Foxwood Hills Prop. Owners Ass'n, Inc. v. 783-C, LLC (In re Foxwood Hills Prop. Owners Ass'n, Inc.), C/A No. 20-02092-HB

CourtUnited States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — District of South Carolina
Writing for the CourtHelen E. Burris, Chief US Bankruptcy Judge
Citation628 B.R. 891
Parties IN RE: FOXWOOD HILLS PROPERTY OWNERS ASSOCIATION, INC., Debtor(s). Foxwood Hills Property Owners Association, Inc., Plaintiff(s), v. 783-C, LLC et al., Defendant(s).
Docket NumberAdv. Pro. No. 20-80049-HB,C/A No. 20-02092-HB
Decision Date17 March 2021

628 B.R. 891

IN RE: FOXWOOD HILLS PROPERTY OWNERS ASSOCIATION, INC., Debtor(s).

Foxwood Hills Property Owners Association, Inc., Plaintiff(s),
v.
783-C, LLC et al., Defendant(s).

C/A No. 20-02092-HB
Adv. Pro.
No. 20-80049-HB

United States Bankruptcy Court, D. South Carolina.

Signed March 17, 2021


628 B.R. 893

Kyle A. Brannon, Julio E. Mendoza, Jr., Carl H. Petkoff, Nexsen Pruet, LLC, Columbia, SC, for Plaintiff(s).

Teri Callen, Columbia, SC, for Defendant James P. Kimball.

Michael Bland Dodd, The Dodd Law Firm LLC, Greenville, SC, for Defendant Sadie Investments.

James Logan, Logan & Jolly, LLP, Anderson, SC, for Defendant Oconee County FLC.

ORDER

Helen E. Burris, Chief US Bankruptcy Judge

THIS MATTER is before the Court on the pleading filed by Defendant Mason Thomas Porter seeking to be relieved of paying budget-based dues.1

On July 23, 2020, Plaintiff Foxwood Hills Property Owners Association, Inc. filed an Amended Complaint naming over 3,300 defendants, who are property owners of record within the Foxwood Hills Community. The Court issued a Summons for the Amended Complaint on August 4, 2020, requiring responses to the Amended Complaint be filed and served within thirty days of the issuance of the Summons (September 3, 2020). The Association employed American Legal Claim Services, LLC ("ALCS") – a claims noticing agent employed in this case under SC LBR 2081-12 – to serve the Summons and the Amended Complaint on the defendants. An Affidavit of Service of Demetrius Jenkins of ALCS, filed on August 13, 2020, attests that ALCS served the defendants with copies of the Summons and Amended Complaint on August 11, 2020, by First Class U.S. Mail, using their last known addresses.3 The Affidavit of Service indicates "Thomas M Porter" was served at 531 Kinston Loop, Westminster, SC 29693. The mailed

628 B.R. 894

Summons and Amended Complaint was returned as undeliverable for approximately 221 of the named defendants, which did not include Porter.

After numerous defendants, including Porter, failed to file a timely response to the Amended Complaint, the Association filed a Motion for Default Judgment against those defendants on October 13, 2020.4 On October 16, 2020, an entry of default was made since no timely answer or response was filed by some defendants, including Porter.5 After entry of default and further deliberation, on December 3, 2020, the Court granted the Association's Motion, in part, and entered a Default Judgment against some defendants, including Porter. The order states it "grants relief to the Association only against the Default Judgment Defendants," who were defined in that order and listed on Exhibit A attached to the Default Judgment.6 In relevant part, the Default Judgment granted the relief requested by ordering, among other things, that the Default Judgment Defendants, and the successors in ownership of their lots in the Foxwood Hills community, are each a member of the Association and are obligated to pay budget-based fees, dues, and assessments.

Over two months later, on February 16, 2021, Porter filed a pleading asserting he was not served with a copy of the Summons and Amended Complaint and requesting he be relieved of paying budget-based dues. The return address on Porter's pleading is 531 Kinston Loop Drive , Westminster, SC 29693. The Association objects to Porter's requested relief. In response, Porter filed an affidavit attesting that he did not receive a copy of the Summons or Amended Complaint and did not know of this lawsuit through other means until February 2021 when he filed his pleadings with the Court. The return address on the envelope for Porter's affidavit is 531 Kinston Loop Road , Westminster, SC 29693.

There are two sources of relief from a default judgment: Rules 59 and 60 of the Federal Rules of Civil Procedure.7 Bankruptcy Rule 9023 states that motions seeking relief under Rule 59 "to alter or amend a judgment shall be filed ... no later than 14 days after entry of judgment." Rule 55(c) provides "the court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b)." Under Rule 60(b) :

the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) ;

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated;
628 B.R. 895
or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

"A motion under Rule 60(b) must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c).

A "very strict interpretation of Rule 60(b) is essential if the finality of...

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1 practice notes
  • In re PT Bakrie Telecom TBK, Case No. 18-10200 (SHL)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • April 15, 2021
    ...to the most fundamental policies of the United States ." In re Fairfield Sentry Ltd. , 714 F.3d at 139. Thus, "even the 628 B.R. 891 absence of certain procedural or constitutional rights will not itself be a bar under [ Section] 1506." In re OAS , 533 B.R. at 104 (quoting Vi......
1 cases
  • In re PT Bakrie Telecom TBK, Case No. 18-10200 (SHL)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • April 15, 2021
    ...to the most fundamental policies of the United States ." In re Fairfield Sentry Ltd. , 714 F.3d at 139. Thus, "even the 628 B.R. 891 absence of certain procedural or constitutional rights will not itself be a bar under [ Section] 1506." In re OAS , 533 B.R. at 104 (quoting Vi......

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