United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE.
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.
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).
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).
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.
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).
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.
were served by a process server with the summonses and
complaint on April 23, 2018. (Doc. 5).
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 ...