Nelson LAC v. Nationstar Mortgage LLC

Filing 30

ORDER signed by Judge Kimberly J. Mueller on 11/17/15 ORDERING tthe Clerk of the Court is instructed to enter DEFAULT against Nationstar. The motion to dismiss is STRICKEN. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NELSON LAC,

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Plaintiff,

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No. 2:15-cv-00523-KJM-AC (TEMP)

v.

ORDER

NATIONSTAR MORTGAGE LLC,
DOES 1–10,
Defendant.

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Defendant Nationstar Mortgage LLC moves to dismiss Nelson Lac’s complaint,

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which alleges Nationstar did not comply with California Civil Code section 2923.55 before

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initiating foreclosure proceedings. The court took the matter under submission without holding a

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hearing. For the following reasons, the motion is STRICKEN.

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I.

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BACKGROUND
Lac filed a complaint in this court on March 9, 2015. ECF No. 1. He alleges

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Nationstar did not respond to several requests he made for a home mortgage loan modification

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before it recorded a notice of default in late 2014. See id. ¶¶ 3–7. The court granted Lac’s

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motion to proceed in forma pauperis on March 18, 2015. ECF No. 4. The United States

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Marshals Service completed service, Nationstar was served on August 19, 2015, and a summons

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was returned executed and filed on the docket on August 24, 2015. ECF No. 10. Nationstar’s
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responsive pleading was due September 9, 2015, see Fed. R. Civ. P. 12(a)(1)(A), but it did not

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appear, and on September 17, 2015, Lac filed a “Motion for Entry of Default,” ECF No. 12.

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On September 20, 2015, Lac filed an ex parte application for a temporary

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restraining order, notifying the court a foreclosure sale had been scheduled for October 13, 2015.

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TRO App. 3, ECF No. 13. The court set a hearing for October 6, 2015 and instructed Lac’s

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counsel to contact Nationstar and notify it of Lac’s application for a temporary restraining order

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and the hearing. Order Sept. 22, 2015, ECF No. 15. Counsel complied with that order. ECF

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No. 16.

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On October 2, 2015, Nationstar filed the pending motion to dismiss, noticing a

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hearing for November 20, 2015. ECF No. 17. On October 6, 2015, the court held the hearing on

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Lac’s ex parte application for a temporary restraining order. Minutes, ECF No. 23. Following a

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discussion with counsel, the court issued an order granting the application for a temporary

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restraining order as unopposed and enjoining any foreclosure sale for sixty days. Order Oct. 14,

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2015, ECF No. 24. Lac later opposed the motion to dismiss, arguing both (1) that it was filed

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after the date by which Nationstar was required to file a responsive pleading and (2) that the

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motion must be denied on its merits. ECF No. 26. Nationstar replied. ECF No. 27.

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II.

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DISCUSSION
Federal Rule of Civil Procedure 55(a) provides, “When a party against whom a

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judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is

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shown by affidavit or otherwise, the clerk must enter the party’s default.” Lac requested entry of

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default on September 17, 2015, several days after the date Nationstar was required to plead or

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otherwise defend. ECF No. 12. He attached the affidavit of his attorney, who detailed

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Nationstar’s failure to answer or defend. See Bolaños Aff., ECF No. 12-1. Rule 55(a) requires

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the entry of default. Default has not yet been entered. The Clerk’s Office is therefore instructed

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to enter Nationstar’s default.

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“The court may set aside an entry of default for good cause.” Fed. R. Civ. P.

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55(c). “To determine ‘good cause,’ a court must consider three factors: (1) whether the party

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seeking to set aside the default engaged in culpable conduct that led to the default; (2) whether it
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had no meritorious defense; or (3) whether reopening the default judgment would prejudice the

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other party.” United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085,

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1091 (9th Cir. 2010) (citations, quotation marks, and alterations omitted). Nationstar has not

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shown good cause to set aside the default. It has made no effort to explain its delay, and it

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appeared in this action only after the court ordered Lac’s counsel to serve a prior order on

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Nationstar. Finally, “[t]he filing of an untimely motion to dismiss . . . does not constitute ‘good

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cause,’ sufficient to relieve a party from the entry of default.” Stanley v. Heckler, 604 F. Supp.

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1102, 1104 (D. Mont. 1985).

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III.

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CONCLUSION
The Clerk of the Court is instructed to enter DEFAULT against Nationstar. The

motion to dismiss is STRICKEN.
IT IS SO ORDERED.
DATED: November 17, 2015.

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UNITED STATES DISTRICT JUDGE

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