Federal National Mortgage Association v. Home et al, No. 2:2011cv01227 - Document 57 (D. Ariz. 2012)
Court Description: ORDER re 50 Entry of Default, Final Judgment, and Permanent Injunction Order, 52 Order (granting attorneys' fees and in the amount of $70,192.50 and costs in the amount of $1,219.00), and 53 Notice of Lodging of Form of Judgment (with attached form of judgment); if Defendant wishes to seek relief from these orders, he shall do so on or before May 4, 2012. Signed by Judge David G Campbell on 4/5/12. (LSP)
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Federal National Mortgage Association v. Home et al 1 Doc. 57 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Federal National Mortgage Association, Plaintiff, 10 11 12 13 No. CV11-1227-PHX-DGC ORDER vs. Marshall Home; Independent Rights Party, Defendants. 14 15 The Court has received a document from Defendant Marshall Home titled 16 “Preliminary Report.” Doc. 56. The report accuses Plaintiff’s counsel of fraud and the 17 Court of misrepresenting its status. The report does not address other matters in this case. 18 Attached to this order are the following documents: Entry of Default, Final 19 Judgment, and Permanent Injunction Order (Doc. 50); Order (granting attorneys’ fees and 20 in the amount of $70,192.50 and costs in the amount of $1,219.00) (Doc. 52), and Notice 21 of Lodging of Form of Judgment (with attached form of judgment) (Docs. 53, 53-1). 22 Because it appears Defendant was incarcerated when each of these items was filed, he 23 may not have had notice of Plaintiff’s request for the orders. If Defendant wishes to seek 24 relief from these orders, he shall do so on or before May 4, 2012. 25 Dated this 5th day of April, 2012. 26 27 28 Dockets.Justia.com Case 2:11-cv-01227-DGC Document 52 Filed 01/03/12 Page 1 of 2 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Federal National Mortgage Association, Plaintiff, 10 11 ORDER vs. 12 No. CV11-01227-PHX-DGC Marshall E. Home; Independent Rights Party, 13 Defendants. 14 15 Plaintiff Federal National Mortgage Association (“Fannie Mae”) brought its 16 complaint (Doc. 1) after Defendants Marshall E. Home and Independent Rights Party 17 used the name “Federal National Mortgage Association” to execute special warranty 18 deeds transferring a number of Fannie Mae-owned properties to Defendants. 19 September 22, 2011, the Court entered default judgment against Defendants on all seven 20 counts, found Plaintiff entitled to statutory damages in the amount of $141,200, entered a 21 permanent injunction against Defendants, invalidated the special warranty deeds filed by 22 Defendants, and cancelled Home’s registration of the trade name “Federal National 23 Mortgage Association” with the Arizona Secretary of State. Doc. 50. The Court granted 24 Plaintiff’s request to seek attorneys’ fees in accordance with Local Rule of Civil 25 Procedure 54.2. Id. at 5. 26 27 28 On Plaintiff has filed a motion for attorneys’ fees and costs. Doc. 51. No response has been filed, and the time for filing one has passed. See LRCiv 54.2(b)(3). Case 2:11-cv-01227-DGC Document 52 Filed 01/03/12 Page 2 of 2 1 2 3 4 5 6 7 Plaintiff seeks $70,192.50 in attorneys’ fees and $1,219.00 in costs against Defendants pursuant to A.R.S. § 33-420(A). That section provides: A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property . . . reasonable attorney fees and costs of the action. A.R.S. § 33-420(A). 8 Given the default judgment against Defendants on all counts in the complaint, 9 including count three which alleged Defendants’ wrongful efforts to claim an interest in 10 and purport to hold title to the property evidenced by the special warranty deeds in 11 violation of A.R.S. § 33-420(A), Plaintiff clearly is entitled to a fee award under that 12 section. See Allied Mortg. Group, Inc. v. Peter Strojnik, P.C., No. CV-08-0376, 2009 13 WL 2581400 at *5 (Ariz. App. Aug. 20, 2009). Having reviewed Plaintiff’s supporting 14 memorandum (Doc. 51, at 3-11) and counsel’s declaration and statement of fees and 15 costs (Docs. 51-1, 51-2, 51-3), the Court finds the requested fees and costs to be 16 reasonable and appropriate. 17 IT IS ORDERED: 18 1. Plaintiff’s motion for attorneys’ fees and costs (Doc. 51) is granted. 19 2. Plaintiff is awarded attorneys’ fees in the amount of $70,192.50 and costs 20 21 in the amount of $1,219.00. Dated this 3rd day of January, 2012. 22 23 24 25 26 27 28 -2- Case 2:11-cv-01227-DGC Document 50 Filed 09/22/11 Page 1 of 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 FEDERAL NATIONAL MORTGAGE ASSOCIATION, 10 11 12 Plaintiff, CASE NO. CV11-1227-PHX DGC ENTRY OF DEFAULT, FINAL JUDGMENT, AND PERMANENT INJUNCTION ORDER v. 13 Marshall E. Home; Independent Rights Party, 14 Defendant. 15 This Court has considered the Motion for Entry of Default, Final Judgment, and 16 17 Permanent Injunction made by Plaintiff FEDERAL NATIONAL MORTGAGE 18 ASSOCIATION (“Fannie Mae”). When Defendants did not respond to the motion, the 19 Court entered an order requiring them to respond by September 9, 2011. Doc. 46. 20 Despite this additional time, Defendants have not answered the complaint, responded to 21 the motion, or otherwise complied with the Court’s orders. See Docs. 43, 47. Having 22 23 considered the Eitel factors and good cause appearing, the Court grants the Motion and 24 enters the following Final Judgment and Permanent Injunction. 25 IT IS ORDERED: 26 1. Plaintiff’s motion for entry of default is granted. 2. Default judgment is entered in favor of Plaintiff and against Defendants on -1- 27 28 DLA P IPER LLP (US) PHOENIX Case 2:11-cv-01227-DGC Document 50 Filed 09/22/11 Page 2 of 7 1 2 Counts One through Seven of the Complaint. 3. Plaintiff Fannie Mae is awarded $141,200.00 in statutory damages pursuant 3 to A.R.S. § 33-420(A) and 12 U.S.C. § 1723a(e). 4 5 6 7 4. Defendants and any others who may be in active concert or participation with them who receive actual or constructive notice of this Order, including, but not limited to, employees, members, agents, and spouses of Defendants, 8 9 10 are permanently enjoined from the following: (i) 11 Doing business under the names of “Federal National Mortgage Association,” “Fannie Mae,” “FNMA,” or any other confusingly 12 similar variation of the name “Federal National Mortgage 13 Association”; 14 15 (ii) 16 Executing any documents on behalf of “Federal National Mortgage Association,” “Fannie Mae,” “FNMA,” or any other confusingly 17 similar variation of the name “Federal National Mortgage 18 Association”; 19 20 (iii) Using the names “Federal National Mortgage Association,” “Fannie 21 Mae,” “FNMA,” or any other similar variation of the name “Federal 22 National Mortgage Association” in any capacity whatsoever; 23 24 (iv) Recording or causing to be recorded any special warranty deed or any 25 instrument attempting to convey title or impact property ownership 26 related to any property currently owned or hereinafter acquired by 27 Fannie Mae; 28 DLA P IPER LLP (US) PHOENIX -2- Case 2:11-cv-01227-DGC Document 50 Filed 09/22/11 Page 3 of 7 1 (v) 2 Holding themselves out as representatives, agents, or employees of “Federal National Mortgage Association,” “Fannie Mae,” “FNMA,” 3 or any other confusing similar variation of the name “Federal 4 National Mortgage Association”; 5 6 (vi) 7 Transferring the name “Federal National Mortgage Association” that Defendant Marshall Home registered with the Arizona Secretary of 8 State to any individual or entity, or taking any action regarding the 9 10 name “Federal National Mortgage Association” registered with the 11 Arizona Secretary of State; 12 (vii) Taking any action to further impact title to the real properties 13 referenced in the Complaint (with the exception of Properties No. 10 14 15 and 19 (see Doc. 36 at 2 n.1)) or any other real properties owned or 16 hereafter acquired by Fannie Mae. Such enjoined actions include, but 17 are not limited to, selling, conveying, financing, refinancing, 18 encumbering, leasing, or transferring title to any such properties; 19 (viii) Taking any other action to circumvent this Order and the rights of 20 21 22 Fannie Mae with regard to real properties owned by Fannie Mae. 5. Each of the Special Warranty Deeds filed and recorded by Defendants with 23 24 respect to the property listed on the Schedule of Properties attached hereto 25 as Exhibit A (the “Properties”) shall be and is hereby declared void and is 26 of no effect pursuant to A.R.S. § 33-420(A). Defendants shall execute a 27 separate Quit Claim Deed for each of the Properties and record each such 28 DLA P IPER LLP (US) PHOENIX -3- Case 2:11-cv-01227-DGC Document 50 Filed 09/22/11 Page 4 of 7 1 Quit Claim Deeds with the appropriate county recorder’s office on or before 2 August 19, 2011. Should Defendants fail to execute and record the Quit 3 Claim Deeds with the appropriate recorder’s office on or before September 4 5 30, 2011, each of the Special Warranty Deeds filed and recorded by 6 Defendants set forth in Exhibits F1-28 to the Complaint (excluding Exhibits 7 F10 and 19) shall be and are hereby declared void and of no effect pursuant 8 to A.R.S. § 33-420(A), and Plaintiff shall be entitled to thereafter record a 9 10 copy of this Order with the appropriate recorders’ offices to formally quiet 11 title to each of the Properties. Plaintiff’s filing of this Order with the 12 appropriate recorder’s office shall have the legal effect of judicially 13 transferring title of these Properties to Plaintiff and forever extinguishing 14 any claim to title that Defendants may make in or to any of the Properties. 15 16 6. 17 Defendant Marshall Home’s registration of the trade name “Federal National Mortgage Association” with the Arizona Secretary of State shall 18 and is hereby void and cancelled pursuant to 12 U.S.C. § 1723a(e). Within 19 20 five days of entry of this Order, Plaintiff shall provide a copy of this Order 21 to the Arizona Secretary of State. 22 7. Plaintiff is entitled to post-judgment interest at a rate of .19% from the date 23 judgment is entered until the date the judgment is paid pursuant to 18 U.S.C. 24 § 1961. 25 26 27 8. Plaintiff’s security bond shall be released by the clerk of the court upon entry of this Order. 28 DLA P IPER LLP (US) PHOENIX -4- Case 2:11-cv-01227-DGC Document 50 Filed 09/22/11 Page 5 of 7 1 9. 2 Plaintiff may file a motion for attorneys’ fees in accordance with Local Rule of Civil Procedure 54.2. Memoranda and supporting materials shall be filed 3 with the motion. 4 5 10. The Motion to Vacate (Doc. 48) is denied as moot. 6 Dated this 22nd day of September, 2011. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOENIX -5- Case 2:11-cv-01227-DGC Document 50 Filed 09/22/11 Page 6 of 7 EXHIBIT A SCHEDULE OF PROPERTIES 1. 17001 North 58th Way, Scottsdale, AZ 85254 2. 4205 East Molly Lane, Cave Creek, AZ 85331 3. 33621 North Rifleman, Cave Creek, AZ 85331 4. 11833 East Carol Avenue, Scottsdale, AZ 85259 5. 2019 West Wescott, Phoenix, AZ 85027 6. 5961 West Sack Drive, Glendale, AZ 85308 7. 14837 East Cerro Alto Drive, Fountain Hills, AZ 85268 8. 6711 North 19th Street, Phoenix, AZ 85016 9. 6087 North 85th Drive, Glendale, AZ 85305 10. 7615 West Crocus Drive, Peoria, AZ 85381 11. 15416 West Mercer Lane, Surprise, AZ 85379 12. 14262 West Shaw Butte Drive, Surprise, AZ 85739 13. 23258 North 88th Avenue, Peoria, AZ 85383 14. 9144 West Quail Avenue, Peoria, AZ 85382 15. 4529 East Renee Drive, Phoenix, AZ 85050 16. 6032 East Skinner, Cave Creek, AZ 85331 17. 4007 East Topeka Drive, Phoenix, AZ 18. 15252 West Banff Lane, Surprise, AZ 85379 19. 26220 North 40th Place, Phoenix, AZ 85050 20. 3051 West Mexico Street, Tucson, AZ 85746 21. 3225 East Mountainaire Drive, Tucson, AZ Case 2:11-cv-01227-DGC Document 50 Filed 09/22/11 Page 7 of 7 22. 3226 County Road 136, Saint Cloud, MN 23. 6207 West Winchomb Drive, Scottsdale, AZ 24. 1942 West 74th Street, Los Angeles, CA 90047 25. 10280 North 10th Avenue, Blythe, CA 26. 3330 South Gilbert Road, Unit 2091, Chandler, AZ Case 2:11-cv-01227-DGC Document 53 Filed 01/13/12 Page 1 of 3 1 2 3 4 5 6 7 8 Mark A Nadeau (Bar No. 011280) mark.nadeau@dlapiper.com Cynthia A. Ricketts (Bar No. 012668) cindy.ricketts@dlapiper.com Allison L. Kierman (Bar No. 024414) allison.kierman@dlapiper.com DLA PIPER LLP (US) 2525 East Camelback Road, Suite 1000 Phoenix, AZ 85016-4232 Tel: 480.606.5100 Fax: 480.606.5101 Attorneys for Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 12 FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, 13 14 15 CASE NO. 2:11-cv-01227-DGC NOTICE OF LODGING OF FORM OF JUDGMENT v. Marshall E. Home; Independent Rights Party, 16 Defendant. 17 18 Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION (“Fannie Mae”) 19 hereby files the attached Form of Judgment (Exhibit A) with the clerk of court, requesting 20 judgment be entered on the Court’s January 3, 2012 Order granting Fannie Mae’s motion 21 22 for attorneys’ fees and costs and awarding Fannie Mae attorneys’ fees in the amount of 23 $70,192.50 and non-taxable costs in the amount of $1,219.00 [Doc. 52] plus interest at the 24 rate of 12%. 25 26 27 28 DLA P IPER LLP (US) PHOENIX Case 2:11-cv-01227-DGC Document 53 Filed 01/13/12 Page 2 of 3 1 2 DATED this 13th day of January, 2012. DLA PIPER LLP (US) 3 4 5 6 7 By s/Allison L. Kierman MARK A NADEAU CYNTHIA A. RICKETTS ALLISON L. KIERMAN Attorneys for Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOENIX 2 Case 2:11-cv-01227-DGC Document 53 Filed 01/13/12 Page 3 of 3 1 2 3 4 5 CERTIFICATE OF SERVICE I hereby certify that on January 13, 2012, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing as well as via email. Marshall E Home 3051 W. Mexico St. Tucson, AZ 85746-2141 6 7 8 By: s/ Katherine Sieckman 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOENIX 3 Case 2:11-cv-01227-DGC Document 53-1 Filed 01/13/12 Page 1 of 3 EXHIBIT A Case 2:11-cv-01227-DGC Document 53-1 Filed 01/13/12 Page 2 of 3 1 2 3 4 5 6 7 8 Mark A Nadeau (Bar No. 011280) mark.nadeau@dlapiper.com Cynthia A. Ricketts (Bar No. 012668) cindy.ricketts@dlapiper.com Allison L. Kierman (Bar No. 024414) allison.kierman@dlapiper.com DLA PIPER LLP (US) 2525 East Camelback Road, Suite 1000 Phoenix, AZ 85016-4232 Tel: 480.606.5100 Fax: 480.606.5101 Attorneys for Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 12 FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, 13 14 15 16 CASE NO. 2:11-cv-01227-DGC JUDGMENT ON ATTORNEYS’ FEES v. Marshall E. Home; Independent Rights Party, Defendant. 17 18 Plaintiff FEDERAL NATIONAL MORTGAGE ASSOCIATION (“Fannie Mae”) 19 hereby requests the Clerk of Court enter Judgment in Fannie Mae’s favor and confirming 20 the Court’s January 3, 2012 Order granting Fannie Mae’s motion for attorneys’ fees and 21 22 costs [Doc. 52]. 23 Defendants Marshall E. Home and Independent Rights Party are hereby ordered to 24 pay Fannie Mae attorneys’ fees in the amount of $70,192.50 and non-taxable costs in the 25 26 27 28 DLA P IPER LLP (US) PHOENIX Case 2:11-cv-01227-DGC Document 53-1 Filed 01/13/12 Page 3 of 3 1 2 amount of $1,219.00. Interest shall accrue on the outstanding balance of these amounts at the rate of 12% from January 3, 2012 until paid in full. 3 4 DATED this ____th day of January, 2012. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOENIX 2
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