United States District Court, M.D. Florida, Fort Myers Division
WELLS FARGO BANK, N.A., as Trustee for the Certificateholders of Banc of America Mortgage Securities Inc., Alternative Loan Trust 2007-2 Mortgage Pass-Through Certificates, Series 2007-2, Plaintiff,
JACQUELINE A. HORTON, SANDRA B. CHIAMIS, THE LANDINGS AT CORAL CREEK ASSOCIATION, INC., MATTHEW M. WILLIAMS, and JOY WILLIAMS, Defendants.
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on plaintiff's Motion to
Dismiss Case with Prejudice Only as to Defendant, Sandra B.
Chiamis (Doc. #55) filed on October 12, 2017, and Motion for
Entry of Consent Judgment as to the Landings at Coral Creek
Association, Inc. and Final Default Judgment as to Defendant,
Horton, and the Williams Defendants (Doc. #62) filed on
October 20, 2017. No responses or objections have been filed,
and both motions are ripe for review.
B. Chiamis (Chiamis) and The Landings at Coral Creek
Association, Inc. (The Landings)
reached an agreement with Chiamis, and seeks to voluntarily
dismiss all claims against this defendant with prejudice.
Chiamis, who filed a pleading in response to the Amended
Complaint (Doc. #9) but no counterclaims or crossclaims, did
not join the motion but also did not file an opposition to
the request. Therefore, the Court will grant the motion and
dismiss Chiamis with prejudice.
also received the consent of The Landings for the entry of
judgment in favor of plaintiff, with each party to bear their
own attorney's fees and costs. (Doc. #62, p. 11.) The
Court will accept the stipulation to the entry of judgment
against The Landings, assuming the factual basis is otherwise
sufficient. The remaining defendants are in default.
A. Horton, Matthew M. Williams, and Joy
April 14, 2017, plaintiff Wells Fargo Bank, N.A., as Trustee
for the Certificateholders of Banc of America Mortgage
Securities Inc., Alternative Loan Trust 2007-2 Mortgage
Pass-Through Certificates, Series 2007-2 (Wells Fargo or
plaintiff) filed an Amended Complaint against defendants
Chiamis and The Landings, as well as Jacqueline A. Horton
(Horton), Matthew M. Williams, and Joy Williams (the
Williamses) (collectively defendants). Defendant Horton was
served with process on April 3, 2017, and the Williamses were
served on April 22, 2017. On May 16, 2017, Horton (now known
as Jacqueline Connor) filed a Waiver of Service of Process
(Doc. #27) indicating that she waived any further defenses,
that she had no objection to the relief sought in the Amended
Complaint, and that plaintiff could seek a default and
default judgment against her. Finding no answer or response
from the Williamses, plaintiff sought a Clerk's default
against all 3 defendants. (Doc. #29.) On June 14, 2017, the Clerk
issued an Entry of Default (Doc. #31), and therefore
plaintiff has met the necessary prerequisite for a default
judgment against these last 3 defendants. Fed.R.Civ.P. 55(a).
Plaintiff states that defendants are not currently in the
defendant, by his default, admits the plaintiff's
well-pleaded allegations of fact, is concluded on those facts
by the judgment, and is barred from contesting on appeal the
facts thus established. [ ] A default judgment is
unassailable on the merits, but only so far as it is
supported by well-pleaded allegations. [ ] A default
defendant may, on appeal, challenge the sufficiency of the
complaint, even if he may not challenge the sufficiency of
the proof.” Eagle Hosp. Physicians, LLC v. SRG
Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009)
(internal citations omitted).
Amended Complaint, plaintiff seeks to reestablish and enforce
a lost Note secured by the subject property (Count I), to
foreclose its senior interest in the real property (Count
II), and to either require the Williamses to pay it the
monthly rent they have been paying to The Landings, or vacate
the property so plaintiff may take possession of the real
property (Count III).
all well-pled factual allegations in the Amended Complaint
admitted to by the defaulted defendants, the following is
established: On April 10, 2007, defendant Horton executed a
note for the principal sum of $592, 262.00 to the Bank of
America (BOA) to fund the purchase of real property, and
defendants Horton and Chiamis executed a Mortgage to BOA
securing the real property as collateral for the Note. On
April 10, 2007, C2FS-Coral Creek, LLC executed a Special
Warranty Deed conveying title in the real property located at
10301 Coral Landings Lane to defendants Horton and Chiamis.
The Special Warranty Deed and Mortgage were recorded in
April 17, 2008, Horton filed for Chapter 7 relief under the
Bankruptcy Code, acknowledged that BOA held a note and
Mortgage on the subject property, and surrendered the
property. Before Horton's discharge on July 30, 2008, the
Bankruptcy Court granted BOA relief from the automatic stay
to pursue in rem remedies against the property. (Doc. #62-3.)
On September 6, 2012, Chiamis also filed for Chapter 7
relief, and also surrendered the property before discharge on
December 11, 2012.
October 12, 2006, and February 27, 2012, defendant The
Landings recorded liens on the property, with the second lien
being for $7, 308.00. (Doc. #62-6.) On September 3, 2013, BOA
executed an Assignment of the mortgage and note to
plaintiff. On or about December 4, 2015, defendant
The Landings obtained title to the property by Certificate of
Title after foreclosing on its liens, subject to
plaintiff's mortgage. (Doc. #62-7.) Plaintiff was not
joined in The Landings' foreclosure case. The Landings
rented the property to the Williamses for $2, 000 per month
and retained the amount as its own profit.
alleges that Horton and/or Chiamis breached the note and/or
mortgage, still in effect, by not making payments and are in
default. All subordinate and interests inferior to