United States of America v. Marquez et al

Filing 56

MEMORANDUM AND ORDER granting 51 Ewings' Amended Motion for Default Judgment; and denying as moot 52 Ewings' Motion for In Camera Inspection. Signed by District Judge J. Thomas Marten on 6/20/2013. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,
Plaintiff,
vs.
TAMMY L. MARQUEZ, et al.,

Case No. 12-1401-JTM

Defendants.
vs.
CENTEX HOME EQUITY COMPANY,
LLC, n/k/a NATIONSTAR
MORTGAGE, LLC.
Third Party Defendant.

MEMORANDUM AND ORDER
This matter is before the court on the motion of defendants and third-party plaintiffs
Adam and Angela Ewing for default judgment under Fed.R.Civ.P. 55(b)(2) against Centex
Home Equity Company, LLC, now known as Nationstar Mortgage, LLC.. The action was
originally commenced by the United States as an in rem claim relating to property securing
a Rural Housing Service loan issued Tammy and Antonio Marquez in 1998. The
government sought judgment in the amount of $75,341.62 against the original borrowers,
along with a determination that its loan was a first and prior lien on the underlying

property.
The Ewings brought a third-party claim against Nationstar, which foreclosed on a
second mortgage on the property in 2004, purchased the property at a Sheriff’s sale, and
then sold it to the Ewings. The Ewings alleged that Nationstar failed to properly inform
them of the existing and superior encumbrance held by the government. By this silence, the
Ewings allege that Nationstar was guilty of fraud, negligent misrepresentation, unjust
enrichment, and violation of the Kansas Consumer Protection Act.
The Clerk entered default against Nationstar on January 30, 2013.The Ewings’
motion shows that they paid the government $37,500 in exchange for a release of the
government mortgage. The payment was the result of arms-length negotiation between
counsel for the Ewings and counsel for the government, with both counsel citing relevant
facts and legal authorities. The payment was reasonable under the circumstances of the
case.
In addition, the Ewings were required to incur attorney fees and expenses in
protecting their interest in the property. Kansas law permits an award of attorney fees as
damages if a party “has been forced to litigate against a third party because of some
tortious conduct of the defendant.” Duggan v. Rooney, 749 F. Supp. 234, 241 (D. Kan. 1990).
Here, the evidence before the court establishes that the Ewings incurred $22,176.20 in
reasonable attorney fees and expenses in defending the government’s foreclosure claim.
Because the court finds that the amount of the Ewings’ damages is sufficiently
certain through the evidence submitted to the court, no hearing is necessary. Int’l Painters
& Allied Trades Indus. Pension Fund v. R.W. Amrine Drywall, 239 F. Supp. 2d 26, 30 (D.D.C.

2002).
IT IS ACCORDINGLY ORDERED, this 20th day of June, 2013, that the Ewings’
Amended Motion for Default Judgment (Dkt. 51) is hereby granted, and the court directs
a final default judgment against Nationstar and in favor of the Ewings in the amount of
$59,676.20. In light of this finding, the Ewings’ Motion for In Camera Inspection (Dkt. 52)
is denied as unnecessary and moot.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE