UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, : No. 4:CV-05-1579

:

Plaintiff, : Complaint filed 08/05/05

:

v. : Judge Muir

:

PATTI A. MENGES, :

:

Defendant :

ORDER

December 2, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On August 5, 2005, the United States of America initiated

this action by filing a complaint against Patti A. Menges. The

government claims that Menges obtained a mortgage for real estate

through the United States Department of Agriculture and that

Menges is in default of the terms of the mortgage. 

On September 9, 2005, Menges signed and returned to the

government a waiver of service of the summons. The document

notified Menges that a judgment may be entered against her if no

answer or motion pursuant to Federal Rule of Civil procedure 12

was served upon the government within 60 days after September 6,

2005. To this date Menges has not responded in any manner to the

complaint filed in this case.

On November 8, 2005, the government filed a request

addressed to the Clerk of Court to enter a default, a motion

addressed to the court for default judgment, and a brief in

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support of the motion for default judgment. The Clerk of Court

entered a default against Menges on August 2, 2005.

The motion for default judgment is supported by an affidavit

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

brief expired on November 28, 2005. To this date she 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 government’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.

$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

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

at 402. 

The first factor weighs against the government because it

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

do not enter a default judgment against Menges.

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

the merits of Menges’s potential defense or 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

she could assert in this action. This factor weighs in favor of

the government.

The last element also favors the government because Menges

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

The United States has established that it is entitled to a

default judgment in this case. We will grant its motion for that

relief. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. The United States’s motion for a default judgment

against Menges (Document 7) is granted.

2. Judgment is hereby entered in favor of the United

States and against Menges in the amount of $138,163.45,

plus interest at the rate of $18.71 per day from March

7, 2005, to the date of any Marshal’s sale or other

sale of the property.

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3. The mortgage between the United States and Menges is

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 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 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

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shall 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 or her 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

resale, the defaulting bidder shall make good to

the person thereby injured. The highest bidder

shall take the real estate subject to and shall

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

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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 a

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

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

upon 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

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granting of such further orders as the circumstances

may require.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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