United States District Court, M.D. Pennsylvania
December 2, 2005.
UNITED STATES OF AMERICA, Plaintiff,
PATTI A. MENGES, Defendant.
The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On August 5, 2005, the United States of America initiated this
action by filing a complaint against Patti A. Menges. The
government claims that Menges obtained a mortgage for real estate
through the United States Department of Agriculture and that
Menges is in default of the terms of the mortgage.
On September 9, 2005, Menges signed and returned to the
government a waiver of service of the summons. The document
notified Menges that a judgment may be entered against her if no
answer or motion pursuant to Federal Rule of Civil procedure 12
was served upon the government within 60 days after September 6,
2005. To this date Menges has not responded in any manner to the
complaint filed in this case.
On November 8, 2005, the government filed a request addressed
to the Clerk of Court to enter a default, a motion addressed to
the court for default judgment, and a brief in support of the motion for default judgment. The Clerk of Court
entered a default against Menges on August 2, 2005.
The motion for default judgment is supported by an affidavit
and a brief. The time allowed for Menges to file an opposition
brief expired on November 28, 2005. To this date she has not
filed any document in this case. We consider the motion for
default judgment to be ripe for disposition because the motion
itself, supporting affidavit and brief, and docket entries
provide us with all of the information necessary to rule on the
One reason to grant the motion is that it is unopposed. See
M.D. Local Rule 7.6 (providing that the failure to file an
opposition brief "may result in the court granting the motion on
the basis that it is unopposed"). That is not the only reason to
grant the government's motion.
The Court of Appeals for the Third Circuit has stated that the
following factors govern the disposition of a motion for a
default judgment: (i) whether the plaintiff will be prejudiced if
the default judgment is denied; (ii) whether the defendant has a
meritorious defense; and (iii) whether the default was the
product of defendant's culpable conduct. United States v.
$55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984);
Spar v. Choice Security Systems, Inc., 880 F. Supp. 402, 404
(E.D. Pa. 1995) (Brody, J.). The decision as to whether to grant a motion for a default judgment is in the court's discretion. Id.
The first factor weighs against the government because it has
not argued or demonstrated that it would be prejudiced if we do
not enter a default judgment against Menges.
With respect to the second factor, we are unable to evaluate
the merits of Menges's potential defense or defenses because she
has not informed us of any defense. In addition, a cursory review
of the complaint has not revealed any obvious defense that she
could assert in this action. This factor weighs in favor of the
The last element also favors the government because Menges is
solely at fault for failing to file a responsive pleading.
The United States has established that it is entitled to a
default judgment in this case. We will grant its motion for that
NOW, THEREFORE, IT IS ORDERED THAT:
1. The United States's motion for a default judgment
against Menges (Document 7) is granted.
2. Judgment is hereby entered in favor of the United
States and against Menges in the amount of
$138,163.45, plus interest at the rate of $18.71 per
day from March 7, 2005, to the date of any Marshal's
sale or other sale of the property. 3. The mortgage between the United States and Menges
is foreclosed as to the real property described
therein. In accordance with § 204(1) of the National
Housing Act there is no right of redemption in the
mortgagor or any other person.
4. The real property described in the mortgage shall
be sold pursuant to the following process:
a) The United States Marshal for the Middle District
of Pennsylvania is directed to sell the real property
for cash to the highest bidder at a public, judicial
sale pursuant to Title 28 U.S.C. § 2001 within 180
days after the date of this order. Notice shall be
given, in accordance with 28 U.S.C. § 2002, once a
week for four consecutive weeks prior to the sale in
one newspaper regularly issued and of general
circulation in the county and judicial district where
the real estate is situated. Plaintiff shall
advertise a complete legal description of the
b) Ten (10) percent of the highest bid shall be
deposited in certified check or cashier's check with
the United States Marshal by the bidder immediately
upon the property being struck down to the bidder.
The balance of the purchase money shall be paid in certified or cashier's check by the
highest bidder to the Marshal within ten (10) days
after the sale is confirmed by the Court, without
demand for the same being made by the Marshal. It is
the highest bidder's responsibility to ascertain the
date of confirmation. If the highest bidder fails to
settle, all his or her rights in the real estate
shall cease and be completely void and the property
may be re-advertised and sold by the Marshal without
further order of the court at the risk of the
defaulting bidder whose deposit shall be forfeited;
and in case of a deficiency on such resale, the
defaulting bidder shall make good to the person
thereby injured. The highest bidder shall take the
real estate subject to and shall pay all current
state and local taxes, water rents or charges, sewer
rents or charges, municipal claims, and any other
claims, charges, and liens against the property which
are not divested by the Marshal's sale, and shall pay
all state, local, and federal transfer taxes and
stamps. If the United States is not the successful
bidder, the United States will automatically be
registered as the second highest bidder at the judgment amount and
may proceed to make settlement with the Marshal in
the event of default by the highest bidder.
c) The United States or its nominee is granted a
right of entry at reasonable times to the subject
premises for purposes of pre-sale inspection and
Marshal's sale with the right to inspect the house,
the books, records, accounts, and all other items,
things, and information necessary for the inspection,
advertisement, and sale of the property.
5. A motion for confirmation of the public sale shall
be made by the Marshal or the United Sates within 30
days after the date of the sale.
6. Upon confirmation of the sale, the Marshal shall
hold the proceeds of the sale, after deducting the
costs and expenses of the sale, pending distribution
pursuant to further order of this court.
7. The United States shall be paid the amount
adjudged due upon the distribution of the proceeds of
8. The Clerk of Court shall forthwith provide the
United States Marshal with a copy of this order.
9. Jurisdiction is retained over this matter for the granting of such further orders as the circumstances
© 1992-2005 VersusLaw Inc.