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Wells Fargo Bank, N.A. v. Horton

United States District Court, M.D. Florida, Fort Myers Division

November 7, 2017

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,
v.
JACQUELINE A. HORTON, SANDRA B. CHIAMIS, THE LANDINGS AT CORAL CREEK ASSOCIATION, INC., MATTHEW M. WILLIAMS, and JOY WILLIAMS, Defendants.

          OPINION AND ORDER

          JOHN E. STEELE UNITED STATES DISTRICT JUDGE.

         This 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.

         Sandra B. Chiamis (Chiamis) and The Landings at Coral Creek Association, Inc. (The Landings)

         Plaintiff 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.

         Plaintiff 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.

         Jacqueline A. Horton, Matthew M. Williams, and Joy Williams

         On 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.[1] (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 military.

         “A 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).

         1. Factual Basis

         In the 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).

         Deeming 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 Charlotte County.

         On 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.

         On 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.[2] 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.

         Plaintiff 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 ...


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