Nguyen et al v. Bank of America, N.A.

Filing 12

OPINION AND ORDER granting 4 MOTION to Vacate. Defendant shall have 20 days from the date of this Order to answer or otherwise respond to Plaintiffs' Complaint.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TU NGUYEN, et al,
Plaintiffs,
VS.
BANK OF AMERICA, N.A.,
Defendant.

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February 16, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-1523

ORDER AND OPINION
Before the Court is Defendant Bank of America’s Motion to Vacate Default Judgment
(Document No. 4). Plaintiffs have not filed a response. Having considered Defendant’s Motion,
the facts, and the applicable law, the Court concludes that Defendant’s Motion should be
granted.
Plaintiffs Tu Nguyen and Chau Ho Huynh (collectively “Plaintiffs”) filed the current
action on October 25, 2013 in the 333rd Judicial District Court of Harris County, Texas, Cause
No. 219-04912-2014, in the matter styled Tu Nguyen & Chau Ho Huynh v. Bank of America,
N.A. (the “State Court Action”). On November 15, 2013, a default judgment was entered in the
State Court Action. (Document No. 1-1 at 149, Amended Judicial Finding of Fact and
Conclusion of Law Regarding a Documentation or Instrument Purporting to Create a Lien or
Claim). Defendant filed a Notice of Removal on May 31, 2016 (Document No. 1), and then filed
the instant Motion to Vacate, arguing that service was never obtained, and therefore the default
judgment should be set aside. (Document No. 4).
Rule 60(b)(4) authorizes the Court to “relieve a party or its legal representative from a
final judgment, order, or proceeding” if “the judgment is void.” FED. R. CIV. P. 60(b)(4). A
judgment is void if it was entered against a party that was never served with process, because the
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court never obtained jurisdiction over the defendant: “When, however, a district court lacks
jurisdiction over the defendant because of lack of service of process, the judgment is void and,
under Rule 60(b)(4), the district court must set it aside, regardless of whether the movant has a
meritorious defense.” Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649
(5th Cir. 1988) (citations omitted). Upon review of the record, the Court agrees with Defendant
that there is no evidence that it was properly served, and therefore the default judgment entered
against it is void.
For these reasons the Court hereby
ORDERS that Defendant’s Motion to Vacate (Document No. 4) is GRANTED; the
Amended Judicial Finding of Fact and Conclusion of Law Regarding a Documentation or
Instrument Purporting to Create a Lien or Clam (the “Default Judgment”) signed in this cause by
the 333rd District Court of Harris County, Texas, on November 15, 2013 in Cause No. 201364663 is VACATED and SET ASIDE; a NEW TRIAL is hereby ordered in this cause; and
Defendant shall have 20 days from the date of this Order to answer or otherwise respond to
Plaintiffs’ Complaint.
SIGNED at Houston, Texas, this 16th day of February, 2017.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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