United States District Court, D. Delaware
Mark L. Miller, Pro Se Plaintiff, Millsboro, Delaware.
David A. Dorey and Adam V. Orlacchio, Esquires, Blank Rome LLP, Wilmington, Delaware, Attorneys for Defendant.
LEONARD P. STARK, District Judge.
Plaintiff Mark L. Miller ("Plaintiff") proceeds pro se and has paid the filing fee. He filed this lawsuit pursuant to 28 U.S.C. § 1331 asserting a federal question he contends arises under the laws of the United States. (D.I. 1) Plaintiff challenges a judgment issued in Delaware State Court as "void for lack of subject matter jurisdiction and for want of jurisdiction over the parties." ( Id. at ¶ 30) This matter was stayed during the pendency of Plaintiffs bankruptcy proceeding. The Court has been advised that the bankruptcy proceeding has been dismissed and, therefore, the matter is no longer stayed. (D.I. 29) Presently before the Court are Defendant PennyMac Corp.'s motion to dismiss (D.I. 5) and Plaintiffs motion for permission for electronic case filing (D.I. 7) and request for default (D.I. 13).
Plaintiff initiated this lawsuit on November 19, 2013. (D.I. 1) Prior to filing this lawsuit, the Superior Court in and for Sussex County, Delaware ("Superior Court") had entered judgment in favor of Defendant (the plaintiff in the State court case) and against Plaintiff in the amount of $477, 006.46. See Miller v. PennyMac Corp., 2013 WL 5234437 (Del. Sept. 16, 2013). Plaintiff appealed the decision to the Supreme Court of the State of Delaware. The Delaware Supreme Court set forth the following facts:
On February 12, 2007, the Millers executed and delivered a mortgage agreement to Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit. The mortgage document secured Mark Miller's obligations under a note and became a first priority lien on the Millers' property. The Millers stopped making payments on the loan in July 2008. In December 2008, the Millers were notified that they were in default. The default was not cured, and the loan was accelerated. On May 11, 2009, American Brokers Conduit assigned the mortgage to CitiMortgage. In November 2011, CitiMortgage filed a complaint against the Millers seeking all sums due under the mortgage. On October 4, 2012, CitiMortgage assigned the mortgage to PennyMac. The Superior Court, over the Millers' objection, permitted PennyMac's substitution as plaintiff in the case. Following a trial on January 24, 2013, the Superior Court entered a judgment in PennyMac's favor in the amount of $477, 006.46.
Id. at *1.
Plaintiff raised three issues on appeal: (1) the Superior Court erred in allowing PennyMac to be substituted for CitiMortgage as the plaintiff; (2) the Superior Court erred in refusing to grant the Miller's request for a continuance and in denying their request to amend their answer; and (3) the Superior Court erred in failing to accept the Millers' defense of avoidance of the mortgage. Id The Delaware Supreme Court affirmed the Superior Court, finding: (1) no error of law in the Superior Court's conclusion that PennyMac was the holder in due course of the note and the mortgage and, thus, had standing to enforce the debt by pursuing an in rem mortgage proceeding against the Millers; (2) the Superior Court's denial of the Millers' motion for a continuance was neither arbitrary nor capricious; and (3) there was no basis to review the third claim on appeal. Id. at *2-3.
Following the Delaware Supreme Court opinion, Plaintiff filed the instant complaint. (D.l. 1) Count I alleges that Defendant: (1) harassed and belittled Plaintiff in a systematic scheme that resulted in a judgment by a State Court "who relied upon representations made by Defendant that were materially false and are easily recognized on the face of the instruments, " and (2) had a duty to fully disclose to the State Court that "the instruments were fatally flawed because of [its] knowledge of the fatal flaws." (D.I. 1) Plaintiff alleges that, as a result of Defendant's unlawful acts, omissions, and unclean hands, he has suffered damages. Count II alleges that the Superior Court's judgment in Case No. S11L-11-067 is "void for lack of subject matter jurisdiction and for want of jurisdiction over the parties." For relief, Plaintiff asks this Court to render the State Court judgment void and of no effect.
III. REQUEST FOR DEFAULT
Defendant was served on November 19, 2013, its answer was due on December 10, 2013, and on December 10, 2013, Defendant filed a motion to dismiss. ( See D.I. 3, 5) On December 19, 2013, Plaintiff filed a request for default (D.I. 13) pursuant to Fed.R.Civ.P. 55(a).
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). Timely serving and filing a motion to dismiss under Fed.R.Civ.P. 12(b) precludes entry of default. See ...