U.S. Bank National Association v. Sararo et al

Filing 94

ORDER granting 93 Plaintiff's Second Motion for Default as to Defendant, PNC Bank, N.A. The Clerk is directed to enter a Clerk's Default against Defendant PNC Bank, N.A., Successor by Merger to National City Bank. Signed by Magistrate Judge Carol Mirando on 5/8/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
U.S. BANK NATIONAL
ASSOCIATION, as Trustee Relating
to Chevy Chase Funding LLC
Mortgage Backed Certificates Series
2006-2
Plaintiff,
v.

Case No: 2:16-cv-733-FtM-99CM

CHRISTOPHER J. SARARO,
ALFREDO J. SARARO, III ,
UNKNOWN SPOUSE OF
ALFREDO J. SARARO, III,
GRANDE EXCELSIOR AT THE
GRANDE PRESERVE
CONDOMINIUM ASSOCIATION,
INC., THE DUNES OF NAPLES
PROPERTY OWNERS
ASSOCIATION, INC., GRANDE
PRESERVE AT THE DUNES
COMMUNITY ASSOCIATION,
INC., CHICAGO TITLE
INSURANCE COMPANY, PNC
BANK, N.A., UNITED STATES OF
AMERICA DEPARTMENT OF
TREASURY, UNITED STATES
ATTORNEY, PARTIES IN
POSSESSION UNKNOWN
TENANT’35;1, PARTIES IN
POSSESSION UNKNOWN
TENANT ’35;2 and SUMMER
PARHAM SARARO,
Defendants.
ORDER

This matter comes before the Court upon review of Plaintiff’s Second Motion
for Default as to Defendant, PNC Bank, N.A. (Doc. 93) filed on May 5, 2017.

Plaintiff

seeks a Clerk’s entry of default as to Defendant PNC Bank, N.A., Successor by Merger
to National City Bank (“PNC Bank”).

Doc. 93.

Affidavit of Process Server to the present motion.

Plaintiff attached an Amended
Doc. 93-1.

On September 26, 2016, Plaintiff filed a Verified Complaint for Foreclosure
(“Complaint”).

Doc. 1.

On October 19, 2016, Senior United States District Judge

John E. Steele dismissed the Complaint for lack of subject-matter jurisdiction and
directed Plaintiff to file an amended complaint.

Doc. 43.

On October 25, 2016,

Plaintiff filed an Amended Verified Complaint for Foreclosure (“Amended
Complaint”) against various defendants including PNC Bank. Doc. 46.
Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.”

Similarly, Middle District of Florida Local Rule 1.07(b)

provides:
When service of process has been effected but no appearance or response
is made within the time and manner provided by Rule 12, Fed. R. Civ.
P., the party effecting service shall promptly apply to the Clerk for entry
of default pursuant to Rule 55(a), Fed. R. Civ. P.
M.D. Fla. R. 1.07(b).

Prior to directing the Clerk to enter a default, the Court must

first determine whether Plaintiff properly effected service of process.

United States

v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, at *1 (M.D. Fla. June 24,
2009).

-2-

Service on a corporation or other unincorporated association can be made by
any manner accepted in the state where the district court is located or where service
is made.

Fed. R. Civ. P. 4(h)(1)(A), (e)(1).

Section 655.0201(2) of the Florida

Statutes outlines service of process on a financial institution and states: “A financial
institution authorized by federal or state law to transact business in this state may
designate with the Department of State a place or registered agent located within the
state as the financial institution’s sole location or agent for service of process, notice,
levy, or demand.”

Fla. Stat. § 655.0201(2).

If a financial institution has no

registered agent or service cannot be made in accordance with the above section, then
“service may be made to any officer, director, or business agent of the financial
institution at its principal place of business or at any other branch, office, or place of
business in the state.” Fla. Stat. § 655.0201(3).
Here, the Amended Affidavit of Process Server states that on September 27,
2016, a process server for ATA Process, LLC delivered a true copy of the Summons,
Notice of Lis Pendens, and the Complaint with Exhibits A, B, C, D, E to Noel Arteaga,
a “universal banker” and authorized employee for PNC Bank, at 1915 N. Dale Mabry
Highway, Tampa, FL 33607.

Doc. 93-1.

According to the affidavit, Arteaga

represented to the process server that he is an authorized employee/representative of
PNC Bank and is authorized to accept service of process on behalf of PNC Bank.

Id.

Affidavits by process servers constitute a prima facie showing that defendants have
been served.

Udoinyion v. The Guardian Security, 440 F. App’x 731, 735 (11th Cir.

2011) (unsworn and unsigned letters insufficient to call into question prima facie

-3-

evidence of service consisting of process server’s sworn return); Burger King Corp. v.

Eupierre, Case No. 12-20197-CIV, 2012 WL 2192438, at *2 (S.D. Fla. June 14, 2012).
Furthermore, Plaintiff states that it properly served PNC Bank under section
655.0201(3) of the Florida Statutes because PNC Bank does not have any registered
agent in Florida, and Arteaga is an authorized business agent of the financial
institution at a branch located in Florida. Doc. 93 at 3.

As a result, the Court finds

that service of process was properly effected under Rule 4(h) of the Federal Rules of
Civil Procedure.
In addition, Plaintiff properly served the Amended Complaint upon PNC Bank.
Docs. 47 at 2; 93 at 2. Rule 5(a)(1)(B) states that a pleading filed after the original
complaint must be served on every party unless ordered otherwise by the Court.
Fed. R. Civ. P. 5(a)(1)(B).

Under Rule 5(b), a party may serve an amended complaint

by mailing it to the person’s last known address.

Fed. R. Civ. P. 5(b)(2)(C).

Service

under Rule 5(b) is allowed when the amended complaint does not assert new claims
for relief.

Amarelis v. Notter Sch. of Culinary Arts, LLC, No. 6:13-cv-54-Orl-31KRS,

2014 WL 5454387, at *3 (M.D. Fla. Oct. 27, 2014).

Here, the Amended Complaint

does not allege new claims or claims against new parties.

Docs. 1, 46.

The

Complaint and the Amended Complaint allege Counts One of Foreclosure, Two of
Equitable Lien, and Three of Breach of Note against the same thirteen defendants.
Docs. 1, 46.

As a result, Plaintiff is permitted to serve a copy of the Amended

Complaint on PNC Bank by mailing it to PNC Bank’s last known address.

Amarelis, 2014 WL 5454387, at *3; Docs. 47 at 2, 93 at 2.

-4-

See

Pursuant to Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure, a
defendant must serve an answer within 21 days after being served with the summons
and complaint. PNC Bank has failed to do so within the time period; therefore, entry
of Clerk’s Default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure and
Middle District of Florida Local Rule 1.07(b) is appropriate.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Second Motion for Default as to Defendant, PNC Bank, N.A.

(Doc. 93) is GRANTED.
2.

The Clerk is directed to enter a Clerk’s Default against Defendant PNC

Bank, N.A., Successor by Merger to National City Bank.
DONE and ORDERED in Fort Myers, Florida on this 8th day of May, 2017.

Copies:
Counsel of record

-5-