Bank of American v. Martin et al

Filing 44

ORDER AND DEFAULT JUDGMENT granting pltf's motion for default jdgmt 33 , entering jdgmt in favor of pltf Bank of America & against defts Martins, reforming mortgage of 8/20/88 by Martins to encumber certain property (see order for specifics), & directing Franklin Co Office of Recorder of Deeds to accept certified copy of this order for filing so reformation of said mortgage will appear in public records re: said property. (See order for complete details.) Signed by Honorable Christopher C. Conner on 4/23/13. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BANK OF AMERICA, NATIONAL
ASSOCIATION, AS SUCCESSOR BY
MERGER TO LASALLE BANK,
NATIONAL ASSOCIATION, AS
TRUSTEE FOR CERTIFICATEHOLDERS OF EMC MORTGAGE
LOAN TRUST 2005-B, MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2005-B,
Plaintiff
v.
TIMOTHY L. MARTIN, MARY
ELLEN MARTIN and FIRST
AMERICAN TITLE INSURANCE
COMPANY
Defendant

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CIVIL ACTION NO. 1:12-CV-0544

(Judge Conner)

ORDER AND DEFAULT JUDGMENT
AND NOW, this 23rd day of April, 2013, upon consideration of the motion
(Doc. 33) of Plaintiff Bank of America, National Association as successor by merger
to LaSalle Bank, National Association, as Trustee for Certificate Holders of EMC
Mortgage Loan Trust 2005-B, Mortgage Pass-Through Certificates, Series 2005-B,
to enter default judgment against defendants Timothy L. Martin (“Mr. Martin”) and
Mary Ellen Martin (“Ms. Martin”) (collectively, “the Martins”), and it appearing that
Ms. Martin received service of process on April 24, 2012 (Doc. 17), that Mr. Martin
received service of process on July 25, 2012 (Doc. 27), and that both parties have
failed to plead or otherwise defend themselves against the instant claims, that

default (Doc. 31) has been entered against the Martins, see FED. R. CIV. P. 55(a)
(providing for entry of default by the clerk), and that the Martins have not made an
appearance in the above-captioned action, see FED. R. CIV. P. 55(b)(2) (providing for
notice on motion for default judgement only if adverse party has made an
appearance), and it further appearing that plaintiff seeks an order declaring that
the mortgage signed by the Martins on August 20, 1998, and filed in the Office of the
Recorder of Deeds of Franklin County, in Deed Book Volume 1296 at page 0385 is
reformed,1 and requiring the Office of the Recorder of Deeds of Franklin County to
accept for filing a certified copy of this order, and upon further consideration of the

1

Federal Rule of Civil Procedure 54(c) dictates that a default judgment may
only grant the relief specifically prayed for in the pleadings. Fed. R. Civ. P. 54(c).
Plaintiff here specifically seeks to reform the mortgage to encumber the following
property:
ALL THAT CERTAIN real estate lying and being situated
in Guilford Township, Franklin County, Pennsylvania,
bounded and described as follows:
BEGINNING at an iron pin at corner of lands of David M.
Martin and on line of lands of Ralph Hepfer on a plan of
lost hereinafter referred to; Thence by lands of David M.
Martin, North 61 degrees 51 minutes 56 seconds West,
105.81 feet to set iron pin; Thence by the same, north 14
degrees 53 minutes 19 seconds East; 119.73 feet to an
existing iron pin; Thence by lands of Hepfer, South 14
degrees 53 minutes 19 seconds West, 111.12 feet to a set
iron pin, being the place of beginning, Being Parcel
Numbers D-28-15A & D-28-15B.
Being Tax Parcel 10-D-28-015A and 10-D-28-015B; and
being commonly known as 5045 Wayne Road,
Chambersburg, Pennsylvania and 5051 Wayne Road,
Chambersburg, Pennsylvania.
2

court’s evidentiary hearing of March 27, 2013 on the instant motion,2 see FED. R.

2

On March 27, 2013, the court conducted an evidentiary hearing to
determine the intent of the parties to a mortgage on the property at 5051 Wayne
Road, Chambersburg, Pennsylvania. At that time, Bank of America presented
uncontested evidence that the Martins, as mortgagors, and National Future
Mortgage, Inc. (“NFMI”), as mortgagee, intended the mortgage to encumber not
only the property known as 5051 Wayne Road (corresponding with Tax Parcel No.
10-D-28-015B), but also the property known as 5045 Wayne Road, Chambersburg,
Pennsylvania (corresponding with Tax Parcel No. 10-D-28-015A).
The court heard the testimony of Harold Galo, a representative of JP Morgan
Chase Bank, N.A. (“Chase”), the current servicer of the loan in question. Galo
presented evidence that on or about August 20, 1998, the Martins entered into a
loan transaction, by which NFMI lent to the Martins the sum of $96,300.00. The loan
was evinced by Adjustable Rate Note, (see Hearing, Pl’s. Ex. 1, March 27, 2013), and
secured by the subject mortgage. The mortgage was thereafter recorded in the
office of the Franklin County Recorder of Deeds on September 11, 1998. (See Hr’g,
Pl’s. Ex. 2). It identifies the mortgaged property as being located at 5051 Wayne
Avenue, Chambersburg, Pennsylvania, and states “SEE ATTACHED LEGAL
DESCRIPTION” in the field for property description. (Id.) No formal legal
description was ever attached to or made part of the recorded mortgage. However,
Chase or the preceding loan servicers retained a copy of the subject mortgage, to
which a legal description of the property was attached. Though the unrecorded
mortgage also identifies the property as 5051 Wayne Road, it does contain the
contemplated legal description, which indicates that the property to be encumbered
includes both Tax Parcel Nos. 10-D-28-015A and 10-D-28-15B. (Id.) The unrecorded
mortgage’s description replicates that found in “Schedule C” of the First American
Title Insurance Company Title Commitment. (Hr’g, Pl’s. Ex. 4). Bank of America
also presented evidence that the Martins treated the two parcels, which contained
their business and home, respectively, as one property in their Uniform Residential
Loan Application (Hr’g, Pl’s. Ex. 5) and in their 1997 federal income tax return
(Hr’g, Pl’s. Ex. 6).
It is apparent to the court that, through inadvertence, the parties to the
original mortgage omitted the legal description of the property to be encumbered,
which is expressly contemplated by the terms of the mortgage. Schedule C,
attached to the servicer’s copy of the mortgage and contained in the First American
Title Commitment, provides that description and evinces a clear intent that the
mortgage encumber both parcels.
3

CIV. P. 55(b)(2)(C) (permitting the court to conduct hearings to establish the truth of
any allegations by evidence),3 it is hereby ORDERED that:

3

Discretion to enter default judgment rests with the district court. Emcasco
Ins. Co. v. Sambrick, 834 F.2d 71, 73 (3d Cir. 1987). A court evaluating the propriety
of a default judgment must consider: (1) whether the plaintiff will be prejudiced if
the default is denied; (2) whether the defendant has a meritorious defense; (3)
whether the defaulting defendant’s conduct is excusable or culpable; and (4) the
effectiveness of alternative sanctions. Id. at 73-74. When, however, a defendant has
failed to appear or respond in any fashion to the complaint, this analysis is
necessarily one-sided, and the district court is typically authorized to enter default
judgment based solely on the fact that the default has occurred. Anchorage Assocs.
v. V.I. Bd. of Tax Review, 922 F.2d 168, 177 n.9 (3d Cir. 1990); Deutsche Bank Nat’l
Trust Co. v. Strunz, 2013 U.S. Dist. LEXIS 3203 at *4-5 (M.D. Pa. 2013).
Here the Emcasco factors clearly weigh in favor of granting a default
judgment. Unbeknownst to Bank of America at the time, its successful foreclosure
action against the Martins and subsequent purchase of the subject property
transferred title only to 5051 Wayne Road. This property is landlocked, and
accessible only through 5045 Wayne Road, a fact of serious consequence to the
resale of the property. Moreover, Bank of America has outstanding claims
regarding the title insurance associated with the initial loan transaction between
the Martins and NFMI. Bank of America’s ability to resolve those claims with the
insurer, First American Title Insurance Company, is likely to be impeded by a
denial of default judgment. Consequently, Bank of America is significantly
prejudiced in the absence of default judgment and reformation of the mortgage. To
date, the Martins have not asserted a defense, either by answering the complaint or
by opposing the present motion for default judgment, and have not provided any
excuse or explanation for their default. As the Martins have never appeared in the
present matter, it is unlikely that they will prove responsive to alternative sanctions.
Default judgment is therefore proper.
4

1.

Plaintiff’s motion for default judgment (Doc. 33) is GRANTED.

2.

Judgment is hereby ENTERED in favor of plaintiff Bank of America
against the Martins.

3.

The mortgage dated and signed by Timothy L. Martin and Mary Ellen
Martin on August 20, 1988, and filed in the Office of the Recorder of
Deeds of Franklin County, in Deed Book Volume 1296 at page 0385 is
hereby reformed as of the date of the original filing to encumber the
following property:
ALL THAT CERTAIN real estate lying and being
situated in Guilford Township, Franklin County,
Pennsylvania, bounded and described as follows:
BEGINNING at an iron pin at corner of lands of
David M. Martin and on line of lands of Ralph
Hepfer on a plan of lost hereinafter referred to;
Thence by lands of David M. Martin, North 61
degrees 51 minutes 56 seconds West, 105.81 feet to
set iron pin; Thence by the same, north 14 degrees
53 minutes 19 seconds East; 119.73 feet to an
existing iron pin; Thence by lands of Hepfer, South
14 degrees 53 minutes 19 seconds West, 111.12 feet
to a set iron pin, being the place of beginning,
Being Parcel Numbers D-28-15A & D-28-15B.
Being Tax Parcel 10-D-28-015A and 10-D-28-015B;
and being commonly known as 5045 Wayne Road,
Chambersburg, Pennsylvania and 5051 Wayne
Road, Chambersburg, Pennsylvania.

4.

The Office of the Recorder of Deeds of Franklin County shall accept a
copy or copies of this Order, certified as true and correct by the Clerk
of this Court, for filing so that the reformation of the aforesaid
Mortgage will appear in the public records in regard to the
aforementioned property.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge