FREEDOM MORTGAGE CORPORATION v. JAMES BULLOCK JR DEBORAH DURUSSEL CLERK OF THE SUFFOLK COUNTY TRAFFIC PARKING VIOLATIONS AGENCY (2023)

REPORT AND RECOMMENDATION

Freedom Mortgage Corporation (“Freedom Mortgage”) first filed this foreclosure action pursuant to the New York Real Property Actions and Proceedings Law (“RPAPL”) on February 4, 2019, against James M. Bullock, Jr. (“Bullock”), Deborah DuRussel (“DuRussel”), and the Clerk of the Suffolk County Traffic & Parking Violations Agency (“TPVA” and collectively, “Defendants”). (Compl. filed Feb. 4, 2019 (“Compl.”), Dkt. No. 1). The subject property is 4 Krause Street, Bay Shore, New York 11706. (Id. ¶ 1).

On January 12, 2023, Freedom Mortgage moved for default judgment. (Third Mot. for Default J. filed Jan. 12, 2023 (“Third Mot.”), Dkt. No. 51). The Court previously denied a motion for default judgment for lack of compliance with RPAPL §§ 1304 and 1306. Freedom Mortgage has failed to correct the identified errors and compounded them by submitting incorrect or confusing declarations in support of its present motion. As such, the Court recommends denial of the motion with leave to file a new motion correcting the deficiencies and clarifying the matters identified herein.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 14, 2011, James M. Bullock, Jr. and Deborah DuRussel (together, the “Borrowers”) executed a mortgage and note with Continental Home Loans, Inc. (“Continental Homes”) encumbering 4 Krause Street, Bay Shore, New York 11706 (the “Subject Property”) in the principal amount of $245,611.00. (Compl. ¶¶ 10–11; Mortgage dated Oct. 14, 2011 (“Mortgage”), Dkt. No. 23-2; Note dated Oct. 14, 2011 (“Note”), attached as Schedule A to Compl.). The Mortgage was recorded in the Suffolk County Clerk's Office on November 17, 2011. (Compl. ¶ 11). On April 12, 2016, Continental Homes assigned the Mortgage to Freedom Mortgage. (Id. ¶ 12; Corporate Assignment of Mortgage dated Apr. 25, 2016, Dkt. No. 23-2).

The Borrowers failed to make a monthly payment due on January 1, 2016, and have continued to default on subsequent payments, placing them out of compliance with the terms and provisions of the Mortgage and Note. (Compl. ¶ 13). Each failure to make a payment constituted an Event of Default under the Note and a default under the Mortgage. (Note ¶ 6(B); Mortgage ¶ 9).

On October 9, 2018, Freedom Mortgage mailed 90-day foreclosure notices to the Borrowers at the Subject Property. (Notices dated Oct. 9, 2018, Dkt. No. 53-7). The 90-day notices informed the Borrowers that their home loan was 1,012 days and $78,509.64 in default, that they are “at risk of losing [their] home,” and if they do not take actions to cure the default within 90 days, the Lender “may commence legal action against [them].” (Id.). The Borrowers failed to cure the defaults. (Decl. of Tracy M. Fourtner dated Jan. 10, 2023 (“Fourtner Decl.”), Dkt. No. 53 ¶ 4).

The Complaint was filed on February 4, 2019. (Compl.). It named Bullock and DuRussel as defendants because they were the borrowers who executed the Note and Mortgage on the Subject Property. (Id. ¶¶ 3–4, 10–11). It also named as a defendant TPVA as a potential subordinate lienholder. (Id. ¶¶ 5–6). Counsel for TPVA filed a notice of appearance on November 22, 2019. (Notice of Appearance, Dkt. No. 15). DuRussel and Bullock were properly served with a summons and the Complaint. (Aff. of Service dated Nov. 14, 2019, Dkt. No. 13; Aff. of Service dated Nov. 21, 2019, Dkt. No. 16). Neither DuRussel nor Bullock appeared or answered, and as a result, the Clerk of Court entered default against them. (Clerk's Entry of Default dated Dec. 20, 2019, Dkt. No. 19).

Freedom Mortgage also sought an entry of default against TPVA; the Clerk of Court denied this request since counsel had filed an appearance on TPVA's behalf. (Order dated Dec. 20, 2019).

On February 10, 2020, Freedom Mortgage filed a motion for default judgment against all Defendants. (Mot. for Default J. filed Feb. 10, 2020, Dkt. No. 21). In light of the appearance of TPVA, the Court held that a default judgment cannot be entered against it. (Order dated Feb. 25, 2020). The Court thereafter denied the motion without prejudice as to Bullock and DuRussel in light of the Second Circuit's certification of questions regarding application of RPAPL §§ 1304 and 1306—which prescribe certain pre-foreclosure procedures—to the New York Court of Appeals. Freedom Mortg. Corp. v. Bullock, No. 19-CV-664, 2020 WL 6047425, at *1 (E.D.N.Y. Oct. 13, 2020) (adopting report and recommendation). The Court, therefore, stayed the case pending the resolution of CIT Bank N.A. v. Schiffman, 948 F.3d 529 (2d Cir. 2020). Bullock, 2020 WL 6047425, at *1. After the stay was lifted in May 2021, Freedom Mortgage filed a second motion for default judgment. (Mot. for Default J. dated Sept. 28, 2021, Dkt. No. 43). The Court denied the motion without prejudice for failure to comply with the notice requirements of RPAPL §§ 1304 and 1306. Freedom Mortg. Corp. v. Bullock, No. 19-CV-664, 2022 WL 18299810, at *3–*4 (E.D.N.Y. Mar. 11, 2022), report and recommendation adopted, 2022 WL 4445399, at *3–*5 (Sept. 23, 2022). Because there had already been two other such motions filed in the case, the Court directed Freedom Mortgage to file a letter containing proof of compliance with RPAPL §§ 1304 and 1306 before filing another default judgment motion. Bullock, 2022 WL 4445399, at *5.

On September 26, 2022, Freedom Mortgage filed a letter including an Affidavit of Mailing Procedures, along with copies of the 90-day notices and the Proof of Filing Statement. (Letter dated Sept. 26, 2022, Dkt. No. 49). It filed the present motion for default judgment on January 12, 2023. (Third Mot.). On June 6, 2023, the Honorable Nicholas G. Garaufis referred the motion to the undersigned for a report and recommendation. (Order Referring Mot. dated June 6, 2023).

DISCUSSION

Rule 55 of the Federal Rules of Civil Procedure establishes a two-step process for obtaining a default judgment. See Shariff v. Beach 90th St. Realty Corp., No. 11-CV-2551, 2013 WL 6835157, at *3 (E.D.N.Y. Dec. 20, 2013) (adopting report and recommendation). First, “[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.” Fed. R. Civ. P. 55(a). Second, after default has been entered, and the defendant fails to appear or move to set aside the default under Rule 55(c), the Court may, on plaintiff's motion, enter a default judgment against that defendant. Id. R. 55(b)(2).

Whether to enter a default judgment is committed to the discretion of the district court, within the limits articulated by the Second Circuit. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993) (“The circumscribed scope of the district court's discretion in the context of a default is a reflection of our oft-stated preference for resolving disputes on the merits.”). That is, the Second Circuit “ha[s] a strong preference for resolving disputes on the merits” and has cautioned that “a default judgment is the most severe sanction which the court may apply.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011) (quotations omitted).

“A default does not establish conclusory allegations, nor does it excuse any defects in the plaintiffs’ pleading.” Mateo v. Universal Language Corp., No. 13-CV-2495, 2015 WL 5655689, at *4, *6–*7 (E.D.N.Y. Sept. 4, 2015) (finding defendant was not plaintiff's employer based on his testimony that contradicted allegations in the complaint), report and recommendation adopted, 2015 WL 5664498, at *1 (Sept. 23, 2015). For example, an allegation is not “well-pleaded” if it is contradicted by other evidence put forth by the plaintiff. See id. at *6–*7; Montblanc-Simplo GmbH v. Colibri Corp., 739 F. Supp. 2d 143, 151 (E.D.N.Y. 2010) (“[O]nce plaintiffs provided an actual picture of the allegedly infringing pen that contradicted the allegations in the Complaint, those allegations would no longer be considered well-pleaded.”).

In deciding a motion for default judgment, a court “is required to accept all of the [plaintiff]’s factual allegations as true and draw all reasonable inferences in its favor.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). A party's default is deemed an admission of all well-pleaded allegations of liability. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Morales v. B & M Gen. Renovation Inc., No. 14-CV-7290, 2016 WL 1266624, at *2 (E.D.N.Y. Mar. 9, 2016), report and recommendation adopted, 2016 WL 1258482, at *2 (Mar. 29, 2016). The Court must then determine “whether the unchallenged facts constitute a legitimate cause of action.” 10A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 2688.1 (4th ed. 2022) (“Once the default is established, defendant has no further standing to contest the factual allegations of plaintiff's claim for relief. Even after default, however, 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 Labs. Inc., 752 F. Supp. 2d 263, 270 (E.D.N.Y. 2010) (adopting report and recommendation).

The Court denied Freedom Mortgage's prior motion for default judgment because it failed to comply with the notice requirements set forth in RPAPL. Bullock, 2022 WL 18299810, at *1.

Section 1304 of the RPAPL requires that, at least 90 days before commencing a home foreclosure action, a notice of default on the mortgage loan be sent by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is subject to the mortgage. Section 1304 also prescribes the contents of the notice.

Windward Bora LLC v. Armstrong, No. 18-CV-6355, 2021 WL 606713, at *5 (E.D.N.Y. Feb. 16, 2021) (quotations and citations omitted). “Proper service of [an] 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, 999 F.3d 113, 116 (2d Cir. 2021) (alteration in original) (quoting Deutsche Bank Nat'l Tr. Co. v. Spanos, 102 A.D.3d 909, 910 (2d Dep't 2013)).

A lender can establish compliance with section 1304 in one of two ways: (1) if the “notice or other document was sent through evidence of actual mailing (e.g., an affidavit of mailing or service)”; or (2) “by proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature.” CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550, 556 (2021) (citations omitted). Under the second method, a “lender may create a rebuttable presumption that it complied with § 1304 by submitting ‘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.’ ” Schiffman, 999 F.3d at 116 (quoting Citibank, N.A. v. Conti-Scheurer, 172 A.D.3d 17, 21 (2d Dep't 2019)).

In its Report and Recommendation dated March 11, 2022, the Court concluded Freedom Mortgage failed to demonstrate compliance with § 1304, noting several deficiencies. Bullock, 2022 WL 18299810, at *3. First, Freedom Mortgage inexplicably failed to attach the 90-day foreclosure notices and mailing receipts to its motion, despite an affidavit from its foreclosure specialist stating that such documents were attached. Id. Second, there was no evidence to suggest the notices were mailed to the Borrowers’ last known address, as required under RPAPL § 1304(2). Id. The 90-day notices were mailed to the Borrowers at the Subject Property. But the motion papers—in compliance with Local Rule 55.2—were mailed to the Borrowers at last known residential addresses different from the Subject Property address: 512 Walnut Woods Drive, Morrisville, North Carolina 27560 and 28 Jefferson Avenue, Massapequa Park, New York 11762. Id. The Court reasoned that, while it is “of course, possible that [the Borrowers] moved during the pendency of the case, such that the Subject Property was their residential addresses at the time the 90-day notice was required to be served[,] ․ that fact would have to be established through an affidavit or other proof, which is not present here.” Id.¹

In support of the present motion, Freedom Mortgage attached the relevant 90-day notices, thereby correcting the first deficiency. (Notices dated Oct. 9, 2018, Dkt. No. 53-7). It also submitted a notarized affidavit of employee Erica Tracy, in which she attests to her personal knowledge of Freedom Mortgage's ordinary business practices in the creation, addressing, and mailing of 90-day notices. (See Aff. of Erica Tracy dated Aug. 22, 2022, Dkt. No. 53-7). Tracy avers that, in accordance with Freedom Mortgage's standard business procedures, 90-day notices were mailed to Bullock and DuRussel by certified and first-class mail to the “last known address of the borrower[s] at 4 Krause St, Bay Shore, NY 11706-2618 which is the residence that is the subject of the mortgage.” (Id. ¶ 5). But in so doing, Tracy does not articulate whether the Subject Property was the Borrowers’ residence at the time of mailing the 90-day notice–that is, in the past tense—or as her statement implies, is now their current present-day residence, or both. In other words, by failing to specify the timeframe in which the Borrowers resided at the Subject Property, Freedom Mortgage has failed to dispel the Court's prior confusion about their last known address, and has, in fact, created more confusion. If the Subject Property is, in fact, DuRussel and Bullock's last known address—as Tracy avers—then the default judgment motion papers should have been mailed there. Local Civil Rule 55.2 requires that default judgment papers be mailed to the defendant at “the last known residence of such party (if an individual).” Loc. Civ. R. 55.2(c). But they were not. And this defect is a sufficient independent basis to deny default judgment because Local Rule 55.2 is strictly construed. See, e.g., United States v. Hamilton, No. 18-CV-2011, 2019 WL 6830318, at *2–*3 (E.D.N.Y. Nov. 26, 2019) (recommending denial of motion for default judgment because plaintiff failed to follow Local Rule 55.2(c) and noting that “courts in the Eastern and Southern Districts regularly deny such motions when strict procedural compliance is lacking”), report and recommendation adopted, 2019 WL 6828276, at *1 (Dec. 13, 2019); Yang v. Zhou's Yummy Rest., Inc., No. 19-CV-5203, 2023 WL 2347885, at *4 (E.D.N.Y. Mar. 3, 2023) (denying default judgment motion in light of failure to serve motion papers at individuals’ last known residence in compliance with Local Rule 55.2) (adopting report and recommendation); Bhagwat v. Queens Carpet Mall, Inc., No. 14-CV-5474, 2015 WL 13738456, at *1 (E.D.N.Y. Nov. 24, 2015) (denying default judgment motion against individuals in part for “fail[ure] to include ․ proof of mailing that this motion was served upon defaultees’ last known mailing address”); Augustin v. Apex Fin. Mgmt., No. 14-CV-182, 2015 WL 5657368, at *3 (E.D.N.Y. July 27, 2015) (“[I]t is not clear that these documents were mailed to Apex at the last known business address of such party. Plaintiff's failure to comply with Local Civil Rule 55.2 alone warrants denial of the motion, without prejudice to renew with an affidavit demonstrating proper service.” (quotations and citations omitted)) (collecting cases), report and recommendation adopted, 2015 WL 7430008, at *3 (Nov. 23, 2015).

Freedom Mortgage could have easily cured this deficiency by doing just as the Court recommended in its prior R&R—by demonstrating, in the form of an affidavit or through other supporting documentation, that the Subject Property was the Borrowers’ residential address at the time the 90-day notice was required to be served, and that the Borrowers moved after the commencement of this foreclosure action. If that were the case, then service of the 90-day notice and the motion papers was done correctly: to the last known address at the time the separate mailings were consummated. The present affidavit suggests that the Subject Property is currently their last known residence; but the default judgment papers were not served there.²

But there are more fundamental problems with Freedom Mortgage's renewed motion. “[I]n a New York mortgage foreclosure action, a plaintiff makes a prima facie case ․ where the foreclosing party produces documentary evidence establishing the three elements of a foreclosure claim: (1) a mortgage, (2) a note, and (3) proof of default on the note by the mortgagor.” CIT Bank, N.A. v. Escobar, No. 16-CV-3722, 2017 WL 3614456, at *4 (E.D.N.Y. June 16, 2017) (quoting E. Sav. Bank, FSB v. Bright, No. 11-CV-1721, 2012 WL 2674668, at *3 (E.D.N.Y. July 5, 2012)), report and recommendation adopted, 2017 WL 3634604, at *1 (Aug. 18, 2017). Further, “[w]hile 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, 973 F.2d at 158. “The court must conduct an inquiry to ascertain the amount of damages with reasonable certainty.” Joe Hand Promotions, Inc. v. El Norteno Rest. Corp., No. 06-CV-1878, 2007 WL 2891016, at *2 (E.D.N.Y. Sept. 28, 2007) (citing Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1992)).

Freedom Mortgage's memorandum of law in support of the present motion argues it has “established its prima facie entitlement to judgment by submitting the Promissory Note, Mortgage, and Affidavit of Heather Marie Diaz, Foreclosure Specialist III” as evidence of the Borrowers’ default. (Pl. Mem. at 7). It further argues that the information contained within the Diaz Affidavit is sufficient to prove the amount it seeks in damages. (Id. at 15). But the Diaz Affidavit it relies upon is not appended to the motion. Though counsel refers to the Diaz Affidavit as “Exhibit F,” that exhibit is, rather, the affidavit of Erica Tracy dated January 7, 2020, which contains damages calculations from the prior motion that was already denied.

There is also a problem with Freedom Mortgage's cost calculations. “A plaintiff in a foreclosure action may recover ․ costs against a borrower-defendant if the note or mortgage provides for such an award.” U.S. Bank Nat'l Ass'n v. Swezey, No. 20-CV-91, 2022 WL 1422841, at *10 (E.D.N.Y. Mar. 24, 2022), report and recommendation adopted, 2022 WL 2390989, at *1 (July 1, 2022). Here, both the Mortgage and Note allow for the collection of all costs by the Lender, Freedom Mortgage. (Mortgage ¶ 18 (“In any lawsuit for foreclosure and sale, Lender will have the right to collect all costs and disbursements and additional allowances allowed by law[.]”); Note ¶ 6(C) (“If Lender has required immediate payment in full, ․ Lender may require Borrower to pay costs and expenses[.]”)). But a party seeking to recover costs “bears the burden of adequately documenting and itemizing the costs requested. A party is not entitled to recover costs for which it provides inadequate substantiation.” Freedom Mortg. Corp. v. Elmore-Hernandez, No. 18-CV-1840, 2019 WL 2779320, at *6 (E.D.N.Y. May 8, 2019) (quotations and citations omitted), report and recommendation adopted, 2019 WL 2775620, at *1 (July 2, 2019).

Freedom Mortgage contends that the total amount due on the Note, as of November 11, 2022, is $370,238.57, which includes—among other things—disbursements for hazard insurance, taxes, and property inspections and preservation. (Statement of Damages dated Jan. 10, 2023 (“Statement of Damages”), Dkt. No. 53-12). To support this total amount, it provided a Statement of Damages in the form of declaration by its attorney, Tracy M. Fourtner. (Id.). But the Statement of Damages is merely a summarized list of costs–without any transaction history or detailed breakdown of the date and amount of each type of disbursement—and fails to include any back-up documentation to support these amounts (or if back-up documentation is not available, the process by which Freedom Mortgage determined these amounts and citations to sources of information, for example public records of property taxes). And “[b]are assertions” in the Fourtner Declaration that Freedom Mortgage is “owed these amounts are, on their own, conclusory allegations that are insufficient to support damages.” Freedom Mortg. Corp. v. King, No. 19-CV-4833, 2023 WL 3494738, at *3 (E.D.N.Y. May 17, 2023) (Garaufis, J.) (denying Freedom Mortgage's request for reimbursement of tax disbursements, mortgage insurance, and property inspection/preservation disbursements, notwithstanding its right to collect such payments under the Mortgage, for failure to provide sufficient documentation) (collecting cases); see also, e.g., Elmore-Hernandez, 2019 WL 2779320, at *5 (same). The submission here is plagued by the further problem that the documentation Fourtner presumably relied upon in arriving at the amounts sought is the Diaz Affidavit, but as noted, the Diaz Affidavit was not filed with the Court.

Freedom Mortgage separately seeks $2,060.43 in litigation costs it incurred in filing this foreclosure action. (See Statement of Damages at 2). But again, as with the disbursements above, for some of the costs it seeks—for example, $440 for filing the Notice of Pendency–it fails to include any adequate supporting documentation, or adequate substitute. As such, the Court has no basis to award these amounts either.

CONCLUSION

Therefore, for the reasons described above, the Court respectfully recommends that Freedom Mortgage's motion for default judgment be denied. To be clear, the Court is prepared to grant a renewed motion for default judgment should Freedom Mortgage: (1) demonstrate, in the form of an affidavit or through other supporting documentation, that the Subject Property was the Borrowers’ residential address at the time the 90-day notice was required to be served; (2) in accordance with Local Rule 55.2, mail any default judgment motion papers to the Borrowers’ last known addresses, whether at the Subject Property or elsewhere, and submit to the Court an affidavit or other proof that the difference in mailing location was due to a change of residential address; (3) attach to a renewed motion any relevant affidavits it relies upon in support of the motion; and (4) describe its method of calculating damages, and submit adequate supporting documentation for all damages and costs it seeks. Specifically, Freedom Mortgage should—for each type of cost or disbursement—demonstrate its entitlement to such damages under the Note and Mortgage, and provide back-up documentation and/or detailed transaction or payment histories to support these amounts. In complying with (1)–(4), Freedom Mortgage should not submit an affidavit with contradictory or inconsistent information about any of these items.

Any objections to the Report and Recommendation above must be filed with the Clerk of the Court within 14 days of service of this report. Failure to file objections within the specified time may waive the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely to a magistrate[ ] [judge's] report operates as a waiver of any further judicial review of the magistrate[ ] [judge's] decision.” (quotations omitted)).

SO ORDERED.

FOOTNOTES

1.   Freedom Mortgage cannot now argue that its well-pleaded allegations in the Complaint of § 1304 compliance must be accepted as true, or that such compliance is an affirmative defense that must be raised by a borrower. (Pl.’s Mem. of Law in Supp. of Mot. (“Pl. Mem.”), Dkt. No. 52 at 10–11). Freedom Mortgage already raised these arguments, and the Court found them unpersuasive. That is, Judge Garaufis considered the cases cited by Freedom Mortgage—purporting to establish that the statutory notice requirements are non-jurisdictional and operate only as affirmative defenses—and rejected them. Bullock, 2022 WL 4445399, at *3–*4. He also held that “bare assertion[s]” of compliance are insufficient. Id. at *3.And so, to obtain default judgment in the current procedural posture, Freedom Mortgage had to establish that the 90-day notices were mailed via certified and first-class mail to the Borrowers at both the Subject Property and their last known residence. If it wished to challenge the prior ruling, it had to either object to the Court's Report and Recommendation or move for reconsideration. It objected and lost. As such, Judge Garaufis's conclusion that failure to comply with RPAPL § 1304 is a barrier to entry of default judgment is law of the case and not subject to relitigation. In re PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991) (“Under the law of the case doctrine, a decision on an issue of law made at one stage of a case becomes binding precedent to be followed in subsequent stages of the same litigation.”).

2.   Nor is it clear that Freedom Mortgage has complied with RPAPL § 1306, which “provides as a precondition of a foreclosure action that a plaintiff must file [with the superintendent of financial services] the information required by § 1306(2) within three business days of mailing a § 1304 notice.” Schiffman, 948 F.3d at 535 (quotations omitted); RPAPL § 1306(1). Specifically, “[e]ach filing ․ shall include at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage.” RPAPL § 1306(2). As held by the New York Court of Appeals, “a filing that includes information about only one borrower is sufficient under the statute.” Schiffman, 36 N.Y.3d at 560. In support of its motion for default judgment, Freedom Mortgage has attached a copy of the proof of filing statement submitted to the Department of Financial Services, which includes information pertaining to DuRussel. (See Proof of Filing Statement dated Oct. 11, 2018, Dkt. No. 49). However, the statement fails to include the last known telephone number for DuRussel. Any renewed motion for default judgment, therefore, must explain why the statement is sufficient under § 1306 despite this deficiency.

SANKET J. BULSARA United States Magistrate Judge