United States District Court, W.D. Pennsylvania
September 19, 2005.
UNITED STATES OF AMERICA Plaintiff
ROBERT JAMES HAZLETT, Defendant.
The opinion of the court was delivered by: MAURICE COHILL, Senior District Judge
OPINION AND ORDER
Pending before the Court is Plaintiff United States of
America's Motion for Default and Default Judgment against
Defendant Robert James Hazlett due to Defendant's failure to
plead or otherwise defend as provided by the Federal Rules of
I. The Complaint in Mortgage Foreclosure.
Plaintiff has filed a Complaint in Mortgage Foreclosure against
Defendant. The Complaint in Mortgage Foreclosure contains two
counts. Count One is for Mortgage Foreclosure and Count Two is
for Deficiency Judgment.
The Complaint alleges the following: Plaintiff, acting through
the Farmer's Home Administration, United States Department of
Agriculture, lent to Defendant the sum of $33,600, bearing
interest rate of 9% per annum payable in monthly installments as
evidenced by a Promissory Note dated August 3, 1989 executed by
Defendant. Complaint, ¶ 3. Defendant, for purposes of securing
Plaintiff against loss, executed and acknowledged to Plaintiff,
on or about August 3, 1989, a Real Estate Mortgage, which
provided in its terms that upon default in the payment of any
installment due under the Mortgage, the entire indebtedness
shall, at the option of the obligee, its successors and assigns,
become immediately due and payable. Id. at ¶ 4. The real property that is subject to the Mortgage is known as
5903 U.S. Route 322, Franklin, Pennsylvania 16323. Id. at ¶ 8. The
Real Estate Mortgage was duly recorded on August 9, 1989. Id.
at ¶ 5. During the course of the loan, Defendant's monthly
mortgage payments were subsidized by Plaintiff. Id. at ¶ 9.
Plaintiff is the owner and holder of the Promissory Note and Real
Estate Mortgage. Id. at ¶ 10. Defendant is the current record
owner of the mortgaged premises to the best of Plaintiff's
knowledge and belief. Id. at ¶ 11. Defendant is in default on
the Note and Mortgage for failure to make payments to Plaintiff
when due under the Mortgage. Id. at ¶ 12. As a result of this
default, Plaintiff accelerated the balance due under the Note and
Mortgage for failure to pay Plaintiff the accelerated balance.
Id. There is now fully due and owing on the Promissory Note and
Real Estate Mortgage the following sums: (1) Principal and
Advances: $28,919.08; (2) Interest due through May 31, 2004:
$6495.88; (3) Interest from June 1, 2004 through November 30,
2004 at the daily rate of $7.13: $1297.66; and (4) Interest
Credit Subject to Recapture: $1182.61; for a total of $37895.23,
together with interest at 9% per annum to the date of judgment,
plus interest from the date of judgment at the legal rate. Id.
at ¶ 14. All conditions precedent to the bringing of the action
have been performed or have occurred. Id. at ¶ 15. Plaintiff's
lien is prior and superior to any other liens or claims against
the property. Id. at ¶ 17.
II. Affidavit of counsel
Attached to the Motion for Default and Default Judgment is an
Affidavit signed by Plaintiff's counsel. This affidavit contains
the following relevant information: (1) Plaintiff's Complaint
against Hazlett was filed on December 20, 2004; (2) on January 7,
2005, Plaintiff mailed Hazlett a copy of the Complaint and a
Notice of Lawsuit and Request for Waiver of Service of Summons;
(3) Defendant failed to execute to Waiver of Service of Summons;
(3) Because Hazlett did not execute the Waiver of Service of Summons,
Plaintiff attempted to serve Hazlett through the Untied States
Marshal's Office; (4) the United States Marshal's office returned
an unexecuted return of service as to Hazlett on March 3, 2005;
(5) Plaintiff then filed a Motion for Enlargement of Time to
serve the Complaint and Summons on Hazlett and a Motion for
Alternate Service; (6) on April 26, 2005, this Court granted both
Motions and ordered Plaintiff to serve Hazlett within 120 days by
posting the subject property; (7) on June 7, 2005, through the
United States Marshal Service, Plaintiff served Hazlett with the
Complaint and Summons by posting the subject property; (8)
Hazlett has not answered or asserted any defenses in this action
as provided by the Federal Rules of Civil Procedure; (9) to the
best of Plaintiff's knowledge, information and belief, Hazlett is
not an infant or incompetent person and is not in the military of
the United States of America. Affidavit, ¶¶ 1-11.
III. Legal Analysis.
Fed.R.Civ.P. 55(b)(2) states in pertinent part:
(b) Judgment. Judgment by default may be entered as
(2) By the Court. In all other cases the party
entitled to a judgment by default shall apply to the
court therefor; but no judgment by default shall be
entered against an infant or incompetent person
unless represented in the action by a general
guardian, committee, conservator, or other such
representative who has appeared therein. If the party
against whom judgment by default is sought has
appeared in the action, the party (or, if appearing
by representative, the party's representative) shall
be served with written notice of the application for
judgment at least 3 days prior to the hearing on such
application. If, in order to enable the court to
enter judgment or to carry it into effect, it is
necessary to take an account or to determine the
amount of damages or to establish the truth of any
averment by evidence or to make an investigation of
any other matter, the court may conduct such hearings
or order such references as it deems necessary and
proper and shall accord a right of trial by jury to
the parties when and as required by any statute of
the United States.
Fed.R.Civ.P. 55(b)(2). After having reviewed the documents of record in this matter, I
find that it appearing that Defendant is neither an infant nor an
incompetent person and not in the military of the United States
of America, and that the averments in the Complaint in Mortgage
Foreclosure, if taken as true, state viable claims by Plaintiff
against Defendant, default judgment should be entered in favor of
the Plaintiff as against Defendant on all claims contained in the
Complaint in Mortgage Foreclosure.
Plaintiff's Motion for Default and Default Judgment is GRANTED.
The following Order therefore is entered:
AND NOW, this 15th day of September, 2005, it is hereby
ORDERED, ADJUDGED, AND DECREED that Plaintiff's Motion for
Default and Default Judgment is GRANTED.
It is further ORDERED, ADJUDGED, AND DECREED that Default is
entered against Defendant Robert James Hazlett and in favor of
Plaintiff United States of America.
It is further ORDERED, ADJUDGED, AND DECREED that Judgment by
Default is hereby entered against Defendant Robert James Hazlett
and in favor of Plaintiff United States of America, as follows:
Principal and Advances ..................................... $ 28,919.08
Interest due May 31, 2004 .................................. $ 6495.88
Interest from June 1, 2004 through to August 31, 2005 at the daily
rate of $7.13 .............................................. $ 3258.41
Interest Credit Subject to Recapture ....................... $ 1182.61
Total ...................................................... $ 39,855.98, together with interest at 9% per annum to the date of Judgment,
plus interest accruing from the date of Judgment at the legal
rate and costs.
It is further ORDERED, ADJUDGED, AND DECREED that the subject
property, 5903 Route 322, Franklin, Pennsylvania 16323, hereby
shall be and is exposed for the purpose of satisfying Plaintiff's
It is further ORDERED, ADJUDGED, AND DECREED that a deficiency
judgment is entered for the balance due and any on the default
judgment after deduction of monies received as a result of the
sale of the subject property.
It is further ORDERED, ADJUDGED, AND DECREED that Plaintiff
shall be paid the amount adjudged due Plaintiff with interest
thereon at the legal rate to the time of such payment, together
with costs to this action and the expenses of sale.
It is further ORDERED, ADJUDGED AND DECREED that Clerk of
Courts shall mark this case CLOSED.
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