Summary
granting default judgment against defendant despite entry of default judgment being returned as undeliverable
Summary of this case from Evans v. GavinOpinion
Civil Action No. 17-10401-MGM
01-23-2018
VOLVO FINANCIAL SERVICES, a division of VFS US LLC, Plaintiff, v. FREIGHTPORT, INC. and ALEKSANDR CHUDUK, Defendants.
MEMORANDUM AND ORDER REGARDING REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEDENDANTS FREIGHTPORT, INC. AND ALEKSANDR CHUDUK
(Dkt. Nos. 15 and 24)
This case stems from loans made by the plaintiff, Volvo Financial Services ("VFS") to defendant Freightport, Inc. and personally guaranteed by defendant, Aleksandr Chuduk ("Chuduk"). VFS loaned the money to enable Freightport to purchase three Volvo VNL64T trucks, with the trucks serving as security for the loans. When neither Freightport nor Chuduk made the required payments, VFS repossessed the trucks and sold them. They then attempted to collect the $121,190.67 deficiency between the principal loaned and the sales proceeds. When those efforts failed, VFS filed this suit. (Dkt. No. 1.) After several frustrated efforts to serve Chuduk, including a call between Chuduk and the process server and in-hand service to a person believed to be Chuduk's girlfriend, VFS requested permission to effectuate service by repeated publication in a local paper. Magistrate Judge Katherine A. Robertson, to whom this case was initially assigned, considered that request and found it sufficiently articulated to allow service by publication.
VFS filed its affidavit of service, a request for notice of default, and its Motion for Default Judgment. (Dkt. Nos. 12, 14, and 15.) The court mailed a copy of the clerk's entry of default to Freightport at the 203 Circuit Avenue address in West Springfield, Massachusetts provided in the complaint, but the mailing was returned as undeliverable. (Dkt. No. 19.) This court referred the Motion for Default Judgment to Magistrate Judge Robertson for a Report and Recommendation and Magistrate Judge Robertson has recommended the court grant the Motion for Default Judgment and enter judgment for the plaintiff in the amount of $155,559.37, with interest calculated at 18% from June 24, 2016 through the date of the judgment. The Report and Recommendation directed that parties had fourteen days to file any objections. Neither defendant filed an objection, though the court was unable to provide them with a copy of the Report and Recommendation because they have never responded to the summons despite service via publication and actual knowledge of the suit via the phone call between the process server Chuduk as well as the in-hand delivery of the summons and complaint to an individual believed to be Chuduk's girlfriend. Based on the material in the record, the court understands Chuduk's own efforts are what has prevented him from receiving notice of the Notice of Default and the Report and Recommendation.
The court has reviewed the Report and Recommendation, as well as the complaint and Plaintiff's motion. Upon de novo review, the court hereby ADOPTS Judge Robertson's Report and Recommendation, except that this court corrects a computation error and adjusts the amount of the judgment down to $127,578.40. (Dkt. No. 24).
The deficiency after the two sales were $28,156.04 and $93,034.63 for a total of $121,190.67. The Report and Recommendation incorrectly stated the sum as $149,171.64, an amount that included interest at 18% per annum from the date of the sale through October 11, 2017. (Dkt. No. 23 at ¶ 21.) The addition of $6,387.73 in attorneys fees and costs results in the correct total of $127,578.40. --------
The court, therefore, ALLOWS Plaintiff's Motion for Entry of Default Judgement (Dkt. No. 15). The Clerk is ordered to enter a judgment for Plaintiff in the amount of $127,578.40, with interest calculated at 18% from June 24, 2016 through the date of judgment. This case may now be closed.
It is So Ordered.
/s/ Mark G. Mastroianni
MARK G. MASTROIANNI
United States District Judge