Jemerson v. FCI Lender Servs. Inc.Jemerson v. FCI Lender Servs. Inc.
Case Information
*1 Jemerson v FCI Lender Servs. Inc.
Suрreme Court, Orange County Docket Number: Index No. EF005740-2025 Judge: Sherri L. Eisenpress Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Cоurt System's eCourts Service.
This opinion is uncorrected and not selected for official publication.
*2 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
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DARROD JEMERSON,
Plaintiff,
DECISION AND ORDER -against-
Index No.: EF00S740-2025 FCI LENDER SERVICES INC., WILMINGTON Motion #1 SAVINGS FUND SOCIETY FSB, AND DOES
1-10, Defendants.
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Sherri L. Eisenpress, J.
The following papers, electronically filed on the NYSCEF system as documents numbered 1-14, were considered In connection with Defendants FCI Lender services, Inc. and Wilmington Savings Fund Society, FSB, as owner Trustee оf the Residential Credit Opportunities Trust VIII-C, incorrectly identified herein as Defendant Wilmington Savings Fund Society FSB's (''Defendаntsn) Notice of Motion for an Order dismissing the action pursuant to CPLR § 3211(a)(S) and (a)(8).
Upon the foregoing papers, the Court now rules as follows: Plaintiff commenced the instant action on June 19, 2025, with respect to property located at 804 Hawthorn Way, New Windsor, NY, and asserts causes of action for violations of Title 12 C.F.R. § 1024.40 for failing tо provide a homeowner with foreclosure options and/or alternatives and violations of 12 C.F.R. § 1024.41 for no written acknowledgment of receipt of a loan modification application and for failing tо make a determination on a loan modification application within 30 days and violation of Title 15 U.S.C. 1641(9) as against Wilmington Saving Fund Society, for failing to disclose to Plaintiff that it Is the new beneficiary of the Ded of Trust within 30 days of thе assignment.
Defendants move to dismiss this action on the grounds of res judicata and lack *3 Filed in Orange County 10/27/2025 02:33:54 PM $0.00 Bk:5164 Pg:682 Index: # EF0057 40-2025 Clerk: SW оf service. Defendants state that on December 10, 2013, Plaintiff Jemerson, duly executed and delivered to Wilmington's predecessor-In-Interest a Note in the sum of $288,895.00, which was encumbered by a mortgage on property loсated at 804 Hawthorn Way, New Windsor, NY. On or about August 8, 2016, Jemerson and Wilmington's predecessor-in-interest entered into а loan modification agreement. Said Note, Mortgage and Modification ("collectively the "Loan") were subsequently assigned to Wilmington on March 26, 2024.
Plaintiff Jemerson failed to comply with the terms of the Loan by failing tо make
monthly payments beginning October 1, 2020. Due to the default on the Loan, Wilmington's predecessor-in-interest сommenced a Foreclosure Action on July 3, 2023, under Orange County Index No. EF004289-2023. An Order of Reference and a dеfault judgment against Plaintiff was granted by Order dated December 19, 2023 (Zuckerman, J.). Wilmington filed its motion to confirm the Referee's Oath and Report and for a Judgment of Foreclosure and Sale which was granted on September 3, 2024, and entered on September 18, 2024. Notice of Entry was served upon Plaintiff on October 2, 2024, and no Notice of Aрpeal was filed . The mortgaged property was sold at auction on February 21, 2025. Defendant Wilmington having plаced the highest bid, signed the Terms of Sale, and acquired title to the Mortgage Premises by Referee's Deed, whiсh was recorded with the Orange County Clerk on May 8, 2025.
Discussion
Pursuant to CPLR 321l{a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata. Tracey v. Deutsche Bank National Trust Co., 187 A.D.3d 815, 130 N.Y.S.3d 322 (2d Dept. 2020). "Under the doctrine of res judicata, 'once a claim is brought to a final conclusion, all other claims arising out оf the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy."' Jones v. Flushing Bank, 212 A.D.3d 791, 793, 183 N.Y.S.3d 458 (2d Dept. 2023); See also O'Brien v Syracuse, 54 N.Y.2d 353, 357 (1981); Cira/do v JPMorgan Chase Bank, NA, 140 A.D.3d 912, 913 (2d Dept 2016). As the Court of Appeals held in Ryan v New Yark *4 Telephone, 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823 (1984):
[l]t is for the interest of the community that a limit should be prescribеd to litigation, and that the same cause of action ought not to be brought twice to a final determination. Justice requires that every cause be once fairly and impartially tried; but the public tranquility demands that, having bеen once so tried, all litigation of that question, and between those parties, should be closed forеver [Internal citations omitted.]
"A judgment of foreclosure and sale entered against a defendant is final as to
all questions at issue between the parties, and concludes all matters of defense which were
or might have been raised in the foreclosure action." Jones,
In the instant matter the Court finds that granting Plaintiff the relief he seeks in the present action would destroy or impair the rights established by the judgment of foreclоsure in the prior action. See 551 Development of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 A.D.3d 674, 675-676, 10 N.Y.S.3d 105 (2d Dept. 2015). Plaintiff defaulted in the underlying foreclosure action and said default was not vacated. Moreover, a Judgmеnt of Foreclosure and Sale was entered on September 18, 2024, and was not appealed, and аccordingly is final. Thus, the instant action is barred by res judicata and is dismissed on that ground. As the Court has dismissed the action аs barred by res judicata, it need not address Defendants' CPLR 3211(a)(8) motion to dismiss for lack of service of proсess.
Accordingly, it is hereby
ORDERED that Defendant' Notice of Motion to dismiss the action pursuant to CPLR § 3211(a)(S) is GRANTED and the action dismissed.
*5 The foregoing constitutes an Order of this Court on Motion #1. Dated: Goshen, New York
October 24, 2025
TO: All parties (via NYSCEF)