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Rabbe v. Government National Mortgage Association

United States District Court, D. Nebraska

April 8, 2019

LISA A. RABBE, Plaintiff,
v.
GOVERNMENT NATIONAL MORTAGE ASSOCIATION, and HOMESERVICES LENDING, LLC d/b/a CBS HOME MORTGAGE, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge

         This matter is before the Court on Plaintiff Lisa Rabbe's Motion for Default Judgment, ECF No. 32. The Clerk of Court entered default against Defendants Homeservices Lending, LLC d/b/a CBS Home Mortgage (“Homeservices Lending”) and Government National Mortgage Association (“Ginnie Mae”). The Motion for Default Judgment will be denied because Homeservices Lending and Ginnie Mae have not been properly served.

         BACKGROUND

         On June 19, 2003, Rabbe obtained a home loan for $178, 589 (the “Loan”) which was transferred to Wells Fargo, N.A., as owner and holder. Compl., ECF No. 1 at 6-7. The Loan was evidenced by a Promissory Note (the “Note”) and secured by a Deed of Trust (the “Deed of Trust”) encumbering real property located at 3108-10 North 95th Street, Omaha, Nebraska 68134 (the “Property). Id. at 2, 7. Rabbe alleges that Homeservices Lending began foreclosure proceedings against her, and she filed this lawsuit on December 3, 2018, against Wells Fargo, N.A., Ginnie Mae, and Homeservices Lending. Defendant Wells Fargo, N.A., was dismissed from this action. See Memorandum and Order, ECF No. 30.

         Rabbe attempted to serve Ginnie Mae and Homeservices Lending by certified mail. See ECF No. 12, Summons for Ginnie Mae at 2; ECF No. 16, Summons for Homeservices Lending at 2. Rabbe included copies of her certified mail receipts showing that she served Homeservices Lending at 2700 Westown Parkway in West Des Moines, Iowa, and served Ginnie Mae at 415 Seventh Street in Washington, D.C. ECF No. 12 at 3, ECF No. 16 at 3. The “green card” receipts show that someone at the addresses signed for the letters, but do not indicate who signed or in what capacity.

         DISCUSSION

         “Default judgments are ‘not favored by the law and should be a rare judicial act.'” Belcourt Pub. Sch. Dist. v. Davis, 786 F.3d 653, 661 (8th Cir. 2015) (quoting In re Jones Truck Lines, Inc., 63 F.3d 685, 688 (8th Cir.1995)). “Put simply, there is a ‘judicial preference for adjudication on the merits.'” Id. (quoting Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir.1998). Entry of default judgment is only appropriate when there has been a clear record of delay or uncooperative conduct. See United States on v. Harre, 983 F.2d 128, 130 (8th Cir.1993); Taylor v. City of Ballwin, 859 F.2d 1330, 1332 (8th Cir.1988). Default judgment is not appropriate in this case because it is not clear that Homeservices Lending and Ginnie Mae have been properly served.

         I. Ginnie Mae

         For federal government corporations like Ginnie Mae, Rule 4 allows service by certified mail in certain circumstances. Fed.R.Civ.P. 4(i). To properly serve a federal government corporation using certified mail, “a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.” Fed.R.Civ.P. 4(i)(2). To properly serve the United States, a plaintiff must first serve a copy of the summons and complaint on the United States Attorney for the district in which the action is brought or send a copy by registered or certified mail to the civil-process clerk at the United States Attorney's office. Fed. R Civ. P. 4(i)(1)(A). The plaintiff must also send a copy of the summons and complaint “by registered or certified mail to the Attorney General of the United States at Washington, D.C.” Fed.R.Civ.P. 4(i)(1)(B).

         Rabbe attempted to serve Ginnie Mae by sending the summons and complaint by certified mail to Ginnie Mae's office in Washington, D.C. ECF No. 16 at 3. There is no evidence in the record that Rabbe attempted to serve the United States in the manner required by Rule 4(i). Because Rabbe has not properly served Ginnie Mae, the Court cannot grant default judgment.

         II. Homeservices Lending

         Rabbe's attempted service on Homeservices Lending appears insufficient because (1) the certified mailing, containing the summons, was addressed to a location other than Homeservices Lending's registered office, and (2) the record does not show that the certified mailing was accepted by an officer, director, managing agent, or registered agent of Homeservices Lending.

         Fed.R.Civ.P. 4(h) states:

Unless otherwise provided by federal law, service upon a domestic or foreign corporation . ...

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