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U.S. Bank Trust N.A. v. Akey

United States District Court, D. Maine

December 26, 2016

U.S. BANK TRUST, N.A., as Trustee for LSF9 Master Participation Trust, Plaintiff
v.
KAREN J. AKEY, Defendant

          RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION FOR DEFAULT JUDGMENT OF FORECLOSURE AND SALE RE: PROPERTY AT 10 SOUTH RIDGE DRIVE, STANDISH, MAINE 04084 MORTGAGE: AUGUST 5, 2008, BOOK 26280, PAGE 320

          JOHN H. RICH, III UNITED STATES MAGISTRATE JUDGE

         Plaintiff, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust (“U.S. Bank”), moves pursuant to Federal Rule of Civil Procedure 55(b)(2) for a default judgment on its complaint against defendant Karen J. Akey for foreclosure and sale of property owned by Akey at 10 South Ridge Drive in Standish, Maine (“Standish Property”). See Plaintiff's Motion for Default Judgment and Memorandum in Support of Motion for Default Judgment (“Default Judgment Motion”) (ECF No. 13); Trial Memo, marked for identification at hearing as Exhibit 9; [Proposed] Judgment of Foreclosure and Sale (“Proposed Judgment”), marked for identification at hearing as Exhibit 10; Complaint (ECF No. 1).[1]

         I. Procedural Background

         U.S. Bank filed the Complaint on August 15, 2016. See Complaint. On August 26, 2016, it filed proof of service of a Summons on Akey, indicating that the Summons had been left at Akey's residence with Ted Tocci, an individual of suitable age and discretion who resided there. See ECF No. 8. On October 3, 2016, U.S. Bank filed a motion for the entry of default, see ECF No. 9, which the Clerk's Office granted the same day, no answer or responsive pleading having been filed, see ECF No. 11. U.S. Bank also filed a motion for a default judgment hearing, see ECF No. 10, which I denied without prejudice because U.S. Bank had not accompanied that request with a motion and memorandum for default judgment or supporting evidence, see ECF No. 12.

         On November 1, 2016, U.S. Bank filed the instant motion for default judgment and request for a hearing to establish damages. See Default Judgment Motion. I granted its request for an evidentiary hearing, see ECF Nos. 14-15, which was scheduled for December 12, 2016, at 9:00 a.m., see Notice and Order dated November 14, 2016 (ECF No. 16). I directed that counsel for U.S. Bank provide a copy of my Notice and Order, together with another copy of the Summons and Complaint, by both certified mail, return receipt requested, and first-class mail to Akey, and by first-class mail to Tocci. See id. I further directed that counsel file with the court, no later than December 5, 2016, a certification that those steps had been taken, attaching the return receipt for the Akey correspondence. See id.

         On December 5, 2016, counsel filed an affidavit of Lisa M. Higgins, a paralegal at counsel's law firm, averring that, on November 30, 2016, she mailed copies of the Notice and Order, as well as the Summons and Complaint, by regular and certified mail to Akey and by regular mail to Tocci. See ECF No. 18. She stated that she had not received the return receipt for the certified mailing, but she appended a copy of a USPS tracking verification page indicating that USPS had been unable to deliver the certified mail and had left a notice for the recipient. See ECF Nos. 18 & 18-1.

         “While a default . . . constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is susceptible of mathematical computation.” KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 19 (1st Cir. 2003) (citation and internal punctuation omitted). “A hearing may be required . . . to set damages when the amount is in dispute or is not ascertainable from the pleadings.” In re Home Rests., Inc., 285 F.3d 111, 114 (1st Cir. 2002).

         The hearing, as noticed, was duly convened on December 12, 2016. Counsel for U.S. Bank appeared, presented one witness, Maria Curtis of Caliber Home Loans, Inc. (“Caliber”), and offered eight exhibits, all of which were admitted. Akey did not appear. Counsel for U.S. Bank represented that the letters sent to Akey and Tocci by regular mail had not been returned and that, per an inquiry he made of USPS on the morning of December 10, 2016, Akey had made no arrangements as of that time to retrieve the letter sent by certified mail.

         II. Proposed Findings of Fact

         1. On August 5, 2008, Akey executed a Fixed Rate Note (“Note”) in favor of Wells Fargo Bank, N.A. (“Wells Fargo”), promising to pay the sum of $252, 000.00 to Wells Fargo on a 15-year repayment schedule. See Exh. 1. On the same date, she executed a Mortgage in favor of Wells Fargo, mortgaging the Standish Property as security for repayment of the Note. See Exh. 2.

         2. The Note states: “I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the “Note Holder.” Exh. 1 at 1. Stamped at the bottom of the Note is the following:

WITHOUT RECOURSE
PAY TO THE ORDER OF [BLANK]
WELLS FARGO BANK, N.A.
BY Joan M. Mills [signature]
Joan M. Mills, Vice President

Id. at 3.

         3. U.S. Bank is in possession of the original Note, which its counsel presented to me for inspection during the hearing, and which I returned to him. The Note appeared identical to the copy marked as Exhibit 1 and bore an original signature.

         4. Wells Fargo initially serviced the Akey loan, but later arranged for Caliber, a home loan servicing company, to do so. See Testimony of Maria Curtis (“Curtis Test.”). On October 20, 2015, Wells Fargo granted a limited power of attorney to Caliber to undertake certain actions, including executing any documents as might be necessary or appropriate to enable Caliber to carry out loan servicing and administrative duties. See Exh. 7. Curtis manages the Akey account for Caliber. See Curtis Test. When Caliber began servicing the Akey account, it obtained Wells Fargo's ...


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