SB1708 Realty LLC v. Allen et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------x
SB1708 REALTY, LLC,
Plaintiff,
-against-
NICOLE ALLEN, TANISHA ALLEN,
CARLOS NICHOLLS, et al.,
Defendants.
-----------------------------------x
MEMORANDUM & ORDER
22-CV-959(EK)(PK)
ERIC KOMITEE, United States District Judge:
Plaintiff SB1708 Realty, LLC, brought this action to
foreclose on a property located at 907 Thomas S. Boyland Street
in Brooklyn. 	Plaintiff alleges that defendant Nicole Allen
defaulted on a $150,000 loan that was secured by a mortgage
against the Boyland property. 	In addition to Allen, plaintiff
named as defendants Allen’s sister and brother-in-law, the
property’s two co-owners.
The parties have now cross-moved for summary judgment.
For the reasons set forth below, SB1708’s motion is granted, and
defendants’ cross-motion is denied.
Background
The following facts are drawn from the parties’ Local
Rule 56.1 statements and the exhibits appended to their summary
judgment papers. 	The parties did not, however, submit Counter
Rule 56.1 Statements, as Local Rule 56.1 requires. 	Local Rule
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56.1(b) of the Local Civil Rules of the Eastern District of New
York; see Holtz v. Rockefeller & Co., 258 F.3d 62, 72 (2d Cir.
2001). 	Although “uncontested assertions” are “deemed []
admitted,” the Court must review the record independently and
credit only those assertions the record supports. 	Holtz, 258
F.3d at 73-74.
Nicole Allen co-owns the house located on 907 Thomas
S. Boyland Street (the “Boyland property”) with her sister,
Tanisha Allen, and brother-in-law, Carlos Nicholls. 	Defs.’
Local Rule 56.1 Statement of Material Facts (“Defs.’ Rule 56.1”)
¶ 1, ECF No. 88-6; see Amended Compl. (“Compl.”) ¶ 5, ECF No.
45.
In early October 2019, Allen approached a person named
Christopher McElroy to obtain a loan to cover the property’s
maintenance costs. 	Decl. of Nicole Allen (“Allen Decl.”) ¶ 4,
ECF No. 88-6; Defs.’ Rule 56.1 ¶ 2. 	McElroy, who is not a party
here, connected Allen with PJT Lending, Inc. (“PJT”), also a
non-party. 	Allen Decl. ¶ 4. 	PJT approved Allen for a $150,000
loan. 	Allen Decl. ¶ 4; Defs.’ Rule 56.1 ¶¶ 1-2. 	The summary
judgment record provides no further information concerning
McElroy’s identity or his relationship to Allen or PJT. 	Defs.’
Rule 56.1; Pl.’s Local Rule 56.1 Statement of Material Facts
(“Pl.’s Rule 56.1”), ECF No. 89-1.
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On October 17, 2019, Allen attended the loan’s closing
at the office of PJT’s attorney, Craig Fine. 	Allen Decl. ¶ 5.
The loan agreement provided that PJT would lend Allen $150,000
at an annual interest rate of twelve percent. 	Defs.’ Rule 56.1
¶ 2; see Pl.’s Ex. B, Note 1, ECF No. 89-6; Pl.’s Ex. C,
Mortgage, ECF No. 89-7.1 	The agreement required Allen to make
monthly interest payments starting on December 1, 2019, with the
unpaid principal due on November 1, 2020 — just over twelve
months after the loan’s effective date. 	Defs.’ Rule 56.1 ¶ 2;
Note 1. 	A mortgage on the Boyland property secured Allen’s
obligation. 	Mortgage 1.
A few days before the closing, PJT issued a check to
the “Law Office of Craig A. Fine” for $150,000, the loan’s face
value. 	Defs.’ Ex. C, Craig Fine Accounting Report (“Fine
Accounting Report”) 3, ECF No. 87-5. 	On the day of the closing,
Fine distributed the loan’s principal to Allen, less certain
fees and other deductions. 	Id.; see Decl. of Defs.’ Counsel
Mark S. Anderson (“Anderson Decl.”) ¶ 4, ECF No. 87-2.
Specifically, Fine distributed two fees to himself: $2,500 as an
“Attorney Fee” and $1,500 as an “Origination Fee.” 	Fine
1 Unless otherwise noted, page numbers in citations refer to internal,
rather than ECF, pagination.
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Accounting Report 1; Defs.’ Rule 56.1 ¶ 5. 	He also distributed
$4,500 to McElroy as an “Origination Fee”; $9,739.80 to PJT for
an “advanced interest” payment; and several other deductions,
including “Title Charges” to Bentley Abstract. 	Fine Accounting
Report 1; Defs.’ Rule 56.1 ¶ 5; Allen Decl. ¶¶ 9-10. 	He then
remitted the remaining principal — $123,520.42 — to Allen. 	Fine
Accounting Report 1.
Allen failed to make the first payment due on December
1, 2019, thus defaulting. 	Pl.’s Rule 56.1 ¶¶ 6-7. 	Thereafter,
she failed to make any subsequent payments. 	Id. ¶ 7.
On June 1, 2021, PJT assigned the mortgage to SB1708
Realty, LLC (“SB1708”) pursuant to a written assignment. 	Pl.’s
Rule 56.1 ¶ 9; Pl.’s Ex. D, Assignment of Mortgage 2, ECF No.
89-8. 	According to Igor Buzhaker, SB1708’s principal and sole
member, SB1708 purchased the mortgage for approximately
$165,000. 	Affidavit of Igor Buzhaker (“Buzhaker Aff.”) ¶¶ 1,
17, ECF No. 89-16; Supplemental Affidavit of Igor Buzhaker
(“Buzhaker Supplemental Aff.”), ¶¶ 5-6, ECF No. 92-1; Pl.’s Rule
56.1 ¶ 9. 	Two weeks later, SB1708 informed Allen of the
assignment by letter. 	Buzhaker Aff. ¶ 20; Pl.’s Rule 56.1 ¶ 10.
On August 27 of that year, SB1708 sent Allen a pre-
foreclosure notice advising her that she was in default and
requesting that she “take immediate steps” to avoid foreclosure,
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including by arranging to make payment. 	Pl.’s Ex. F, Notice of
Foreclosure 1-3, ECF No. 89-10. 	The notice also stated that if
she failed to take “any action[] to resolve this matter within
90 days,” plaintiff “may commence” foreclosure proceedings.
Id.; Buzhaker Aff. ¶¶ 21-22; Pl.’s Rule 56.1 ¶ 11; see N.Y. Real
Prop. Acts Law § 1304 (McKinney) (requiring ninety days’ notice
before foreclosure for mortgages securing home loans).
Allen did not respond to the notice or otherwise take
action to avoid foreclosure. 	Pl.’s Rule 56.1 ¶ 13. 	SB1708
commenced the instant action in February 2022. 	Pl.’s Rule 56.1
¶ 14; Compl. ¶¶ 20-21.
Legal Standard
Summary judgment is appropriate when there is no
genuine dispute of material fact, such that the movant is
entitled to judgment as a matter of law. 	Fed. R. Civ. P. 56(a).
A factual dispute is genuine if a “reasonable jury could return
a verdict for the nonmoving party.” 	Frost v. N.Y.C. Police
Dep’t, 980 F.3d 231, 242 (2d Cir. 2020).2 	And “[a] fact is
material if it might affect the outcome of the suit under the
governing law.” 	Id.
2 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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When resolving cross-motions for summary judgment,
“the court must evaluate each party’s motion on its own merits,
taking care in each instance to draw all reasonable inferences
against the party whose motion is under consideration.” 	Coutard
v. Mun. Credit Union, 848 F.3d 102, 114 (2d Cir. 2017). 	The
movant bears the burden of showing that there is no genuine
dispute of material fact. 	Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). 	If the non-movant would bear the burden of
persuasion on a given issue at trial, the movant can satisfy its
burden of production either by “submitting evidence that negates
an essential element of the non-moving party’s claim,” or
“demonstrating that the non-moving party’s evidence is
insufficient to establish an essential element of the non-moving
party’s claim.” 	Nick’s Garage, Inc. v. Progressive Cas. Ins.
Co., 875 F.3d 107, 114 (2d Cir. 2017).
If the movant carries its initial burden, “the
nonmoving party must come forward with admissible evidence
sufficient to raise a genuine issue of fact for trial in order
to avoid summary judgment.” 	Jaramillo v. Weyerhaeuser Co., 536
F.3d 140, 145 (2d Cir. 2008). 	If the nonmoving party fails to
do so, the Court should grant summary judgment. 	In performing
this analysis, the Court resolves all ambiguities and draws all
inferences in favor of the nonmoving party. 	E.g., Gallo v.
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Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223
(2d Cir. 1994).
Discussion
A. 	The Court Has Jurisdiction
SB1708 invokes this Court’s diversity jurisdiction.
Compl. ¶ 7. 	For diversity jurisdiction to obtain, complete
diversity must exist between the parties. 	28 U.S.C. § 1332(a);
see Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 102-103 (2d
Cir. 1997). 	Because the complaint did not adequately allege the
parties’ states of citizenship, the Court directed plaintiff to
show cause why the Court has jurisdiction. 	Dkt. Order dated
August 13, 2026; see Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir.
2006).
Plaintiff’s response satisfies the Court that it has
jurisdiction over the action. 	See Response to O.S.C., ECF No.
92. 	An LLC’s citizenship is determined by the citizenship of
each of its members. 	Bayerische Landesbank, N.Y. Branch v.
Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012).
SB1708’s only member, Buzhaker, is domiciled in Florida; SB1708
is thus a citizen of Florida. 	Buzhaker Supplemental Aff. 	And
all three individual defendants are domiciled in New
York, Response to O.S.C. 1-2, and are thus citizens of New York.
See Canedy, 126 F.3d at 103.
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B. 	SB1708 Has Established Its Right to Foreclose
The parties do not dispute that New York law governs.
Defs.’ Mem. in Opp’n to Pl.’s Mot. for Summ. J. (“Defs.’ Mem.”)
6, ECF No. 89-14; Pl.’s Mem. in Supp. of Mot. for Summ. J.
(“Pl.’s Mem.”) 16, ECF No. 89-2. 	When the “parties’ briefs
assume that New York law controls . . . such implied consent is
sufficient to establish choice of law.” 	Krumme v. WestPoint
Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000).
To establish a prima facie case for foreclosure under
New York law, a plaintiff must prove (1) the existence of a
mortgage and note, (2) ownership of the mortgage, and (3) the
borrower’s default. 	Campaign v. Barba, 805 N.Y.S.2d 86, 86
(App. Div. 2d Dep’t 2005); see R.B. Ventures, Ltd. v. Shane, 112
F.3d 54, 59 n.2 (2d Cir. 1997). 	Plaintiff has established each
element.
Existence of the Note and Mortgage. 	The parties do
not dispute that Allen executed both the Note and Mortgage.
Pl.’s Rule 56.1 ¶¶ 4-5; Defs.’ Rule 56.1 ¶¶ 4-5. 	SB1708 has
submitted both documents, which suffices on summary judgment.
See, e.g., Yusubov v. Zoya AB Mgmt., LLC, No. 20-CV-3913, 2023
WL 6308074, at *4 (E.D.N.Y. Sept. 28, 2023).
Defendants argue, however, that SB1708 has “failed to
establish a proper [ ] foundation” for both documents under the
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Federal Rules of Evidence. 	Defs.’ Mem. 3. 	Defendants contend
that Buzhaker’s affidavit, which describes SB1708’s
recordkeeping practices with respect to the loan documents, “is
inadmissible hearsay . . . that fails to lay a proper foundation
for the admissibility of the records attached to it.” 	Id. at 8.
That argument is unavailing. 	Defendants concede that
Allen executed both the Note and Mortgage, and they do not
contest the documents’ authenticity. 	Defs.’ Rule 56.1 ¶¶ 3-5.
In any case, if documents “will be presented in an admissible
form at trial,” the court may consider them on summary judgment.
Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) (per
curiam). 	Under Federal Rule of Evidence 803(6)’s business
records exception, the court may admit records created by
another entity if a witness testifies “that the records are
integrated into a company’s records and relied upon in its day-
to-day operations.” 	Matter of Ollag Constr. Equip. Corp., 665
F.2d 43, 46 (2d Cir. 1981).
Here, Buzhaker attests that he is “fully familiar with
SB1708’s record keeping practices”; that SB1708’s business
records “include records associated with” Allen’s loan,
including the Note and Mortgage; and that such records “are
maintained in the course of Plaintiff’s regularly conducted
business activities.” 	Buzhaker Aff. ¶¶ 1-2. 	Such statements
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provide sufficient grounds to admit the Note and Mortgage
pursuant to the business records exception, and the Court may
thus consider them at this stage, absent any authenticity
challenge. 	E.g., Wells Fargo Bank v. Prince 26, LLC, No. 22-CV-
5586, 2023 WL 5152420, at *6 (S.D.N.Y. Aug. 10, 2023); see Smith
v. City of New York, 697 F. App’x 88, 89 (2d Cir. 2017).
SB1708’s Ownership of the Mortgage. 	The undisputed
record also establishes that SB1708 owns the mortgage. 	A
written assignment that specifies plaintiff as the assignee can
establish ownership. 	E.g., Freedom Mortg. Corp. v. Petriello,
No. 22-CV-7310, 2025 WL 1726320, at *9 (E.D.N.Y. June 20, 2025).
SB1708 has submitted the written Assignment of Mortgage: it
shows that PJT assigned the mortgage to SB1708 on June 1, 2021,
about eight months before SB1708 commenced this action.
Assignment of Mortgage 2. 	Defendants have offered no evidence
to the contrary.
Allen’s Default. 	Finally, the record leaves no doubt
that Allen defaulted. 	On summary judgment, a plaintiff may
establish default “in the form of an affidavit of a person with
knowledge.” 	Gustavia Home, LLC v. Hoyer, 362 F. Supp. 3d 71, 79
(E.D.N.Y. 2019). 	Buzhaker attests that he is “fully familiar”
with SB1708’s documents, including the Note, Mortgage, and
Assignment. 	Buzhaker Aff. ¶¶ 2, 17. 	He attests further that,
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based on his review of those records, Allen failed to make any
of the required payments. 	Id. ¶¶ 2, 14-15.
Accordingly, SB1708 has established a prima facie case
for foreclosure. 	See Yusubov, 2023 WL 6308074, at *4.
C. 	Defendants Have Failed to Raise an Issue of Fact on
the Affirmative Defense of Usury
Once plaintiff establishes its prima facie case, the
burden shifts to the borrower to make “an affirmative showing
that a defense to the action exists.” 	Gustavia Home, 362 F.
Supp. 3d at 80 (applying New York law). 	The court should deny
summary judgment if there are issues of material fact concerning
an affirmative defense. 	Disability Advocs., Inc. v. Paterson,
598 F. Supp. 2d 289, 295 (E.D.N.Y. 2009). 	But if defendants
come forward with insufficient evidence to support an essential
element of a defense, with respect to that defense, “there can
be no genuine issue as to any material fact since a complete
failure of proof concerning an essential element of the
defendant’s affirmative defense necessarily renders all other
facts immaterial.” 	F.D.I.C. v. Giammettei, 34 F.3d 51, 54-55
(2d Cir. 1994).
Defendants press one affirmative defense: usury. 	They
argue that the loan’s stated interest rate of twelve percent is
an “illusory lawful interest rate” because the disbursements
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“paid out at the closing were for the benefit of the lender and
constitute additional interest for the purposes of usury.”
Defs.’ Mem. 7-8; Defs.’ Mem. in Supp. of Mot. for Summ. J. 6,
ECF No. 88-6.
1. 	New York’s Usury Prohibition Applies
Under New York’s civil usury statute, a loan for less
than $250,000 is void if its interest rate exceeds sixteen
percent per year. 	N.Y. Gen. Oblig. Law § 5-501(1), (6)(a); id.
§ 5-511(1); see Ammirato v. Duraclean Int’l, Inc., 687 F. Supp.
2d 210, 220 (E.D.N.Y. 2010). 	Only natural persons may assert
the defense, N.Y. Gen. Oblig. Law § 5-521(1), and they may
assert it against both the lender and the loan’s assignee. 	See
Butts v. Samuel, 174 N.Y.S. 2d 325, 326 (App. Div. 2d Dep’t
1958). 	Here, Allen took out a $150,000 loan, and SB1708 holds
the mortgage as an assignee. 	Pl.’s Rule 56.1 ¶¶ 4-9; Defs.’
Rule 56.1 ¶ 2. 	Accordingly, defendants may assert the usury
defense.
2. 	Defendants Have Offered Insufficient Evidence
That the Disbursements at the Loan’s Closing
Qualify as Interest
Defendants argue that three fees that Fine disbursed
at the closing — Fine’s attorneys’ and origination fees, and
McElroy’s origination fee — must be treated as interest, because
those fees were for the “benefit of” the lender. 	Defs.’ Mem. 7-
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8. 	Defendants argue further that the $9,739.80 Fine paid to PJT
as an “advanced payment” also counts as interest. 	Id. 	at 9.
SB1708 does not dispute that the loan’s effective rate would
exceed sixteen percent if these deductions were treated as
interest. 	Pl.’s Mem. 18. 	Plaintiff instead argues that the
fees to Fine and McElroy were “broker payments or charges
unrelated to the lender that are not considered part of the
interest calculation.” 	Id. at 20. 	It did not respond to the
defendant’s argument concerning the advanced interest payment.
See id.
“Usury is an affirmative defense and the party seeking
to void the loan agreement bears the burden of proving
usury.” 	Adar Bays, LLC v. GeneSYS ID, Inc., 37 N.Y.3d 320, 335-
36 (2021). 	The “defense must be established by clear evidence
as to all the elements essential thereto,” and the court “will
not assume that the parties entered into an unlawful agreement.”
Giventer v. Arnow, 37 N.Y.2d 305, 309 (1975); see Freitas v.
Geddes Sav. & Loan Ass’n, 63 N.Y.2d 254, 265 (1984). 	A borrower
must show: (1) a loan that (2) requires the principal to be
repaid and (3) charges interest greater than that allowed by
statute, and (4) intent to violate the usury statutes. 	Adar
Bays, 37 N.Y.3d at 335-36.
The parties here dispute only the third and fourth
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elements. 	Pl.’s Mem. 18-20; Defs.’ Mem. 6-13. 	Because
defendants have offered insufficient evidence to support the
third element, we need not address the fourth. 	See Giammettei,
34 F.3d at 55.
To calculate a loan’s effective interest rate, the
Court must determine whether fees the borrower paid in
connection with the loan should count as interest. 	Band Realty
Co. v. N. Brewster, Inc., 37 N.Y.2d 460, 463 (1975).
Specifically,
the true annual interest rate is determined by taking
the “discount” — the difference between the amount
advanced to the borrower and the amount owed to the
lender — dividing that amount by the number of years
in the term of the loan, adding that amount to the
interest rate stated on the note, and dividing this
sum by the difference between the principal and the
discount (i.e., the net advance).3
AKF, Inc. v. Haven Transp. Bus. Sols., Inc., No. 22-CV-269, 2024
WL 2941746, at *8 (N.D.N.Y. June 11, 2024).
Not all payments to the lender are treated as
“discounts.” 	New York law provides that “interest shall include
any and all amounts paid or payable, directly or indirectly
. . . to or for the account of the lender in consideration for
3 The Note’s stated interest rate of 12% required Allen to pay $18,000
in total interest (12% of $150,000) over a one-year term. 	Note 2. 	If Fine’s
$2,500 attorneys’ fee and McElroy’s $4,500 origination fee were included as
“discounts,” the effective interest rate would be calculated as: ($18,000 in
stated interest + $7,000 in discounts) / ($150,000 - $7,000)= 17.48%.
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making the loan or forbearance.” 	N.Y. Gen. Oblig. Law § 5-
501(2) (emphasis added). 	However, a borrower “may pay
reasonable expenses attendant on a loan without rendering [it]
usurious.” 	Lloyd Cap. Corp. v. Henchar, Inc., 80 N.Y.2d 124,
127 (1992) (emphasis added again). 	“Reasonable expenses can
include payments for attorneys’ fees associated with the loan”;
such expenses do not count as interest. 	Hillair Cap. Invs.,
L.P. v. Integrated Freight Corp., 963 F. Supp. 2d 336, 339
(S.D.N.Y. 2013) (citing Lloyd Cap. Corp., 80 N.Y.2d at 127); see
also Brown v. Robinson, 224 N.Y. 301, 314 (1918) (borrower may
deduct “actual expenses incurred in making the loan”). 	In
contrast, “when fee payments do not actually reimburse lenders
for expenses associated with the loan, and instead are a
disguised loan payment, then such fee expenses can be considered
in determining the interest rate.” 	Hillair, 963 F. Supp. 2d at
339; see London Realty Co. v. Riordan, 207 N.Y. 264, 266 (1913).
The Loan’s Stated Interest Rate Is Not Usurious.
The parties do not dispute that the loan’s stated interest rate
is twelve percent, below the civil usury cap. 	Defs.’ Mem. 7;
Pl.’s Mem. 19. 	“Where the rate of interest on the face of the
note . . . is not in excess of the legal rate,” Freitas, 63
N.Y.2d at 264, the loan agreement is “prima facie . . . not
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usurious.” 	Min Cap. Corp. Ret. Tr. v. Pavlin, 930 N.Y.S.2d
475, 475-76 (App. Div. 2d Dep’t 2011).
Fine’s Attorney’s Fee and Origination Fee. 	Defendants
argue that Fine’s attorney’s fee and origination fee must count
as interest because the fees accrued to the “benefit of the
lender.” 	Defs.’ Mem. 8-9. 	As evidence, defendants offer
Allen’s attestation that Fine served as PJT’s attorney and that
she “ha[s] been told by [her] attorney” that the fee was “paid .
. . to the benefit of the lender.” 	Allen Decl. ¶ 7; Defs.’ Rule
56.1 ¶ 6.
To raise a dispute of fact as to whether fees should
qualify as interest, a borrower must proffer evidence that the
fees were not reasonable expenses incurred in connection with
the loan. 	Lloyd Cap. Corp., 80 N.Y.2d at 127. 	In LG Capital
Funding, LLC v. PositiveID Corporation, defendants argued that
two fees paid to the lender’s attorney — an attorneys’ fee and
an origination fee — should be treated as interest because the
lender’s attorney used the same “deal documents” he had used in
prior transactions with the defendant. 	No. 17-CV-1297, 2019 WL
3437973, at *10 (E.D.N.Y. July 29, 2019), report and
recommendation adopted, 2019 WL 4564882 (E.D.N.Y. Sept. 20,
2019). 	That assertion, however, failed to “show the expenses
were not legitimately incurred by LG or its attorney.”
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PositiveID Corp., 2019 WL 3437973, at *10. 	As in PositiveID
Corp., that explanation is “speculative, conclusory, and not
sufficient to put in dispute” the question of whether the
attorney’s fees and origination fee “were actual expenses of the
loan.” 	Id. 	Moreover, it is no secret that attorneys reuse
documents from prior transactions as a matter of course; that
fact does not, in itself, render the fees less-than-legitimate.
Similarly, in Adar Bays, LLC v. GeneSYS ID, Inc., the
borrower’s declaration that the lender charged a “purported
attorneys’ fee” constituted insufficient “evidence that the
$2,000 fee did not legitimately reimburse” the lender’s
attorney. 	341 F. Supp. 3d 339, 354 (S.D.N.Y. 2018), vacated and
remanded on other grounds, 28 F.4th 379 (2d Cir. 2022).
As in those cases, defendants have offered
insufficient evidence to raise a question of material fact as to
whether Fine’s two fees were disguised interest.
Allen attests that “I have been told by my current
attorney” that Fine’s fees were for the “benefit of the lender.”
Allen Decl. ¶ 7.4 	Assuming that assertion were admissible, it
4 In addition to the substantive issues discussed above, Allen’s
statement is inadmissible hearsay because it relays her attorney’s out-of-
court statement for its truth. 	Fed. R. Evid. 801, 802. 	And “an affidavit’s
hearsay assertion that would not be admissible at trial if testified to by
the affiant is insufficient to create a genuine issue for trial.” 	Patterson
v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004).
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does not address the relevant issue: New York law instructs the
Court to assess whether the fees “reimburse[d] [the] lender[]
for expenses associated with the loan,” Hillair, 963 F. Supp. 2d
at 339 (citing Lloyd Cap. Corp., 80 N.Y.2d at 127), not whether
they “benefited the lender.” 	See PositiveID Corp., 2019 WL
3437973, at *10. 	Fees that reimburse the lender (or its agents)
for services rendered will always “benefit” the lender in a
general sense, but that fact does not, without more, render them
“disguised” interest payments under New York law. 	Id.
Nor does Allen’s account of the closing provide
sufficient evidence from which a factfinder could conclude that
Fine’s fees were not reasonable loan expenses. 	She attests only
that she attended the closing at Fine’s office, and that Fine
prepared the Note and Mortgage. 	Allen Decl. ¶¶ 5-6. 	That
attestation provides no basis from which to conclude that Fine’s
fees reimbursed anything other than legal services associated
with the loan. 	See PositiveID Corp., 2019 WL 3437973, at *10.
And defendants proffer no other evidence to raise a genuine
dispute of fact as to whether Fine’s fees were reasonable.
Def.’s Rule 56.1; see Adar Bays, LLC, 341 F. Supp. 3d at 354.
McElroy’s Origination Fee. 	For substantially the same
reasons, defendants have failed to offer evidence from which a
reasonable factfinder could conclude that McElroy’s origination
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fee did not compensate legitimate loan services.
As with Fine’s fees, Allen attests that she “ha[s]
been told by [her] attorney” that McElroy’s fee was paid “for
the benefit of the lender.” 	Allen Decl. ¶ 7. 	This is, again, a
legal conclusion. 	Allen attests further that she “never
requested that payment be made to [McElroy].” 	Id. ¶ 8. 	As with
the attorney’s fee, above, Allen’s statement that McElroy’s fee
was “for the benefit” of the lender does not answer the question
of whether it compensated legitimate loan expenses. 	See Adar
Bays, 341 F. Supp. 3d at 354.
A “finder’s fee” is not a discount if it compensates
legitimate loan services, such as providing “advice and
assistance” in identifying a lender. 	Feinberg v. Old Vestal Rd.
Assocs., Inc., 550 N.Y.S.2d 482, 484 (App. Div. 3d Dep’t 1990);
see Zanfini v. Chandler, 197 A.D.3d 594, 595, 153 N.Y.S.3d 77
(App. Div. 2d Dep’t 2021) (“mortgage broker’s commission” for
facilitating loan not a discount).5 	Here, Allen’s declaration
provides no basis from which a reasonable jury could conclude
that McElroy failed to provide such services. 	Allen Decl. ¶¶ 4-
5 Under the New York Codes, Rules, and Regulations, interest “include[s]
origination fees” for mortgages encumbering residences “occupied by the
owner.” 	N.Y. Comp. Codes R. & Regs. tit. 3, § 4.2(a). 	That provision is
inapplicable here because Allen does not reside at the Boyland property. 	See
Note 2 (listing Allen’s address).
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5. 	To the contrary, her only account of McElroy’s role is that
he facilitated the loan by connecting her with PJT after she
approached him. 	Id.; see Feinberg, 550 N.Y.S.2d at 484. 	And
defendants have pointed to no other evidence from which a jury
could conclude that his fee was unreasonable or illegitimate.
See Defs.’ Rule 56.1.
Advanced Interest Payment. 	Defendants finally argue
that the advanced interest payment Fine issued to PJT should
count as a discount. 	Defs.’ Mem. 9-10. 	They point to Allen’s
attestation that “$9,739.80 was . . . paid directly to the
Lender as an advanced payment.” 	Allen Decl. ¶ 9.
“Interest on the whole amount of principal agreed to
be paid at maturity, not exceeding the legal rate, may be taken
in advance.” 	Band Realty Co., 37 N.Y.2d at 463-64. 	When
interest is paid in advance, a loan is not usurious “so long as
all payments on account of interest d[o] not aggregate a sum
greater than the aggregate of interest that could lawfully have
been earned . . . .” 	Id. at 465 (emphasis added). 	Furthermore,
an advanced interest payment does not qualify as a “discount” if
it is credited against the total interest due. 	Martell v.
Drake, 2 N.Y.S.3d 288, 288 (App. Div. 3d Dep’t 2015); see Ludlum
Corp. Pension Plan Tr. v. Matty’s Superservice, Inc., 548
N.Y.S.2d 292, 293 (App. Div. 2d Dep’t 1989).
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Against this backdrop, Allen has adduced insufficient
evidence to create a genuine issue of fact on the question of
whether the advanced payment should be considered a discount.
To begin, the amount of advanced interest Fine remitted to PJT —
$9,739.80 — represents just over half the total interest due
under the loan’s stated twelve percent rate. 	Defs.’ Rule 56.1
¶¶ 2-5; Fine Accounting Report 1. 	Because that figure does not
exceed the total interest that could lawfully be charged, its
prepayment does not violate the usury statute in itself. 	Band
Realty Co., 37 N.Y.2d at 465; Martell, 2 N.Y.S.3d at 288.
Instead, the advanced interest payment will be
regarded as a discount only to the extent it came in addition
to, rather than as an advance on, the twelve percent total that
the parties agreed on. 	And Allen simply does not provide the
evidence that would be needed to draw that conclusion. 	Allen
attests only that she paid that amount as “advanced interest,”
not that she paid it in addition to the $18,000 charged under
the twelve percent rate. 	Allen Decl. ¶¶ 9-10. 	Allen has
pointed to no evidence indicating, one way or the other, what
interest payments she was charged after the advance payment,
such that a jury could calculate the total interest assessed
over the life of the loan. 	Defs.’ Rule 56.1; Anderson Decl.;
Allen Decl. 	On this record, no reasonable factfinder could
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conclude that the advanced interest payment should be included
as a “discount.” 	See Martell, 2 N.Y.S.3d at 288.
Accordingly, defendants’ usury defense fails as a
matter of law.
D. 	Plaintiff Is Entitled to Attorneys’ Fees and Costs But
Has Failed to Substantiate Them
SB1708 seeks in damages the loan’s unpaid interest and
principal, as well as attorneys’ fees and costs incurred in
“enforcing its rights under the note and mortgage.” 	Pl.’s Mem.
13. 	Defendants do not oppose this request. 	See Defs.’ Mem.
“Under New York law, a contract that provides for an
award of reasonable attorneys’ fees to the prevailing party in
an action to enforce the contract is enforceable if the
contractual language is sufficiently clear.” 	NetJets Aviation,
Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 175 (2d Cir. 2008).
The Note here provides that “in the event the Lender retains
legal counsel with respect to enforcement of this Note . . . the
Borrower agree[s] to pay the Lender’s attorneys’ fees, costs and
disbursements.” 	Note 4. 	Similarly, the Mortgage provides that
Allen “shall be responsible for [the] mortgagee’s reasonable
attorney fees for [sic] with respect to any enforcement of this
agreement.” 	Mortgage 4.
Courts have enforced “nearly identical fee-shifting
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provisions,” Adar Bays, LLC v. 5Barz Int’l, Inc., No. 16-CV-
6231, 2018 WL 3962831, at *15 (S.D.N.Y. Aug. 16, 2018), and the
contractual language here leaves no doubt that plaintiff is
entitled to attorneys’ fees incurred in connection with this
action. 	See PositiveID, 2019 WL 3437973, at *17. 	However,
plaintiff has submitted none of the information necessary to
assess its fees, such as contemporaneous time records. 	And a
“fee applicant bears the burden of establishing entitlement to
an award and documenting the appropriate hours expended and
hourly rates.” 	Cruz v. Loc. Union No. 3 of Int’l Bhd. of Elec.
Workers, 34 F.3d 1148, 1160 (2d Cir. 1994). 	Accordingly, the
Court denies plaintiff’s request for attorneys’ fees and costs,
without prejudice to renew.
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Conclusion
For the foregoing reasons, SB1708’s motion for summary
judgment is granted and defendants’ cross-motion is denied. 	On
or before November 12, 2026, SB1708 is directed to submit a
proposed judgment of foreclosure providing for a sale of the
property. 	The proposed judgment should also provide for the
appointment of a referee to effectuate and disburse funds from
the sale. 	By the same date, plaintiff is directed to renew its
request for attorneys’ fees and costs, if it elects to do so.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	October 12, 2026
Brooklyn, New York
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