Plaza Home Mortgage, Inc. v. Baggs et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
PLAZA HOME MORTGAGE, INC,
Plaintiff,
-v- 	5:25-CV-949 (AJB/TWD)
JOSHUA T. BAGGS,
Defendant.
_____________________________________
Hon. Anthony Brindisi, U.S. District Judge:
ORDER GRANTING DEFAULT JUDGMENT
I. 	INTRODUCTION
On July 18, 2025, plaintiff Plaza Home Mortgage, Inc. (“Plaza” or “plaintiff”) filed this
diversity action under Article 13 of the New York Real Property Actions and Proceedings Law
(“RPAPL”), [N.Y. Real Prop. Acts Law] §§ 1301–93, to foreclose on a mortgage encumbering
the property at 31 Van Buren Street, Antwerp, New York 13608 (the “Subject Property”) against
defendant Joshua T. Baggs (“defendant”) and several placeholder defendants.1 Dkt. No. 1.
On January 9, 2026, plaintiff moved for default judgment. Dkt. No. 15. Because the
time period in which to oppose has expired, the motion will be considered on the basis of the
available submissions without oral argument.
II. 	BACKGROUND
1 Plaintiff now requests to amend the case caption to strike the twelve “John Doe” defendants, as none were ever
identified or served. See Pl.’s Mem. at 9. Rule 21 of the Federal Rules of Civil Procedure provides, in relevant part,
“the court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. Accordingly, plaintiff’s request to
drop the unnamed placeholder defendants will be granted.
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On August 8, 2024, defendant executed a note in favor of Plaza in the amount of
$183,870.00. Compl. ¶ 8 & Ex. B, Dkt. No. 1. The note was secured by a mortgage against the
Subject Property recorded on August 14, 2024. Compl. ¶ 8; Dkt. No. 1-3, Ex. C. Thereafter,
defendant failed to make the monthly payments and, despite being given notice to cure,
eventually defaulted on the note. Compl. ¶¶ 11–12.
On January 9, 2026, Plaza moved under Rule 55 of the Federal Rules of Civil Procedure
for a default judgment. Dkt. No. 15. Despite having been served with plaintiff’s moving papers,
id., defendant has failed to respond. The time period in which to do so has since expired. See id.
Accordingly, plaintiff’s motion will be considered on the basis of the available submissions
without oral argument.
III. 	LEGAL STANDARD
Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining
a default judgment. F ED. R. C IV. P. 55(a)–(b). The first step is to obtain an entry of default from
the Clerk of the Court. Id. 55(a). The second step is to move for a default judgment, which must
be approved by the court except in those rare cases where the plaintiff’s claim is for a sum
certain. Id.55(b)(1)–(2).
“[A] party’s default is deemed to constitute a concession of all well pleaded allegations of
liability.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.
1992). But “it is not considered an admission of damages.” Id. And “it remains for the court to
consider whether the unchallenged facts constitute a legitimate cause of action, since a party in
default does not admit conclusions of law.” LaBarbera v. ASTC Lab’ys Inc., 752 F. Supp. 2d
263, 270 (E.D.N.Y. 2010) (cleaned up). “Put differently, liability does not automatically attach
from the well-pleaded allegations of the complaint, as it remains the court’s responsibility that
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the factual allegations, accepted as true, provide a proper basis for liability and relief.” Rolls-
Royce PLC v. Rolls-Royce USA, Inc., 688 F. Supp. 2d 150, 153 (E.D.N.Y. 2010).
IV. 	DISCUSSION
A. Liability
“Under New York state law, three elements must be established in order to sustain a
foreclosure claim: (1) the proof of the existence of an obligation secured by a mortgage; (2) a
default on that obligation by the debtor; and (3) notice to the debtor of that default.” United
States v. Paugh, 332 F. Supp. 2d 679, 680 (S.D.N.Y. 2004). With respect to the third element,
RPAPL § 1304 requires that, “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.”
Plaintiff satisfies all three elements. First, plaintiff provided a copy of the signed note
dated August 8, 2024. See Ex. B to Compl. Plaintiff also provided a copy of the consolidated
mortgage. See Ex. C to Compl. Second, plaintiff has provided proof that defendant defaulted on
the mortgage. See Ex. E to Dkt No. 15 (“Pl.’s Mot. For Default J.”). Third, plaintiff has
provided proof that it served defendant with notice of the default and evidence of its compliance
with RPAPL § 1304’s ninety-day notice period. See Ex. E to Compl.
This showing is sufficient to entitle plaintiff to a default judgment. See, e.g., Gustavia
Home, LLC v. Bent, 321 F. Supp. 3d 409, 414–15 (E.D.N.Y. 2018) (“Once the plaintiff submits
the mortgage, the unpaid note, and evidence of the default, it has demonstrated its prima facie
case of entitlement to judgment.”). Accordingly, plaintiff’s motion for default judgment must be
granted.
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Notably, the Servicemembers Civil Relief Act does not bar this foreclosure action. As
plaintiff notes, defendant was active in the Army during the period from July 2, 2020, to June 24,
2025. See Ex. G to Pl.’s Mot. For Default J.; Pl.’s Mem. at 7–8. Although the Servicemembers
Civil Relief Act requires a lender to obtain a court order before foreclosing on or selling property
owned by a current or recent servicemember where the mortgage obligation “originated before
the period of the servicemember’s military service,” 50 U.S.C. § 3953(a); see id. § 3953(c), it
does not apply to obligations incurred during the servicemember’s military service. See Sibert v.
Wells Fargo Bank, N.A., 863 F. 3d 331, 334 (4th Cir. 2017) (explaining that Congress “chose not
to protect obligations incurred during military service because both the servicemembers and
lenders would be aware of the servicemember’s income and military status”).
Because defendant originated the subject loan and executed both the subject note and the
subject mortgage in August 2024—squarely within his term of military service—defendant
cannot claim the remedy provided in § 3953. See Sibert, 863 F.3d at 334 (explaining the statute
denies protections “to obligations originating during the servicemember’s military service).
Finally, plaintiff has complied with the affidavit requirements set forth in 50 U.S.C. §
3931, which governs default judgments in cases involving servicemembers. That provision
requires a plaintiff seeking a default judgment to file an affidavit stating whether the defendant is
in military service, or that the plaintiff is unable to determine the defendant’s military status after
making a good faith effort. 50 U.S.C. § 3931(b)(1). Here, plaintiff submitted evidence
confirming defendant’s period of active-duty service. See Ex. G to Pl.’s Mot. For Default J.
Because the record affirmatively establishes defendant’s military status—and, for the reasons
discussed above, the protections of the Servicemembers Civil Relief Act do not preclude this
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action—the requirements of § 3931 are satisfied, and entry of default judgment is not barred on
that basis.
B. Damages
“While a party’s default is deemed to constitute a concession of all well pleaded
allegations of liability, it is not considered an admission of damages.” Greyhound Exhibitgroup,
Inc., 973 F.2d at 158. To that end, Rule 55(b) of the Federal Rules of Civil Procedure permits—
but does not require—a district court to “conduct hearings or make referrals” in order to, among
other things, “determine the amount of damages[,] establish the truth of any allegation by
evidence[,] or investigate any other matter.” F ED. R. C IV. P. 55(b)(2)(B)–(D).
As relevant here, the Second Circuit has held that a district court can determine the
amount of damages through affidavits or other evidence, without an in-person court hearing, “as
long as [the court has] ensured that there was a basis for the damages specified in the default
judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111
(2d Cir. 1997) (internal quotations omitted). On a motion for default judgment, “any
determination of default damages should be determined under the terms of the Note[ ] and
Mortgage[ ] . . . ” Builders Bank v. Rockaway Equities, LLC, 2011 WL 4458851, at *5
(E.D.N.Y. Sept. 23, 2011).
Plaintiff’s request for damages relies upon the affirmation of Claribel Lopez (“Lopez’s
Affirmation”). See Lopez’s Aff., Dkt. No. 15. Lopez is employed as a Vice President by PHH
Mortgage Corporation as an authorized agent for Plaza. Id. Lopez avers that Plaza is the owner
of a promissory note and mortgage securing the note on the Subject Property. Id. ¶¶ 4–6. Lopez
has attached to her affirmation a Schedule of the amount due on the note which she compiled
after examining the records kept by Plaza in the regular course of its business. Id. ¶ 16.
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Lopez’s affirmation asserts that plaintiff is entitled to $196,577.51 for total default
damages pursuant to the note and mortgage. Lopez’s Aff. ¶ 16. This figure includes
$183,226.78 in unpaid principal balance, $10,132.04 in interest, $2,346.54 in escrow balance,
and $872.15 in additional charges. See id. The Court will address each of these categories of
damages in turn.
Category 	Calculation/Source of Amount 	Totals
Principal
Balance
Per Pl.’s Mem. at 1, the original amount was $183,870.00. See also
Dkt. No. 1.
However, per Lopez’s Aff. at ¶ 16, the unpaid balance due as of
October 16, 2025 was $183,226.78. See also Pl.’s Proposed Order
at 1, Dkt. No. 15; Pl.’s Proposed Statement of Damages, Dkt. No.
15.
$183,226.78
Interest
Interest from 01/01/2025 to 10/16/2025 at 6.99%. See Lopez’s Aff.
at ¶ 16; Pl.’s Proposed Order at 1–2; Pl.’s Proposed Statement of
Damages.
$10,132.04
Total Escrow
Balance
See Lopez’s Aff. at ¶ 16; Pl.’s Proposed Order at 2; Pl.’s Proposed
Statement of Damages. $2,346.54
Property
Inspections
See Lopez’s Aff. at ¶ 16; Pl.’s Proposed Order at 2; Pl.’s Proposed
Statement of Damages. $150.00
Title Search
Expenses
See Lopez’s Aff. at ¶ 16; Pl.’s Proposed Order at 2; Pl.’s Proposed
Statement of Damages. $600.00
Late Charges See Lopez’s Aff. at ¶ 16; Pl.’s Proposed Order at 2; Pl.’s Proposed
Statement of Damages. $122.15
Total 	$196,577.51
1. Principal
Under Section I of the note, Baggs promised that “[i]n return for a loan in the amount of
U.S. $183,870.00 (the “Principal”) that I have received . . . I promise to pay the Principal, plus
interest, to the order of the Lender.” Ex. B to Compl.
Based on Vice President Lopez’s review of the records, defendant’s failure to make
timely monthly payments has resulted in an outstanding principal of $183,226.78 due on the note
as of October 16, 2025. See Lopez’s Aff. ¶ 16. “The note and mortgage, as the governing
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instruments, should determine any default damages.” OneWest Bank, N.A. v. Conklin, 310
F.R.D. 40, 44 (N.D.N.Y. 2015) (D’Agostino, J.) (citing Builders Bank, 2011 WL 4458851 at *6).
Therefore, the Court concludes that plaintiff is entitled to the outstanding principal balance of
$183,226.78 through foreclosure and sale of the property.
2. Interest
Plaintiff also seeks interest in the amount of $10,132.04 at an annual rate of 6.99%,
accrued between January 1, 2025, and October 16, 2025. See Lopez’s Aff. at ¶ 16; Pl.’s
Proposed Order at 1; Pl.’s Proposed Statement of Damages.
Section II of the note states that “[i]nterest will be charged on unpaid Principal until the
full amount of the Principal has been paid. I will pay interest at a yearly rate of 6.990%.” Ex. B
to Compl. Plaintiff’s calculation of interest through October 16, 2025, appears to be correct. At
6.99% interest, defendant also owes $35.09 per day on the principal owed for all dates following
October 16, 2025. See Pl.’s Proposed Statement of Damages. Because plaintiff has submitted
documentation showing the payment history of the loan, Ex. G to Pl.’s Mot. For Default J.,
plaintiff’s request for an award of interest in the amount of $10,132.04, plus interest at a rate of
$35.09 per diem accruing after October 16, 2025, must be granted. See E. Sav. Bank, FSB v.
Whyte, 2015 WL 790036, at *6 (E.D.N.Y. Feb. 24, 2015) (finding a claim for damages sufficient
where the plaintiff submitted an affidavit that “includes the payment log and an accrued interest
schedule, which details all interest that has accrued and interest that has been paid since the
inception of the loan”).
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3. Additional Costs
Finally, plaintiff requests other amounts allowed by the note and mortgage; namely,
escrow balance, property inspections, title search expenses, and late charges. See Lopez’s Aff. at
¶ 16; Pl.’s Proposed Order at 1; Pl.’s Proposed Statement of Damages.
In support of these requests, plaintiff has submitted business records showing the
amounts claimed. See Ex. P. to Pl.’s Mot. For Default J. With respect to these claims, the Court
is “satisfied that the documents submitted . . . sufficiently demonstrate, by competent proof,” that
these amounts are owed to plaintiff. Onewest Bank, N.A. v. Shepherd, 2015 WL 1957284, at *1
(N.D.N.Y. Apr. 29, 2015) (McAvoy, J.).
C. Attorney’s Fees
Plaintiff also requests attorney’s fees and costs. “Since there is no statute in New York
authorizing the recovery of an attorneys’ fee in a mortgage foreclosure action, such a fee may
only be recovered if it is contractually authorized.” Vigo v. 501 Second St. Holding Corp., 121
A.D.3d 778, 779 (N.Y. 2014). The mortgage and promissory note provide that, in the event of
default, the mortgage holder is entitled to “reasonable attorney’s fees and costs.” Dkt. No. 1.
Accordingly, attorney’s fees are available.
But the inquiry does not end there. “[A]ny attorney . . . who applies for court-ordered
compensation in this Circuit . . . 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.” N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.
1983).
In support of plaintiff’s request for attorney’s fees, plaintiff has submitted the affirmation
of Eric Sheidlower, Esq. (Sheidlower Aff.). See Ex. O to Pl.’s Mot. For Default J. Sheidlower’s
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affirmation asserts that the time estimates outlined in the provided list of “Legal Services
Performed” are “averaged based on volume as the firm is paid by the client a flat fee of
$5,562.50, which fee encompasses all work, other than contested issues, from receipt of the file
through completion.” Id. ¶ 4–5. Notably, there are no dates associated with the work performed.
See id. Further, three of the services included on the list have yet to occur, including counsel’s
“[a]ppearance at foreclosure sale.” See id.
Measured against the general governing law, counsel’s affirmation falls short of the
standards applied in this Circuit when seeking an award of attorney’s fees. Failure to support a
fee application with contemporaneous records generally results in denial of any award. See
Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53 (2d Cir. 1992).
Even where the attorney charges the client a flat fee, courts have permitted “such awards
where the attorney also presented contemporaneous time records” but have denied these awards
“where the attorney failed to maintain and produce contemporaneous time records.” CIT Bank v.
Dambra, 2015 WL 7422348, at *8 (E.D.N.Y. Sept. 25, 2015) (collecting cases). While “actual
contemporaneous time records” are not always necessary, there is no indication here that
counsel’s summary of the work performed was based upon contemporaneous recordkeeping as
the services were being provided. Cf. Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers,
34 F.3d 1148, 1160 (2d Cir. 1994) (holding that attorney’s fees should be awarded even though
counsel “did not submit actual contemporaneous time records” because “[a] review of the
submissions made by [the attorneys] shows that they made contemporaneous entries as the work
was completed, and that their billing was based on these contemporaneous records”).
Counsel’s inclusion of tasks that have not yet occurred is also impermissible under
Second Circuit precedent. See Onewest Bank, N.A. v. Cole, 2015 WL 4429014, at *7 (E.D.N.Y.
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July 17, 2015) (denying request for award of attorney’s fees and noting that “[t]he affirmation
also includes tasks that have not yet occurred, including ‘Post sale activity’ despite the Court not
yet ordering such sale”).
Therefore, in the absence of contemporaneous time records or reconstructions of those
contemporaneous records, plaintiff’s request for an attorney’s fee award must be denied. See
Kingvision Pay–Per–View, Ltd. v. Jasper Grocery, 152 F. Supp. 2d 438, 443 (S.D.N.Y. 2001)
(“Counsel’s failure to offer more than the most general estimate of time expended in this case
therefore precludes any award of fees.”).
Plaintiff also seeks costs in the amount of $1,650. As previously noted, the mortgage and
promissory note provide that, in the event of default, the mortgage holder is entitled to
“reasonable attorney’s fees and costs.” Dkt. No. 1. Plaintiff requests to have the following costs
reimbursed: $405.00 clerk’s fee, $1,220.00 fee for service of process, and $60.00 notice of
pendency filing fee. See Ex. M to Pl.’s Mot. For Default J.
Reasonable and identifiable out-of-pocket expenses of the kind ordinarily charged to
clients are recoverable. See LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998).
Plaintiff has provided documentary evidence substantiating each of the listed costs. See Ex. M to
Pl.’s Mot. For Default J. Accordingly, plaintiff will be awarded $1,650 in costs. See Mestousis
Enters. Inc. v. Concord Blue Inc., 2012 WL 254987 at *4 (S.D.N.Y. Jan.27, 2012) (awarding
costs that were “substantiated by receipts”), report and recommendation adopted, 2012 WL
1193752 (S.D.N.Y. Apr. 10, 2012).
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D. Judgement of Foreclosure and Appointment of Referee
Finally, plaintiff seeks a judgement of foreclosure and the appointment of Todd Doldo,
Esq. as referee to sell the Subject Property under conditions set out in the proposed Judgment of
Foreclosure and Sale. See Pl.’s Proposed Order.
“[O]nce a plaintiff mortgagee in a foreclosure action has established a prima facie case by
presenting a note, a mortgage, and proof of default, it has a presumptive right to foreclose that
can only be overcome by an affirmative showing by the mortgagor.” U.S. v. Watts, 2014 WL
4275628, at *2 (E.D.N.Y. May 28, 2014) (citations omitted), report and recommendation
adopted, 2014 WL 4293815 (E.D.N.Y. Aug. 28, 2014).
As previously discussed, plaintiff has provided the Court with the note, the mortgage, and
proof of default. Defendant has failed to appear or respond to plaintiff’s legal arguments and has
thus failed to make the affirmative showing required to overcome Plaza’s presumptive right to
foreclose on the Subject Property. Accordingly, the Court orders that a judgment of foreclosure
and sale of the subject property be entered, and that the named referee be appointed to effectuate
the foreclosure and sale of the property. The Court further orders that the proceeds of any sale
be applied to the amount owed on the note.
Therefore, it is
ORDERED that
1. 	Plaintiff’s motion for default judgment (Dkt. No. 15) is GRANTED in part and
DENIED in part;
2. Plaintiff SHALL RECOVER from defendant totaling $196,577.51, plus interest at
6.99% accruing between October 16, 2025, and the date of this decision and costs in the amount
of $1,650; and
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3. A judgment of foreclosure and sale of the subject property shall be entered and a
referee shall be appointed to effectuate the foreclosure and sale of the property.
The Clerk of the Court is directed to terminate the pending motion, enter a judgment
accordingly, and close the file.
IT IS SO ORDERED.
Dated: 	March 25, 2026
Utica, New York.
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