GRAY v. LAW OFFICES OF PEGGY L BROWN PC et al

Filing 114

ORDER denying 92 Motion for Default Judgment Ordered by US DISTRICT JUDGE CLAY D LAND on 12/12/2019 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
SANDRA GRAY,

*

Plaintiff,

*

vs.

*

PEGGY BROWN, et al.,

*

Defendants.

*

CASE NO. 3-17-cv-153 (CDL)

O R D E R
Presently pending before the Court is Plaintiff’s motion
for default judgment as to Emmco, LLC (ECF No. 92).

Emmco, LLC

was served by publication pursuant to the Court’s order.

Order

Granting Mot. for Service by Publication (ECF No. 33); Notice of
Service by Publication (ECF No. 37).

Emmco, LLC did not answer

or otherwise respond, so Emmco, LLC is in default.

The Clerk

entered a default as to Emmco, LLC on October 15, 2019.
By defaulting, a defendant admits the factual allegations
in a plaintiff’s complaint, and those facts must be accepted as
true for purposes of a motion for default judgment.

See, e.g.,

Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d
1298, 1307 (11th Cir. 2009).

Here, Plaintiff alleges that she

did not sign a May 2005 security deed under which her home was
collateral for a refinance loan and that the security deed is
thus void due to forgery.

Am. Compl. ¶¶ 28, 39, ECF No. 20.

But, these allegations of fact cannot be accepted as true to the
detriment of the non-defaulting Defendants.

At the jury trial

on the claims against the non-defaulting Defendants, the jury
concluded that Plaintiff had not met her burden of proving that
she did not sign the May 27, 2005 security deed.
the

jury

verdict,

Plaintiff’s

allegations

in

In light of
the

Amended

Complaint cannot be accepted to establish that the security deed
is

void

due

to

forgery.

And

because

all

of

the

damages

Plaintiff seeks in her motion for default judgment flow from her
allegation that the security deed is

void due to forgery—an

allegation that the jury rejected—she cannot prove any damages
because the security deed is not void.

Cf. Gulf Coast Fans,

Inc. v. Midwest Elecs. Importers, Inc., 740 F.2d 1499, 1512
(11th Cir. 1984) (citing Frow v. De La Vega, 82 U.S. 552, 554
(1872)) (suggesting that it would be “incongruous and unfair”
for a plaintiff to prevail on a breach of contract claim against
a defaulting defendant when a jury in a separate action had
concluded that plaintiff had breached the contract).

The Court

rejects the notion that it can simply speculate what damages
Plaintiff would suffer if she did not have a valid security deed
encumbering her property.
The Court recognizes Plaintiff also alleged that Emmco, LLC
violated the Truth in Lending Act (“TILA”) by failing to make
disclosures

required

under

15

U.S.C.

2

§ 1631

and

15

U.S.C.

§ 1638.

Plaintiff

did

not

mention

TILA

in

her

motion

for

default judgment, and she did not present any evidence that she
suffered damages caused by Emmco, LLC’s failure to make the TILA
disclosures.

Furthermore, claims for damages under TILA must be

brought “within one year from the date of the occurrence of the
violation.”

15 U.S.C. § 1640(e).

Even if this deadline were

tolled until February 2016, when Plaintiff says she learned of
the refinance loan, Plaintiff did not file this action until
more than a year later, so any TILA damages claims are timebarred.
For the reasons set forth above, Plaintiff’s motion for
default

judgment

as

to

Emmco,

LLC

(ECF

No.

92)

is

denied.

Furthermore, the Court finds that Plaintiff has no viable claims
against
security

Emmco,
deed

LLC
on

given

her

the

binding

property

is

determination

valid

and

her

otherwise barred by the statute of limitations.

that

the

claims

are

Accordingly,

judgment shall be entered in Emmco, LLC’s favor along with the
other Defendants.
IT IS SO ORDERED, this 12th day of December, 2019.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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