Flagstar Bank, FSB v. Danos

46 So. 3d 298, 2010 Miss. LEXIS 457, 2010 WL 3259803
CourtMississippi Supreme Court
DecidedAugust 19, 2010
DocketNo. 2007-CT-00418-SCT
StatusPublished
Cited by20 cases

This text of 46 So. 3d 298 (Flagstar Bank, FSB v. Danos) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flagstar Bank, FSB v. Danos, 46 So. 3d 298, 2010 Miss. LEXIS 457, 2010 WL 3259803 (Mich. 2010).

Opinions

CARLSON, Presiding Justice,

for the Court:

¶ 1. Calvin and Jamie Danos, individually and as guardians and next friends of Laura Matherne, a minor, Gavin Danos, a minor, and Marissa Danos, a minor (the Danoses), filed a petition for writ of certio-rari after the Court of Appeals reversed the Lamar County Circuit Court’s judgment entered in their favor against Flags-tar Bank, FSB (Flagstar), and rendered judgment in favor of Flagstar. Having granted certiorari, we now reverse the judgment of the Court of Appeals, and reinstate and affirm the judgment entered by the Circuit Court of Lamar County.

[300]*300FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. A Ml account of the factual background and procedural history of this case is set forth in Flagstar Bank, FSB v. Danos, 46 So.3d 348, 350-55, ¶¶ 5-14 (Miss.Ct.App.2008). We set out here only those facts and the procedural history necessary to address and decide the issues before us.

¶ 3. On March 22, 2004, the Danoses filed suit against Flagstar and other defendants.1 Flagstar was a nonresident corporation not doing business in Mississippi, and thus with no agent in the state to receive service of process. The Danoses attempted service of process by certified mail with “restricted delivery, return receipt requested” to Albert Gladner, the registered agent for Flagstar, at a post office box in Troy, Michigan. The restricted-delivery summons was signed for, returned, and filed with the Lamar County Circuit Court on July 13, 2004. The signature on the receipt was illegible. The docket entry reads: “Summons returned— certified mail as to Flagstar Bank signed for 4-15-04 by ?, filed.” Attached to a subsequent pleading was a letter dated April 26, 2004, from Robert K. Fleming, the operations coordinator for Flagstar’s legal department in Troy, Michigan, addressed to Catherine Jacobs, counsel for the Danoses. The letter stated: “Flagstar Bank, FSB (Flagstar) is in receipt of the summons regarding the above referenced matter. The loan account was sold on November 16, 2001 to Chase Manhattan. You may contact them at the following address and phone number listed below.” An address for Chase Manhattan Mortgage, Inc., followed. On September 11, 2006, the Danoses filed an application for entry of default as to Michael Burks, with the customary accompanying affidavit of the plaintiffs’ attorney, resulting in the circuit clerk filing an entry of default on the same day. However, the Danoses never filed an application for entry of default against Flagstar due to its failure to answer the complaint; thus, there was no clerk’s entry of default against Flagstar.

¶ 4. On September 25, 2006, the trial judge entered a default judgment against Flagstar. The judgment read as follows:

DEFAULT JUDGMENT
THIS CAUSE having come before the Court for trial on the merits, and the clerk having called the docket, and on three different occasions called the Defendant, Flagstar Bank FSB, and said Defendant failed to answer or appear, it is therefore
ORDERED and ADJUDGED that Default Judgment be and is hereby entered against the Defendant, Flagstar Bank FSB and in favor of the Plaintiffs pursuant to Rule 55(b) of the Mississippi Rules of Civil Procedure. It is further
ORDERED and ADJUDGED that the hearing on damages be and is hereby set over to September 29, 2006 at 11:00 A.M. at the Lamar County Courthouse in Purvis, Mississippi.

The hearing to assess damages was held on September 29, 2006. Flagstar was not present, nor did it have counsel present. At the conclusion of the hearing, the trial judge, on the same day, entered a judgment for damages in the amount of $500,000 against both Flagstar and Burks.

¶ 5. On October 11, 2006, an attorney filed a notice of entry of appearance as counsel for Flagstar, and on November 15, 2006, the attorney filed a motion to set [301]*301aside the default judgment and for additional relief. Flagstar claimed that the Danoses’ service on it as a nonresident corporation with no Mississippi registered agent was flawed; thus, good cause existed to set aside the judgment. Flagstar argued that the Danoses had attempted to serve Flagstar by mailing a certified letter, restricted delivery requested, to Gladner, the registered agent for Flagstar, at a post office box in Troy, Michigan. The chief legal counsel for Flagstar submitted an affidavit stating that the registered agent for service of process upon Flagstar was Gladner. Flagstar’s attorney swore that the return receipt attached to the summons did not bear the signature of Glad-ner, but instead it was signed by Romeo Pena, a mail clerk whose job was to deliver the mail and who was not an authorized agent for sendee of process. Flagstar’s attorney stated that he was familiar with Pena’s signature. Flagstar’s attorney further stated that the return receipt was marked “Restricted Delivery” for Gladner, and Pena had no authority to sign the receipt on Gladner’s behalf. Flagstar reasoned that, because it had not received valid service of process, the judgment of the Lamar County Circuit Court was void.

116. Additionally, Flagstar argued that the Danoses did not follow the provisions of Mississippi Rule of Civil Procedure 55(a) in obtaining the default judgment, because they failed first to apply to the clerk for an entry of default, to support that application by affidavit or otherwise, and then to seek a default judgment from the trial court only after entry of the clerk’s default. Thus, Flagstar argued, the trial court’s entry of a default judgment was faulty due to its failure to follow the mandatory requirements of Rule 55. Finally, Flagstar argued that the default judgment should be set aside because the bank had a colorable defense to the merits of the Danoses’ complaint.

¶ 7. The trial court denied the motion to set aside default judgment and in a memorandum opinion explained its reasons for previously having entered the default judgment:

[T]he defendant failed to appear for a trial on the merits, and that on three different docket calls, the defendant had failed to appear, or make any announcements. After entry of the judgment, and consistent with M.R.C.P. 55, this Court held a hearing on damages, where the defendant also failed to appear.

The trial court found no merit in Flags-tar’s claim of lack of jurisdiction because of inadequate service of process, stating only that “[wjhile the defendant raises numerous other issues relating to service and prejudice, this Court deems them to be without merit.” The trial court likewise found no merit in Flagstar’s argument that the default judgment was void for failure to first secure the entry of the clerk’s default, ruling that neither an application for default nor a clerk’s entry of fault was required in this case. The trial court stated, “M.R.C.P. 55(b) expressly allows for a default to be taken if a party fails to appear at the trial. Here, the record reflects, that the defendant failed to appear at three docket calls, trial and at writ of inquiry on damages.”

¶8. The trial court rejected Flagstar’s contention that default judgments are not favored and should be set aside when certain factors are shown. The trial court’s order stated:

[T]his Court does not adopt the position advocated by the defendant in regards to liberally setting aside default judgments.

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Cite This Page — Counsel Stack

Bluebook (online)
46 So. 3d 298, 2010 Miss. LEXIS 457, 2010 WL 3259803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flagstar-bank-fsb-v-danos-miss-2010.