Windward Bora LLC v. Argueta et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WINDWARD BORA LLC,
Plaintiff, 	REPORT AND
RECOMMENDATION
-against- 	22-CV-5236 (JMA) (ARL)
ADIN ARGUETA, IRMA REYES and SUNRUN, INC.,
Defendants.
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LINDSAY, Magistrate Judge:
The plaintiff, Windward Bora LLC (“Windward”), commenced this mortgage foreclosure
action on September 1, 2022. Before the Court, on referral from District Judge Azrack, is the
motion of the plaintiff and the cross motion of the defendants, Adin Argueta (“Argueta”) and
Irma Reyes (“Reyes”), for summary judgment pursuant to Federal Rule of Civil Procedure
("Rule") 56. For the reasons set forth below, the Court respectfully recommends that both
motions be denied.
BACKGROUND
I. 	Factual Background
The following facts are drawn from Windward’s Local Rule 56.1 Statement and are
uncontested unless otherwise noted.1
1 The defendants failed to submit a Rule 56.1 counter statement in opposition to the 56.1 statement submitted by
Windward. Nor did they submit a Rule 56.1 statement in support of their cross motion for summary judgment.
Generally, a party’s “‘failure to respond or contest the facts set forth by the [moving party] in [its] Rule 56.1
statement . . . constitutes an admission of those facts, and those facts are accepted as being undisputed.’” Jessamy v.
City of New Rochelle, 292 F. Supp. 2d 498, 504 (S.D.N.Y. 2003) (quoting NAS Elecs., Inc. v. Transtech Elecs. PTE
Ltd., 262 F. Supp. 2d 134, 139 (S.D.N.Y. 2003)). However, “[a] district court has broad discretion to determine
whether to overlook a party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62,
73 (2d Cir. 2001) (citations omitted). The undesigned has chosen to overlook this defect and has deemed admitted
only those facts in the plaintiff’s Rule 56.1 Statement that are supported by admissible evidence and not
controverted by other admissible evidence in the record.
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A. 	The Initial Mortgage and Loan
On May 22, 2007, Argueta and Reyes executed a mortgage in favor of National City
Bank (“NCB”) to secure the sum of $63,000.00 (the “Mortgage”) secured by 5 Doolittle Street,
Brentwood, New York 11717. Pl.’s Rule 56.1 Stmt. ¶ 1; Light Decl. Ex. A. On May 22, 2007,
Argueta and Reyes also executed a note in favor of NCB in the amount of $63,000.00 (the
“Note”). Pl.’s Rule 56.1 Stmt. ¶ 2; Light Decl. Ex. B. On September 3, 2010, the Mortgage was
assigned by written Assignment to DBI/ASG Mortgage Holdings, LLC. Light Decl. Ex. C.2 For
some reason, this Assignment was not recorded until on June 26, 2017, in the Suffolk County
Clerk’s Office in LIBER: M 22829 PAGE: 121. Id. Nonethless, the Note was transferred by the
affixation of a proper Allonge. Id. On October 2, 2017, the Mortgage was further assigned by
written Assignment to Windward Bora. Id. This Assignment was recorded on December 12,
2017, in the Office of the Suffolk County Clerk’s Office in LIBER: M 22883 PAGE: 368. Id.
The Note was transferred by the affixation of a proper Allonge. Id.
According to Windward, prior to the assignments, Argueta and Reyes had already
defaulted on the loan. As such, on October 3, 2017, Windward, by its counsel, sent Argueta and
Reyes notices stating that the loan was in default in the amount of $54,206.97. Light Decl. Ex.
C. It is important to note that letters sent to Argueta and Reyes on the same day also indicated
that the principal and interest due was $54,247.52. Id. In fact, in one letter, the P&I is first listed
as $54,247.52 but then when the total amount of the debt is calculated as $110,946.29, the
calculation is based on a remaining balance as of 10/3/2017 of $58,063.00 plus unpaid accrued
interest of $52,715.04 plus a foreclosure bank fee of $142.00 and late charges of $26.25.3 Id.
2 The assignments are attached as exhibits to the 2018 complaint. The first assignment was made by PNC Bank,
successor to NCB. See Light Decl. Ex. C.
3 The Court is unable to reconcile the different amounts of principle reflected in the parties’ submissions.
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B. 	The 2018 Foreclosure Action
In any case, a foreclosure action was commenced by Windward on March 23, 2018. See
Windward Bora LLC v. Argueta, et al., 18-cv-01783 (JMA) (GRB) (the “2018 Foreclosure
Action”). On February 5, 2019, a Default Judgment and Judgment of Foreclosure and Sale was
issued by District Judge Azrack in favor of Windward. Light Decl. Ex. D. The Judgment
designated a referee to sell the property but the day before the sale was to take place, Argueta
and Reyes filed for Chapter 13 bankruptcy protection. Id. Ex. E; see also Windward Bora LLC
v. Argueta, et al., 18-cv-01783 (JMA) (GRB), ECF No. 24.
According to Windward, on June 3, 2019, it began to negotiate loss mitigation with
Argueta and Reyes’s former counsel so that they could retain the property. Pl.’s Mem. at 3. As
a result of those discussions, Argueta and Reyes were offered to modify their loan with a first
payment due on July 1, 2019. Light Decl. Ex. F. Pursuant to the Loan Modification Agreement,
the principal balance was increased to $124,751.42. Id. Argueta and Reyes accepted and signed
the Loan Modification Agreement on August 15, 2019.4 Id. On or about August 23, 2019, a
payment was made for the July 1 and August 1, 2019 payment. Id. Ex. G. On or about
September 13, 2019, Argueta and Reyes mailed in the payment due for September 1, 2019. Id.
On or about October 15, 2019, Argueta and Reyes mailed in the payment due October 1, 2019.
Id. On or about November 14, 2019, Argueta and Reyes mailed in the payment due November
1, 2019. Id.
However, notwithstanding the fact that Windward had agreed to modify the loan and
Argueta and Reyes were making payments pursuant to the new agreement, Argueta and Reyes
then learned that on October 30, 2019, Windward had proceeded with the foreclosure sale. See
4 The Loan Modification Agreement was not recorded with the County until January 8, 2024. Light Decl. Ex. F.
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Windward Bora LLC v. Argueta, et al., 18-cv-01783 (JMA) (GRB), ECF No. 26. Indeed,
according to the Report of Sale filed by the referee, the property was sold to Windward on
September 19, 2019, for $100. Id. As a result, on or around November 18, 2019, Argueta and
Reyes were served with eviction notices. See Light Decl. Ex. H.
According to Windward, on the day it received notice from defense counsel that his
clients had been served with the eviction notice, Windward’s counsel advised that the eviction
was cancelled and promised that a motion to vacate the judgment of foreclosure and sale would
be filed. Id. However, Windward did not act immediately. In fact, in emails between counsel.
Windward acknowledged that there was a “disconnect.” Id. Yet, between November and
December, before correcting the clear error, Windward’s counsel demanded proof of payment of
the loan modification and even photos of the backs of the checks to prove that BSI cashed them.
Id. In addition, according to those same email exchanges between counsel, Argueta and Reyes
were being sent monthly statements that did not reflect the Loan Modification Agreement terms.
Id. Despite several inquiries, well into June 2020, Argueta and Reyes were still waiting for a
response about the monthly statements and claimed to have received documentation from the
original lender causing further confusion. Id. In fact, in July, borrowers’ counsel advised that
his clients had not received any statements from Windward. Id.
In September, Windward finally acknowledged that the confusion with the paperwork
had occurred because the loan was “in the process of changing servers.” Id. Argueta and
Reyes’s counsel emailed Windward’s counsel indicating that if a statement was provided to him,
he would forward his client’s payment with the statement. Id. Windward’s counsel responded
that they didn’t have a statement to provide Argueta and Reyes but wanted them to still make the
payment. Id.
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As late as January 2021, no action was taken by counsel to undo the erroneous
foreclosure sale. Id. In fact, Winward did not file the promised motion to vacate until May 27,
2021, and, by the time the motion was filed, a new deed had already been recorded in the Suffolk
County Clerk’s Office listing Windward as the property owner.5 See Windward Bora LLC v.
Argueta, et al., 18-cv-01783 (JMA) (GRB), ECF No. 27. Windward acknowledges the delay and
contends that in early 2020, the Covid pandemic began and its firms were working in a limited
capacity. Pl.’s Rule 56.1 Stmt. ¶ 16.
As a result of the delay, it was not until February 8, 2022, that Judge Azrack was finally
able to issue an order directing Windward to file a proposed order for its motion to vacate the
Default Judgment and Judgment for Foreclosure and Sale. The Order further directed Windward
to inform the Court how it planned to proceed with this case following the Court's decision on its
motion to vacate. On February 10, 2022, Windward submitted a proposed order reciting the
procedural history of the case including the fact that the property had been sold through error.
Id. ECF No. 30. The order advised that Windward would cancel the Notice of Pendency dated
April 19, 2018 and the Referee Deed dated October 24, 2019. Id. Judge Azrack so ordered the
proposed order four days later, vacating the judgment, canceling the notice of pendency and
vacating the deed. Id. ECF No. 31. To be clear, it took twenty-nine months, between September
19, 2019 to February 14, 2022, to have the error corrected.
C. 	The Alleged Default pursuant to the Terms of the Loan Modification
Agreement
Windward now claims that after Argueta and Reyes were served with the eviction notice,
5 According to the email exchanges, Argueta and Reyes had advised newly retained counsel that the loan payments
due on the modification agreement were being held in escrow while title was being cleared. See Light Decl. Ex. H.
In fact, Windward’s counsel from to the plaintiff’s prior counsel stating, “I recalled you saying (or writing) that you
were holding money for the borrowers when we were discussing reinstating the mod.” Id.
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they defaulted on the Loan Modification Agreement by failing to pay the payment which came
due on December 1, 2019 and all subsequent payments. See Deruscio Aff. ¶ 15. Nevertheless,
no action was taken by Winward with respect to this new default until April 20, 2022, two
months after the motion to vacate the Judgment in the 2018 case was granted, at which time
Windward mailed Argueta and Reyes 30-day notices of default (the “Default Notices”) by first
class mail. Light Decl. Ex. J. On May 4, 2022, Windward claims that it then mailed Argueta
and Reyes 90-day demand notices by first class mail and by certified mail. Id. Ex. K. Windward
further contends that on the same date, pursuant to Real Property Actions and Proceedings
(“RPAPL”) Section 1306, it filed the proof of filing statement confirming the mailing of the 90-
Day Notices. Id. Ex. L.
As noted above, Windward commenced this action on September 1, 2022. ECF No 1.
Windward asserts in the complaint that Argueta and Reyes are indebted to them for the unpaid
principal amount due under the Note, along with accrued and unpaid interest and late charges
through August 4, 2022, amounting to $135,939.74.6 Id. On October 6, 2022, Argueta and
Reyes filed an answer raising eleven affirmative defenses and three counterclaims. ECF No. 5.
Argueta and Reyes contend that the reason they stopped making mortgage payments after the
foreclosure sale was because it made no sense to make payments toward a home that they no
longer owned. Id. To this end, they further complain that Windward unilaterally cancelled the
Loan Modification Agreement without cause and, as of the date of the answer, had not formally
restored their title to the premises. ECF No. 5. Argueta and Reyes seek a declaration that the
Loan Modification Agreement is in full force as well as a Judgment ordering Windward to quiet
title. Id.
6 The Demand Loan Payoff statement attached to the motion makes clear that Windward is seeking interest from
November 1, 2019, notwithstanding the foreclosure sale debacle. Light Decl. Ex. W.
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The cross motions for summary judgment were filed March 6, 2025. ECF No. 41-43.
The motion was referred to the undersigned on October 21, 2025.
DISCUSSION
A. 	Summary Judgment Standards
“‘Summary judgment is appropriate where there are no genuine disputes concerning any
material facts, and where the moving party is entitled to judgment as a matter of law.’” Puglisi
v. Town of Hempstead, No. 10 CV 1928, 2012 WL 4172010, *6 (E.D.N.Y. Sept. 17, 2012)
(quoting In re Blackwood Assocs., L.L.P., 153 F.3d 61, 67 (2d Cir. 1998) and citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c)). In deciding a summary
judgment motion, the district court must resolve all ambiguities and draw all reasonable
inferences in the light most favorable to the opposing party. See Castle Rock Entm’t, Inc. v.
Carol Publ’g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). If there is evidence in the record as
to any material fact from which an inference could be drawn in favor of the non-movant,
summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir.
1996), cert denied, 520 U.S. 1228 (1997).
The trial court’s responsibility is “limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point
to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs.,
L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). When, however, there is nothing more than a
“metaphysical doubt as to the material facts,” summary judgment is proper. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[T]here must exist ‘specific facts
showing that there is a genuine issue for trial’ in order to deny summary judgment as to a
particular claim.” Jamaica Ash & Rubbish v. Ferguson, 85 F. Supp. 2d 174, 180 (E.D.N.Y.
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2000) (quoting Celotex, 477 U.S. at 322). As such, a moving party may obtain summary
judgment by demonstrating that little or no evidence may be found in support of the non-moving
party’s case. In other words, “[w]hen no rational jury could find in favor of the nonmoving party
because the evidence to support its case is so slight, there is no genuine issue of material fact and
a grant of summary judgment is proper.” Marks v. New York Univ., 61 F. Supp. 2d 81, 88
(S.D.N.Y. 1999).
B. 	Legal Principles for Foreclosure
“‘In a foreclosure action, under New York law, a plaintiff establishes its prima facie
entitlement to summary judgment by producing evidence of the mortgage, the note, and the
defendant's default.’” Gustavia Home, LLC v. Hoyer, No. 16-CV-4015 (PKC) (VMS), 2025 WL
2802085, at *3 (E.D.N.Y. Sept. 30, 2025) (quoting Gustavia Home, LLC v. Rutty, 785 F. App'x
11, 14 (2d Cir. 2019) (summary order) (collecting cases)). “‘If the plaintiff establishes a prima
facie case, the burden then shifts to the defendant to demonstrate ‘the existence of a triable issue
of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or
oppressive or unconscionable conduct on the part of the plaintiff.’” Id. In this case, Argueta and
Reyes argue that Winward cannot establish prima facie entitlement to summary judgment
because the mortgage and the note merged into the 2019 Foreclosure Judgment and, thus, no
longer provide the basis for determining the obligations of the parties. Argueta and Reyes also
take issue with Windward’s proof of service of the 90-day notice, which is a condition precedent
to a foreclosure action.
Addressing, first the defendants’ merger argument, the undersigned notes that Argueta
and Reyes are correct that “‘a mortgage may become merged and extinguished where title to the
land and ownership of the mortgage become vested in the same person.’” Congregation Beth
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Medrosh of Monsey, Inc. v. Rolling Acres Chestnut Ridge, LLC, 101 A.D.3d 797, 799–800, 956
N.Y.S.2d 95, 98 (2012) (citing Cambridge Factors v. Thompson, 215 A.D.2d 427, 427, 626
N.Y.S.2d 259)). However, the “doctrine of merger is disfavored” and “equity will [often]
intervene to bar a merger where such was the intent of the mortgagee or if justice so requires.”
Id. (internal citations omitted). In cases like this one, the determinative issue is whether the
owner intended there to be a merger. See id. That determination must be discerned from all the
circumstances, including the effect a merger would have on the owner's interest. Id.
There is no question that when Windward initially sought, and received, a Judgment for
Foreclosure and Sale, it was Windward’s intention to assume ownership of the property and
extinguish the underlying mortgage and loan. Nevertheless, before the sale was erroneously
executed, the parties had entered into a Loan Modification Agreement, which clearly provided
that “the terms and conditions of the Loan Documents [would] remain in full force and effect and
the Original Mortgage [would continue] to secure the Original Note and this Agreement.” See
Light Decl. Ex. F. Accordingly, the Court agrees with Windward that the merger doctrine is
inapplicable in this case.
The defendants’ proof of notice argument does, however, have merit. To this end,
Argueta and Reyes contend that Windward did not comply with New York's Real Properly
Actions and Proceedings Law (“RPAPL”) §1304 or, at the very least, there is no proof that it did.
“RPAPL § 1304 sets forth the requirements for notice to a borrower that a lender, assignee, or
mortgage loan servicer must provide prior to commencing legal action against the borrower.”
Brown v. Amarante, No. 23-CV-3514 (JGLC) (RWL), 2024 WL 4716364, at *11 (S.D.N.Y.
Nov. 8, 2024), report and recommendation adopted, No. 23-CV-3514 (JGLC), 2025 WL 934318
(S.D.N.Y. Mar. 27, 2025). As noted above, “[p]roper service of [a] RPAPL § 1304 notice on the
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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.” Id. (citing CIT
Bank N.A. v. Schiffman, 948 F.3d 529, 533 (2d Cir. 2020)).
RPAPL § 1304 “provides the language the notice must contain; requires that the notice be
sent at least ninety days before commencing legal action; and requires that the notice be sent ‘in
a separate envelope from any other mailing or notice.’” Id. (citing N.Y. Real Prop. Acts. Law §
1304(2) (McKinney)). The notice must also be sent by registered or certified mail and by first-
class mail to the last known address of the borrower and to the residence that is the subject of the
mortgage. N.Y. Real Prop. Acts. Law § 1304 (McKinney). Here, Argueta and Reyes argue that
Windward has not established proof of this condition precedent because it has only provided
copies of the notice along with the “green [certified mail] cards,” which have not been signed by
the recipients, no affidavit of mailing, no testimony regarding the office practices regarding
mailing and no certificates of mailing for the first class mail RPAPL §1304 notices.
Windward disputes this contention. While it acknowledges that the copies provided to
the Court include unsigned certified mail receipts, Windward contends that its burden in
establishing compliance only requires it to establish mailing, not receipt. It further argues that to
do so, its counsel submitted a declaration regarding her firm’s office mailing procedure which
articulates, under oath, how the RPAPL § 1304 notices were mailed to Argueta and Reyes by
first class and certified mail. It is well settled that “[c]ompliance with § 1304 can be ‘established
with 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.’” CIT Bank N.A. v. Schiffman, 948 F.3d 529, 533 (2d Cir.), certified question
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accepted, 34 N.Y.3d 1137, 142 N.E.3d 102 (2020), and certified question answered, 36 N.Y.3d
550, 168 N.E.3d 1138 (2021) (citing Citibank, N.A. v. Conti-Scheurer, 172 A.D.3d 17, 98
N.Y.S.3d 273, 277 (2d Dept. 2019)). In this case, the affidavit submitted by counsel to establish
compliance attests that she reviewed her firm’s business records related to this case file and
determined that the 90-day notice was sent to two different borrowers at a different address in
Brooklyn. Light Decl. ¶ 7. Specifically, the affidavit states:
Based on my review of the Business Records relating to this file, on May 4,
2022, a HASBANI & LIGHT employee generated the 90-Day Notices required
by RPAPL § 1304 (the “90-Day Notices”). The 90-Day Notice was created on
HASBANI & LIGHT’s computer system. The names, address and loan
number on the 90-Day Notices were obtained from HASBANI & LIGHT’s
business records for the subject loan. . . . The 90-Day Notices were addressed
to the borrowers-defendants, MOUSSA TAWIL a/ka MORRIS TAWIL and
SOUFIA TAWIL a/k/a SOFIA TAWIL (“Defendants”) at 2208 East 5th
Street, Brooklyn, NY 11223 (the “Property Address”).
Accordingly, the undersigned agrees that Windward has not established compliance with RPAPL
§1304, thus, barring summary judgment in its favor.
Finally, the Court cannot ignore the fact that Windward’s handling of the 2018
foreclosure action was riddled with errors – errors that may impact any award issued in this case.
Indeed, the record before the Court establishes that Argueta and Reyes were making payments
under the terms of the Loan Modification Agreement and continued to do so until they learned
that Windward had erroneously sold their property. While Windward repeatedly states that its
counsel advised defense counsel that “a motion would be made to vacate the Judgment.” see
Light Decl. Ex. H., the fact remains that from October 2019 to February 2022, Argueta and
Reyes did not own the property. As such, a question of fact exists as to whether Argueta and
Reyes were justified, at least for a period of time, in discontinuing the payments for a home that
Windward legally owned. See Answer ¶ 71.
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Moreover, while the record makes clear that Judge Azrack vacated the Referee’s Deed in
February 2022, it is not clear if, or when, Windward took additional steps to restore title to
Argueta and Reyes. Certainly, as of the date of the answer, Argueta and Reyes believed that
Windward had not taken steps to quiet title. Id. ¶¶ 56-7. Although Windward argues, in its
memorandum, that the issue is now moot, the undersigned is hesitant to accord weight to
counsel’s representation that title was restored to the defendants given the significant and
unexplained discrepancies that occurred in the underlying action. See Green Mountain Holdings
(Cayman) LTD v. 501 Lafayette Ave LLC, No. 21-CV-5844 (MKB), 2025 WL 2494292, at *7
(E.D.N.Y. Aug. 28, 2025) (citing Millennium Tr. Co., LLC v. Tr. for Benefit of William E.
Kassar III, No. 23-CV-5094, 2025 WL 1017517, at *5 (E.D.N.Y. Apr. 4, 2025) (Despite the
defendants’ failure to oppose the motion, in a foreclosure action, the court must nonetheless
examine the affirmative defenses raised in the answer to ensure that none of those defenses raise
a triable issue of fact that would preclude summary judgment.)). As such, based on the parties’
submissions, the Court cannot say for certain that there exists no triable issues of fact as to a
bona fide defense to the action. See e.g. Soriano v. Wells Fargo Bank, N.A., No. CIV. 11-00044
SOM/KS, 2013 WL 310377, at *10 (D. Haw. Jan. 25, 2013) (a question of fact exists as to
whether Wells Fargo defendants breached the contract by foreclosing on Soriano's property
before her fourth payment was even due). For these reasons, the undersigned respectfully
recommends that both motions be denied. The undersigned further recommends that the parties
be referred to mediation after a decision is entered by the District Judge.
OBJECTIONS
A copy of this Report and Recommendation is being electronically served by the Court
on the parties. Any objections to this Report and Recommendation must be filed with the Clerk
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of the Court with a courtesy copy to the undersigned within 14 days. Failure to file objections
within this period waives the right to appeal the District Court’s Order. See 28 U.S.C. §
636(b)(1); Fed R. Civ. P 72; Mejia v. Roma Cleaning, Inc., No. 17-3446, 2018 U.S. App. LEXIS
28235, 2018 WL 4847199, at *1 (2d Cir. Oct. 5, 2018) ("Plaintiff has waived any objections to
the Magistrate's finding" by failing to timely object); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Beverly v.
Walker, 118 F.3d 900, 902 (2d Cir. 1997).
Dated: Central Islip, New York
December 10, 2025 	________/s/________________
ARLENE R. LINDSAY
United States Magistrate Judge
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