Thomas v. Bank of America, N.A., as Successor by Merger to Lasalle Bank N.A. as trustee for the MLMI Trust Series 2006-RM2 et al

Filing 11

ORDER Denying Plaintiff's 7 Motion for Default Judgment and Granting Defendant's 9 Motion to Set Aside The Entry Of Default. Signed by Judge Larry Alan Burns on 10/2/13. (All non-registered users served via U.S. Mail Service)(kaj)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUDIE THOMAS,

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CASE NO. 13-cv-1576-LAB
Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION FOR DEFAULT
JUDGMENT AND GRANTING
DEFENDANT’S MOTION TO SET
ASIDE THE ENTRY OF DEFAULT

vs.
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BANK OF AMERICA, N.A., AS
SUCCESSOR BY MERGER TO
LASALLE BANK, N.A., AS
TRUSTEE FOR THE MLMI TRUST
SERIES 2006-RM2 AND ALL
PERSONS UNKNOWN CLAIMING
ANY ILLEGAL OR EQUITABLE
RIGHT, TITLE, ESTATE, LIEN, OR
INTEREST IN PROPERTY
DESCRIBED IN THE COMPLAINT
ADVERSE TO PLAINTIFF’S TITLE
OR ANY CLOUD ON PLAINTIFF’S
TITLE, OR ANY CLOUD ON
PLAINTFF’S TITLE THERETO;
DOES 1 to 10, inclusive,

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Defendants.

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Plaintiff Rudie Thomas filed a complaint against Bank of America on July 5, 2013, and

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after BOA failed to respond the clerk entered default and Thomas filed a motion for default

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judgment. Later, on September 20, 2013, Bank of America filed a motion to set aside

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default, alleging the summons was not properly served. The Court GRANTS that motion.

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//
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10cv2400

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There are several factors a court may consider in determining whether to enter default

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judgement, one of which is the "strong policy underlying the Federal Ruled of Civil Procedure

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favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986).

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Furthermore, this court’s discretion to set aside default is broader when only default has

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been entered and not default judgment. O’Connor v. State of Nevada, 27 F.3d 357, 364 (9th

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Cir. 1994). Bank of America presents a credible case that Thomas’s service was improper,

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and it has now appeared and is ready and willing to litigate. That is all that matters in the

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Court’s view.

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Thomas’s motion for default judgment is DENIED and Bank of America’s motion to
set aside default is GRANTED.

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IT IS SO ORDERED.
DATED: October 2, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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10cv2400