Eviction and Ejection by Writ of Possession is not Excessive Force

KING, CARLOYN DINEEN, (MRS. REAVLEY)

SOUTHWICK, LESLIE H.

HO, JAMES C.

In this foreclosure case, the Bank is allowed to evict with a Writ of Possession the homeowners:

“After Ditech Financial, LLC, sued them for failing to make their home-mortgage payments, Dewayne Naumann and Theresa Gloier—husband and wife—failed to answer. Default judgment was entered, and the district court ordered foreclosure of Ditech’s lien on the couple’s house. In its judgment, the district court stated that an order of sale directing law enforcement to seize and sell the property should issue. The judgment also directed that a writ of possession should issue in favor of the purchaser at the sale, ordering law enforcement to eject from the property persons other than the purchaser.

On appeal, Naumann and Gloier seek vacatur of the default judgment. They claim that it exceeded the scope of relief requested in Ditech’s complaint, contravening Federal Rule of Civil Procedure 54(c)’s command that default judgments “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Specifically, they target the judgment’s provision for future issuance of a writ of possession in favor of the foreclosure-sale purchaser. We conclude, contra Naumann and Gloier, that the relief granted did not exceed Rule 54(c)’s strictures, and thus we AFFIRM.”

Before: KING, SOUTHWICK, and HO

Ditech Financial v Naumann