Kataviravong et al v. Mirabella Mortgage, LLC et al

Filing 29

ORDER granting 23 Plaintiffs' Motion for Default Judgment against Defendant Negotiation Specialists (Written Opinion). Signed by Judge Ann D. Montgomery on 07/12/2012. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Darouny L. Kataviravong;
Bounleuang Kataviravong,
Plaintiffs,
v.

ORDER
Civil No. 12-493 ADM/JJG

Mirabella Mortgage, LLC; MERSCORP
Holdings, Inc.; Mortgage Electronic Registration
Systems, Inc.; Countrywide Bank, N.A.;
JPMorgan Chase Bank, N.A.; Title and Closing,
Inc.; Negotiation Specialists; American
Independent Mortgage; and Federal
National Mortgage Association, a/k/a
Fannie Mae;
Defendants.
______________________________________________________________________________
Shauna F. Kieffer, Esq., Ford Law Office, Hopkins, MN, on behalf of Plaintiffs.
No appearance entered on behalf of Defendant Negotiation Specialists.
______________________________________________________________________________
On June 12, 2012, the undersigned United States District Judge heard oral argument on
Plaintiffs Darouny L. Kataviravong and Bounleuang Kataviravong’s (the “Kataviravongs”)
Motion for Default Judgment Against Negotiation Specialists [Docket No. 23], pursuant to Rule
55 of the Federal Rules of Civil Procedure. No appearance was made by or on behalf of
Defendant Negotiation Specialists. The Court having considered the Kataviravong’s motion, as
well as the affidavits and exhibits1 filed in support of the motion, and based upon all the filings
and proceedings herein, hereby orders the entry of default judgment against Defendant

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The Affidavit of Service [Docket No. 26] and the Affidavit of Publication [Docket No.
27] were not filed with the original Motion for Default Judgment or the Affidavit in Support of
Default Judgment, but were subsequently filed electronically on June 11, 2012. Counsel for the
Kataviravongs provided this Court with copies at the motion hearing.

Negotiation Specialists.
The Kataviravongs have filed a Complaint against Negotiation Specialists and other
defendants, alleging violations of the Home Ownership and Equity Protection Act (“HOEPA”)
and Minnesota Statute §§ 59.13 and 325F.691, as well as claims of negligence and unjust
enrichment. Notice of Removal [Docket No. 1] Ex. A (“Complaint”). The Court has previously
dismissed all claims against co-defendants MERSCORP Holdings, Inc., Mortgage Electronic
Registration Systems, Inc., JPMorgan Chase Bank, N.A., and Federal National Mortgage
Association. See June 6, 2012 Order [Docket No. 25]. Plaintiffs’ Complaint against Defendant
Countrywide Bank, N.A., was also dismissed with prejudice pursuant to stipulation. See Apr.
23, 2012 Order [Docket No. 17]. Plaintiffs’ sole cause of action against Negotiation Specialists
is for unjust enrichment.
Negotiation Specialists were served with a copy of the Summons and Complaint on
December 5, 2011. See Aff. of Service. Negotiation Specialists have not appeared in this
proceeding. Due to Negotiation Specialist’s default, the factual allegations of the Complaint are
deemed true. Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010) (citation omitted). Negotiation
Specialists are in default, and they have made no showing that a default judgment is
inappropriate. Negotiation Specialists also are not an infant, an incompetent person, or presently
in military service.
As a proximate result of Negotiation Specialists’ conduct, the Kataviravongs paid them
$1,100.00 to send a qualified written request (“QWR”) to their lender. Compl. ¶¶ 68–69.
However, at the time Negotiation Specialists contracted with the Kataviravongs to send a QWR,
the foreclosure sale had already occurred. Id. ¶ 68. The lenders were not required to respond to

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a QWR which was sent after this sale. See, e.g., Byrd v. Homecomings Fin. Network, 407 F.
Supp. 2d 937, 945–46 (N.D. Ill. 2005). Negotiation Specialists were therefore unjustly enriched
by accepting the Kataviravongs’ $1,100.00 in exchange for filing a QWR which served no
purpose. Under Minnesota law, a plaintiff alleging unjust enrichment must demonstrate “that
another party knowingly received something of value to which he was not entitled, and that the
circumstances are such that it would be unjust for that person to retain the benefit. Schumacher
v. Schumacher, 627 N.W.2d 725, 729 (Minn. Ct. App. 2001). The facts of the Complaint, taken
as true, support a finding that Negotiation Specialists were unjustly enriched by accepting the
$1,100.00 from the Kataviravongs. Additionally, the Court grants Plaintiffs attorneys’ fees and
costs in the amount of $420.00.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Plaintiffs Darouny L. Kataviravong and Bounleuang Kataviravong’s
Motion for Default Judgment Against Negotiation Specialists [Docket No.
23] is GRANTED; and

2.

Default judgment in favor of Plaintiffs against Defendant Negotiation
Specialists is entered in the amount of $1,520.00.

LET DEFAULT JUDGMENT AGAINST NEGOTIATION SPECIALISTS
BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: July 12, 2012.

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