Cadence Bank, NA v. Costello et al

Filing 60

ORDER: the bank's motion (Doc. 58 ) for a default judgment against Mr. and Mrs. Costello on Counts VI through X is GRANTED; the bank's motion (Doc. 58 ) for a summary judgment against the Associations on Count X is GRANTED; the bank' ;s motion (Doc. 58 ) for a default judgment against the Tenants on Count VIII is DENIED; the clerk's default (Docs. 18 , 20 , 21 , 22 , 23 ) against each Tenant is VACATED; permitting the bank, by 2/20/2015, to amend the complaint to assert a claim against the Tenants. Signed by Judge Steven D. Merryday on 2/10/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CADENCE BANK, N.A.,
Plaintiff,
v.

CASE NO. 8:13-cv-1290-T-23MAP

JOSEPH A. COSTELLO, SR., et al.,
Defendant.
__________________________________/

ORDER
Cadence Bank, N.A., sues (Doc. 1) Joseph A. Costello Sr. after his default in
the repayment of five loans,1 each of which is secured by real property. The bank
demands either the balance due on each loan or foreclosure of the lien on the
assigned collateral. After Mr. Costello voluntarily petitioned for relief under
Chapter 7 of the Bankruptcy Code, an order (Doc. 44) stayed this action. Following
a discharge of Mr. Costello’s in personam liability, an order (Doc. 47) lifted the stay to
permit the bank to foreclose each lien on the assigned collateral.
The bank moves (Doc. 58) for a default judgment against Mr. Costello and
against Lisabet Costello on Counts VI through X, each of which demands foreclosure

Each of the five loans and each of the five real properties are identified in the complaint
(Doc. 1). Any undefined capitalized term referring to a loan or real property has the meaning
defined in the complaint.
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of a lien on the assigned collateral. In each of these counts, the bank adequately
states a claim for foreclosure. Far more than twenty-one days has passed since
service of the summons and the complaint. Mr. and Mrs. Costello have failed to
answer, and the clerk has entered a default (Docs. 27, 28) against each. Accordingly,
Mr. and Mrs. Costello are in default and consequently admit each allegation in
Counts VI through X.
Further, the bank moves (Doc. 58) for default judgment against Zack
Goodman, Mike Vermillan, Tim Firstenberger, Donna Crace, and Carolyn Banks
(collectively, the Tenants) on Count VIII, which demands foreclosure of the lien on
the Third Mortgaged Property. The bank argues that “the deadline to respond to the
Complaint has passed and the Tenants have failed to file, plead, or otherwise defend
this action as required by the Federal Rules of Civil Procedure.” (Doc. 58 at 21)
However, Count VIII fails to state a claim against the Tenants. See Chudasama v.
Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997) (“[A] default judgment
cannot stand on a complaint that fails to state a claim.”). Although the complaint
contains a mention of “Unknown Tenants,”2 the complaint fails to identify any
interest of the Tenants and fails to request relief against the Tenants.
Also, the bank moves (Doc. 58) for a summary judgment against Eastern
Industrial Park Property Owners’ Association, Inc., and The Barber Center

After filing the complaint, the plaintiff learned the identities of the Tenants and moved
(Doc. 10) to substitute party defendants.
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Condominium Association, Inc., (collectively, the Associations) on Count X, which
demands foreclosure of the lien on the Associations’ interest in the Fifth Mortgaged
Property. Count X adequately states a claim for foreclosure against the Associations,
and “the Associations agree to the relief requested [in Count X].” (Doc. 58 at 20)
Thus, no genuine issue of material fact exists regarding Count X.
Accordingly, the bank’s motion (Doc. 58) for a default judgment against
Mr. and Mrs. Costello on Counts VI through X is GRANTED, and the bank’s
motion (Doc. 58) for a summary judgment against the Associations on Count X is
GRANTED. The bank’s motion (Doc. 58) for a default judgment against the
Tenants on Count VIII is DENIED. The clerk’s default (Docs. 18, 20, 21, 22, 23)
against each Tenant is VACATED. No later than FEBRUARY 20, 2015, the bank
may amend the complaint to assert a claim against the Tenants.
ORDERED in Tampa, Florida, on February 10, 2015.

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