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Wells Fargo Bank, N.A. v. Hendricks

United States District Court, Seventh Circuit

October 22, 2013

WELLS FARGO BANK, N.A. successor by Merger to Wells Fargo Bank Minnesota, N.A. f/k/a Norwest Bank Minnesota, N.A., as Trustee for First Franklin Mortgage Loan Trust Series 2004-Series 2004-FFH2 Asset Backed Certificates 2004-FFH2, Plaintiff,
v.
CHERRITA HENDRICKS a/k/a CHERRITA C. HENDRICKS, AMERIFIRST HOME IMPROVEMENT FINANCE CO., TARGET NATIONAL BANK, TOWNSHIP OF CASEYVILLE, WORLWIDE ASSET PURCHASING II, LLC Assignee of Bank of America, UNITED STATES OF AMERICA, UNKNOWN OWNERS, and NON-RECORD CLAIMANTS, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on plaintiff Wells Fargo Bank, N.A.'s ("Wells Fargo") Motion to Amend Complaint on its Face (Doc. 27) and Rule 55 Motion for Default Judgment (Doc. 28).

Wells Fargo asks the Court for leave to amend the complaint to correct the name of the original mortgagee pled in paragraph 5(d) of the Amended Complaint. It asks that this change be made "on its face, " which presumably means it wants the Court to strike through the incorrect mortgagee name and replace it with the actual mortgagee name. This is impossible in light of the Court's electronic filing system, which does not permit amendments by interlineation. However, the Court will allow Wells Fargo to file an amended complaint making the desired changes.

As for Wells Fargo's request for default judgment, it is premature in light of the fact that the Clerk of Court has not entered default pursuant to Federal Rule of Civil Procedure 55(a) against the defendants for whom default judgment is sought. Only after default has been entered pursuant to Rule 55(a) against a party is a default judgment under Rule 55(b) appropriate. It further appears a request for entry of default may be premature in light of the anticipated Second Amended Complaint, which will provide the defendants an opportunity to respond to that pleading.

For the foregoing reasons, the Court:

• GRANTS Wells Fargo's motion for leave to amend (Doc. 27) and ORDERS that Wells Fargo shall have up to and including November 8, 2013, to file a Second Amended Complaint making the changes requested in its motion; and
• DENIES Wells Fargo's motion for default judgment (Doc. 28).

IT IS SO ORDERED.


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