X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

MEMORANDUM & ORDER Before the Court is Plaintiff LoanCare, LLC’s (“Plaintiff”) motion to (1) vacate the Judgment of Foreclosure and Sale pursuant to Federal Rule of Civil Procedure 60(b); and (2) cancel the Notice of Pendency of Action filed with the Office of the Clerk of Suffolk County on April 5, 2019, and with this Court on April 8, 2019, pursuant to Section 6514(a) of New York Civil Practice Laws and Rules.1 (See Mot., ECF No. 18; Declaration of Stephen J. Vargas, Esq. (“Vargas Decl.”), ECF No. 19.) Defendant has not opposed the motion. For the following reasons, Plaintiff’s motion is GRANTED. BACKGROUND I. Facts The Complaint alleges that on November 3, 2003, defendant Mark P. Ragusa (“Defendant”) executed and delivered a note to United Northern Mortgage Bankers, Ltd. whereby he promised to pay $267,950 plus interest at an annual rate of 6.875 percent (the “Note”). (Compl., ECF No. 1, 1; Note, Compl., Schedule A, ECF No. 1, at ECF pp. 6-8.) Defendant concurrently executed and delivered a mortgage (“Mortgage”) to secure payment on the Note. (Compl. 7.) The Mortgage was recorded with the Office of the Suffolk County Clerk on January 24, 2004 at Book 20633/Page 371. (Id.) The Mortgage was assigned many times, and most recently, Ditech Financial LLC assigned the Note and Mortgage to Plaintiff.2 On January 23, 2014, Defendant executed a Loan Modification Agreement that modified the Note and Mortgage (the “Loan Modification Agreement”). (Compl. 10.) The Loan Modification Agreement was recorded with the Office of the Suffolk County Clerk on April 9, 2014 in Book 22477, Page 867. (Id.) Defendant failed to make a payment due July 1, 2018 and defaulted on the Note and Mortgage. (Id. 14.) II. Procedural History Plaintiff initiated this action against Defendant, seeking to foreclose on the mortgage encumbering the property located at 14 Sherry Lane, Selden, New York 11784 (the “Property”), inter alia. (See generally Compl.) The same day, a Summons was issued to Defendant at the Property address (ECF No. 5) and on April 15, 2019, Defendant served Plaintiff by delivering a copy of the Summons and Complaint to Defendant’s mother at 2 Marblestone Lane, South Setauket, New York 11720 (the “South Setauket Address”) (ECF No. 7). On May 17, 2019, the Clerk of Court entered a Certificate of Default against Defendant. (Cert. Default, ECF No. 9.) By Memorandum and Order dated October 16, 2020, the Court granted Plaintiff’s motion for a default judgment. (October Order, ECF No. 14.) On October 27, 2020, the Court entered an Order of Judgment of Foreclosure and Sale (the “Judgment of Foreclosure and Sale”) and awarded Plaintiff damages. (J. of Foreclosure & Sale, ECF No. 17.) On January 21, 2021, Plaintiff filed a motion requesting that the Court vacate the Judgment of Foreclosure and Sale pursuant to Federal Rule of Civil Procedure 60(b). (Vargas Decl. 3.) DISCUSSION I. Legal Standard Federal Rule of Civil Procedure 60(b)(5) permits the Court to relieve a “party…from a final judgment, order, or proceeding [when]…the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable,” where the motion has been made within a “reasonable time.” Eastern Savings Bank, FSB v. Strez, 320 F.R.D. 9, 10 (E.D.N.Y. 2017) (second and third alteration in original) (citing FED. R. CIV. P. 60(b)(5) & (c)(1)). “The elapse of time…is a less significant consideration where adverse interests join in the application.” Id. Pursuant to Federal Rule of Civil Procedure 60(b)(6), a Court may also relieve a party from a final judgment, order or proceeding for “any other reason that justifies relief.” Relief pursuant to Federal Rule of Civil Procedure 60(b)(6) is appropriate only in “extraordinary circumstances, or extreme hardship.” See DeCurtis v. Ferrandina, 529 F. App’x 85, 86 (2d Cir. 2013) (quoting Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004)). The proper application of Federal Rule of Procedure 60(b), generally, “strikes a balance between serving the ends of justice and preserving the finality of judgments.” Reese v. Bahash, 574 F. App’x 21, 23 (2d Cir. 2014) (quoting Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)). Moreover, the Second Circuit cautions courts against vacating judgments following settlement as a matter of course. See Eastern Savings, 320 F.R.D. at 11 (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994) and Mfrs. Hanover Trust Co. v. Yanakas, 11 F.3d 381, 385 (2d Cir. 1993)); see also Rana v. Islam, No. 14-CV-1993, 2019 WL 2225847, at *1 (S.D.N.Y. May 23, 2019). When determining whether to vacate a judgment following a settlement, a court must carefully balance “the interests of honoring settlements reached by the parties against the public interest in the finality of judgments and the development of decisional law.” Eastern Savings, 320 F.R.D. at 11 (quoting Jewelers Vigilance Cmte., Inc. v. Vitale, Inc., 177 F.R.D. 184, 186 (S.D.N.Y. 1998)). II. Plaintiff’s Motion to Vacate the Judgment of Foreclosure Plaintiff requests, and Defendant does not oppose, that the Court vacate the Judgment of Foreclosure and Sale because it “was mooted by settlement because the Plaintiff entered into a loan modification agreement with the Defendant, which settled the case and nullified the Default Judgment of Foreclosure and Sale.” (Vargas Decl.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Legalweek(year) 2021

February 02, 2021 - July 14, 2021
Virtual

Legalweek(year) will bring together thousands of legal professionals for a series of 5 innovative virtual legal events.


Register

New York Legal Awards 2021

October 21, 2021
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Register

Dispute Resolution Forum 2021

June 16, 2021
Virtual

Legal professionals from In-House, Private Practice and the Bar work together to overcome challenges facing dispute resolution.


Register

Financial Services Associate

Cleveland, Ohio, United States

Squire Patton Boggs is currently seeking an experienced, detail-oriented and highly motivated Associate in the Debt Finance segment of our F...


Apply Now ›

Attorney - LItigation - INHOUSE

Washington D.C., District of Columbia, United States

PERMANENT/FULL-TIME:    Come join a thriving company in the Maryland suburbs of Washington, DC!     The company's l...


Apply Now ›

(NEW) DEPUTY GENERAL COUNSEL FOR FLOURISHING HEALTH CARE SYSTEM (Dallas, TX)

Dallas, Texas, United States

Our client, a large privately held health care system, is seeking a Deputy General Counsel to support its large physician group. Candidate m...


Apply Now ›

MARTIN CLEARWATER & BELL, LLP

06/15/2021
NYLJ Web

MARTIN, CLEARWATER & BELL LLP COUNSELORS AT LAW IN MEMORY OF FRANCIS PETER BENSEL


View Announcement ›

GILL & CHAMAS

06/14/2021
NJLJ Web

GILL & CHAMAS Congratulations to our partner and friend,DAVID H. LANDE, ESQ on his appointment to Judge in the Division of Workers Compensation.


View Announcement ›

MANDELBAUM SALSBURG PC

06/07/2021
NJLJ Web

Please to announce that....


View Announcement ›