Ray v. HSBC Bank, N.A.

Filing 7

ORDER denying 6 Motion for Entry of Default. Signed by District Judge Martin Reidinger on September 28, 2010. (Pro se litigant served by US Mail.)(jhg)

R a y v. HSBC Bank, N.A.

Doc. 7

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:10cv175

TH O M AS RAY, P l a i n t if f , vs . H S B C BANK, N.A., D e fen d a n t. )

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ORDER

TH IS MATTER is before the Court on the Plaintiff's document titled "T o rt--P e titio n for No Answer Default [Doc. 6]. The Court construes this as a m o tio n for entry of default pursuant to Federal Rule of Civil Procedure 55. On August 20, 2010, the Plaintiff filed a twenty-six page complaint which c o n ta in s rambling, inarticulate accusations against the banking industry in g e n e ra l. [Doc. 1]. On the same date that the complaint was filed, the Plaintiff file d a document identical to the complaint except that, through this pleading, th e Plaintiff sought a temporary restraining order to prevent the foreclosure of h is home. [Doc. 2]. In the motion, the Plaintiff revealed that by the time this a c tio n was filed on August 20, 2010, the foreclosure sale had occurred. The

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motion was denied. [Doc. 4]. O n September 16, 2010, the Plaintiff filed an amended complaint. [Doc. 5 ]. On September 23, 2010, he filed a motion for entry of default in which he c la im s that he served the Defendant HSBC Bank, N.A. on August 23, 2010. H e claims that the affidavit of the process server, whom he identifies as Ross A . Olmos, shows that the Defendant was served on August 23, 2010 and is th e re fo re in default. [Doc. 6, at 2]. Attached to the motion is an unidentified d o c u m e n t which does not contain the caption of the case. [Id., at 5]. The d o c u m e n t is signed by "Roger D. Burton" who states that he served HSBC B a n k , N.A. with a summons. [Id.]. He does not state that he served a copy of th e complaint and amended complaint on HSBC Bank, N.A. The amended c o m p la in t was, in fact, filed after the purported date of service. Moreover, b e c a u s e there is no case caption or case number on the affidavit of service, th e Court is unable to ascertain whether the affidavit of service relates to this a c tio n . Finally, the person signing this document is not "Ross A. Olmos," id e n tifie d by the Plaintiff as his process server.

IT IS, THEREFORE, ORDERED that the Plaintiff's document titled "Tort-P e titio n for No Answer Default [Doc. 6], construed as a motion for entry of d e fa u lt pursuant to Federal Rule of Civil Procedure 55, is hereby DENIED.
Signed: September 28, 2010