Elvenia Bratton v. Ocwen Loan Servicing et al

Filing 56

MEMORANDUM (IN CHAMBERS) ORDER TO SHOW CAUSE RE WHETHER THE COURT SHOULD SET ASIDE DEFENDANT HSBC BANK USA N.A.'S DEFAULT by Judge Dale S. Fischer. Because it is not clear whether HSBC Bank was ever properly served in accordance with Rule 4(h), the Court orders Plaintiff to show cause by 6/6/2011 why HSBC Banks default should not be set aside. In addition, because it is not clear whetherthe default should be set aside, the Court takes the default judgment hearing set for 5/23/2011 off-calendar. (vdr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM

Case No.
Title

Date

CV 10-9462 DSF (SSx)

5/12/11

Elvenia Bratton v. Ocwen Loan Servicing, et al.

Present: The
Honorable

DALE S. FISCHER, United States District Judge

Debra Plato
Deputy Clerk

Not Present
Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(In Chambers) Order to Show Cause re Whether the Court Should
Set Aside Defendant HSBC Bank USA N.A.’s Default

Rule 55(c) of the Federal Rules of Civil Procedure authorizes the Court to “set
aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). The Court may set aside
an entry of default sua sponte. See Judson Atkinson Candies, Inc. v. Latini-Hohberger
Dhimantec, 529 F.3d 371, 385–86 (7th Cir. 2008).
Plaintiff filed this action on December 9, 2010. (Docket No. 1.) It is not clear
whether she attempted to effectuate service on Defendant HSBC Bank USA N.A.
pursuant to Rule 5(b) of the Federal Rules of Civil Procedure, which would not have been
proper, or Rule 4(h). (Compare Docket No. 11 with Docket No. 26 at 10-11.) A “branch
officer operations” of HSBC Bank purportedly signed an acknowledgment of service, but
did not date the acknowledgment. (See Docket No. 11.) It also is not clear that this
person is “an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process” on behalf of HSBC Bank. Fed. R.
Civ. P. 4(h). The Clerk entered default against HSBC Bank after it failed to plead or
otherwise defend against the action after this attempted service. (Docket No. 29.)
Because it is not clear whether HSBC Bank was ever properly served in
accordance with Rule 4(h), the Court orders Plaintiff to show cause by June 6, 2011 why
HSBC Bank’s default should not be set aside. In addition, because it is not clear whether
the default should be set aside, the Court takes the default judgment hearing set for May
23, 2011 off-calendar.
IT IS SO ORDERED.
CV-90 (12/02)

MEMORANDUM

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