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Hancock Bank v. Pastore

United States District Court, S.D. Alabama, Southern Division

September 17, 2018

HANCOCK BANK, Plaintiff,
v.
ALEXANDER PASTORE, et al., Defendants.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. L.R. 72(a)(2)(S), on Plaintiff Hancock Bank's Motion for Entry of Default Judgment, (Doc. 8), which was filed on July 2, 2018. Upon consideration of the Plaintiff's pleadings, (Doc. 8), it is recommended Plaintiff's Motion for Entry of Default Judgment be GRANTED IN PART.

         PROCEDURAL HISTORY

         On April 13, 2018, Plaintiff filed its Complaint, in which seeks to collect unpaid balances that are due from Defendants Alexander Pastore, individually and as director of Amicus Mortgage Group, Inc.; Tricia M. Pastore, individually; and Amicus Mortgage Group, Inc. (Doc. 1). Summonses for each of the defendants were issued on April 16, 2018, (Doc. 4), and were served on all of the defendants on April 23, 2018, (Doc. 5). On June 29, 2018, sixty-seven (67) days after the defendants were served, Plaintiff filed its Application for Entry of Default Judgment by the Clerk, in which it requested the Clerk of Court enter a default, pursuant to Rule 55(a), Federal Rules of Civil Procedure (hereinafter, “FRCP” followed by the Rule number), against the defendants because they failed to file a responsive pleading. (Doc. 6). The Clerk of Court entered a default against the defendants on July 2, 2018, (Doc. 7), and Plaintiff filed its instant Motion for Entry of Default Judgment against the defendants, (Doc. 8).

         JURISDICTION AND VENUE

         Plaintiff alleges jurisdiction based on diversity of citizenship, pursuant to 28 U.S.C. § 1332(a). Plaintiff alleges it is a Louisiana banking organization that is organized under the laws of the State of Louisiana and has its principal place of business in Louisiana. (Doc. 1, ¶ 1). Plaintiff alleges Defendant Alexander Pastore is a citizen of the State of Alabama, Defendant Tricia M. Pastore is a citizen of the State of Alabama, and Defendant Amicus Mortgage is a domestic corporation that was formed under the laws of the State of Alabama, and has its principal place of business in Alabama. (Doc. 1, ¶ 2-4). Lastly, Plaintiff alleges the amount in controversy exceeds $75, 000. (Doc. 1, ¶ 7).

         The citizenship allegations are accepted as true since they were presented by counsel for Plaintiff pursuant to FRCP 11(b)(3), see Fed. R. Civ. P. 11(b)(3) (“By presenting to the Court a pleading . . . an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support.”), and it is clear the amount in controversy exceeds the jurisdictional threshold.

         The Court has, also, considered the issue of whether personal jurisdiction over the defendants exists in this action. See Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990) (“Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.”). “The concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and service of process. Amenability to jurisdiction means that a defendant is within the substantive reach of a forum's jurisdiction under applicable law. Service of process is simply the physical means by which that jurisdiction is asserted.” Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 925 n.15 (11th Cir. 2003).

         Plaintiff alleges Defendants Alexander Pastore and Tricia M. Pastore are residents of Mobile County, Alabama, and Defendant Amicus Mortgage is a corporation that was formed under the laws of the State of Alabama, and its principal place of business is in Mobile County, Alabama. (Doc. 1, ¶¶ 2-4). Therefore, all defendants are amenable to jurisdiction.

         Defendants were served by a process server with the summonses and complaint on April 23, 2018. (Doc. 5).

         FINDINGS OF FACT

         On May 17, 2010, Defendant Alexander Pastore executed in favor of Plaintiff a Commercial Mortgage Note in the amount of $265, 000.00 (“Loan 1”), which was secured by a Mortgage, Security Agreement and Financing Statement (the “Mortgage for Loan 1”) (collectively, the “Loan Documents for Loan 1”) on property located at 6341 Piccadilly Square Drive, Mobile, Alabama. (Doc. 1-1). The Mortgage for Loan 1 was executed by Defendants Alexander Pastore and Tricia M. Pastore on May 17, 2010, and it granted a security interest in the property located at 6341 Piccadilly Square Drive, Mobile, Alabama, to Plaintiff. (Doc. 1-2). The Mortgage for Loan 1 contains a “power of sale” provision that states:

2.02 If a Default occurs, Mortgagee may, at Mortgagee's option, without notice to Mortgagor, declare the indebtedness and all obligations for which the Note is given as security to be immediately due and payable, and may immediately exercise all remedies provided under this mortgage or by law.
2.03 Upon default, Mortgagee shall have the right to enter upon and take possession of the Mortgaged Property and after or without taking such possession to sell the same (or such part or parts thereof as Mortgagee may from time to time elect to sell) at the front or main door to the courthouse of the County (or the division thereof) where said property, or any substantial material or part of said property, is located, at public outcry for cash, after first giving notice of the description of the property to be sold and the time, place and terms of such sale by publication once a week for three consecutive weeks prior to said sale in some newspaper published in the county or counties in which the property to be sold is located (or if no newspaper is published in any such county, then in a newspaper published in an adjoining county); and upon the payment of the purchase price, Mortgagee or the auctioneer at said sale is authorized to execute to the purchaser for and in the name of Mortgagor a good and sufficient deed to the property sold.
2.04 Mortgagee shall apply the proceeds of any sale or sales under this mortgage as follows: First, the expenses of advertising, selling, preparing the Mortgaged Property for sale, and conveying, including a reasonable attorney's fee (including attorney's fees incurred by Mortgagee in connection with any proceeding seeking to enjoin the foreclosure of this mortgage or otherwise challenge the right of Mortgagee to foreclosure this mortgage or sell any of the Mortgaged Property under this mortgage and attorney's fees incurred in connection with any appeal); second, to the payment of any amounts that may have been expended or that may then be necessary to expend in paying insurance, taxes, assessments, and other liens and mortgages, and in making repairs, with interest thereon; third, to the payment of the indebtedness hereby secured and interest thereon in such order as Mortgagee may elect, whether such debts shall or shall not have fully matured at the date of said sale; and fourth, the balance, if any, to be paid over to Mortgagor or to whomsoever then appears of record to be the owner of Mortgagor's interest in said property.
2.05 Mortgagee may bid and become the purchaser of the Mortgaged Property at any foreclosure sale hereunder.
2.06 Mortgagor hereby waives any requirement that the Mortgaged Property be sold in separate tracts and agrees that Mortgagee may, at its option, sell said property en masse regardless of the number of parcels hereby conveyed.
2.07 The power of sale granted herein is a continuing power and shall not be fully exercised until all of the Mortgaged Property not previously sold shall have been sold or all of the indebtedness and other ...

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