Nationstar Mortgage, LLC v. D'Angelo et al

Filing 24

ORDER re the 22 --motion for default judgment; granting the motion for a default judgment against D'Angelo and Conley; denying the motion for a default judgment against Target. Signed by Judge Steven D. Merryday on 5/17/2018. (GSO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NATIONSTAR MORTGAGE, LLC,
Plaintiff,
v.

CASE NO. 8:17-cv-502-T-23CPT

CHRISTOPHER C. D’ANGELO, et al.,
Defendants.
____________________________________/

ORDER
After Christopher C. D’Angelo and Heather Conley defaulted in the
repayment of the mortgage secured by the property at 10418 Tilburg Street, Spring
Hill, FL 34608,1 (Doc. 1 at 2) Nationstar Mortgage, LLC, sued (Doc. 10) D’Angelo,
Conley, and Target National Bank/Target Visa. The defendants failed to answer,
and the clerk entered a default (Docs. 16, 17, 19) against each. Demanding
foreclosure and possession of the property, Nationstar moves (Doc. 22) for a default
judgment.2

1

“Lot 3, Block 1169, Spring Hill Unit 17, as per plat thereof, recorded in plat book 9, pages
31 through 46, of the public records of Hernando County, Florida.” (Doc. 22 at 2)
2

In Count I, Nationstar “requests that the Court declare, establish and judicially foreclose
its senior interest in the property . . . .” (Doc. 10 at 5) In Count II, Nationstar “requests the Court
grant possession of the property to it and/or any other purchaser at sale, ejecting D’Angelo, Conley
and/or any others.” (Doc. 10 at 6)

A defendant in default admits a claim, but only if the facts are “well-pleaded.”
See Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)
(“The defendant is not held to admit facts that are not well-pleaded or to admit
conclusions of law.”). Nationstar states claims against D’Angelo and Conley but
fails to state a claim against Target. The amended complaint mentions Target only
once: “On 4/5/11, Target obtained a state court judgment for $9,940.24 as to
D’Angelo, recorded 4/7/11 B. 2815 P. 204.” (Doc. 10 at 3) Nationstar sues for a
declaration of the mortgagee’s superior interest in the property; assuming, for
example, that Target has a lien secured on the property, Nationstar fails to plead this
or any other fact connecting Target to this action.
For the reasons stated in Nationstar’s unopposed motion for a default
judgment and because D’Angelo and Conley are in default and so admit each
allegation in Counts I and II, Nationstar’s motion (Doc. 22) for a default judgment
against D’Angelo and Conley is GRANTED. But because Nationstar fails to state a
claim against Target, Nationstar’s motion (Doc. 22) for a default judgment against
Target is DENIED.
D’Angelo and Conley owe Nationstar:
Unpaid principal balance:
Accrued interest:
Escrow:

$133,647.87
$7,529.11
$3,999.48

TOTAL OF ALL OBLIGATIONS:

$147,901.91

(Doc. 22-9 at 1–2)
-2-

As to Count I, the mortgage on the property is prior and superior to all rights,
claims, liens, interests, equities, and encumbrances of D’Angelo and Conley and all
persons claiming under, through, or against them. Nationstar is entitled to judgment
foreclosing its interest in the property. As to Count II, Nationstar or any third-party
purchaser at the sale is granted post-sale possession of the property and its
improvements, fixtures, and other contents.3
Under Rule 53, Federal Rules of Civil Procedure, Mediation Inc., James
Chaplin, Esq., is appointed as special master and must offer the property for public
sale to the highest and best bidder for cash, subject to certain rights established in this
order. Before taking physical possession of the property, the special master or his
representative must have free access to the premises during reasonable business
hours.
In accord with 28 U.S.C. §§ 2001 and 2002, the special master must hold the
sale by public auction at Hernando County Courthouse. The special master must
advertise the day and time of the sale by publishing a notice of sale once a week for
four consecutive weeks preceding the sale. The advertisement describing the
property and the terms and conditions of sale must appear in at least one newspaper
regularly issued and of general circulation in Hernando County.

3

Under Rule 64, Federal Rules of Civil Procedure, and pursuant to an ancillary writ of
possession, the plaintiff or any purchaser is entitled to post-sale possession of the property. Redding v.
Stockton, 488 So. 2d 548 (Fla. 5th DCA 1986) (“Foreclosure is a case in equity, and a writ of
possession is ancillary to it.”).

-3-

The special master must sell the property free and clear of any lien or
encumbrance. On the day of the sale, the successful bidder must deposit with the
special master, either by cashier’s check (payable to the plaintiff’s counsel of record)
or by cash deposit, a minimum of ten percent of the amount bid. But without paying
a deposit, Nationstar may place credit bids against the amount owed on the
mortgage.
The successful bidder must tender the balance of the purchase price to the
special master no later than two business days after the day of the sale and must pay
by cashier’s check or by cash. If a successful bidder fails to fulfill this requirement,
the deposit is forfeited and applied to the expenses of the sale with any remaining
amount returned to the bidder, and the special master must again offer the property
for sale under the terms and conditions stated in this order. If Nationstar purchases
the property, the special master must credit on Nationstar’s bid the total sum owed to
Nationstar or the amount necessary to fully pay Nationstar’s bid. If not the
purchaser, Nationstar must advance all subsequent costs of this action, for which the
special master must reimburse Nationstar. A successful third-party bidder at the sale
must pay, in addition to the amount of the bid, any documentary stamps and land
registry fees and costs.

-4-

The sale of the property is subject to judicial confirmation.4 After the sale, the
special master must submit to the clerk of the court a report of sale. Nationstar must
then move under Rule 70, Federal Rules of Civil Procedure, for an order confirming
the sale of the property and conveying title to the purchaser, which Nationstar must
submit to the local land registry office. After an order confirms the sale, the special
master must determine the expenses of the sale, including any cost of publication and
any expense of preservation, and must pay the expenses of the sale from the sale
proceeds.5 The special master must remit the balance of the sale proceeds to the clerk
of this court with a statement of the special master’s costs and expenses.
Until the property is sold and the successful bidder physically possesses the
property, D’Angelo and Conley must preserve the property in its current condition.
D’Angelo and Conley must not commit waste, damage, or vandalism against the
property or commit any act that impairs or reduces the property’s value or
marketability. After the sale, all parties, occupants, and entities must vacate the
property as directed by the United States Marshal or by local law enforcement
officers, who are ordered to remove any remaining person and their personal

4

Nationstar may assign the judgment by executing an assignment before an order is issued
confirming the sale.
5

Nationstar may recover from the sale proceeds its costs in prosecuting this action; its
expenses of sale, including documentary stamps affixed to the order if applicable; the total sum due
to Nationstar less the items paid; and interest.

-5-

property from the property. Refusal or failure to vacate the property is punishable by
contempt.
Any personal property that the owner of the personal property fails or
refuses to remove from the property is deemed forfeited and abandoned, and
Nationstar or the purchaser may remove and dispose of the personal property,
including by sale, in which case the seller must apply the proceeds of the sale to the
expenses of the sale.
Jurisdiction is retained over this action to enter any further order. The clerk is
directed to close the case.
ORDERED in Tampa, Florida, on May 17, 2018.

-6-