UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Rosemary A. Gilroy

v. Civil No. 07-cv-74-JD

Ameriquest Mortgage Company and

Ameriquest Mortgage Company

Mortgage Services, Inc.

O R D E R

Proceeding pro se and in forma pauperis, Rosemary A. Gilroy

brought suit against Ameriquest Mortgage Company ("Ameriquest")

and Ameriquest Mortgage Company Mortgage Services, Inc. ("AMC

Services"), alleging predatory lending practices in violation of

New Hampshire law. On preliminary review, the magistrate judge

ordered service on the defendants. Gilroy has moved for summary

judgment, and the defendants object.

Background

Gilroy filed her pro se complaint in March of 2007. Her

motion to proceed in forma pauperis was granted on March 23,

2007. On July 23, the magistrate judge completed preliminary

review and issued an order for service to be made on the

defendants. Counsel filed an appearance on behalf of both

defendants on July 30, 2007.

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A return of service, executed, was filed on September 9,

2007, as to Ameriquest, and a return of service, unexecuted, was

filed for AMC Services. Gilroy was ordered to provide the court

with a current address for AMC Services. On September 14, 2007,

Ameriquest and AMC Services both moved for an extension of time

to file their answers, even though AMC Services had not yet been

served, citing Gilroy's bankruptcy proceedings and a conditional

transfer order from the Multidistrict Litigation Panel ("MDL

Panel") in Illinois. Ameriquest stated in its motion that its

answer was due on Friday, September 28, 2007. 

On September 13, Gilroy filed a notice that she objected to

having her case combined with similar cases against Ameriquest in

multidistrict litigation. The MDL Panel responded on September

20 that the parties would have an opportunity to brief the

matter, which would be considered at a later time, and that

jurisdiction would continue in New Hampshire unless and until the

case was transferred to the MDL proceeding in the District of 

Illinois. 

On October 11, the magistrate judge denied Ameriquest's and

AMC Services's motions to extend the time to file answers to

Gilroy's complaint. A return of service, executed, for AMC

Services was filed on November 5, 2007. Ameriquest and AMC

Services filed a joint answer to the complaint on November 7,

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without seeking leave for Ameriquest to file its answer more than

a month late.

Gilroy moved for summary judgment on her claims against

Ameriquest, asserting that Ameriquest's answer was untimely filed

because its motion for an extension of time had been denied. In

her motion for summary judgment and in a separately filed

opposition, Gilroy objected to the jointly filed answer. She

asked the court to enter judgment in her favor against

Ameriquest. Ameriquest filed an objection to Gilroy's motion,

recognizing that Gilroy sought default under Federal Rule of

Civil Procedure 55 but opposing the motion on the ground that it

did not satisfy the requirements of Federal Rule of Civil

Procedure 56.

On December 7, 2007, Ameriquest and AMC Services moved for

an extension of time to file their answers until November 7, the

date when their answers were filed. They acknowledged that

although no default had been entered, Rule 55 nevertheless

applied. Ameriquest and AMC Services explained the circumstances

of Ameriquest's late answer and argued that any delay has not

been prejudicial to Gilroy. The magistrate judge granted the

motion on December 21, 2007. On the same day, the MDL Panel sent

notice that the conditional transfer notice had been vacated.

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Discussion

Although Gilroy's pending motion is titled a motion for

summary judgment, Gilroy challenges Ameriquest's late-filed

answer and seeks judgment in her favor based on the untimely

filing. As the procedural history of this case shows, after

Gilroy filed her motion, Ameriquest and AMC Services sought to

rectify Ameriquest's untimely filing by seeking an extension of

time. In that motion, Ameriquest and AMC Services addressed the

good cause requirements for setting aside a default under Federal

Rule of Civil Procedure 55(c). Their motion has been granted.

Because Ameriquest's answer is no longer untimely, the

grounds for Gilroy's motion have been removed by subsequent

events. 

Conclusion

For the foregoing reasons, the plaintiff's motion for

summary judgment (document no. 23) is denied as moot.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 11, 2008

cc: William J. Amann, Esquire

Rosemary A. Gilroy, Esquire

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