BECK et al v. BANK OF AMERICA HOME LOANS

Filing 14

ORDER denying 11 Motion for Default Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/06/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CHARLES W. BECK and ANNETTE S.
BECK,

*
*

Plaintiffs,
*
vs.

CASE NO. 3:16-CV-2 (CDL)
*

BANK OF AMERICA HOME LOANS,
*
Defendant.
*
O R D E R
Plaintiffs Charles and Annette Beck, who are proceeding pro
se, filed a motion for default judgment against Defendant “Bank
of America Home Loans” (ECF No. 11).

Plaintiffs represent that

Defendant was served with the summons and complaint on January
6, 2016.

Defendant did not file an answer within twenty-one

days, and Plaintiffs filed their motion for default judgment.
As discussed in more detail below, however, Plaintiffs did not
present any evidence that Defendant was served with the summons
and

complaint

on

January

6,

2016.

Rather,

the

record

establishes that Defendant received a request to waive service
and timely waived service.

The deadline for Defendant to answer

has

Defendant

not

yet

passed,

so

is

not

in

default

and

Plaintiffs’ motion for default judgment must be denied.
Plaintiffs filed this action on January 6, 2016.
ECF No. 1.

Compl.,

Plaintiffs named “Bank of America Home Loans” as the

Defendant.

Id.

The Magistrate Judge granted Plaintiffs’ motion

to proceed in forma pauperis and directed that the U.S. Marshal
serve the Defendant.

Order Granting Mot. for Leave to Proceed

In Forma Pauperis, Jan. 21, 2016, ECF No. 3.

An employee of the

U.S. Marshal mailed a waiver of service to “Bank of America Home
Loans” via CT Corporation System, but CT Corporation responded
that “Bank of America Home Loans” was not listed in its records,
so

CT

Corporation

could

not

forward

the

waiver

of

service.

Letter from CT Corp. to Gena Godwin (Jan. 28, 2016), ECF No. 71.

An employee of the U.S. Marshal mailed a second waiver of

service to “Bank of America Home Loans” at the headquarters of
Bank of America Corporation in Charlotte, N.C. on February 18,
2016.

Process Receipt & Return, ECF No. 10.

waiver of service on March 21, 2016.1

Defendant filed a

Defendant thus has sixty

days from February 18, 2016 to answer or otherwise respond to
Plaintiffs’ complaint.

Fed. R. Civ. P. 4(d)(3).

Plaintiffs represent that the summons and complaint were
served on Bank of America Home Loans on January 6, 2016.
Aff. ¶ 2, ECF No. 11-1.

Beck

But Plaintiffs did not submit a proof

of service showing that Defendant was actually served on January
6, 2016 in accordance with Federal Rule of Civil Procedure 4(h).
1

The Court notes that Bank of America, N.A.—not “Bank of America Home
Loans” filed the response to Plaintiffs’ motion for default judgment.
Bank of America, N.A. asserts that “‘Bank of America Home Loans’ . . .
is not a known entity” and that Bank of America, N.A. assumes that
Plaintiffs meant to name it instead.

2

Rather,

as

discussed

above,

the

record

reflects

that

the

Magistrate Judge directed the U.S. Marshal to serve Defendant,
that

the

U.S.

Marshal

requested

a

waiver

of

service,

that

Defendant waived service, and that the deadline for Defendant to
answer or otherwise respond to Plaintiffs’ complaint has not yet
passed.

Defendant is not in default.

Plaintiffs’ motion for

default judgment (ECF No. 11) is therefore denied.

IT IS SO ORDERED, this 6th day of April, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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