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Grzegorek v. All Credit Finance

November 6, 2009

PHILLIP THOM AS GRZEGOREK, PLAINTIFF,
v.
ALL CREDIT FINANCE, INC. TRADING AND DOING BUSINESS AS ALL CREDIT FINANCE, PITTSBURGH SETTLEM ENT COM PANY, ELLENI KLIM ANTIS-BERGER, RANDY BERGER (PRINCIPALS OF ALL CREDIT FINANCE, INC.), INDIVIDUALLY, EM ANUAL KLIM ANTIS (NOTARY PUBLIC), OFFICIALLY AND INDIVIDUALLY, V. KLIM ANTIS-BERGER AND JAY BERGER (PRINCIPALS OF PITTSBURGH SETTLEMENT COMPANY), INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On October 21, 2009, the Court conducted an evidentiary hearing on Plaintiff's MOTION FOR HEARING ON DAMAGES (Document No. 64). Plaintiff Philip Thomas Grzegorek testified as a witness. Plaintiff's parents, Gerald and Barbara Ferguson, were also present but did not testify. None of the Defendants was present, nor did an attorney appear on behalf of any of the Defendants. After the hearing, Plaintiff filed a MOTION TO OPEN RECORD AND CORRECT DAMAGE CALCULATIONS (Document No. 70), which was granted by the Court.

The Court issues the following Findings of Fact and Conclusions of Law in accordance with Fed. R. Civ. P. 52.

Procedural History

This case was filed on June 4, 2008 and involves, inter alia, a claim that All Credit Finance, Inc. ("All Credit") failed to rescind a mortgage agreement after timely and due notice to it. Attorney Monte Rabner entered his appearance on behalf of All Credit and filed an answer on August 8, 2008. Subsequently, attorney Fred Rabner also entered an appearance on behalf of All Credit. On August 25, 2008, the clerk of courts entered default against Defendant Pittsburgh Settlement Company. On January 14, 2009, Plaintiff filed a Motion to Compel Discovery in which he outlined the numerous difficulties he had experienced in obtaining the cooperation of All Credit and Mr. Rabner. The Court granted the Motion to Compel on January 29, 2009. On February 12, 2009, Plaintiff took the deposition of Elleni Klimantis-Berger, who invoked her Fifth Amendment right against self-incrimination. Based on information obtained during that deposition, Plaintiff filed a motion to add five additional defendants, Elleni Klimantis-Berger, Randy Berger, Emanual Klimantis, Vasilia Klimantis-Berger and Jay Berger (collectively, the "Individual Defendants"), which the Court granted on February 27, 2009. An Amended Complaint was filed on April 3, 2009 and Plaintiff filed proofs of service as to the newly-named Defendants on April 27, 2009.

On March 10, 2009, pursuant to a stipulation, the case against Defendant Equifirst Corporation was dismissed with prejudice. On April 3, 2009, the Court denied the Rabners' motion to withdraw as counsel for All Credit because replacement counsel had not entered an appearance and a corporation cannot represent itself in federal court. No lawyer ever entered an appearance on behalf of any of the Individual Defendants and none of the Defendants answered the Amended Complaint.

There was no activity of record for approximately the next five months. On September 14, 2009, Plaintiff filed requests for Entry of Default against All Credit and the Individual Defendants, which the clerk of courts entered on September 15, 2009. Plaintiff then filed a motion for a non-jury hearing to determine damages and for entry of judgment against all remaining Defendants. Also on September 15, 2009, attorney Rabner filed a motion to set aside default, on behalf of Defendants All Credit, Elleni Klimantis-Berger and Randy Berger (the "Moving Defendants"). On October 2, 2009, the Court issued a Memorandum Order which denied the motion to set aside default and scheduled a hearing to determine damages. Attorney Rabner was directed to ensure that all remaining Defendants were given a copy of the Memorandum Order, which stated, in relevant part: "Any and all Defendants who wish to contest the amount of Plaintiff's alleged damages must appear in Court on that date and time to present countervailing evidence." In addition, Plaintiff's counsel represented that he sent notice of the hearing to all known addresses of the unrepresented Defendants. On October 20, 2009, the day prior to the scheduled damages hearing, attorney Rabner filed a Suggestion of Bankruptcy on behalf of the Moving Defendants. To date, no response has been filed by the other remaining Defendants.

Findings of Fact

1. Plaintiff's testimony was truthful and credible.

2. Plaintiff proved the following items of damages:

a. Prepayment penalty (Ames Loan) $3,235.43

b. CapOne Settlement excess $990.31

c. CapOne since no payment made ...


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