United States District Court, D. Maryland
CITIBANK, N.A., as trustee for American Mortgage Investment Trust 2004-3, Plaintiff
v.
HOWARD BERLINER et al., Defendants
MEMORANDUM AND ORDER
James
K. Bredar, Chief Judge
I.
Background
Pending
before the Court is a Motion to Vacate or Set Aside Default
(ECF No. 32) signed by pro se Defendants Howard
Berliner, Deborah Keehner Griffitts, and John
Keehner.[1] The motion has been opposed by Plaintiff
Citibank, N. A., as trustee for American Mortgage Investment
Trust 2004-3 ("Citibank") (ECF No. 36), and no
reply has been filed. No. hearing is required. Local Rule
105.6 (D. Md. 2018). The motion will be denied.
II.
Procedural History
This
case was filed for the sole purpose of correcting a deed of
trust to reflect the true grantor's name, i.e.,
Baltimore Homes, LLC ("Baltimore Homes"); the deed
of trust indicated it was granted in 2004 by the now-deceased
sole member of Baltimore Homes, but was signed by her in her
individual capacity and not on behalf of Baltimore Homes.
(Compl., ECF No. 1.) That entity and the three individuals
named above were joined as Defendants. Baltimore Homes was
served on July 28, 2017, by substitute service on
Maryland's State Department of Assessments and Taxation
("SDAT"). (ECF No. 7.) Griffitts was served on
August 10, 2017, at her residence by delivery of process to
William Griffitts at the same address; the process server
described the age of Mr. Griffitts as 63. (ECF No. 10.) On
September 12, 2017, Citibank moved for alternative service
upon Berliner and Keehner based upon proof of evasion of
service at their residential addresses. (ECF No. 15.) The
Court granted the motion, authorizing Citibank to serve them
by mailing and posting at their last known addresses. (ECF
No. 18.) Proofs of service on these two Defendants were
filed, and they showed service occurred on both on September
17, 2017. (ECF Nos, 20, 21.) Because of an apparent mix-up
with the process server and SDAT, the latter agency on
September 26, 2017, returned the "Service of
Notice" for Baltimore Homes because of nonpayment of the
service fee; consequently, Citibank requested an extension of
time to serve Baltimore Homes. (ECF No. 22.) The request was
granted (ECF No. 23), and Baltimore Homes was duly served on
October 5, 2017, by substitute service on SDAT (ECF No. 27.)
None of
the Defendants filed a response to Citibank's complaint,
and Citibank, accordingly, filed and served upon all four
Defendants a motion for default judgment. (ECF No. 30.) The
motion was granted, and default judgment was entered against
all four Defendants on January 3, 2018. (ECF No. 31.) The
current motion was filed January 3, 2019. (ECF No. 32.)
III.
Standard for Motion to Vacate a Final Judgment
Federal
Rule of Civil Procedure 55(c) states a court "may set
aside an entry of default for good cause, and it may set
aside a final default judgment under Rule 60(b)." Rule
60(b) permits a court to relieve a party of a final judgment
if the party establishes one of the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it ...