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Bayview Loan Servicing, LLC v. Trejo

United States District Court, D. Nevada

November 18, 2019

BAYVIEW LOAN SERVICING, LLC, substituted for Wilmington Savings Fund Society, FSB per ECF No. 33, Plaintiff,
MARTHA C. TREJO, et al., Defendants.



         I. SUMMARY

         This dispute involves a homeowners' association (“HOA”) foreclosure sale of the property located at 6039 Sun Appello Ave., Las Vegas, Nevada 89122 (the “Property”). (See ECF No. 1 at 2.) Before the Court is Defendant Martha C. Trejo's motion to set aside default judgment (“Motion”).[1] (ECF No. 47.) For the reasons explained below, the Court will deny the Motion.


         In September 2007, Trejo purchased the Property by obtaining a loan evidenced by a note (“Note”) and secured by a deed of trust (“DOT”). (ECF No. 45 at 1.) Through a series of assignments recorded against the Property, Plaintiff Bayview Loan Servicing, LLC is now the beneficiary of the DOT and holder of the Note. (Id.) On March 1, 2009, Defendant defaulted on the Note and failed to pay her HOA dues, resulting in the HOA initiating foreclosure proceedings. (Id. at 2.) On January 11, 2011, Las Vegas Development, LLC bought the Property at the HOA sale and sold it to Co-Defendant Airmotive Investments, LLC (“Airmotive”) on February 24, 2011. (ECF No. 1 at 2, 5.)

         On April 4, 2017, Plaintiff's predecessor in interest filed this action against Airmotive and Trejo. (ECF No. 1.) On April 27, 2017, the Complaint and Summons were personally served on Trejo (ECF No. 11), but she did not appear or otherwise respond. She alleges that, as a 72-year-old Hispanic women who speaks English as a second language, she relied on the advice of her friends and family “that the action only really related to the current owner of the Property, [Airmotive] and the Plaintiff; not with [Trejo].” (ECF No. 47 at 8.) On May 31, 2018, Chicago Title Insurance Company (“Title Company”) sent Trejo a demand letter that she reimburse the company $2, 026.66 for paying off the HOA lien on the Property. (ECF No. 47-1.) Trejo remitted $1, 000.00 to the Title Company to settle the account and assumed “this payment was the same payment for which she had been sued by the Plaintiff.” (ECF No. 47 at 8.)

         On November 8, 2018, the Clerk of Court entered default against Trejo. (ECF No. 37.) On December 13, 2018, Plaintiff served Trejo with a motion for leave to file documents under seal in support of Plaintiff's anticipated application for default judgment. (ECF No. 38.) The Court denied this motion without prejudice. (ECF No. 39.) On January 17, 2019, Plaintiff served Trejo its motion to file documents under seal and application for default judgment against her. (ECF Nos. 40, 41.) On February 26, 2019, the Court granted Plaintiff's motion for default judgment (ECF No. 43) and entered the order on March 11, 2019 (ECF No. 45.) On March 13, 2019, Trejo finally appeared and filed this counseled Motion. (ECF No. 47.)


         Federal Rule of Civil Procedure Rule 60(b) provides that a court may relieve a party from a final judgment only in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the judgment. Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000); see also De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000) (noting that the district court's denial of a Rule 60(b) motion is reviewed for an abuse of discretion). A district court has discretion to correct a judgment for mistake caused by the party, counsel, or even the court. Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir. 2004); Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999).

         A court may find excusable neglect by applying the “good cause” standard. TCI Grp. Life Ins. Plan v. Knoebber (“TCI Group”), 244 F.3d 691, 696 (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 121 (2001). That standard requires a court to consider the three following Falk factors: “‘(1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the default.'” Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)). The court may refuse to set aside default if it holds any one of the three factors is true. U.S. v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010). However, “‘judgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits.'” Mesle, 615 F.3d at 1091 (quoting Falk, 739 F.2d at 463).


         Trejo argues that the Court should aside default judgment because her delay was the result of mistake and excusable neglect (Fed. R. Civ. P. 60(b)(1)).[2] (ECF No. 47 at 8.) For the reasons explained below, the Court rejects both arguments.

         Trejo asserts she failed to answer the Complaint due to two mistakes: (1) she thought this action only related to Airmotive, not her; and (2) she thought that her check to the Title Company would settle Plaintiff's claims against her in this action. (Id.) Contrary to Trejo's first argument, her second argument suggests that she knew she was the target of this lawsuit from the start. Furthermore, the Title Company sent Trejo a demand letter more than a year after the Complaint was filed, which highlights her failure to explain why she did not appear in the action up until that point. Even if Trejo believed that she settled Plaintiff's claims, she was on notice that she was mistaken when Plaintiff repeatedly served her with documents on December 13, 2018 (ECF No. 39) and January 17, 2019 (ECF Nos. 40, 41) indicating that Plaintiff was seeking default judgment against her. Nevertheless, she remained absent from this case until she filed the Motion on March 13, 2019. (ECF No. 47.) Because there are contradictions and gaps in Trejo's excuses, this Court finds that her failure to answer the Complaint was not due to mistake.

         Trejo asserts that her tardiness was due to excusable neglect, but Plaintiff counters that she is culpable, and that her tardiness has prejudiced Plaintiff. The Court agrees with Plaintiff and finds that these ...

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