1:24-cv-08667•Wells Fargo Bank v. Ogola et al
Texto completo
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. Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 1 of 22 PageID #: <pageID>
2 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.) Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 2 of 22 PageID #: <pageID>
3 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). Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 3 of 22 PageID #: <pageID>
4 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 4 of 22 PageID #: <pageID>
5 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 5 of 22 PageID #: <pageID>
6 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). Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 6 of 22 PageID #: <pageID>
7 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 7 of 22 PageID #: <pageID>
8 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 8 of 22 PageID #: <pageID>
9 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 9 of 22 PageID #: <pageID>
10 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 10 of 22 PageID #: <pageID>
11 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 11 of 22 PageID #: <pageID>
12 (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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 12 of 22 PageID #: <pageID>
13 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). Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 13 of 22 PageID #: <pageID>
14 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, Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 14 of 22 PageID #: <pageID>
15 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 15 of 22 PageID #: <pageID>
16 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 16 of 22 PageID #: <pageID>
17 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. Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 17 of 22 PageID #: <pageID>
18 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 18 of 22 PageID #: <pageID>
19 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 19 of 22 PageID #: <pageID>
20 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 20 of 22 PageID #: <pageID>
21 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. Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 21 of 22 PageID #: <pageID>
22 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 Case 1:24-cv-08667-NCM-SDE Document 41 Filed 01/07/26 Page 22 of 22 PageID #: <pageID>
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.