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Citibank, N.A. v. Berliner

United States District Court, D. Maryland

August 19, 2019

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 ...

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