee applicant to supply
contemporaneous billing records, see New York State Ass’n for Retarded Children v. Carey, 711
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F.2d 1136 (2d Cir. 1983), the actual billing records need not be provided where the attorneys
have provided affidavits as to the fees charged based on reconstructions from contemporaneous
billing records. See, e.g., Carrero v. New York City Housing Auth., 685 F. Supp. 904, 908–909
(S.D.N.Y. 1988) (holding that “[w]here the attorneys have provided the court with affidavits that
have been reconstructed from contemporaneous records and that set forth all charges with
specificity, fees have not been denied”). If the reconstructed records are not sufficiently detailed,
however, courts have required production of the actual records. See Union of Orthodox Jewish
Congregations of America v. Queseria Fiesta, LLC, No. 12 CV 6059, 2013 WL 1386965, at * 3
(S.D.N.Y. Apr. 5, 2013). The Court finds that counsel’s affidavit and reconstructed records are
sufficiently detailed and does not, therefore, require production of additional records.
Counsel’s records show that he expended 21.75 hours on this matter. Having reviewed
the records, the Court finds that counsel’s hours expended are reasonable and in line with similar
cases in this District. See, e.g., US Alliance Fed. Credit Union v. M/V Kamara Fam., 691 F.
Supp. 3d 646, 665 (E.D.N.Y. 2023) (finding a total of 26.8 hours spent on a maritime foreclosure
default judgment reasonable); Blue Castle (Cayman) Ltd. v. Astudillo, No. 23 CV 3851, 2024
WL 3813309, at * (E.D.N.Y. July 26, 2024) (finding a total of 30.6 hours spent on a foreclosure
default judgment reasonable), report and recommendation adopted by, Electronic Order, dated
9/27/2024.
Accordingly, the Court respectfully recommends that plaintiff be awarded $6,800 in
attorneys’ fees.
3) 	Costs
Plaintiff also requests $1,040 in costs, including $440 in filing fees, $600 in service of
process expenses. (ECF No. 34-4). 	Although the Court may take notice of filing fees in this
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District and can recommend an award for those fees, see Gao v. Jian Shong Shi, No. 18 CV
2708, 2021 WL 1949275, at *19 (E.D.N.Y. Apr. 30, 2021), report and recommendation adopted
by, 2021 WL 1946322 (E.D.N.Y. May 15, 2021), “process server fees…must be supported by
documentation” before the Court can award them. Feltzin v. Union Mall LLC, 393 F. Supp. 3d
204, 219 (E.D.N.Y. 2019) (citing Martinez v. Alimentos Saludables Corp., No. 16 CV 1997,
2017 WL 5033650, at *29 (E.D.N.Y. Sept. 22, 2017)).
Accordingly, the Court recommends that plaintiff be awarded $440 in costs.
CONCLUSION
For the reasons set forth above, the Court respectfully recommends that plaintiff’s motion
for default judgment be granted. The Court respectfully recommends that the plaintiff be
awarded (1) $592,010.84 in unpaid balance, interest, and expenses; (2) $23.32 per diem interest
from December 24, 2025 until judgment is entered; (3) post-judgment interest at the statutory
rate; (4) $6,800 in attorneys’ fees; and (5) $400 in attorneys’ costs.
The Court further respectfully recommends that the foreclosure and sale of the Subject
Property proceed as set forth in the Proposed Judgment, under the direction of Scott H. Siller,
Esq. as referee. The Court further respectfully recommends that the referee be paid $750.00
from the proceeds of the sale, and that plaintiff be awarded from the sale any sums expended for
taxes, assessments, water rates and sewer rents, interest and penalties accrued, and any additional
costs for the expenses of the sale and the advertising expenses as shown on the bills presented to
said referee and certified by her.
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court within fourteen (14) days. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also
Fed. R. Civ. P. 6(a) (providing the method for computing time). Failure to file objections within
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the specified time waives the right to appeal the District Court’s order. See, e.g., Caidor v.
Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).
The Clerk is directed to send copies of this Report and Recommendation to the parties
either electronically through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
January 27, 2026
/s/ Peggy Cross-Goldenberg
Peggy Cross-Goldenberg
United States Magistrate Judge
Eastern District of New York
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