Kevin A. Fulton v. Bank of America N.A. et al

Filing 22

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder RE: Plaintiff's Motion for Entry of Default Judgment Against Defendant Bank of America, N.A. ("BANA") 14 . The Court DENIES plaintiff's motion for default judgment against BANA. The Court DIRECTS BANA to file a motion to set aside the Clerk's default, along with a proposed answer, within 30 days. Failure to do so will result in further action by the Court. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

Present: The Honorable 
Catherine Jeang 
Deputy Clerk 

CHRISTINA A. SNYDER 

N/A 

Tape No.

Attorneys Present for Defendants: 

Not Present 
Court Reporter / Recorder

Attorneys Present for Plaintiffs: 

Not Present 
Not Present 
(IN CHAMBERS) - PLAINTIFF’S MOTION FOR ENTRY OF
Proceedings:  
DEFAULT JUDGMENT AGAINST DEFENDANT BANK OF
AMERICA, N.A. (Dkt. 14, filed October 12, 2016)

I.

INTRODUCTION

On July 7, 2016 plaintiff Kevin A. Fulton, proceeding pro se, filed the instant
action against defendants Bank of America, N.A. (“BANA”), as successor in interest to
America’s Wholesale Lender, and Does 1–10 inclusive. Dkt. 1 (“Compl.”). Plaintiff
raises four claims: (1) declaratory relief, seeking a declaration that BANA does not have
any rights or interest in plaintiff’s Note or Deed of Trust, or the property which
authorized them; (2) the cancellation of the Deed of Trust, which plaintiff alleges is void
for fraud in the execution; (3) failure to comply with plaintiff’s notice to rescind in
violation of 15 U.S.C. § 1601 et seq.; and (4) quiet title relating to violations of the Truth
in Lending Act (“TILA”). Id.
On August 11, 2016, plaintiff requested an entry of default against BANA. Dkt.
10. On July 18, 2016, the Clerk entered a default pursuant to Federal Rule of Civil
Procedure 55(a). Dkt. 13. On August 25, 2016, plaintiff filed the instant motion for
default judgment against BANA, dkt. 14, along with a request for judicial notice, dkt.
16.1

1

The Court GRANTS plaintiff’s request for judicial notice of the Deed of Trust
because the document is in the public record and its existence is “capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). Indeed, courts routinely take judicial notice of this
type of document. See, e.g., Liebelt v. Quality Loan Serv. Corp., No. 5:09-cv-05867LHK, 2011 WL 741056, at *6 n.2 (N.D. Cal. Feb. 24, 2011); Reynolds v. Applegate, No.

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 1 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

II.

BACKGROUND
Plaintiff alleges the following in his complaint.

On January 2, 2007, plaintiff obtained a loan from America’s Wholesale Lender
(“AWL”) in the amount of $551,200, secured by a Deed of Trust that was recorded on
January 8, 2007 against the real property, plaintiff’s “single family residence,” located at
5922 Premiere Avenue, Lakewood, CA 90712 (“Subject Property”). Compl. at 8; dkt. 16
(“Deed of Trust”). Plaintiff executed a Promissory Note as part of the loan transaction.
Compl. at 8. Id. Plaintiff alleges that Countrywide Financials’ Countrywide Home
Loans, Inc. (“Countrywide”) was doing business in California as AWL. Id. Plaintiff
avers, however, that AWL was never registered to do business in California. Id.
On July 1, 2008, Bank of America Corporation purchased Countrywide Financial
Corporation, including Countrywide Bank, N.A. Id. at 9. As a result, BANA became
successor in interest to Countrywide. Id.
Plaintiff alleges that BANA, as successor to the original lender, attempted to sell
plaintiff’s debt obligation to Alternative Loan Trust 2007-1T1. Id. at 7. According to
plaintiff, the 2007-1T1 Trust was dissolved as a result of mortgage insurance payouts to
The Bank of New York, the trustee of the 2007-1T1 Trust, and the certificate-holders. Id.
Plaintiff contends that, as a result of these mortgage insurance payouts, the Bank of New
York Mellon (“BNYM”) and AWL have been paid in full on plaintiff’s debt obligation.
Id.
On May 4, 2011, an Assignment of Deed of Trust was allegedly executed and
subsequently recorded on May 9, 2011; the Assignment allegedly assigned all beneficial
interest in the Deed of Trust to BNYM. Id. at 11. Plaintiff contends that this assignment
is void. Id.
Plaintiff avers that AWL did not successfully sell plaintiff’s Note and Deed of
Trust to the 2007-1T1 Trust. Id. at 9. In addition, plaintiff contends that BANA cannot
prove that plaintiff’s Note and Deed of Trust were endorsed or transferred to BNYM. Id.

3:10-cv-04427-CRB, 2011 WL 560757, at *1 n.2 (N.D. Cal. Feb. 14, 2011); Giordano v.
Wachovia Mortg., No. 5:10-cv-04661-JF, 2010 WL 5148428, at *1 n.2 (N.D. Cal. Dec.
14, 2011).

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 2 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

at 10. Plaintiff appears to reach this conclusion because the parties involved in the
securitization of his mortgage did not adhere to the applicable Pooling and Servicing
Agreement (“PSA”). The PSA required that plaintiff’s Note and Deed of Trust be
properly endorsed, transferred, accepted, and deposited with the 2007-1T1 Trust (or its
custodian) on or about January 30, 2007, the “closing date” indicated on the prospectus,
or 90 days thereafter. Id. Pursuant to plaintiff’s review of the chain of title of the Subject
Property in the official records of the Orange County Recorder, there are no valid
assignments of the Deed of Trust from original lender AWL to BANA, the 2007-1T1
Trust, or BNYM on or about January 30, 2007, or 90 days thereafter. Id. at 11. Plaintiff
alleges that the failure to securitize his Note and Deed of Trust makes it impossible for
BANA, the 2007-1T1 Trust, or BNYM to assert that it has assigned, transferred or
granted plaintiff’s Note and Deed of Trust, or any interest therein, in any manner
whatsoever. Id. at 10–11. In addition, plaintiff avers that this failure resulted in an
unperfected lien that defendants cannot enforce in a manner whatsoever. Id. at 11.
Plaintiff alleges that he never received a notice informing him of BNYM’s
beneficial ownership of plaintiff’s debt obligation, which is required by Section 404 of
the Helping Families Save Their Homes Act of 2009. Id. at 12–13. As a result, on April
1, 2014, plaintiff rescinded the Note and Deed of Trust by mailing a Notice of Rescission
to his servicer, Shellpoint Mortgage Servicing. Id. at 13. Plaintiff asserts that his
creditors have failed to challenge the Notice of Rescission within the twenty days
mandated under TILA. Id. at 14. Therefore, plaintiff argues that BANA and any other
entity cannot obtain any right or interest to enforce a contract that was made void after
April 1, 2014. Id.
On the basis of these alleged facts, plaintiff first seeks a declaration from the Court
stating that BANA, as successor to the original lender, its successors and/or assigns, does
not have any rights or interest in plaintiff’s Note and Deed of Trust, or the Subject
Property which authorized them. Id. In his second claim, plaintiff alleges that the Deed
of Trust is void for fraud in the execution because AWL was not authorized to conduct
business in California and BANA misrepresented that it acquired plaintiff’s loan. Id. at
24. In his third claim, plaintiff asserts that defendants failed to comply with the TILA
because they did not file a declaratory judgment action within twenty days of plaintiff’s
Notice to Rescind, thereby forfeiting their rights to make a claim for the money loaned to
plaintiff. Id. at 25–26. Finally, plaintiff seeks to quiet title to the Subject Property as of
April 1, 2014, the date the Notice of Rescission was mailed. Id. at 27.

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 3 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

III.

LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 55, when a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and the
plaintiff does not seek a sum certain, the plaintiff must apply to the court for a default
judgment. Fed. R. Civ. P. 55.
As a general rule, cases should be decided on the merits as opposed to by default,
and, therefore, “any doubts as to the propriety of a default are usually resolved against the
party seeking a default judgment.” Judge William W. Schwarzer et al., California
Practice Guide: Federal Civil Procedure Before Trial ¶ 6:11(The Rutter Group 2015)
(citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). Granting
or denying a motion for default judgment is a matter within the court’s discretion.
Elektra Entertainment Group, Inc. v. Bryant, 2004 WL 783123, *1 (C.D. Cal. Feb. 13,
2004); see also Sony Music Entertainment, Inc. v. Elias, 2004 WL 141959, *3 (C.D. Cal.
Jan. 20, 2004).
The Ninth Circuit has directed that courts consider the following factors in
deciding whether to enter default judgment: (1) the possibility of prejudice to plaintiff;
(2) the merits of plaintiff’s substantive claims; (3) the sufficiency of the complaint;
(4) the sum of money at stake in the action; (5) the possibility of a dispute concerning the
material facts; (6) whether defendant’s default was the product of excusable neglect; and
(7) the strong policy favoring decisions on the merits. See Eitel v. McCool, 782 F.2d
1470, 1471–72 (9th Cir. 1986); see also Elektra Entertainment Group, 2004 WL 783123
at *1–2.
IV.

DISCUSSION
A.

Possibility of Prejudice to Plaintiff

The first Eitel factor considers whether a plaintiff will suffer prejudice if a default
judgment is not entered. PepsiCo, Inc. v. California Sec. Cans, 238 F. Supp. 2d 1172,
1177 (C.D. Cal. 2002); see also Eitel, 782 F.2d at 1471–72. Courts have concluded that a
plaintiff is prejudiced if the plaintiff would be “without other recourse for recovery”
because the defendant failed to appear or defend against the suit. Pepsi, 238 F. Supp. 2d
at 1177; see also Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494,
499 (C.D. Cal. 2003). Given BANA’s failure properly to respond and defend this suit,

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 4 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

plaintiff would be prejudiced if denied a remedy against BANA. As a result, the
first Eitel factor weighs in favor of the entry of default judgment.
B.

Substantive Merits and Sufficiency of the Claim

Courts often consider the second and third Eitel factors together. See PepsiCo, 238
F. Supp. 2d at 1175; HTS, Inc. v. Boley, 954 F. Supp. 2d 927, 941 (D. Ariz. 2013). The
second and third Eitel factors assess the substantive merit of the movant’s claims and the
sufficiency of its pleadings, which “require that a [movant] state a claim on which [it]
may recover.” PepsiCo, 238 F. Supp. 2d at 1177 (quotation marks omitted); see also
Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (stating that the issue is whether
the allegations in the pleading state a claim upon which plaintiff can recover).
The basis for plaintiff’s claims first claim appears to be that plaintiff’s mortgage
was not properly securitized pursuant to the PSA. However, plaintiff lacks standing to
challenge the process by which his mortgage was (or was not) securitized because he is
not a party to the PSA. See In re Correia, 452 B.R. 319, 324 (B.A.P. 1st Cir. 2011)
(holding that debtors, as non-parties to a PSA, lack standing to challenge a mortgage
assignment based on non-compliance with the agreement). Bascos v. Federal Home
Loan Mortgage Corpation, No. 2:11-cv-3968-JFW-JC, 2011 WL 3157063 (C.D. Cal. July
22, 2011), is particularly relevant. In Bascos, the plaintiff brought a declaratory relief
claim, alleging that the defendants “did not have the right to foreclose and sell the Subject
Property” because Freddie Mac had “securitized the loan without complying with its own
securitization requirements.” Id. at * 1, *4. The Bascos court concluded that the plaintiff
“has no standing to challenge the validity of the securitization of the loan as he is not an
investor of the loan trust.” Id. at *6. Plaintiff in this case lacks standing for these same
reasons; namely, he is not a party to the PSA. He therefore cannot bring a claim based on
alleged deficiencies in the securitization process. See also Rodenhurst v. Bank of Am.,
773 F. Supp. 2d 886, 899 (D. Haw. 2011) (“The overwhelming authority does not support
a [claim] based upon improper securitization.”); Greene v. Home Loan Servs., Inc., No.
0:09-cv-719-DWF-JJK, 2010 WL 3749243, *4 (D. Minn. Sept. 21, 2010) (“Plaintiffs do
not have standing to bring their challenge regarding the securitization of the mortgage”
because they were “not a party to the Pooling and Servicing Agreement”). Therefore, the
Court concludes that plaintiff’s claim for declaratory relief fails to state a claim on which
relief may be granted.

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 5 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

Plaintiff’s second claim—that the Deed of Trust is void for fraud in the
execution—also fails to state a claim on which relief may be granted. “When a plaintiff
alleges fraud in the execution, the plaintiff is asserting that it was deceived as to the very
nature of contract execution, and did not know what it was signing.” Brown v. Wells
Fargo Bank, 168 Cal. App. 4th 938, 958 (2008). “[A] contract fraudulently executed is
void, because there never was an agreement.” Id. In asserting a claim for fraud in the
execution, a plaintiff must demonstrate reasonable reliance on the alleged fraudulent
conduct. Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal. 4th 394, 415 (1996). Here, the
first alleged fraudulent conduct was AWL’s alleged misrepresentation that it could
conduct business in the state of California despite failing to register with the California
Secretary of State. Compl. at 8, 24. Plaintiff has provided no factual basis for its
allegation that AWL was not registered with the California Secretary of State at the time
of the execution of the Deed of Trust. And, even if this Court accepts plaintiff’s
allegation that AWL was not registered at the time that it executed a Deed of Trust with
plaintiff, plaintiff fails to allege why AWL’s failure to register was so fundamental to the
mortgage agreement that plaintiff did not understand the agreement’s “very nature.”
Plaintiff also acknowledges that “reasonable reliance is a necessary element of fraud in
the execution.” Id. at 24–25. However, plaintiff has not alleged that he relied on AWL’s
allegedly fraudulent representation or that his reliance was reasonable. Similarly,
plaintiff has provided no factual basis for its allegation that BANA misrepresented that it
acquired plaintiff’s loan from Countrywide. Thus, the Court finds that plaintiff has not
provided a sufficient factual basis to plausibly demonstrate that the Deed of Trust is void
for fraud in the execution.
Plaintiff’s third and fourth claims rely on his Notice of Rescission and the TILA.
However, under the TILA, a right of rescission does not attach to residential mortgage
transactions. See 15 U.S.C. § 1635(e)(1); see Major v. Imortgage.com, Inc., No. 5:15-cv02592-CAS-DTBx, 2016 WL 492740, *4 (C.D. Cal. Feb. 8, 2016) (citing Gonzalez v.
GMAC Mortg. LLC, No. 2:10-cv-05021-DDP, 2010 WL 3245818, at *3 (C.D. Cal. Aug.
17, 2010) (“Plaintiffs allege that the loan at issue was used to finance the acquisition of
their home. Accordingly, the Court concludes the that the mortgage transaction at issue
in this case was a residential mortgage transaction within the meaning of 15 U.S.C.
§ 1602(w), and thus Plaintiffs have no right to rescind under TILA.”). As a result, the
Court concludes that plaintiff third and fourth claims fail to state a claim on which relief
may be granted.

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 6 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

The Court therefore concludes that plaintiff does not state a claim against BANA
on which he can recover. As a result, the second and third Eitel factors weigh against
entry of a default judgment. See Eitel, 782 F.2d at 1472 (concluding that the district
court did not abuse its discretion in denying the default judgment in part because the
district court “had serious reservations about the merits of Eitel’s substantive claim,
based upon the pleadings”).
C.

Sum of Money at Stake in the Action

Pursuant to the fourth Eitel factor, the Court balances “the amount of money at
stake in relation to the seriousness of the [defaulting party’s] conduct.” PepsiCo, 238 F.
Supp. 2d at 1176; see also Eitel, 782 F.2d at 1471–72. “This determination requires a
comparison of the recovery sought and the nature of defendant’s conduct to determine
whether the remedy is appropriate.” United States v. Broaster Kitchen, Inc., No. 2:14-cv09421-MMM-PJW, 2015 WL 4545360, at *6 (C.D. Cal. May 27, 2015); see also Walters
v. Statewide Concrete Barrier, Inc., No. 3:04-cv-02559-JSW, 2006 WL 2527776, *4
(N.D. Cal. Aug. 30, 2006) (“If the sum of money at issue is reasonably proportionate to
the harm caused by the defendant's actions, then default judgment is warranted.”).
Generally, where a plaintiff seeks non-monetary relief, courts have concluded that
this counsels in favor of granting a default judgment. See, e.g., PepsiCo, 238 F. Supp.2d
at 1177 (“Plaintiffs are not seeking monetary damages. They seek only injunctive relief
from the continued use of their trademarks on Defendant’s counterfeit products.
Accordingly, this factor favors granting default judgment.”); United States v. Torres, No.
2:12-cv-10530-SVW-MRW, 2013 WL 7137587, *5 (C.D. Cal. Apr. 17, 2013) (same);
United States v. Brekke, No. 2:12-cv-0722-WBS-JFM, 2012 WL 2450718, *4 (E.D. Cal.
June 26, 2012) (same).
Though plaintiff seeks non-monetary relief in the instant case, the relief sought—
including a judicial declaration that the Deed of Trust is Void and title to the Subject
Property is vested only in plaintiff—places at stake the value of the Subject Property.
Comparing the recovery sought, i.e., the value of the Subject Property, with BANA’s
alleged conduct, the Court finds that the relief sought is not proportional to the alleged
harm caused by BANA. See Bever v. Quality Loan Serv. Corporation, No. 1:16-cv0079-AWI-BAM, 2016 WL 1267578, at *5 (E.D. Cal. Mar. 31, 2016) appeal docketed,
No. 16-15797 (9th Cir. Apr. 29, 2016) (“Although Plaintiffs do not seek a large sum of
money, granting Plaintiffs a judgment declaring that Defendants have no interest in the

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 7 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

property and not requiring Plaintiffs to make any further payments on the loan would
result in a windfall. Especially when viewed through the lens of the questionable merit of
this action, the amount of money sought in this action is substantially disproportionate to
the alleged misconduct.”).
D.

Possibility of Dispute

The fifth Eitel factor considers the possibility that material facts are disputed.
PepsiCo, 238 F. Supp. 2d at 1177; see also Eitel, 782 F.2d at 1471–72. “Upon entry of
default, all well-pleaded facts in the complaint are taken as true, except those relating to
damages.” PepsiCo, 238 F. Supp. 2d at 1177. As described above, plaintiff has not
adequately pleaded his claims. As a result, this factor is either neutral or disfavors
default. See Stuckey v. Lucas, No. 3:11-cv-05196-JCS, 2012 WL 5948959, at *4 (N.D.
Cal. Sept. 12, 2012) (the “possibility of dispute” factor “does not weigh in either
direction as Plaintiff fails to state any viable claim”), report and recommendation
adopted, No. 3:11-cv-05196 SI, 2012 WL 5948232 (N.D. Cal. Nov. 27, 2012); Goldberg
v. Cent. Credit Mgmt., Inc., No. 2:11-cv-00305-MMD, 2012 WL 6042194, at *5 (D.
Nev. Dec. 3, 2012) (“[T]his factor disfavors default on the state law claims as Plaintiff
has not adequately pled those causes of action.”).
E.

Possibility of Excusable Neglect

The sixth Eitel factor considers whether defendant’s default may have been the
product of excusable neglect. PepsiCo, 238 F. Supp. 2d at 1177; see also Eitel, 782 F.2d
at 1471–72. The possibility of excusable neglect here is remote. BANA was served on
July 6, 2016. Dkt. 6. Since service, BANA has neither responded nor attempted to have
its default set aside. Where a defendant “[was] properly served with the Complaint, the
notice of entry of default, as well as the papers in support of the instant motion,” this
factor favors entry of default judgment. Shanghai Automation Instrument Co. Ltd. v.
Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 2001). Accordingly, this factor weighs in
favor of entry of default judgment.2

2

The Court notes that is the only time in the Court’s experience presiding over
cases in which BANA is a defendant that BANA has not responded to such a complaint,
leading the Court to conclude that service may have been defective. Notwithstanding the
foregoing, because the majority of factors weigh against entry of default, the Court will
not disturb the Clerk’s default.

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 8 of 9 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date December 6, 2016
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

F.

Policy in Favor of Decisions on the Merits

Pursuant to the seventh Eitel factor, the Court takes into account the strong policy
favoring decisions on the merits. While “‘this preference, standing alone, is not
dispositive,’” PepsiCo, 238 F. Supp. 2d at 1177, “[c]ases should be decided upon their
merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. Thus, the seventh Eitel
factor weighs against entry of default judgment.
G.

Conclusion Regarding the Eitel Factors

The Court concludes that plaintiff has failed to establish the merits of any alleged
claim as would be required for entry of default judgment against BANA. See Federal
Nat. Mortg. Ass’n v. George, No. 5:14-cv-01679-VAP-SP, 2015 WL 4127958, *3 (C.D.
Cal. July 7, 2015) (“The merits of the plaintiff’s substantive claim and the sufficiency of
the complaint are often treated by courts as the most important Eitel factors.”) (citation
omitted). Moreover, only two of the seven Eitel factors weigh in favor of entry of default
judgment. The Court therefore DENIES plaintiff’s motion for default judgment against
BANA.
V.

CONCLUSION

In accordance with the foregoing, the Court DENIES plaintiff’s motion for default
judgment against BANA. The Court DIRECTS BANA to file a motion to set aside the
Clerk’s default, along with a proposed answer, within thirty (30) days. Failure to do so
will result in further action by the Court.
IT IS SO ORDERED.
00 
Initials of Preparer

cc:

: 

00 

CMJ 

BANK OF AMERICA, N.A., as Successor in Interest to
America’s Wholesale Lender Its Successors and/or Assigns
c/o CT Corporation – Authorized Agent For Service of Process
818 West Seventh Street, Suite 930
Los Angeles, CA 90017

CV-4870 (12/16)

CIVIL MINUTES - GENERAL

Page 9 of 9