United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the plaintiff's Verified Statement
and Accounting Regarding Foreclosure Sale and Motion for
Entry of Judgment [ECF No. 21] (“Mot.”) filed on
December 1, 2016. The defendants have not filed a response or
otherwise made an appearance in this case. For the reasons
given below, the plaintiff's Motion is GRANTED.
April 22, 2016, the court entered its Amended Order [ECF No.
17], partially granting the plaintiff's Motion for
Default Judgment [ECF No. 13] to the extent it requested an
Order to permit the plaintiff to repossess and sell certain
secured collateral. Am. Order, April 22, 2016, at 8. In its
Amended Order, the court stated the following:
The court ORDERS that the plaintiff may sell the equipment in
its present condition or following any commercially
reasonable preparation or processing in accordance with W.Va.
Code § 46-9-610. The court ORDERS that every aspect of
the disposition of the equipment, including the method,
manner, time, place and other terms, must be commercially
reasonable. If commercially reasonable, the plaintiff may
dispose of the equipment by public or private proceedings, by
one or more contracts, as a unit or in parcels, and at any
time and place and on any terms. See W.Va. Code
. . .
The court ORDERS that the proceeds from any sale of the
equipment be held by the plaintiff's counsel, in trust.
Before the plaintiff may apply any proceeds to the
defendants' underlying obligations-including reasonable
attorney's fees, costs, expenses, interest, etc.-the
plaintiff must submit to this court a complete accounting.
The court ORDERS the plaintiff to submit this accounting on
or before August 15, 2016. Further, the plaintiff must submit
a statement regarding the commercial reasonableness of the
sale, as defined by West Virginia law, on or before August
Id. at 7-8. Nevertheless, the plaintiff failed to
submit the required information by August 15, 2016, and the
court ordered the plaintiff to show cause why it should not
be sanctioned for failing to comply with the court's
Order. See Order, Aug. 17, 2016 [ECF No. 18]. On
August 22, 2016, the plaintiff filed its Verified Statement
of Cause and Motion to Expand Time Frame by Ninety Days [ECF
No. 19]. The court subsequently granted the plaintiff's
motion and ordered that the foreclosure sale occur on or
before November 17, 2016. See Order, Sept. 9, 2016
[ECF No. 20]. Additionally, the court ordered the plaintiff
to submit an accounting and a statement regarding the
commercial reasonableness of the foreclosure sale on or
before December 1, 2016. Id. at 2.
plaintiff's present Motion and supporting documentation
was filed in compliance with the court's previous orders.
55(b)(2) of the Federal Rules of Civil Procedure prescribes
the procedure when a judgment is sought against a litigant in
default in situations that lie beyond the power delegated to
the Clerk under Rule 55(b)(1). Fed. R. Civ. P 55(b)(2).
“The court has discretion to decide whether to enter a
judgment by default, however, and Rule 55(b)(2) empowers the
district judge to hold hearings or ‘order such
references as it deems necessary and proper' to aid its
exercise of this discretion.” 10A Charles Alan Wright
& Arthur R. Miller, Federal Practice and
Procedure § 2684 (4th ed. 2016) (quoting
Fed.R.Civ.P. 55(b)(2)) (footnote omitted). “When a
judgment by default is entered, it generally is treated as a
conclusive and final adjudication of the issues necessary to
justify the relief awarded and is given the same effect as
between the parties as a judgment rendered after a trial on
the merits.” Id.
October 24, 2016, the plaintiff sent a Notice of Private Sale
to the defendants via Certified Mail, notifying the
defendants of the time and location of the sale and inviting
them to purchase the collateral. See Mot. Ex. 1, at
2 [ECF No. 21-1] (“Notice”). The collateral was
appraised before the sale, and the appraiser determined that
the fair-market, private-sale value of the collateral was
between $56, 000 and $69, 000. Mot. Ex. 3 [ECF No. 21-1]. On