UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT L. WIGGINS,

Plaintiff, No. 14-12680

v. District Judge Matthew F. Leitman

Magistrate Judge R. Steven Whalen

NATIONSTAR MORTGAGE LLC,

ET AL.,

Defendants.

 /

ORDER SETTING ASIDE CLERK’S ENTRY OF DEFAULT

On July 9, 2014, Plaintiff Robert L. Wiggins filed a pro se civil complaint alleging

numerous claims centering on a mortgage on real property that he gave as security for a

loan in March of 2005. Before the Court is a Motion to Set Aside Default [Doc. #25] filed

by Defendant Argent Mortgage Company LLC (“Argent”). Because Argent was not

properly served, the motion is GRANTED, and the Clerk’s entry of default is

VACATED.

I. FACTS

In his complaint [Doc. #1], Plaintiff states that he refinanced a real estate loan on

March 28, 2005. Attached to his complaint is a copy of the mortgage given to Argent

(Exhibit 1) and an adjustable rate interest promissory note to Argent in the amount of

-1-

2:14-cv-12680-MFL-RSW Doc # 34 Filed 01/31/16 Pg 1 of 6 Pg ID 466
$418,000.00 (Exhibit 2). Both documents were executed on March 28, 2005. He alleges

that the Defendants engaged in predatory lending practices, in violation of a number of

federal and Michigan statutes.

On December 12, 2014, Plaintiff filed what purported to be a Certificate of Service

on Defendant Argent [Doc. #7], and on February 4, 2015, Plaintiff requested a Clerk’s

entry of default against Argent [Doc. #15]. On February 11, 2015, the Clerk entered

Argent’s default [Doc. #16].

II. STANDARD OF REVIEW

Fed.R.Civ.P. 55(a) provides:

“When a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules...the clerk

shall enter the party’s default.”

Fed.R. Civ.P. 55(c) sets forth a relatively relaxed “good cause” standard for setting

aside a Clerk’s entry of default. U.S. v. $22,050.00 U.S. Currency, 595 F.3d 318, 324

(6 Cir. 2010). In O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 353 (6th th

Cir.2003), the Sixth Circuit described the Rule 55(c) standard as follows:

“[T]he district court enjoys considerable latitude under the “good cause

shown” standard of Rule 55(c) to grant a defendant relief from a default

entry. The criteria used to determine whether “good cause” has been shown

for purposes of granting a motion under Rule 55(c) are whether (1) the

default was willful, (2) set-aside would prejudice plaintiff, and (3) the

alleged defense was meritorious. It has been found that a district court

abuses its discretion in denying a motion to set aside an entry of default

when two of the three factors have been demonstrated by the defendant: the

defendant had a meritorious defense and no prejudice would result to the

plaintiff if the matter were to go forward.” (internal quotation marks,

-2-

2:14-cv-12680-MFL-RSW Doc # 34 Filed 01/31/16 Pg 2 of 6 Pg ID 467
citations, and footnote omitted.). 

However, a default may not be entered against a defendant who has not been

properly served with a summons and complaint. In O.J. Distributing, Inc. v. Hornell

Brewing Co., Inc. 340 F.3d 345, 353 (6 Cir. 2003), the Court held: th

“Due process requires proper service of process for a court to have

jurisdiction to adjudicate the rights of the parties. Amen v. City of Dearborn,

532 F.2d 554, 557 (6th Cir.1976). Therefore, if service of process was not

proper, the court must set aside an entry of default. Id.; see also Omni

Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct.

404, 98 L.Ed.2d 415 (1987) (“Before a federal court may exercise personal

jurisdiction over a defendant, the procedural requirement of service of

summons must be satisfied.”); Bank One of Cleveland, N.A. v. Abbe, 916

F.2d 1067 (6th Cir.1990).”

O.J. Distributing also held that a court “need not weigh the three factors a court

considers when setting aside an entry of default when service of process has been

properly effected....” Id. at 355.

III. ANALYSIS

The Plaintiff claims to have served Argent by certified mail. However, his February

4, 2015 Certificate of Service [Doc. #7] does not comply with Fed.R.Civ.P. 4(e), which

incorporates Michigan service of process rules. Rule 4(e) provides that service may be

effected:

“(1) pursuant to the law of the state in which the district court is located, or in

which service is effected...; or

(2) by delivering a copy of the summons and of the complaint to the individual

personally or by leaving copies thereof at the individual’s dwelling house or

-3-

2:14-cv-12680-MFL-RSW Doc # 34 Filed 01/31/16 Pg 3 of 6 Pg ID 468
usual place of abode with some person of suitable age and discretion then

residing therein or by delivering a copy of the summons and of the complaint

to an agent authorized by appointment or by law to receive service of process.”

Under Michigan law, specifically M.C.R. 2.105(A), service may be effected as

follows:

“(1) delivering a summons and a copy of the complaint to the defendant

personally; or

(2) sending a summons and a copy of the complaint by registered or certified

mail, return receipt requested, and delivery restricted to the addressee. Service

is made when the defendant acknowledges receipt of the mail. A copy of the

return receipt signed by the defendant must be attached to proof showing

service under subrule (A)(2).” (Emphasis added).

Plaintiff’s Certificate of Service contains no return receipt signed by an agent of

Argent. The tracking information attached to Plaintiff’s request for entry of default shows

that the mailing was refused, not that it was accepted.

In addition, where the defendant is a corporation or a partnership, service is governed

by Fed.R.Civ.P. 4(h):

“Unless federal law provides otherwise or the defendant's waiver has been

filed, a domestic or foreign corporation, or a partnership or other

unincorporated association that is subject to suit under a common name, must

be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a

managing or general agent, or any other agent authorized by appointment or

by law to receive service of process and--if the agent is one authorized by

-4-

2:14-cv-12680-MFL-RSW Doc # 34 Filed 01/31/16 Pg 4 of 6 Pg ID 469
statute and the statute so requires--by also mailing a copy of each to the

defendant.”

According to Plaintiff’s request for entry of default [Doc. #15], he sent a copy of the

summons and complaint by certified mail to National Register in New Hudson, Michigan.

First, the mailing was not accepted, it was refused, and there is no return receipt, as required

by M.C.R. 2.105(A). Secondly, National Register, located in Michigan, is not the authorized

agent of Argent, which, as ofJuly 10, 2014, does not do business in Michigan, and hence has

no resident agent in Michigan. Defendant’s Motion, Exhibit 2.

In attempting service on Argent, the Plaintiff has failed to comply with Rule 4(e),

Rule 4(h), and M.C.R. 2.105(A). Again, if service of process was not proper, the court must

set aside an entry of default. O.J. Distributing, supra.

IV. CONCLUSION

Defendant Argent’s Motion to Set Aside Default [Doc. #25] is GRANTED, and the

Clerk’s entry of default [Doc. #16] is VACATED.

IT IS SO ORDERED.

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: January 31, 2016

-5-

2:14-cv-12680-MFL-RSW Doc # 34 Filed 01/31/16 Pg 5 of 6 Pg ID 470
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

January 31, 2016, electronically and/or by U.S. mail.

s/C. Ciesla 

Case Manager

-6-

2:14-cv-12680-MFL-RSW Doc # 34 Filed 01/31/16 Pg 6 of 6 Pg ID 471