UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

COUNTRYWIDE HOME LOANS, INC., : No. 4:CV-05-1105

:

Plaintiff, : Complaint filed 05/31/05

:

v. : Judge Muir

:

WILLIAM F. KORNECKI and :

ESTELLE KORNECKI, :

:

Defendants :

ORDER

August 9, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 31, 2005, Plaintiff Countrywide Home Loans, Inc.

(hereinafter “Countrywide”), initiated this action by filing a

two-count complaint against William F. Kornecki and Estelle

Kornecki. According to the summonses filed in this case, the

Korneckis are husband and wife. Countrywide claims that the

Korneckis obtained a mortgage for real estate which has been

assigned to Countrywide, they have not fulfilled the obligations

imposed upon them pursuant to the mortgage, and they are now in

default under the terms of that loan. Countrywide seeks an in

rem judgment authorizing, inter alia, the sale of the property at

issue.

The Korneckis were served with copies of the summons and

complaint on June 20, 2005. They have failed to file any

response as required by the Federal Rules of Civil Procedure.

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On July 12, 2005, Countrywide 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 support of the motion

for default judgment. The Clerk of Court entered a default

against the Korneckis on July 13, 2005.

The motion for default judgment is supported by an affidavit

and a brief. The time allowed for the Korneckis to file an

opposition brief expired on August 1, 2005. To this date they

have 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 Countrywide’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. Id.

at 402. 

The first factor weighs against Countrywide because it has

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

not enter a default judgment against Heffler.

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

the merits of the Korneckis’s potential defenses because they

have not informed us of any defense. In addition, a cursory

review of the complaint has not revealed any obvious defense that

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

Countrywide.

The last element also favors Countrywide because the

Korneckis are solely at fault for failing to file a responsive

pleading. 

Countrywide 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. Countrywide’s motion for a default judgment against the

Korneckis (Document 9) is granted.

2. Judgment is hereby entered for the sum of $199,423.86

as of July 12, 2005, plus interest thereafter in the

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amount of $32.78 per day, attorneys fees, costs,

advances, and all other related fees and expenses until

paid in full, to which Countrywide is entitled from the

Korneckis pursuant to the note and mortgage obligation

at issue in this case.

3. It is hereby ordered that all legal rights, title, and

interest which the Korneckis have in the subject

property inclusive of all buildings and improvements

thereon be sold at Marshal’s sale and that all amounts

owed by the Korneckis to Countrywide pursuant to this

judgment be paid out of the proceeds of such sale.

4. It is hereby further ordered that, if proceeds of such

sale of the subject property exceed the sum of money

owed by the Korneckis to Countrywide pursuant to this

judgment, any such excess shall be deposited with the

Clerk of Court subject to further order of the court.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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