Shakir v. Federal National Mortgage Association et al

Filing 19

ORDER granting 11 Motion for Default Judgment. Signed by District Judge Michael P. Mills on 8/20/2015. (lpm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
DAVID SHAKIR

PLAINTIFF

v.

Civil Action No. 3:15-cv-00044-MPM-JMV

FEDERAL NATIONAL MORTGAGE ASSOCIATION,
et al.

DEFENANTS

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
This matter comes before the Court for consideration on the Motion for Default and Final
Judgment (the “Motion”)[11], filed on behalf of defendant Federal National Mortgage
Association (the “Defendant”).

The Motion is predicated on the underlying Counterclaim [8]

filed by the Defendant. The Motion also makes reference to the Defendant’s Motion to Dismiss
[7], though the Court finds that motion most appropriately addressed in a separate order. This
Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1332, 1441 and Rule 13 of the
Federal Rules of Civil Procedure. Venue is proper pursuant to 28 U.S.C. § 1391. For the
reasons set forth below, the Court finds that the Motion for Default Judgment is due to be
granted.
I.

FACTUAL BACKGROUND

Plaintiff David Shakir (the “Plaintiff”) commenced this suit on February 25, 2015, with
the filing of the Complaint in the Chancery Court of DeSoto County, Mississippi, Cause No.
17CH1:15-cv-00363. The case was later removed to this Court on March 25, 2015, based upon
diversity and bankruptcy jurisdiction. As stated in the Complaint [2], Plaintiff seeks injunctive
relief to stop foreclosure on his residence, alleging a variety of claims against the Defendant (and
others), including but not limited to improper assignment of deed of trust and improper

1

foreclosure on the Defendant’s residence.1 On May 14, 2015, the Defendant filed its Motion to
Dismiss [7], and Memorandum in Support of Motion to Dismiss [6], asserting, inter alia, that: (1)
Plaintiff failed to state a claim upon which relief could be granted (Fed. R. Civ. P. 12(b)(6)), (2)
that all claims asserted were barred by res judicata and/or collateral estoppel, and (3) that the
claims were moot as the Plaintiff had already been evicted from the property. At that same time,
Defendant also filed a Counterclaim [8], seeking to avoid certain “bogus” liens the Plaintiff had
filed on the property.
No response was filed to either the Motion to Dismiss or to the Counterclaim, and on
June 9, 2015 the Defendant filed a Motion for Entry of Default [9], which was subsequently
granted on June 15, 2015 [10]. On June 15, 2015, Defendant filed the present Motion. The
Defendant asks that all of the Plaintiff’s claims be dismissed with prejudice, and that default
judgment be entered against the Plaintiff, granting all relief sought in the Counterclaim.
Despite no prior responses to the Defendant’s motions having been filed, Plaintiff filed a
Motion for Continuance [12] on June 15, requesting an extension of time in which to file a
response to the Defendant’s Motion to Dismiss. No reference is made to an extension in which
time to respond to the Counterclaim. On July 13, the Defendant filed its Response to Plaintiff’s
Motion for Continuance [13], asserting that Plaintiff presents no adequate justification for his
failures to respond by the deadlines set forth under Uniform Local Rule 7(b)(4) and Federal Rule
of Civil Procedure 6(d).
The Defendant’s Motion for Default Judgment is predicated on the Plaintiff’s failure to
timely respond to the Counterclaim, and also takes into consideration arguments presented in the
Motion to Dismiss. For purposes of judicial economy, the Court finds it appropriate to address
the Counterclaim and Motion to Dismiss separately, and will therefore, at this time, only address
1

At the time of entry of this Order, the foreclosure of the property has already taken place.

2

the Motion for Default Judgment as it relates to the Counterclaim. For the reasons set forth
below, the Court finds that Defendant is entitled to the relief sought in the Motion.
II.

CONCLUSIONS OF LAW

Rule 55 of the Federal Rules of Civil Procedure allows for the entry of a default judgment
against a party who “has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise.” Fed. R. Civ. Pro. 55(a). Entering a judgment based on default is at the
discretion of the court, and a party is not entitled to a default judgment simply because of earlier
entry of default. Jefferson v. Louisiana Dept. of Public Safety and Corrections, 401 Fed.Appx.
927, 929 (5th Cir. 2010). Rather, default judgment is generally disfavored by the law. Id.
Courts prefer to reach a judgment on the merits of the case, and not to terminate litigation by
procedural maneuver. See Sun Bank of Ocala v. Pelican Homestead and Sav. Ass’n, 874 F.2d
274, 275 (5th Cir. 1989). In general, motions for default judgment should not be granted on the
claim, without more, that a party failed to meet a procedural time requirement. Lacy v. Citel
Corp., 227 F.3d 290, 292 (5th Cir. 2000). In order to properly resolve a motion for default
judgment, the Court should consider (1) whether default judgment is procedurally warranted; (2)
whether the pleadings sufficiently set forth facts establishing that the movant is entitled to the
relief sought; and (3) what relief, if any, the movant should receive. U.S. v. Giles, 538 F.Supp.2d
990, 993 (W.D. Tex. 2008). Further,
[r]elevant factors include whether material issues of fact are at issue, whether
there has been substantial prejudice, whether the grounds for default are clearly
established, whether the default was caused by a good faith mistake or excusable
neglect, the harshness of a default judgment, and whether the court would think
itself obliged to set aside the default on the defendant's motion.
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).

3

Although the Court of Appeals for the Fifth Circuit has adopted a policy in favor of
resolving cases on their merits, Lindsey, 161 F.3d at 892-93, that policy is “counterbalanced by
considerations of social goals, justice and expediency, a weighing process [that] lies largely
within the domain of the trial court’s discretion.” Rogers v. Hartford life and Acc. Ins. Co., 167
F.3d 933, 936 (5th Cir. 1999) (citations omitted). Accordingly, there are circumstances under
which granting the generally disfavored remedy is appropriate. For the reasons set forth in
greater detail below, the Court finds that such is the case here.
1. Procedural Requirements
The Counterclaim was filed on May 14, 2015, and the Plaintiff’s response thereto was
due on June 8, 2015. Fed. R. Civ. P. 6(d) & 12(a)(1). The Plaintiff was served with the
Counterclaim on May 14, 2015. See [8] at *6. The Counterclaim did not elicit a timely response
from the Plaintiff. Pursuant to the Federal Rules of Civil Procedure, the Plaintiff was required
to state his defenses to the claims asserted against him, and to admit or deny the allegations
contained therein. Fed. R. Civ. P. 8(b)(1)(A) and (B). Failing to do so, the allegations are
deemed admitted. Fed. R. Civ. P. 8(b)(6). It is now over two months since the original response
deadline, and the Plaintiff has still not filed a response to the Counterclaim, nor has he requested
an extension of time in which to do so. In light of the Plaintiff’s failure to respond, the default
judgment is procedurally warranted.
At this point, the Court finds it necessary to note that the Plaintiff’s inaction and failure to
abide by deadlines should not simply be cast as the inadvertent mistakes of an otherwise wellmeaning pro se litigant. The Plaintiff is no stranger to the legal process and judicial system. The
real property and related transactions have been the subject of three other cases in the District
Court since 2010, two of which were commenced by the Plaintiff. See Chase Home Fin., LLC v.

4

Shakir, 2011 WL 7110732 (N.D. Miss. Sept. 9, 2011) report and recommendation adopted, 2012
WL 259931 (N.D. Miss. Jan. 27, 2012); Shakir v. Chase Home Fin., N.A., 2011 WL 4386303,
(N.D. Miss. Aug. 29, 2011) report and recommendation adopted, 2011 WL 4383803 (N.D. Miss.
Sept. 20, 2011); Shakir v. Nationwide Trust Services, Inc., 2010 WL 1529224 (N.D. Miss. Apr.
15, 2010).

The Plaintiff has further initiated two separate (now dismissed) chapter 13

bankruptcy cases in the Northern District of Mississippi, in which he also acted pro se. See In re
Shakir, Case No. 13-11915 (Bankr. N.D. Miss. 2013); In re Shakir, Case No. 14-11537 (Bankr.
N.D. Miss. 2014). In each of those cases, the Plaintiff participated in the process by either
initiating the lawsuit or bankruptcy case, and/or by filing various motions and other pleadings.
Although not a licensed attorney, the Plaintiff is sufficiently familiar with the legal system to
know that his participation – particularly in cases which he initiated – is fundamental.
This Court has already once entered an Order Granting Default Judgment against the
Plaintiff, regarding this same piece of property. In that case, this Court found that the Plaintiff’s
unsubstantiated explanations for failing to abide by certain Court deadlines and orders, and to
appear as directed, were likely a means to frustrate proper adjudication of the matter, and not
accidental.
Shakir has challenged the authority of this court at every opportunity. It is
apparent to the court that he is engaging in delay tactics to remain in the house
that is the subject of the plaintiff's complaint for foreclosure. Initially, Shakir
failed to answer the plaintiff's complaint after obtaining an extension of time to do
so, and a default was entered.
…
Shakir’s alleged unspecified illness appears to be yet another delay tactic. He has
not offered a doctor's excuse or, for that matter, any proof of illness that would
have prevented him from appearing before the court on August 30. His repeated
filings of documents which are virtually indecipherable and certainly nonresponsive to the claims against him are apparently nothing more than attempts to
frustrate the legal process so that he may continue to occupy the house where he
has resided since April 2007 without having paid a single mortgage payment to

5

the plaintiff… It is clear that defendant does not intend to participate or respond in
good faith.
Chase Home Fin., LLC v. Shakir, 2011 WL 7110732, at *2 (N.D. Miss. Sept. 9, 2011)
report and recommendation adopted, 2012 WL 259931 (N.D. Miss. Jan. 27, 2012). Regrettably,
none of the Plaintiff’s subsequent actions in this Court contradict the Court’s initial suspicions
that the Plaintiff is engaged in improper delay tactics.
Although the Plaintiff has filed a Motion for Continuance, requesting an extension of
time in which to respond to the Defendant’s Motion to Dismiss, it fails to address the
Counterclaim, the Entry of Default, or the Motion for Default Judgment. Further, it comes two
weeks past the deadline as established by Federal Rule of Civil Procedure 6(d) and Uniform
Local Rule 7(b)(4), and fails to provide an adequate explanation for the Plaintiff’s tardiness in
filing responsive pleadings.
Considering whether or not the default was caused by a good faith mistake or excusable
neglect, the Court finds that the evidence and history of this case (and others) weigh against the
Plaintiff and in favor of granting default judgment.
2. Sufficiency of Pleadings
Entitlement to default judgment on procedural grounds does not necessarily warrant entry
of judgment. Instead, the pleadings must sufficiently demonstrate the movant is entitled to such
relief. Nishimatsu Const. Co. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). “As
the Supreme Court stated in the ‘venerable but still definitive case’ of Thomson v. Wooster: a
default judgment may be lawfully entered only ‘according to what is proper to be decreed upon
the statements of the bill, assumed to be true,’ and not ‘as of course according to the prayer of
the bill.’” Id. at 1206 (quoting Thomson v. Wooster, 114 U.S. 104, 113, 5 S. Ct. 788, 792, 29 L.

6

Ed. 105 (1885)).

Considering the content of the Counterclaim, the Court finds that the

Defendant has satisfactorily met its burden.
In reviewing the sufficiency of the Defendant’s Counterclaim, the Court applies the same
standards by which it would gauge the sufficiency of pleadings in a complaint. To state a claim
upon which relief may be granted, a party must plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007). Further, it must plead those facts with enough specificity so as
“to raise a right to relief above the speculative level.” Id., 127 S. Ct. at 1965. “A claim has
facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 663, 129 S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009).
Through the Counterclaim, the Defendant concisely (though adequately) revisits the
history of this matter, including how the Plaintiff first acquired the property, how the property
was encumbered pursuant to a Deed of Trust in favor of Chase Bank USA, N.A., and how the
subject property came to be vested in the Defendant following the foreclosure on November 18,
2014. The Defendant also recounts the procedural history of the Desoto County Court litigation
(and subsequent entry of judgment in favor the Defendant (the “State Court Judgment”)),
whereby the Plaintiff was directed to vacate the residence. It is alleged that following the entry
of the State Court Judgment, the Plaintiff has attempted to improperly cloud Defendant’s title by
filing bogus liens on the property.
The Defendant asserts that the filing of such bogus liens, coupled with initiation of the
present case, is just another attempt by the Defendant to frustrate the Defendant’s lawful title to
and possession of the property. The Defendant requests that the bogus liens be declared clouds

7

on title to the property, void and held for naught, that the Plaintiff be enjoined from filing any
further instruments that may cloud title to the property, and finally that Defendant be awarded all
costs, expenses and attorney’s fees associated with the action.
To corroborate the allegations contained in the Counterclaim, the Defendant has
submitted to the Court supporting documentation, including (1) the original Warranty Deed [8;
Ex. A], (2) the Deed of Trust [8; Ex. B]; (3) the Substitute Trustee’s Deed [8; Ex. C]; (4) the
State Court Judgment finding that the Plaintiff was unlawfully withholding possession of the real
property, and that the Defendant should be awarded possession of said house and lot [8; Ex. D];
and (5) copies of UCC Financing Statements, filed by the Plaintiff in the land records of DeSoto
County and purporting to encumber the property.
Reviewing the Counterclaim and supporting documentation, the Court finds that the
Defendant has sufficiently demonstrated that it is entitled to the relief requested. This Court has
already found – through exhausting and repetitive litigation – that a foreclosure sale of the
property was appropriate and lawful. See Chase Homes Finance, LLC v. Shakir, 2012 WL
259931, at *1 (N.D. Miss. Jan. 27, 2012) (granting default judgment against the Plaintiff and in
favor of Chase Homes Finance, LLC, the Defendant’s predecessor in interest, and authorizing
foreclosure on the property). The so-called liens filed by the Plaintiff following foreclosure have
no discernible legal basis. The Court finds them so legally (and logically) indefensible that no
great exploration of their supposed merit is necessary.
Given that the liens in question are facially invalid, consideration of “harshness of the
default judgment” weighs greatly in favor of the Defendant. The Court is able to draw the
reasonable inference that the Plaintiff is liable for the filing of bogus liens in an attempt to
improperly cloud Defendant’s title to the property. Such an inference is only bolstered by the

8

Plaintiff’s history with this Court and his seemingly unending – and unjustified – attempts to
prevent his creditors from exercising their rights under the terms of the loan.
Pursuant to Rule 8(b)(6) of the Federal Rules of Civil Procedure, the Plaintiff’s failure to
deny allegations that the liens are baseless and invalid deems them admitted. “It is universally
understood that a default operates as a deemed admission of liability.” Matter of Dierschke, 975
F.2d 181, 185 (5th Cir. 1992). Irrespective of such admission, however, the Court would still
conclude that the liens are warrantless, unjustified, and invalid based on the pleadings and
supporting documentation. Accordingly, given the patently frivolous nature of the so-called
liens, as well as the Plaintiff’s failure to respond or in any way justify their validity, the Court
finds that the they are due to be declared void and invalid.
3. Relief to which the Defendant is Entitled
For the reasons set forth above, the Court finds that the Defendant is entitled to the relief
sought in the Counterclaim through a default judgment.
III.

CONCLUSION

Considering the procedural history of this case, the failure of the Plaintiff to respond to
the Counterclaim, the deemed admission of allegations therein, and the interests of social goals,
justice and expediency, the Court finds that Default Judgment is due to be granted. There is no
adequate reason to delay entry of final judgment with respect to the claims between the Plaintiff
and Defendant. See Fed. R. Civ. P. 54(b). Taking into consideration the relevant factors
enumerated by the Fifth Circuit in Lindsey, the Court finds that factors relating to substantial
prejudice, good faith mistake, and harshness of a default judgment all weigh against the Plaintiff.
The court agrees that Plaintiff has, in fact, failed to defend against the Counterclaim, and,
moreover, that the law and facts of this case support the relief sought.

9

Accordingly, it is hereby, ORDERED that the Motion for Default Judgment [11] is
GRANTED.
SO ORDERED this the 20th day of August, 2015.

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

10