Nunez v. Homefield Financial, Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA Marivelle Nunez, Case No.: 2:16-cv-01504-JAD-NJK 4 Plaintiff Order Denying Without Prejudice Motion v. for Default Judgment Homefield Financial, Inc., and KeyBank [ECF No. 49] National Association, Defendants 9 Marivelle Nunez, as the trustee for the Marivelle Nunez Revocable Living Trust,1 sues Homefield Financial, Inc. and KeyBank National Association, alleging that they continue to claim adverse interests on a property that the Trust obtained by quit-claim deed.2 Default was entered against Homefield and KeyBank,3 and Nunez now moves this court to enter default judgment against them.4 When determining whether default judgment is available, the court must evaluate the seven factors outlined by the Ninth Circuit in Eitel v. McCool.5 But Nunez has not explained how the Eitel factors justify default judgment against Homefield and KeyBank, so I deny her motion without prejudice to her ability to file a new motion for default judgment that properly evaluates the Eitel factors.

1 ECF No. 49 (motion for default judgment).

21 2 ECF No. 1 at 33 (complaint).

3 ECF Nos. 25 (Clerk’s entry of default against Homefield), 35 (Clerk’s entry of default against KeyBank).

23 4 ECF No. 49.

5 Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986).

1 Background 2 On July 19, 2005, Marivelle Nunez obtained title to a property located at 6120 Skokie Court in Las Vegas, Nevada 89130.6 The property was obtained by way of a bargain-and-sale deed that was recorded with the Clark County Recorder on June 5, 2005.7 Nunez then granted two deeds of trust to Homefield Financial on August 31, 2006, naming Mortgage Electronic Registration Systems as the beneficiary.8 Nunez granted a third deed of trust to KeyBank National Association on December 15, 2006.9 8 However, the property went into foreclosure, and a public sale of the property was held on March 8, 2013.10 Premier One Holdings obtained title to the property by way of foreclosure deed on March 11, 2013.11 Nunez alleges that Premier One obtained the title to the property “free and clear of all junior liens and encumbrances affecting title to the [p]roperty, including any deed of trust” given to Homefield Financial and KeyBank National.12 13 Nunez subsequently reached out to Premier One in an effort to repurchase the property.13 She was able to obtain title to the property by way of quit-claim deed on March 27, 2013.14 Sometime after title was transferred back to Nunez, Homefield and KeyBank asserted claims to 6 ECF No. 1 at 8–9.

7 Id. at 9.

8 Id. at 18.

20 9 Id. at 19.

21 10 Id. at 32.

11 Id. at 10.

12 Id. at 16.

23 13 Id. at 11.

14 Id. at 13.

1 the title of the property.15 Nunez alleges that Homefield and KeyBank continue to claim adverse interests in the property through the deeds of trust that Nunez gave them in 2006.16 Nunez alleges that their claims have created a “cloud upon title.”17 4 So, on May 4, 2016, Nunez filed her complaint against Homefield and KeyBank alleging that she has superior interest in the property.18 Nunez moved for and obtained entry of default against Homefield19 and KeyBank20 and now asks me to enter default judgment against both defendants under FRCP 55(b)(2) that includes declaratory and injunctive relief.21 8 Discussion 9 Federal Rule of Civil Procedure 55(b)(2) permits a plaintiff to obtain a default judgment if the clerk previously entered default based on a defendant’s failure to defend. After entry of default, the complaint’s factual allegations are taken as true, except those relating to damages.22 “[N]ecessary facts not contained in the pleadings, and claims [that] are legally insufficient, are not established by default.”23 The court has the power to require a plaintiff to provide additional proof of facts or damages in order to ensure that the requested relief is appropriate.24 Whether to Id. at 20.

17 16 Id. at 33.

17 Id. at 20.

18 Id. at 34.

19 19 ECF No. 25.

20 20 ECF No. 35.

21 ECF No. 49.

22 Tele Video Sys., Inc v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per curium); Fed. R. Civ. P. 8(b)(6) (“An allegation–other than one relating to the amount of damages–is admitted if a responsible pleading is required and the allegation is not denied.”).

23 23 Cripps v. Life Ins. Co., 980 F.2d 1261, 1267 (9th Cir. 1992).

24 See Fed. R. Civ. P. 55(b)(2).

1|| grant a motion for default judgment lies within my discretion,”> which is guided by the seven 2\| factors outlined by the Ninth Circuit in Eitel v. McCool: 3 (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiffs substantive claim; (3) sufficiency of the complaint; (4) 4 the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due 5 to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the 6 merits.7° 7\|A default judgment is generally disfavored because “[c]ases should be decided upon their merits whenever reasonably possible.”

9 Except for the substantive merits of Nunez’s claims, Nunez’s motion does not address the 10|| Eitel factors. Nunez has thus left me without the guidance and information that I need to determine whether default judgment is warranted. I therefore deny Nunez’s motion without prejudice to her ability to file a new motion for default judgment that addresses the Fite! factors 13] and explains why those factors warrant the judgment that Nunez requests.

14 Conclusion 15 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for default judgment 16]| [ECF No. 49] is DENIED without prejudice to the filing of a new motion that properly 17|| evaluates the Eitel factors.

18 Dated: June 29, 2020 U.S. District Judge Jennifer A. Dorsey Fitel, 782 F.2d at 1471. Id. at 1471-72. *7 Id, at 1472.