OneWest Bank, N.A. v. Conklin et al

OneWest Bank, N.A. v. Conklin et al

Plaintiff:	OneWest Bank, N.A.
Defendant:	Jamie Conklin, Christy Conklin and John Doe
Case Number:	8:2014cv01249
Filed:	October 10, 2014
Court:	US District Court for the Northern District of New York
Office:	Plattsburgh Office
County:	Franklin
Presiding Judge:	Mae A. D'Agostino
Presiding Judge:	Christian F. Hummel
Nature of Suit:	Foreclosure
Cause of Action:	28 U.S.C. § 1332
Jury Demanded By:	None

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Date Filed	Document Text
August 10, 2015	Filing 20 MEMORANDUM-DECISION AND ORDER granting 11 Motion for Default Judgment: The Court hereby ORDERS that Plaintiff's motion for default judgment is GRANTED; and the Court further ORDERS that Plaintiff has a judgment against Defendants in the amoun t of $107,458.98 plus interest on the unpaid principal of $81,212.18 in the amount of $14.46 per diem until the entry of this judgment; and the Court further ORDERS that Plaintiff's motion to discontinue the action against Defenda nt John Doe is GRANTED; and the Court further ORDERS that Defendant John Doe be dropped as a defendant in this action, and that thecaption of this action be amended to reflect the deletion of "John Doe" as a defendant; and the Court further ORDERS that the property shall be sold pursuant to section 1351 of the R.P.A.P.L.,6 that a deed be issued in accordance with section 1353(1), and that the sale proceeds be distributed inaccordance with section 1354; and the Court further ORDERS that the property be sold, in one parcel, "as is," subject to the following: (a) any state of facts that an inspection of the property would disclosure; (b) any state of facts that an accurate, currently dated, survey might disclose; (c) rights of the public and others in and to any part of the mortgaged premises that lieswithin the bounds of any street, alley, or highway; (d) building and zoning ordinances of the municipality in which the property is locatedand possible violations of the same; (e) covenants, conditions, easements, leases, agreements, and restrictions of record, if any;(f) rights of tenants, occupants, or squatters, if any; and it shall be the responsibility of thepurchaser to evict or remove any parties in possession of the premises being foreclosed with no pro-rata adjustment in favor of the purchaser for any rents that are paid for a period after the date of the foreclosure sale; and(g) right of redemption of the United States of America to redeem the property within 120 (ONE HUNDRED AND TWENTY) DAYS from the date of sale, if any;and the Court further ORDERS that the mortgaged premises be sold, in one parcel, at public auction to the highest bidder, as authorized under section 231(1), at the West Main Str eet Entrance Lobby of the Franklin County Courthouse, 355 West Main Street, in the Village of Malone in the County ofFranklin, New York, by Joseph P Nichols, Esq. of 367 West Main Street, Malone, New York 12953, who is hereby appointed Referee to eff ectuate the sale of the mortgaged premises; that public notice of the time and place of the sale be made by the Referee in compliance with section 231(2)(a) and the practice of this Court, and published in The Malone Telegram; and the Courtfurther OR DERS that Plaintiff or any other parties to this action may become the purchaser or purchasers at such sale, and the Referee at the time of sale may accept a written bid from the Plaintiff or the Plaintiffs attorneys, just as though Plaintiff were ph ysically present to submit said bid; and the Court further ORDERS that the terms of sale, to the extent they do not contradict this judgment or violate any law, shall be binding in all respects on the purchaser; and the Court further ORDERS that afte r the sale, the Referee shall deposit, in his name as Referee, the initial bid deposit in any federally insured depository in the State of New York; and this account shall beused solely to complete the closing of the sale and payment of the items ref erenced herein as needed; and the Court further ORDERS that in accordance with section 1351(1), upon payment of the purchase price, the Referee execute a deed to the purchaser; and the Court further ORDERS that in accordance with section 1354, upon p ayment of the purchase price, the Referee is directed to make the following payments or allowances from the sale proceeds, 1st: Payment to the Referee in the sum of $750.00 for his conducting the sale of thesubject property. 2nd: Payment for the costs of advertising or posting as listed on the bills submitted to and certified by the Referee to be correct.3rd: Payment to Plaintiff or its attorney as follows: (1) amount due Plaintiff in the sum of $102,328.98 including interest through F ebruary 1, 2015 together with interest at the note rate of 6.5% per annum, or $14.46 per diem, until the date of entry of this judgment, and thereafter at the statutory rate until the date of transfer of the Referees deed; (2) costs and dis bursements in the sum of $1,630.00, the amount computed by the Court and adjudged to the Plaintiff, for costs and disbursements in the action; and (3) attorneys' fees in the sum of $3,500.00, as the reasonable legal fees herein, with l egal interest from the date of entry of judgment hereof. 4th: Payment of all taxes, assessments, and water rates that are liens upon the property andredemption of the property from any sales for unpaid taxes, assessments, or water rates that have not apparently become absolute with such interest or penalties which may lawfully have accrued thereon to the day of payment.The Referee shall take the receipt of Plaintiff or its attorney for the amounts paid as directed in item marked "4th" and shall file it with his report of sale. The Referee shall deposit the surplus moneys, if any, with the aforesaid depository, within 5 (FIVE) DAYS after the same shall be received and ascertainable, to the credit of this action, to be withdrawn onl y on the order of a Judge of this Court. The Referee shall comply with the provisions of the R.P.A.P.L. § 1354(2) so that taxes, assessments and water rate which are liens against the property, if any, be paid out of the proceeds of the mortgage foreclosure sale; and the Court further ORDERS that if Plaintiff should purchase the property at auction, the Referee shall notrequire Plaintiff to pay either a deposit or the bid amount, but shall execute and deliver to Plaintiff a deed of the prem ises sold, upon the payment of the statutory fees of $750.00 for conducting the sale of the subject property. Plaintiff shall provide the Referee with proof of the amounts paid fortaxes, assessments and water rates upon recording of the deed. Th e balance of the bid amount shall be applied to the amounts due to Plaintiff as specified herein and that if after applying the balance of the bid amount there is a surplus, Plaintiff shall pay it to the Referee, who shall depositthe funds; and the C ourt further ORDERS that transfer tax is not a lien upon the property or an expense of sale, but rather an expense of recording the deed. All expenses of recording the Referees Deed shall be paid bythe purchaser and not the Referee from sale proceeds . Purchaser shall be responsible for interest accruing on real property taxes after the date of the foreclosure sale; and the Court further ORDERS that the Referee shall make his report of such sale under oath, pursuant to section 1355(1) of the R.P. A.P.L., showing the disposition of the proceeds of the sale and accompanied by the receipts to whom payments were made, and file it with the Clerk of thisCourt within 30 (THIRTY) DAYS after completing the sale and executing the proper conveyance to t he purchaser; and the Court further ORDERS that the proceeds of the sale, regardless of amount, shall be deemed to be in fullsatisfaction of the mortgage debt; and the Court further ORDERS that the purchaser or purchasers at such sale be let into pos session on producing the Referees deed; and the Court further ORDERS that all Defendants in this action, and all persons claiming under them after the filing of the notice of pendency of this action, shall be hereafter barred and foreclosed of allrig hts, claims, liens, titles, interests, and equities of redemption in the property and each and every part thereof; and the Court further ORDERS that the liens of Plaintiff, other than the mortgage that is the subject matter ofthis action, shall be he reby foreclosed; and Plaintiff shall reserve the right to any surplus; and the Court further ORDERS that the Referee's acceptance of this appointment shall thereby certify that he is qualified for appointment in compliance with all applicable ru les governing the qualification ofcourt-appointed referees; and should the Referee be disqualified from appointment pursuant to the provisions of such rules, the Referee shall promptly notify the Appointing Judge. The appointee shall not receive any fee before filing the report of sales with the Court; and the Court furtherORDERS that the Referee shall not demand, accept, or receive more than the otherwise payable statutory fee of $750.00, notwithstanding any adjournment, delay, or stay of the sale, except by application to and order of the Court; and the Court further ORDERS that the Referee shall not accept or retain any funds for himself or pay any funds to himself except as may comply with all applicable rules and the conditions of this decision; and the Court furtherORDERS that the Notice of Sale must be submitted to the this Court and the Office of the Franklin County Clerk, at least TEN (10) DAYS prior to the date of the foreclosure auction; and the Court further ORDERS tha t this Court shall retain jurisdiction to construe and enforce this order and judgment of foreclosure and sale including but not limited to an application to confirm the sale made pursuant hereto. The legal description of the property hereinbefore mentioned is annexed to the this order and judgment of foreclosure and sale as Exhibit A.IT IS SO ORDERED. Signed by U.S. District Judge Mae A. D'Agostino on 8/10/15. (ban)
June 10, 2015	Filing 13 MEMORANDUM-DECISION AND ORDER denying 11 Motion for Default Judgment: The Court hereby ORDERS that Plaintiff's motion for default judgment is DENIED; and the Court further ORDERS that the Clerk of Franklin County in the State of New York vaca te Plaintiff's notice of pendency filed on October 21, 2014; and the Court further ORDERS that Plaintiff shall serve a copy of this Memorandum-Decision and Order on the Clerk of Franklin County in the State of New York by Certified Mail, Return Receipt Requested, and file the returned receipt using the Court's electronic filing system; and the Court further ORDERS that Plaintiff is permitted to resubmit this motion for default judgment upon thesubmission of a letter indicating that request together with a copy of a properly filed notice of pendency. Signed by U.S. District Judge Mae A. D'Agostino on 6/10/15. (ban)

Date Filed

Document Text

August 10, 2015

Filing 20 MEMORANDUM-DECISION AND ORDER granting 11 Motion for Default Judgment: The Court hereby ORDERS that Plaintiff's motion for default judgment is GRANTED; and the Court further ORDERS that Plaintiff has a judgment against Defendants in the amoun t of $107,458.98 plus interest on the unpaid principal of $81,212.18 in the amount of $14.46 per diem until the entry of this judgment; and the Court further ORDERS that Plaintiff's motion to discontinue the action against Defenda nt John Doe is GRANTED; and the Court further ORDERS that Defendant John Doe be dropped as a defendant in this action, and that thecaption of this action be amended to reflect the deletion of "John Doe" as a defendant; and the Court further ORDERS that the property shall be sold pursuant to section 1351 of the R.P.A.P.L.,6 that a deed be issued in accordance with section 1353(1), and that the sale proceeds be distributed inaccordance with section 1354; and the Court further ORDERS that the property be sold, in one parcel, "as is," subject to the following: (a) any state of facts that an inspection of the property would disclosure; (b) any state of facts that an accurate, currently dated, survey might disclose; (c) rights of the public and others in and to any part of the mortgaged premises that lieswithin the bounds of any street, alley, or highway; (d) building and zoning ordinances of the municipality in which the property is locatedand possible violations of the same; (e) covenants, conditions, easements, leases, agreements, and restrictions of record, if any;(f) rights of tenants, occupants, or squatters, if any; and it shall be the responsibility of thepurchaser to evict or remove any parties in possession of the premises being foreclosed with no pro-rata adjustment in favor of the purchaser for any rents that are paid for a period after the date of the foreclosure sale; and(g) right of redemption of the United States of America to redeem the property within 120 (ONE HUNDRED AND TWENTY) DAYS from the date of sale, if any;and the Court further ORDERS that the mortgaged premises be sold, in one parcel, at public auction to the highest bidder, as authorized under section 231(1), at the West Main Str eet Entrance Lobby of the Franklin County Courthouse, 355 West Main Street, in the Village of Malone in the County ofFranklin, New York, by Joseph P Nichols, Esq. of 367 West Main Street, Malone, New York 12953, who is hereby appointed Referee to eff ectuate the sale of the mortgaged premises; that public notice of the time and place of the sale be made by the Referee in compliance with section 231(2)(a) and the practice of this Court, and published in The Malone Telegram; and the Courtfurther OR DERS that Plaintiff or any other parties to this action may become the purchaser or purchasers at such sale, and the Referee at the time of sale may accept a written bid from the Plaintiff or the Plaintiffs attorneys, just as though Plaintiff were ph ysically present to submit said bid; and the Court further ORDERS that the terms of sale, to the extent they do not contradict this judgment or violate any law, shall be binding in all respects on the purchaser; and the Court further ORDERS that afte r the sale, the Referee shall deposit, in his name as Referee, the initial bid deposit in any federally insured depository in the State of New York; and this account shall beused solely to complete the closing of the sale and payment of the items ref erenced herein as needed; and the Court further ORDERS that in accordance with section 1351(1), upon payment of the purchase price, the Referee execute a deed to the purchaser; and the Court further ORDERS that in accordance with section 1354, upon p ayment of the purchase price, the Referee is directed to make the following payments or allowances from the sale proceeds, 1st: Payment to the Referee in the sum of $750.00 for his conducting the sale of thesubject property. 2nd: Payment for the costs of advertising or posting as listed on the bills submitted to and certified by the Referee to be correct.3rd: Payment to Plaintiff or its attorney as follows: (1) amount due Plaintiff in the sum of $102,328.98 including interest through F ebruary 1, 2015 together with interest at the note rate of 6.5% per annum, or $14.46 per diem, until the date of entry of this judgment, and thereafter at the statutory rate until the date of transfer of the Referees deed; (2) costs and dis bursements in the sum of $1,630.00, the amount computed by the Court and adjudged to the Plaintiff, for costs and disbursements in the action; and (3) attorneys' fees in the sum of $3,500.00, as the reasonable legal fees herein, with l egal interest from the date of entry of judgment hereof. 4th: Payment of all taxes, assessments, and water rates that are liens upon the property andredemption of the property from any sales for unpaid taxes, assessments, or water rates that have not apparently become absolute with such interest or penalties which may lawfully have accrued thereon to the day of payment.The Referee shall take the receipt of Plaintiff or its attorney for the amounts paid as directed in item marked "4th" and shall file it with his report of sale. The Referee shall deposit the surplus moneys, if any, with the aforesaid depository, within 5 (FIVE) DAYS after the same shall be received and ascertainable, to the credit of this action, to be withdrawn onl y on the order of a Judge of this Court. The Referee shall comply with the provisions of the R.P.A.P.L. § 1354(2) so that taxes, assessments and water rate which are liens against the property, if any, be paid out of the proceeds of the mortgage foreclosure sale; and the Court further ORDERS that if Plaintiff should purchase the property at auction, the Referee shall notrequire Plaintiff to pay either a deposit or the bid amount, but shall execute and deliver to Plaintiff a deed of the prem ises sold, upon the payment of the statutory fees of $750.00 for conducting the sale of the subject property. Plaintiff shall provide the Referee with proof of the amounts paid fortaxes, assessments and water rates upon recording of the deed. Th e balance of the bid amount shall be applied to the amounts due to Plaintiff as specified herein and that if after applying the balance of the bid amount there is a surplus, Plaintiff shall pay it to the Referee, who shall depositthe funds; and the C ourt further ORDERS that transfer tax is not a lien upon the property or an expense of sale, but rather an expense of recording the deed. All expenses of recording the Referees Deed shall be paid bythe purchaser and not the Referee from sale proceeds . Purchaser shall be responsible for interest accruing on real property taxes after the date of the foreclosure sale; and the Court further ORDERS that the Referee shall make his report of such sale under oath, pursuant to section 1355(1) of the R.P. A.P.L., showing the disposition of the proceeds of the sale and accompanied by the receipts to whom payments were made, and file it with the Clerk of thisCourt within 30 (THIRTY) DAYS after completing the sale and executing the proper conveyance to t he purchaser; and the Court further ORDERS that the proceeds of the sale, regardless of amount, shall be deemed to be in fullsatisfaction of the mortgage debt; and the Court further ORDERS that the purchaser or purchasers at such sale be let into pos session on producing the Referees deed; and the Court further ORDERS that all Defendants in this action, and all persons claiming under them after the filing of the notice of pendency of this action, shall be hereafter barred and foreclosed of allrig hts, claims, liens, titles, interests, and equities of redemption in the property and each and every part thereof; and the Court further ORDERS that the liens of Plaintiff, other than the mortgage that is the subject matter ofthis action, shall be he reby foreclosed; and Plaintiff shall reserve the right to any surplus; and the Court further ORDERS that the Referee's acceptance of this appointment shall thereby certify that he is qualified for appointment in compliance with all applicable ru les governing the qualification ofcourt-appointed referees; and should the Referee be disqualified from appointment pursuant to the provisions of such rules, the Referee shall promptly notify the Appointing Judge. The appointee shall not receive any fee before filing the report of sales with the Court; and the Court furtherORDERS that the Referee shall not demand, accept, or receive more than the otherwise payable statutory fee of $750.00, notwithstanding any adjournment, delay, or stay of the sale, except by application to and order of the Court; and the Court further ORDERS that the Referee shall not accept or retain any funds for himself or pay any funds to himself except as may comply with all applicable rules and the conditions of this decision; and the Court furtherORDERS that the Notice of Sale must be submitted to the this Court and the Office of the Franklin County Clerk, at least TEN (10) DAYS prior to the date of the foreclosure auction; and the Court further ORDERS tha t this Court shall retain jurisdiction to construe and enforce this order and judgment of foreclosure and sale including but not limited to an application to confirm the sale made pursuant hereto. The legal description of the property hereinbefore mentioned is annexed to the this order and judgment of foreclosure and sale as Exhibit A.IT IS SO ORDERED. Signed by U.S. District Judge Mae A. D'Agostino on 8/10/15. (ban)

June 10, 2015

Filing 13 MEMORANDUM-DECISION AND ORDER denying 11 Motion for Default Judgment: The Court hereby ORDERS that Plaintiff's motion for default judgment is DENIED; and the Court further ORDERS that the Clerk of Franklin County in the State of New York vaca te Plaintiff's notice of pendency filed on October 21, 2014; and the Court further ORDERS that Plaintiff shall serve a copy of this Memorandum-Decision and Order on the Clerk of Franklin County in the State of New York by Certified Mail, Return Receipt Requested, and file the returned receipt using the Court's electronic filing system; and the Court further ORDERS that Plaintiff is permitted to resubmit this motion for default judgment upon thesubmission of a letter indicating that request together with a copy of a properly filed notice of pendency. Signed by U.S. District Judge Mae A. D'Agostino on 6/10/15. (ban)

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Plaintiff: OneWest Bank, N.A.
Represented By:	Keith R. Young
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Defendant: Jamie Conklin
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Defendant: Christy Conklin
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Defendant: John Doe
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