Bracken v. Fannie Mae Consumer Resource Center Inc et al

Filing 65

ORDER RULING ON REPORT AND RECOMMENDATION. Therefore, the plaintiffs motion for default judgment (ECF No. 17) isDENIED and the defendants motion for extension of time to answer the complaint (ECF No. 23) is GRANTED. Signed by Honorable Timothy M Cain on 6/10/2014. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Joel Clay Bracken,

)
)
Plaintiff,
)
)
v.
)
)
Fannie Mae Consumer Resource Center,
)
Inc., also known as Fannie Mae, also known )
as Federal National Mortgage Association, )
also known as FNMA,
)
)
Defendant.
)
)

Civil Action No. 6:13-1983-TMC-KFM

ORDER

The plaintiff brought this action under the Fair Credit Reporting Act, alleging that the
defendant illegally pulled his credit report. After the defendant failed to answer his complaint,
the plaintiff filed a motion for entry of default and for default judgment.1 (ECF No. 17.) The
defendant responded to the motion, informing the court that it had failed to respond to the
complaint because of an oversight or miscommunication between the legal department and the
servicer. (ECF No. 24.) The defendant also moved for an extension of time to file its answer.
(ECF No. 23.) By the time it filed its motions, the defendant had retained counsel and was ready
to proceed with the case.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule
73.02(B)(2)(e), DSC, this matter was referred to a magistrate judge for pretrial handling. Before
the court is the magistrate judge’s Amended Report and Recommendation (“Report”),
recommending that the court deny the plaintiff’s motion for default and grant the defendant’s

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The court notes that an entry of default was never docketed.
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motion for extension of time.2 (ECF No. 42.) The plaintiff has filed objections to the Report
(ECF No. 44) and this matter is now ripe for review.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). In making that determination, the court is charged with conducting a de novo review
of those portions of the Report to which either party specifically objects. See 28 U.S.C. §
636(b)(1). Then, the court may accept, reject, or modify the Report or recommit the matter to
the magistrate judge. See id.
The plaintiff objects to the Report’s reliance on a declaration3 submitted on behalf of the
defendant and its conclusion that the defendant’s actions constitute excusable neglect. The
plaintiff claims that the court cannot properly consider the defendant’s declaration because it is
inadmissible hearsay and that, without that declaration, the defendant has not shown excusable
neglect.
To support the factual basis underlying its motion for extension of time to file answer and
its response in opposition to the plaintiff’s motion for default judgment, the defendant included
as an exhibit the declaration of Susan Miller, a litigation paralegal. (See ECF Nos. 23-2, 24-1.)
The document is docketed as an affidavit, but purports to be a declaration pursuant to 28 U.S.C.
§ 1746. Section 1746 expressly permits a party to support a matter permitted to be supported by
a sworn declaration with an unsworn declaration under penalty of perjury, as long as the
declaration contains the statutorily prescribed language.
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The magistrate judge’s original Report and Recommendation was mistakenly filed before the plaintiff’s time to
respond to the defendant had run. (See ECF No. 31.) However, the Amended Report and Recommendation fully
considers the plaintiff’s response. (ECF No. 42 at 3.)
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The document was filed as an affidavit, is titled “Declaration of Susan Miller,” purports to fall under 28 U.S.C. §
1746, and refers to itself as an affidavit in the body. (See ECF No. 23-2.) This has, understandably, created some
confusion. The court construes the document as an unsworn declaration under penalty of perjury filed pursuant to
28 U.S.C. § 1746.
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Courts regularly consider sworn affidavits or declarations along with motions to set aside
default or default judgment. See, e.g., Jardine, Gill & Duffus, Inc. v. M/V Cassiopeia, 523
F.Supp 1076 (D. Md. 1981) (as party moving to overturn default judgment, it is incumbent upon
defendant to establish, through competent evidence, its right to relief); Rooks v. American Brass
Co., 263 F.2d 166, 168 (6th Cir. 1959) (setting aside default judgment based in part on three
supporting affidavits); Frost Belt Int’l Recording Enterprises, Inc. v. Cold Chillin’ Records, 758
F.Supp 131, 135-36 (S.D.N.Y. 1990) (“[Defendant] fails to submit an affidavit from a single
person with personal knowledge of the circumstances of its default in responding to the
complaint, and advances absolutely no explanation for its default. Such utter failure to explain
the default effectively precludes a finding of excusable neglect.”). In addition, Susan Miller’s
declaration complies with § 1746’s required form. Accordingly, the plaintiff’s objection to the
court considering and relying on the declaration is without merit.
To the extent the plaintiff objects to other portions of the Report, those objections re-state
general, conclusory arguments and legal conclusions already raised and thoroughly addressed in
the Report. See Howard’s Yellow Cabs, Inc. v. United States, 987 F.Supp 469, 474 (W.D.N.C.
1997) (“A litigant who objects only in vague or general terms to the magistrate judge’s
recommendation, thereby preventing the district court from focusing on specific issues for
review, renders the initial reference to the magistrate judge useless and frustrates the purpose of
the Magistrates Act. Such objections do not constitute an ‘objections’ under 28 U.S.C. §
636(b)(1).”).
Accordingly, after a thorough review of the record in this case, the court does not find
cause to order the “extreme sanction” of default judgment. Mobil Oil Co. De Venez. v. Parada
Jimenez, 989 F.2d 494, 1993 WL 61863, at *3 (4th Cir. 1993) (unpublished table decision) (“the

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extreme sanction of judgment by default is reserved only for cases there the party’s
noncompliance represents bad faith or a complete disregard for the mandates of procedure and
the authority of the trial court.”); see also Tolson v. Hodge, 411 F2d 123, 130 (4th Cir. 1969)
(“Any doubts about whether relief should be granted should be resolved in favor of setting aside
the default to that the case may be heard on the merits.”). Thus, the court agrees with the Report
and adopts it herein. Therefore, the plaintiff’s motion for default judgment (ECF No. 17) is
DENIED and the defendant’s motion for extension of time to answer the complaint (ECF No.
23) is GRANTED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
June 10, 2014
Anderson, South Carolina

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