United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-35CB, Plaintiff,
ANDRE BEROUD, et al., Defendants.
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion for Relief from Judgment, (ECF
No. 54), filed by Defendant 7937 Song Thrush Trust (the
“Trust”). Plaintiff Bank of New York Mellon
(“Plaintiff”) filed a Response, (ECF No. 56), and
the Trust filed a Reply, (ECF No. 57).
reasons discussed herein, the Trust's Motion for Relief
from Judgment is DENIED.
instant Motion arises from the Court's grant of summary
judgment to Plaintiff, and the clerk of court's
subsequent entry of judgment in favor of Plaintiff and
against the Trust. (See Order, ECF No. 46).
Plaintiff filed this action on April 14, 2017, and
subsequently filed its proof of service as to the Trust on
May 25, 2017, (ECF No. 11). On March 23, 2018, the Court
issued its order granting Plaintiff's Motion for Summary
Judgment, holding that the underlying foreclosure sale was
invalid to the extent it purportedly extinguished
Plaintiff's deed of trust. (Id. 7:9-17). The
clerk of court entered judgment in Plaintiff's favor and
against all Defendants on April 25, 2018, (ECF Nos. 46, 49).
November 9, 2018, the Trust filed a notice of appearance,
(ECF No. 50), as well as the instant Motion, asserting the
Court lacked personal jurisdiction over it because Plaintiff
failed to properly effect service. (Mot. for Relief 7:8-8:18,
ECF No. 54). Therefore, according to the Trust, the
Court's entry of final judgment violated the Trust's
due process rights and is void. (Id. 10:12-16).
Rule 60(b), a court may, upon motion and just terms,
“relieve a party . . . from a final judgment, ”
on the ground that the “judgment is void[.]”
Fed.R.Civ.P. 60(b)(4). A judgment is “void only if the
court that rendered judgment lacked jurisdiction of the
subject matter, or of the parties, or if the court acted in a
manner inconsistent with due process of law.” In re
Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.
Trust argues that the underlying judgment is void because
Plaintiff failed to properly effect service of process. (Mot.
for Relief 7:8-8:18). Plaintiff responds that it did properly
serve the Trust, and the Trust's arguments to the
contrary are unsupported by the record. (Resp. to Mot. for
Relief 5:2-6, ECF No. 56).
defendant moving to vacate a judgment for improper service of
process bears a “substantial” burden to prove
that he is entitled to relief. S.E.C. v. Internet Sols.
for Bus. Inc., 509 F.3d 1161, 1165-66 (9th Cir. 2007).
“A signed return of service constitutes prima facie
evidence of valid service ‘which can be overcome only
by strong and convincing evidence.'” Id.
at 1166 (quoting O'Brien v. R.J. O'Brien &
Assocs., Inc., 998 F.2d 1394, 1398 (1993)).
Trust has failed to overcome its burden of establishing an
entitlement to relief. Despite complaining that the Court
“usurped its judicial power, ” the Trust neglects
to make any argument as to how Plaintiff's service was
improper. Because Plaintiff has established prima facie
evidence of valid service, (ECF No. 11), the burden is on the
Trust to come forward with strong and convincing evidence
satisfying the Court that service was improper. The Trust has
not done so.
Trust also contends the Court's judgment violated its due
process rights because the Court never entered default
judgment against the Trust. (Mot. for Relief 10:5-10). As
discussed above, the Trust's failure to articulate the
deficiency in service leaves the Court with the unrebutted
presumption that the Trust was indeed served and therefore on
notice. Consequently, the Trust's due process rights were
undisturbed by the Court's adjudication of this matter on
the merits rather than by default judgment. See
Fireman's Fund Ins. Co. v. Stites, 258 F.3d 1016,
1024 (9th Cir. 2001) (“[A] defaulted party's rights
are not violated when a case proceeds on the merits rather
than by means of a default judgment where the party is, as
here, given full opportunity to litigate the case on the
merits.”); see also Rood v. Nelson, No.
2:12-CV-00893-GMN-NJ, 2014 WL 4635585, at *6 (D. Nev. Sept.
15, 2014) (“Nothing in Federal Rule of Civil Procedure
56 appears to prevent a party from seeking summary judgment
against a party in default.”) (quoting Am. S. Ins.
Co. v. Hayslett, No. 4:09-cv-1850, 2011 WL 3444219, at
*2 (E.D.Mo. Aug. 8, 2011)).