PLUVIOSE
v.
PHH MORTGAGE

M.D. Fla. | 2025-05-02
No. 2:24-CV-988
2007 WL 2155581 2025 FFL 11576 District Court, M.D. Florida (2025) Positive Treatment
Cited by 3 cases

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Synopsis

Plaintiff Gerald Pluviose sought a clerk's default against PHH Mortgage and Rushmore Loan Management for failing to answer by the responsive pleading deadline. The court denied the motion because it had previously granted the defendants an extension of time to answer that had not yet expired, and the defendants had appeared and were actively defending the case.

Holding

Defendants were not in default because the court had granted them an extension of time to answer that had not yet expired, and they had appeared and were defending the case. Default requires a defendant's failure to respond or defend, not merely a failure to answer within the original timeframe.

Key Quotes

“The Rule does not contemplate the entry of default only upon a defendant's failure to answer, but rather upon a defendant's failure to respond or defend against the allegations in a complaint.”

Establishes that default requires failure to respond or defend, not merely failure to timely answer

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Facts & Procedural History

Plaintiff Gerald Pluviose filed a motion for clerk's default against two defendants, PHH Mortgage and Rushmore Loan Management. Plaintiff alleged that…

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Topics
Clerk'S Default

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Opinion of the Court

Plaintiff Gerald Pluviose moves for a clerk's default against two defendants-PHH Mortgage and Rushmore Loan Management (collectively "Defendants"). (Doc. 33.) According to Plaintiff, Defendants stand in default because they did not answer by the deadline for responsive pleadings. (Id.)

Plaintiffs motion fails because the Court granted Defendants an extension of time to answer the latest complaint (Doc. 32), which has not expired. Thus, Defendants are not in default. What is more, Defendants have appeared and are defending the case. See, e.g., Montecalvo v. Brandon Auto Clinic, Inc., No. 8:07-CV-851-T-30MSS, 2007 WL 2155581, at *1 (M.D. Fla. July 26, 2007) (“The Rule does not contemplate the entry of default only upon a defendant's failure to answer, but rather upon a defendant's failure to respond or defend against the allegations in a complaint.").

For these reasons, Plaintiffs Motion for Default (Doc. 33) is DENIED.

ENTERED in Fort Myers, Florida on May 2, 2025.

Kyle C. Dudek United States Magistrate Judge

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Pluviose v. PHH Mortg., 2007 WL 2155581 (M.D. Fla. 2025)
    …ime to answer the latest complaint (Doc. 32), which has not expired. Thus, Defendants are not in default. What is more, Defendants have appeared and are defending the case. See, e.g., Montecalvo v. Brandon Auto Clinic, Inc., No. 8:07-CV-851-T-30MSS, 2007 WL 2155581, at *1 (M.D. Fla. July 26, 2007) (“The Rule does not contemplate the entry of default only upon a defendant’s failure to answer, but rather upon a defendant’s failure to respond or defend against the allegations in a complaint.”). For th…
  • 209 W. Olympia, LLC v. Westchester Surplus Lines Ins. Co., 2007 WL 2155581 (M.D. Fla. 2025)
    …k’s default is not proper on these facts because Defendant has appeared and is defending against the claims by seeking to enforce an alleged settlement agreement. See, e.g., Montecalvo v. Brandon Auto Clinic, Inc., No. 8:07-CV-851-T-30MSS, 2007 WL 2155581, at *1 (M.D. Fla. July 26, 2007) (“The Rule does not contemplate the entry of default only upon a defendant’s failure to answer, but rather upon a defendant’s failure to respond or defend against the allegations in a complaint.”…
  • Noshirvan v. Couture (M.D. Fla. 2024)
    …not willful or the product of bad faith, as it believed SW's replacement would obviate the need to respond. (Doc. 85 at 5.) A clerk's default is not proper on such facts. See, e.g., Montecalvo v. Brandon Auto Clinic, Inc., No. 8:07-CV-851-T-30MSS, 2007 WL 2155581, at *1 (M.D. Fla. July 26, 2007) (“The Rule does not contemplate the entry of default only upon a defendant's failure to answer, but rather upon a defendant's failure to respond or defend against the allegations in a complaint."). Central Park South…

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