United States District Court, D. Maine
U.S. BANK TRUST, N.A., as Trustee for LSF9 Master Participation Trust, Plaintiff
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
H. RICH, III UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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).
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
Proposed Findings of Fact
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
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:
PAY TO THE ORDER OF [BLANK]
WELLS FARGO BANK, N.A.
BY Joan M. Mills [signature]
Joan M. Mills, Vice President
Id. at 3.
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.
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 ...