United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT (DKT. NO. 9)
PAMELA PEPPER United States District Judge.
March 11, 2019, the plaintiff filed a motion for default
judgement under Rule 55 of the Federal Rules of Civil
Procedure. Dkt. No. 9. Neither defendant has responded to the
Standard of Review for Motion for Default Judgment
Rule of Civil Procedure 55 requires a two-step process before
the entry of default judgment.
first must seek an entry of default based on the opposing
party's failure to plead. Fed.R.Civ.P. 55(a). Here, the
plaintiff requested the entry of default on August 11, 2017,
dkt. no. 27, and the clerk of court entered default on August
the entry of default, a plaintiff may move for default
judgment under Rule 55(b). When considering a motion for
default judgment, the court takes as true the factual
allegations in the complaint. Black v. Lane, 22 F.3d
1395, 1399 (7th Cir. 1994).
Service of the Complaint
support of the motion for entry of default, the plaintiff
provided an affidavit from plaintiff's counsel, attesting
that Gertrude Mosley passed away on April 29, 2016. Dkt. No.
6 at ¶4. On April 9, 2019, Michael T. Schoendorf
executed and returned the waiver of service of summons form
in his capacity as Special Administrator for the Estate of
Gertrude Mosley. Dkt. No. 2. The executed waiver of service
indicated that Schoendorf understood that if he did not
answer or otherwise respond to the complaint within sixty
days of April 1, 2019, judgment could be entered against the
estate. Id. The estate did not file an answer within
sixty days. The plaintiff also filed a process receipt and
return, indicating that the U.S. Marshals Service personally
served defendant Melvin Mosley in the upstairs lobby of the
USMS on May 24, 2019 at 9:30 a.m. Dkt. No. 4. More than
twenty-one days has passed since the Marshals served
defendant Mosley and he has not answered or otherwise
responded. Both defendants are in default and the clerk of
court properly entered default on June 20, 2019.
the defendants are in default, the court takes the
allegations in the complaint as true for purposes of
establishing liability. The court has jurisdiction because
the plaintiff filed this case under 28 U.S.C. §1345,
which provides that district courts have original
jurisdiction over civil actions brought by the United States
or any agency authorized to sue under an act of Congress.
Dkt. No. 1 at ¶1.
plaintiff seeks to foreclose on a reverse mortgage between
Gertrude Mosley and the Department of Housing & Urban
Development. Id. at ¶2. Payment of the debt on
a reverse mortgage is made by the sale of the premises.
Id. The complaint alleges that Gertrude Mosely
executed a promissory note dated October 3, 1997, which was
delivered to Unity Mortgage Corp. Id. at ¶3,
Ex. A. Financial Freedom Senior Funding Corporation, as
assignee of the note, prepared an Affidavit of Lost Note
stating the note is lost. Id. The interest rate on
the note was believed to be 3.62%. Id. at ¶4.
To secure the note, Gertrude Mosley executed and delivered an
Adjustable Rate Home Equity Conversion Mortgage filed October
27, 1997, to Unity Mortgage Corp., its successors and
assigns. Id. at ¶5, Ex. B.
November 1, 2000, Unity Mortgage Corp. assigned its interest
in the note and mortgage to Financial Freedom Senior Funding
Corp. Id. at ¶6, Ex. C. On April 10, 2009,
Financial Freedom Senior Funding Corporation assigned
Gertrude Mosley's note and mortgage to the Secretary of
Housing and Urban Development. Id. at ¶7, Ex.
D. To secure the reverse mortgage, Gertrude Mosley executed
and delivered to the Secretary of HUD a second Adjustable
Rate Home Equity Conversion Mortgage dated October 3, 1997.
Id. at ¶8, Ex. E.
Mosely died on April 29, 2016. Id. at ¶9, Ex.
F. No. action has been filed to probate the Estate of
Gertrude Mosley. Id. at ¶10. Under the terms of
the notes and mortgages, default (as to the mortgage
obligation) occurred at death. Id. at ¶11. The
plaintiff demanded full and immediate payment. Id.
The Estate of Gertrude Mosley owes the plaintiff a balance of
$59, 894.28 as of September 21, 2018. Id. at
¶12, Ex. G.
plaintiff made the following payments as permitted by the
provisions of the mortgages that have become part of the
mortgage indebtedness: service fee $5, 199.46, and MIP
(insurance) $3, 430.89. Id. at ¶13. The other
defendants have an interest in the mortgaged premises but