US v. Joseph Rash
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:05-cv-00244-RLV. Copies to all parties and the district court/agency. [998786460]. Mailed to: Joseph Rash. [11-2098]
Appeal: 11-2098
Document: 7
Date Filed: 02/13/2012
Page: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2098
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH W. RASH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:05-cv-00244-RLV)
Submitted:
January 17, 2012
Decided:
February 13, 2012
Before WILKINSON, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph W. Rash, Appellant Pro Se. Jennifer A. Youngs, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 11-2098
Document: 7
Date Filed: 02/13/2012
Page: 2 of 4
PER CURIAM:
Joseph W. Rash appeals from the entry of a default
judgment against him under Fed. R. Civ. P. 55(b)(1) following
his
failure
to
plead
or
otherwise
defend
commenced against him by the United States.
the
civil
action
We affirm.
In August 2005, the United States, acting on behalf of
its agency, the Farm Service Agency (“FSA”), filed a complaint
against Rash.
The complaint alleged that Rash had defaulted on
five operating loans made to him by the predecessor agency to
the FSA.
The United States sought: a money judgment totaling
$82,447.19 for the principal and interest accrued on the loans
as of June 16, 2005 and for the interest accruing thereafter; a
judgment of foreclosure against the real and personal property
pledged by Rash as security for the loans; an order allowing the
United
States
Marshal
to
seize,
possess,
and
sell
certain
chattel property and vehicles; and costs and attorney’s fees.
Although
it
is
undisputed
that
Rash
was
properly
served, he did not file an answer or otherwise respond to the
complaint.
The United States subsequently moved for entry of
default under Fed. R. Civ. P. 55(a).
On November 15, 2005, the
Clerk of the district court entered a default under Rule 55(a)
because Rash failed to plead or otherwise defend against the
action.
2
Appeal: 11-2098
Document: 7
Rash
Date Filed: 02/13/2012
subsequently
filed
Page: 3 of 4
for
bankruptcy
under Chapter 12 of the Bankruptcy Code.
protection
Rash’s Chapter 12
bankruptcy case was dismissed in December 2006 for failure to
file a plan.
In January 2007, Rash again filed for bankruptcy
protection, this time under Chapter 13 of the Bankruptcy Code,
and the district court stayed the subject proceeding pending the
resolution of that bankruptcy proceeding.
In July 2011, Rash
voluntarily dismissed his Chapter 13 filing.
The United States
subsequently moved for the entry of a default judgment in the
amount
$56,204.29, *
of
and
the
Clerk
of
the
district
court
entered a default judgment under Rule 55(b)(1) by order filed
and entered on August 9, 2011.
Rash timely appealed the August
9 judgment.
Our review of the record discloses that the appeal of
the August 9 judgment is without merit.
default
judgment
calculation
of
should
the
amount
be
set
owed
on
aside
the
Rash argues that the
because
loans
is
the
FSA’s
erroneous.
Specifically, Rash claims that the FSA failed to deduct from the
amount owed over $40,000 in payments for which he asserts has
*
In the affidavit supporting its motion seeking a default
judgment, the United States averred that the $56,204.29 figure
represented the “amount outstanding on the debt addressed in
[its] complaint” and was “net of all payments received during
the pendency of the bankruptcy proceedings from liquidation of
collateral, offsets of federal payments, and payments from the
Chapter 13 [Bankruptcy] Trustee.”
3
Appeal: 11-2098
Document: 7
Date Filed: 02/13/2012
Page: 4 of 4
receipts and an additional $10,000 payment.
Rash also appears
to suggest that allowing the judgment to remain intact is not
equitable because the FSA failed to seize all of the chattel
property and vehicles.
We conclude that these arguments should
be raised in a motion to set aside the default judgment in the
district court under Fed. R. Civ. P. 55(c) and 60(b).
United
States v. U.S. Currency Totalling $3,817.49, 826 F.2d 785, 78788 (8th Cir. 1987).
Accordingly, we affirm the August 9 default judgment,
but we do so without prejudice to Rash’s filing a motion to set
aside the judgment in the district court.
We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?