UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff, v. Civil Action No. 15-1658 (JEB) TXL MORTGAGE CORPORATION,
Defendant.
MEMORANDUM OPINION
The United States sued TXL Mortgage Corporation for treble damages and civil penalties
under the False Claims Act, alleging that the company falsely underwrote residential-mortgage
loans for mortgages on which the federal government was later asked to make insurance
payments under the Fair Housing Act. After seeking several extensions of time, TXL failed to
respond to the Complaint, and its attorneys withdrew their appearances. The Clerk of Court
entered a default on July 1, 2016, and Plaintiff has now moved for default judgment pursuant to
Federal Rule of Civil Procedure 55(b)(2). As the United States has sufficiently demonstrated
that the allegations in its Complaint warrant the default judgment that it seeks, the Court will
grant the Motion.
I. Analysis
The determination of whether a default judgment is appropriate is “committed to the
sound discretion of the trial court.” Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980)
(citations omitted). A default judgment may enter where a defendant is “totally unresponsive,”
and his default is plainly willful, as reflected by his failure to respond to the summons and
complaint, the entry of default, or the motion for default judgment. See Gutierrez v. Berg
1 Contracting Inc., No. 99-3044, 2000 WL 331721, at *1 (D.D.C. March 20, 2000) (citing Jackson,
636 F.2d at 836). Nevertheless, “[m]odern courts are . . . reluctant to enter and enforce
judgments unwarranted by the facts,” Jackson, 636 F.2d at 835, and “a district court may still
deny an application for default judgment where the allegations of the complaint, even if true, are
legally insufficient to make out a claim.” Gutierrez, 2000 WL 331721, at *2 (citing Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). Once a default is entered, however, the defendant
“is deemed to admit every well-pleaded allegation in the complaint.” Adkins v. Teseo, 180 F.
Supp. 2d 15, 17 (D.D.C. 2001); see Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 63 (2d
Cir. 1971), rev’d on other grounds, 409 U.S. 363 (1973); see also 10A Wright & Miller, Fed.
Prac. & Proc. Civ. § 2688.1 (4th ed.) (defaulting “defendant has no further standing to contest
the factual allegations of plaintiff’s claim for relief”). If those facts are sufficient to establish
liability, the court then “make[s] an independent determination of the sum to be awarded” based
upon evidence in the record. See Adkins, 180 F. Supp. 2d at 17.
There is no doubt that TXL Mortgage has been “totally unresponsive” and willfully in
default in this case. On October 8, 2015, the United States filed its Complaint, which it served
on TXL on October 19, 2015. See ECF No. 1 (Compl.); ECF No. 4 (Return of Service). Since
then, TXL has failed to respond to the Complaint, the entry of default, or this Motion for Default
Judgment, and its attorneys withdrew their appearances. As a result, the only questions now
remaining are whether the United States has pled facts that are legally sufficient to make out an
FCA claim and sufficiently supported with record evidence the damages and civil fines that it
seeks.
It has. For a claim brought under Section 3729(a)(1)(A) of the FCA, a complainant must
prove that “(1) the defendant submitted [or caused to be submitted] a claim to the government,
2 (2) the claim was false, and (3) the defendant knew the claim was false.” United States ex rel.
Tran v. Computer Scis. Corp., 53 F. Supp. 3d 104, 121-22 (D.D.C. 2014) (quotation omitted). A
“claim” includes “any request or demand . . . for money or property” made to a recipient if the
Government provides or reimburses the recipient any portion of the money requested. See 31
U.S.C. § 3729(b)(2). If the defendant did not itself submit the false claim, its actions can
nevertheless satisfy the first element if it “caused [the claim] to be presented” to the Government
because such conduct was “a substantial factor in causing, if not the but-for cause of, submission
of false claims.” Computer Scis., 53 F. Supp. 3d at 126 (quotations and marks omitted). In other
words, the FCA “extends beyond the person making a false claim to one who engaged in a
fraudulent course of conduct that induces payment by the government.” Id.
The Complaint shows that TXL’s conduct induced the nine insurance claims at issue to
be submitted for payment to the Government. For each property, TXL certified that the loans
met certain requirements necessary to be insured by the Government under the Fair Housing Act.
See Compl., ¶¶ 109-11 (Bark Ridge Property), 118-21 (Gregory Property), 129-31 (Martin Circle
Property), 141-43 (Grand Field Property), 153-55 (Armstrong Lane Property), 168-70 (Echo
Peak Property), 180-82 (Blue Bonnet Property), 193-95 (Tumblewood Drive Property), 202-05
(Carmen Place Property). Those loans then went into default when the borrowers failed to make
payments, and, accordingly, the Government was forced to make payouts when presented with
FHA insurance claims by the mortgage holders. Id., ¶¶ 116-17 (Bark Ridge Property), 127-28
(Gregory Property), 139-40 (Martin Circle Property), 151-52 (Grand Field Property), 166-67
(Armstrong Lane Property), 178-79 (Echo Peak Property), 191-92 (Blue Bonnet Property), 200-
01 (Tumblewood Drive Property), 208-09 (Carmen Place Property). Several courts have
recognized that a lender in TXL’s position causes false claims to be submitted when it
3 improperly endorses loans for such government insurance and claims are later made on that
insurance. See, e.g., United States v. Americus Mortg. Corp., No. 12-2676, 2014 WL 4274279,
at *9 (S.D. Tex. Aug. 29, 2014) (collecting cases); see also United States ex rel. Fago v. M&T
Mortg. Corp., 518 F. Supp. 2d 108, 117 (D.D.C. 2007). In short, the “inchoate” claim
represented by the false application for government-backed insurance on the loan effectively
“ripen[s]” into a viable FCA claim when the government is forced to pay out the improperly
acquired insurance. See M&T Mortg. Corp., 518 F. Supp. 2d at 117 (explaining the theory).
The first element of the Government’s FCA claim is thus satisfied.
The second element of the FCA cause of action – that the claims were false – is also
supported by the record. A claim can be “false” under a variety of theories, including when it
facially contains inaccurate facts or when it contains false express or implied certifications of
compliance with regulatory requirements. See, e.g., Computer Scis., 53 F. Supp. 3d at 117, 122.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff, v. Civil Action No. 15-1658 (JEB) TXL MORTGAGE CORPORATION,
Defendant.
MEMORANDUM OPINION
The United States sued TXL Mortgage Corporation for treble damages and civil penalties
under the False Claims Act, alleging that the company falsely underwrote residential-mortgage
loans for mortgages on which the federal government was later asked to make insurance
payments under the Fair Housing Act. After seeking several extensions of time, TXL failed to
respond to the Complaint, and its attorneys withdrew their appearances. The Clerk of Court
entered a default on July 1, 2016, and Plaintiff has now moved for default judgment pursuant to
Federal Rule of Civil Procedure 55(b)(2). As the United States has sufficiently demonstrated
that the allegations in its Complaint warrant the default judgment that it seeks, the Court will
grant the Motion.
I. Analysis
The determination of whether a default judgment is appropriate is “committed to the
sound discretion of the trial court.” Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980)
(citations omitted). A default judgment may enter where a defendant is “totally unresponsive,”
and his default is plainly willful, as reflected by his failure to respond to the summons and
complaint, the entry of default, or the motion for default judgment. See Gutierrez v. Berg
1 Contracting Inc., No. 99-3044, 2000 WL 331721, at *1 (D.D.C. March 20, 2000) (citing Jackson,
636 F.2d at 836). Nevertheless, “[m]odern courts are . . . reluctant to enter and enforce
judgments unwarranted by the facts,” Jackson, 636 F.2d at 835, and “a district court may still
deny an application for default judgment where the allegations of the complaint, even if true, are
legally insufficient to make out a claim.” Gutierrez, 2000 WL 331721, at *2 (citing Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). Once a default is entered, however, the defendant
“is deemed to admit every well-pleaded allegation in the complaint.” Adkins v. Teseo, 180 F.
Supp. 2d 15, 17 (D.D.C. 2001); see Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 63 (2d
Cir. 1971), rev’d on other grounds, 409 U.S. 363 (1973); see also 10A Wright & Miller, Fed.
Prac. & Proc. Civ. § 2688.1 (4th ed.) (defaulting “defendant has no further standing to contest
the factual allegations of plaintiff’s claim for relief”). If those facts are sufficient to establish
liability, the court then “make[s] an independent determination of the sum to be awarded” based
upon evidence in the record. See Adkins, 180 F. Supp. 2d at 17.
There is no doubt that TXL Mortgage has been “totally unresponsive” and willfully in
default in this case. On October 8, 2015, the United States filed its Complaint, which it served
on TXL on October 19, 2015. See ECF No. 1 (Compl.); ECF No. 4 (Return of Service). Since
then, TXL has failed to respond to the Complaint, the entry of default, or this Motion for Default
Judgment, and its attorneys withdrew their appearances. As a result, the only questions now
remaining are whether the United States has pled facts that are legally sufficient to make out an
FCA claim and sufficiently supported with record evidence the damages and civil fines that it
seeks.
It has. For a claim brought under Section 3729(a)(1)(A) of the FCA, a complainant must
prove that “(1) the defendant submitted [or caused to be submitted] a claim to the government,
2 (2) the claim was false, and (3) the defendant knew the claim was false.” United States ex rel.
Tran v. Computer Scis. Corp., 53 F. Supp. 3d 104, 121-22 (D.D.C. 2014) (quotation omitted). A
“claim” includes “any request or demand . . . for money or property” made to a recipient if the
Government provides or reimburses the recipient any portion of the money requested. See 31
U.S.C. § 3729(b)(2). If the defendant did not itself submit the false claim, its actions can
nevertheless satisfy the first element if it “caused [the claim] to be presented” to the Government
because such conduct was “a substantial factor in causing, if not the but-for cause of, submission
of false claims.” Computer Scis., 53 F. Supp. 3d at 126 (quotations and marks omitted). In other
words, the FCA “extends beyond the person making a false claim to one who engaged in a
fraudulent course of conduct that induces payment by the government.” Id.
The Complaint shows that TXL’s conduct induced the nine insurance claims at issue to
be submitted for payment to the Government. For each property, TXL certified that the loans
met certain requirements necessary to be insured by the Government under the Fair Housing Act.
See Compl., ¶¶ 109-11 (Bark Ridge Property), 118-21 (Gregory Property), 129-31 (Martin Circle
Property), 141-43 (Grand Field Property), 153-55 (Armstrong Lane Property), 168-70 (Echo
Peak Property), 180-82 (Blue Bonnet Property), 193-95 (Tumblewood Drive Property), 202-05
(Carmen Place Property). Those loans then went into default when the borrowers failed to make
payments, and, accordingly, the Government was forced to make payouts when presented with
FHA insurance claims by the mortgage holders. Id., ¶¶ 116-17 (Bark Ridge Property), 127-28
(Gregory Property), 139-40 (Martin Circle Property), 151-52 (Grand Field Property), 166-67
(Armstrong Lane Property), 178-79 (Echo Peak Property), 191-92 (Blue Bonnet Property), 200-
01 (Tumblewood Drive Property), 208-09 (Carmen Place Property). Several courts have
recognized that a lender in TXL’s position causes false claims to be submitted when it
3 improperly endorses loans for such government insurance and claims are later made on that
insurance. See, e.g., United States v. Americus Mortg. Corp., No. 12-2676, 2014 WL 4274279,
at *9 (S.D. Tex. Aug. 29, 2014) (collecting cases); see also United States ex rel. Fago v. M&T
Mortg. Corp., 518 F. Supp. 2d 108, 117 (D.D.C. 2007). In short, the “inchoate” claim
represented by the false application for government-backed insurance on the loan effectively
“ripen[s]” into a viable FCA claim when the government is forced to pay out the improperly
acquired insurance. See M&T Mortg. Corp., 518 F. Supp. 2d at 117 (explaining the theory).
The first element of the Government’s FCA claim is thus satisfied.
The second element of the FCA cause of action – that the claims were false – is also
supported by the record. A claim can be “false” under a variety of theories, including when it
facially contains inaccurate facts or when it contains false express or implied certifications of
compliance with regulatory requirements. See, e.g., Computer Scis., 53 F. Supp. 3d at 117, 122.
When the claim rests on a false certification, the requirement at issue “must [also] be material to
the Government’s payment decision in order to be actionable.” Universal Health Servs., Inc. v.
United States ex rel. Escobar, 136 S. Ct. 1989, 1996 (2016). Again, the Government has
adequately demonstrated that TXL either provided facially inaccurate facts or violated key FHA
underwriting requirements, which then fraudulently induced the Government into endorsing the
loans and paying out subsequent claims for insurance. See, e.g., Compl., ¶¶ 111 (Bark Ridge
Property), 123-25 (Gregory Property), 196-98 (Tumblewood Drive Property), 205-07 (Carmen
Place Property), 135-39 (Martin Circle Property), 144-46 (Grand Field Property), 156-58
(Armstrong Lane Property), 171-74 (Echo Peak Property), 183-86 (Blue Bonnet Property); see
also United States v. Wells Fargo Bank, N.A., 972 F. Supp. 2d 593, 624 (S.D.N.Y. 2013); United
4 States v. Spicer, 57 F.3d 1152, 1159 (D.C. Cir. 1995). As such, the second FCA element has
been met.
The record further bears out that TXL’s actions satisfy the final element of the FCA
claim – i.e., it acted “knowingly” as to the falsity and materiality of the documentation it
submitted, which ultimately resulted in claims for FHA insurance. See Computer Scis., 53 F.
Supp. 3d at 121-22; see also Escobar, 136 S. Ct. at 1996. Under the FCA, a person acts
“knowingly” when she submits a claim in deliberate ignorance of the truth or falsity of the
information provided or, alternatively, in reckless disregard of the truth or falsity of the
information. See 31 U.S.C. § 3729(b)(1); see also United States ex rel. Folliard v. Gov't
Acquisitions, Inc., 764 F.3d 19, 29 (D.C. Cir. 2014). In other words, no proof of a specific intent
to defraud is required. See 31 U.S.C. § 3729(b)(1)(B). The Government meets its burden to
show the requisite intent in this case because TXL failed to abide by legally mandated quality-
control standards, such as review of early-payment defaults and disclosure to the U.S.
Department of Housing and Urban Development of material deficiencies found in its loans. See
Compl., ¶¶ 214-16. Other courts have found similar evidence sufficient to meet the requisite
scienter, and it suffices here as well. See, e.g., Wells Fargo, 972 F. Supp. 2d at 616-17;
Americus Mortgage, 2014 WL 4274279, at *9-10; United States v. Movtady, 13 F. Supp. 3d 325,
333 (S.D.N.Y. 2014).
Finally, the Government has adequately supported its request for both damages and civil
penalties. Once an FCA violation is established, TXL is on the hook for three times the civil
damages that it caused and not less than $5,500 in civil penalties for each false claim. See 31
U.S.C. § 3729(a)(1). Because this Court has already found that TXL submitted nine false claims,
the Government is entitled to $49,500 in civil penalties. The Government, moreover, has
5 documented through an affidavit and supporting exhibits that it paid out $751,826.72 on these
nine loans. See ECF No. 18, Exhs. 1-10. As a result, the United States is entitled to triple that
amount, which equals $2,255,480.16. United States ex rel. Schwedt v. Planning Research Corp.,
59 F.3d 196, 200 (D.C. Cir. 1995). In total, then, the United States is entitled to a monetary
judgment of $2,304,980.16.
II. Conclusion
As Plaintiff has sufficiently demonstrated that the allegations in its Complaint warrant a
default judgment in the amount that it seeks, the Court will issue a contemporaneous Order
reflecting such judgment.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 20, 2016