Anderson v. Wells Fargo Bank, NA et al

Filing 45

ORDER denying Plaintiff's 34 Motion to Properly Serve; granting Defendants' 39 Motion to File a Responsive Pleading Out of Time; denying Plaintiff's 43 Motion to Amend her Complaint; and granting Defendants' 29 Motion to Set Aside the Entry of Default. Signed by District Judge Keith Starrett on January 13, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
EVA ANDERSON

PLAINTIFF

V.

CIVIL ACTION NO. 2:15-CV-88-KS-MTP

WELLS FARGO BANK, NA, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants Defendant’s Motion to Set Aside [29]
the entry of default, denies Plaintiff’s Motion to Properly Serve [34], grants
Defendant’s Motion [39] to file a responsive pleading out of time, and denies Plaintiff’s
Motion to Amend [43] her Complaint.
I. BACKGROUND
This is a wrongful foreclosure case. Plaintiff asserted a variety of claims against
Defendants, and she seeks to block foreclosure on her home. On October 30, 2015,
Plaintiff filed a Motion [23] for entry of default as to Defendant Argent Mortgage, LLC
(“Argent”). The Clerk entered Argent’s default [24] on the same day. On November 10,
2015, Argent filed a Motion to Set Aside [29] the Default. While Argent’s motion was
pending, Plaintiff filed a Motion [34] for Defendant Citi Residential Lending, Inc.
(“CRL”) to “properly serve” her with its filings. While Plaintiff’s motion was pending,
Argent filed a Motion [39] seeking leave to file a responsive pleading out of time.
Finally, while Argent’s second motion was pending, Plaintiff filed a Motion to Amend
[43] her Complaint. The parties have been afforded sufficient opportunity to respond
to all pending motions, and the Court is prepared to address them.

II. MOTION TO SET ASIDE DEFAULT [29]
“The Federal Rules are diametrically opposed to a tyranny of technicality and
endeavor to decide a case on the merits. Strict enforcement of defaults has no place in
the Federal Rules . . . .” Amberg v. FDIC, 934 F.2d 681, 686 (5th Cir. 1991).
Accordingly, “[t]he court may set aside an entry of default for good cause . . . .” FED. R.
CIV. P. 55(c). “The language of this rule is discretionary, and the decision to set aside
a default is committed to the sound discretion of the trial court. . . . [D]istrict courts
generally should grant motions to set aside a default unless the default was willful, the
plaintiff will be prejudiced, or the defendant has no meritorious defense.” Moreno v. Lg
Elecs., USA Inc., 800 F.3d 692, 698 (5th Cir. 2015); see also Lacy v. Sitel Corp., 227
F.3d 290, 291 (5th Cir. 2000). “Other factors may also be considered, including whether
the defendant acted expeditiously to correct the default.” Lacy, 227 F.3d at 291.
After considering these factors, the Court concludes that Argent has satisfied
Rule 55's “good cause” requirement. The record contains no evidence of willfulness.
Plaintiff apparently served Argent’s agent for service of process in Florida, rather than
Mississippi, which could have caused the delay. Additionally, Plaintiff has not
articulated any way in which she would be prejudiced. Setting aside the default merely
requires Plaintiff to prove her allegations. See Id. at 293. Finally, Argent acted
expeditiously to correct the default insofar as they filed their motion [29] less than two
weeks after the entry of default [24]. Id. at 291. For these reasons, the Court grants
Defendant Argent Mortgage, LLC’s Motion to Set Aside [29] the entry of default.
III. MOTION TO PROPERLY SERVE [34]
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Plaintiff filed a Motion [34] requesting that the Court order Defendant CRL to
“properly serve” her with its “initial response.” On September 17, 2015, Plaintiff
registered and consented [16] to receive filing notifications via e-mail. Accordingly,
when CRL filed its Answer [31] on November 11, 2015, it represented to the Court that
a copy was served on Plaintiff via the electronic filing system. Indeed, the notice of
electronic filing (“NEF”) generated by the system confirms that notice of the filing was
e-mailed to Plaintiff at the address she provided the Court.
Rule 5(b)(2) provides that a document is served by “sending it by electronic
means if the person consented in writing – in which event service is complete upon
transmission, but is not effective if the serving party learns that it did not reach the
person to be served . . . .” FED. R. CIV. P. 5(b)(2)(E). Plaintiff represented that she has
not received CRL’s Answer. Therefore, the Court orders CRL to mail a hard copy of the
Answer [31] to Plaintiff at the mailing address she provided to the Court within seven
days of the entry of this order.
Additionally, the Court orders Plaintiff to respond to this order and provide the
Court with her current e-mail address. If her current e-mail address is the one which
she previously provided to the Court – [e-mail] – then the Court
orders Plaintiff to explain why she did not receive the NEF related to CRL’s Answer,
and to show cause why her registration to receive electronic notifications should not
be revoked for her apparent inability to reliably receive the Court’s NEF’s. Plaintiff
shall respond to this order within fourteen days of its entry. Failure to respond will be
construed as willful delay or contumacious conduct that may result in sanctions,
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potentially including the dismissal of Plaintiff’s claims.
IV. MOTION TO FILE A RESPONSIVE PLEADING OUT OF TIME [39]
Argent filed a Motion to File [40] an out-of-time responsive pleading. The Court
may extend a party’s time to file a document “on motion made after the time has
expired if the party failed to act because of excusable neglect.” FED. R. CIV. P.
6(b)(1)(B). The following factors are relevant to the determination of “excusable
neglect”: “(1) the possibility of prejudice to the other parties, (2) the length of the
applicant’s delay and its impact on the proceeding, (3) the reason for the delay and
whether it was within the control of the movant, and (4) whether the movant has acted
in good faith.” Salts v. Epps, 676 F.3d 468, 475 (5th Cir. 2012).
The Court has already granted Argent’s Motion to Set Aside [29] the entry of
default. For the same reasons provided above, the Court finds that it may file a
responsive pleading out of time. Plaintiff has not articulated any potential prejudice
to her if Argent is permitted to file an answer. The length of the delay has been
negligible, and there has been little impact on the proceedings insofar as other motions
have also been pending. Argent suggests that the reason for the delay was Plaintiff’s
service of process on its registered agent in Florida, rather than Mississippi – a
conceivable explanation which the Court has no reason to discredit. Finally, the record
does not demonstrate any bad faith on Argent’s part. At worst, it was negligent, missed
a deadline, and promptly sought leave to rectify its mistake. For these reasons, the
Court grants Argent’s Motion [39] to file a responsive pleading out of time. Argent
must file its answer within fourteen days of the entry of this order.
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V. MOTION TO AMEND COMPLAINT [43]
Finally, Plaintiff filed a Motion to Amend [44] her Complaint to add another
defendant. Local Rule 15 provides: “A proposed amended pleading must be an exhibit
to a motion for leave to file such pleading.” L.U.Civ.R. 15. Plaintiff did not provide the
Court with a copy of the proposed Amended Complaint. Accordingly, the Court denies
her Motion to Amend [44].
VI. CONCLUSION
For the reasons above, the Court grants Defendant’s Motion to Set Aside [29]
the entry of default, denies Plaintiff’s Motion to Properly Serve [34], grants
Defendant’s Motion [39] to file a responsive pleading out of time, and denies Plaintiff’s
Motion to Amend [43] her Complaint.
Additionally:
•

The Court orders CRL to mail a hard copy of the Answer [31] to
Plaintiff at the mailing address she provided to the Court within
seven days of the entry of this order.

•

The Court orders Plaintiff to respond to this order within fourteen
days of its entry and provide the Court with her current e-mail
address. If her current e-mail address is the one which she
previously provided to the Court – [e-mail] –
then she shall also explain why she did not receive the NEF
related to CRL’s Answer, and show cause why her registration to
receive electronic notifications should not be revoked for her
apparent inability to reliably receive the Court’s NEF’s. Failure to
respond will be construed as willful delay or contumacious conduct
that may result in sanctions, potentially including the dismissal of
Plaintiff’s claims.

•

The Court orders Argent to file its responsive pleading within
fourteen days of the entry of this order.
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SO ORDERED AND ADJUDGED this 13th day of January, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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