Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hardaway v. Litton Loan Servicing, LP

United States District Court, N.D. Mississippi, Oxford Division

September 17, 2018

PAUL HARDAWAY and JACQUELINE HARDAWAY PLAINTIFFS
v.
LITTON LOAN SERVICING, LP; OCWEN LOAN SERVICING, LLC; and RUSHMORE LOAN MANAGEMENT SERVICES, INC. DEFENDANTS

          OPINION AND ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         This real estate foreclosure action is before the Court on the defendants' separate motions to dismiss. Doc. #35; Doc. #37; Doc. #39.

         I

         Procedural Background

         On January 9, 2017, pro se plaintiffs Paul and Jacqueline Hardaway filed a “Complaint for Damages and Request for Temporary Injunction or Restraining Order, ” naming as defendants Litton Loan Servicing, LP, Ocwen Loan Servicing, LLC, and Rushmore Loan Management Services, Inc. Doc. #1. While the complaint purported to be filed by both Paul and Jacqueline, it was signed only by Paul. Id. at 5. On February 3, 2017, each of the defendants moved to dismiss the complaint for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5).[1]

         On April 11, 2017, the Hardaways filed proofs of service of the summonses on the defendants.[2] Doc. #13. The same day, without leave of the Court, the Hardaways filed a “First Amended Complaint for Damages and Request for Temporary Injunction or Restraining Order.” Doc. #14. On April 25, 2017, Ocwen and Litton filed a joint motion to strike the amended complaint. Doc. #17. Rushmore filed a motion to dismiss the amended complaint, Doc. #18, and a motion to strike it, Doc. #19. On May 9, 2017, the Hardaways filed proofs of service of summonses on the defendants.[3] Doc. #20. On May 30, 2017, United States Magistrate Judge Roy Percy granted the defendants' motions to strike the amended complaint. Doc. #22. Having struck the amended complaint, Judge Percy noted that “Plaintiffs' Complaint (Docket 1) will remain the active Complaint.” Id.

         Because the original complaint was signed only by Paul, this Court, on June 7, 2017, ordered the Hardaways to re-file the original complaint with both of their signatures or to file a stipulation of dismissal as to Jacqueline.[4] Doc. #23. On June 16, 2017, the Hardaways re-filed the complaint with both of their signatures. Doc. #25. That same day, the Hardaways also filed a motion for leave to amend their complaint, Doc. #26, attaching as an exhibit a proposed amended complaint, Doc. #26-1. Judge Percy denied the Hardaways' motion for leave to amend on July 21, 2017. Doc. #29.

         By order issued September 27, 2017, this Court, among other things, denied the defendants' motions to dismiss and afforded the Hardaways fourteen days to effect proper service of process on the defendants.[5] Doc. #30. Summonses were reissued on October 10, 2017, Doc. #31, and served on the defendants on October 11, 2017, Doc. #32. On November 1, 2017, Ocwen moved to dismiss under Rules 12(b)(5) and (6), Doc. #35; Litton moved to dismiss under Rules 12(b)(5) and (6), Doc. #37; and Rushmore moved to dismiss under Rules 4(m) and 12(b)(5), Doc. #39. The Hardaways did not respond to any of the motions to dismiss.

         II

         Analysis

         All of the defendants argue that dismissal is warranted under Rule 12(b)(5) because the Hardaways failed to serve on them the active complaint. Doc. #35 at 1; Doc. #37 at 1; Doc. #39 at 1-2.

         “‘When service of process is challenged, the serving party bears the burden of proving its validity or good cause' for failing properly to effect service.” Shabazz v. City of Hous., 513 Fed.Appx. 263, 264 (5th Cir. 2013) (quoting Sys. Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990). “The general rule is that a signed return of service constitutes prima facie evidence of valid service, which can only be overcome by strong and convincing evidence.” People's United Equip. Fin. Corp. v. Hartman, 447 Fed.Appx. 522, 524 (5th Cir. 2011) (alterations and quotation marks omitted).

         In support of their argument that service of process was insufficient, the defendants attached as exhibits to their respective motions a copy of what the Hardaways served them on October 11, 2017. These exhibits show that the Hardaways attached two complaints to the summonses-the original complaint, which was superseded by the June 16 complaint, and the proposed amended complaint, which was never accepted for filing.[6] Doc. #35-3; Doc. #37-3; Doc. #39-1. Because the Hardaways did not respond to the motions to dismiss, they have presented no evidence to dispute the content of these exhibits or to explain why they did not serve the active complaint on the defendants.

         “Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of process was not timely made in accordance with Federal Rule of Civil Procedure 4 or was not properly served in the appropriate manner.” Thomas v. New Leaders for New Sch., 278 F.R.D. 347, 349-50 (E.D. La. 2011). Rule 4 provides, in pertinent part, “A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed ….” Fed.R.Civ.P. 4(c)(1). Under this rule, “[t]he currently effective complaint must accompany summons. If the original complaint has been superseded by an amended complaint, service is ineffective if the original (rather than the amended) complaint is served.” Morris ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.