UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, : No. 4:CV-05-0879

:

Plaintiff, : Complaint filed 05/02/05

:

v. : Judge Muir

:

DAWN M. HEFFLER, :

:

Defendant :

ORDER

July 28, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 2, 2005, the United States initiated this action by

filing a one-count complaint against Dawn M. Heffler. The

government claims that Heffler obtained a mortgage for real

estate through the United States Department of Agriculture, she

has not fulfilled the obligations imposed upon her pursuant to

that mortgage, and she is now in default under the terms of that

loan. The United States seeks a judgment authorizing, inter

alia, the sale of the property at issue.

Heffler was served with a copy of the complaint on May 17,

2005, and has failed to file any response as required by the

Federal Rules of Civil Procedure. The waiver of service of

summons signed by Heffler and filed on May 19, 2005, clearly

states that “a judgment may be entered against [her] if an answer

or motion under Rule 12, [sic] is not served upon [the United

States] within 60 days after May 6, 2005 ....” (Document 5,

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Exhibit 1) No such document has been served upon the government.

On July 7, 2005, the United States filed a request addressed

to the Clerk of Court for default and a motion addressed to the

court for default judgment. The Clerk of Court entered a default

against Heffler on July 8, 2005.

The motion for default judgment is supported by an affidavit

and a brief. The time allowed for Heffler to file an opposition

brief expired on July 25, 2005. To this date Heffler has not

filed any document in this case. We consider the motion for

default judgment to be ripe for disposition because the motion

itself, supporting affidavit and brief, and docket entries

provide us with all of the information necessary to rule on the

pending motion.

One reason to grant the motion is that it is unopposed. See

M.D. Local Rule 7.6 (providing that the failure to file an

opposition brief “may result in the court granting the motion on

the basis that it is unopposed”). That is not the only reason to

grant the United States’s motion.

The Court of Appeals for the Third Circuit has stated that

the following factors govern the disposition of a motion for a

default judgment: (i) whether the plaintiff will be prejudiced if

the default judgment is denied; (ii) whether the defendant has a

meritorious defense; and (iii) whether the default was the

product of defendant’s culpable conduct. United States v.

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$55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984);

Spar v. Choice Security Systems, Inc., 880 F. Supp. 402, 404

(E.D. Pa. 1995)(Brody, J.). The decision as to whether to grant

a motion for a default judgment is in the court’s discretion.

Spar, 880 F. Supp. at 402. 

The first factor weighs against the government because it

has not argued or demonstrated that it would be prejudiced if we

did not enter a default judgment against Heffler.

With respect to the second factor, we are unable to evaluate

the merits of Heffler’s potential defenses because she has not

informed us of any defense. In addition, a cursory review of the

complaint has not revealed any obvious defense that Heffler could

assert in this action. This factor weighs in favor of the

government.

The last element also favors the government because Heffler

is solely at fault for failing to file a responsive pleading. 

Heffler was notified that her failure to file a responsive

pleading may result in the entry of a default judgment against

her when the government filed the request for default and motion

for default judgment. In addition, she was notified by the Clerk

of Court of the entry of the default. Despite those warnings she

has not filed a responsive pleading or a brief opposing the

motion for default judgment as required by the applicable rules. 

We will grant the United States’s motion for a default

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judgment. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. The government motion for a default judgment against

Heffler (Document 5) is granted.

2. Judgment is entered in favor of the United States and

against Dawn M. Heffler in the amount of $100,617.65

plus interest at the rate of $15.76 per day from

November 30, 2004, to the date of any U.S. Marshal’s

sale or other sale of the property.

3. The promissory note and mortgage between the United

States and Dawn M. Heffler are foreclosed as to the

real property described therein. In accordance with §

204(1) of the National Housing Act there is no right of

redemption in the mortgagor or any other person.

4. The real property described in the promissory note and

mortgage shall be sold pursuant to the following

process:

a) The United States Marshal for the Middle District

of Pennsylvania is directed to sell the real

property for cash to the highest bidder at a

public, judicial sale pursuant to Title 28 U.S.C.

§ 2001 within 180 days after the date of this

order. Notice shall be given, in accordance with

28 U.S.C. § 2002 , once a week for four

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consecutive weeks prior to the sale in one

newspaper regularly issued and of general

circulation in the county and judicial district

where the real estate is situated; Plaintiff shall

advertise a complete legal description of the

property.

b) Ten (10) percent of the highest bid shall be

deposited in certified check or cashier’s check

with the United States Marshal by the bidder

immediately upon the property being struck down to

the bidder. The balance of the purchase money

must be paid in certified or cashier’s check by

the highest bidder to the Marshal within ten (10)

days after the sale is confirmed by the Court,

without demand for the same being made by the

Marshal. It is the highest bidder’s

responsibility to ascertain the date of

confirmation. If the highest bidder fails to

settle, all his rights in the real estate shall

cease and be completely void and the property may

be re-advertised and sold by the Marshal without

further order of the court, at the risk of the

defaulting bidder whose deposit shall be

forfeited; and in case of a deficiency on such

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resale, the defaulting bidder shall make good to

the person thereby injured. The highest bidder

shall take the real estate subject to and is to

pay all current state and local taxes, water rents

or charges, sewer rents or charges, municipal

claims, and any other claims, charges, and liens

against the property which are not divested by the

Marshal’s sale, and shall pay all state, local,

and federal transfer taxes and stamps. If the

United States is not the successful bidder, the

United States will automatically be registered as

the second highest bidder at the judgment amount

and may proceed to make settlement with the

Marshal in the event of default by the highest

bidder.

c) The United States or its nominee is granted right

of entry at reasonable times to the subject

premises for purposes of pre-sale inspection and

Marshal’s sale with the right to inspect the

house, the books, records, accounts, and all other

items, things, and information necessary for the

inspection, advertisement, and sale of the

property.

5. A motion for confirmation of the public sale shall be

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made by the Marshal or the United Sates within 30 days

after the date of the sale.

6. Upon confirmation of the sale, the Marshal shall hold

the proceeds of the sale, after deducting the costs and

expenses of the sale, pending distribution pursuant to

further order of this court.

7. The United States shall be paid the amount adjudged due

pursuant to the distribution of the proceeds of the

sale.

8. The Clerk of Court shall forthwith provide the United

States Marshal with a copy of this order.

9. Jurisdiction is retained over this matter for the

granting of such further orders as the circumstances

may require.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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