United States District Court, N.D. Georgia, Atlanta Division
ALOSTAR BANK OF COMMERCE INC, assignee of and successor in interest to Federal Deposit Insurance Corporation as receiver for Nexity Bank, Plaintiff,
GARETTE CHARLTON, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Alostar Bank of
Commerce (Inc)'s (“Alostar”) Motion for
Default Judgment by the Clerk of this Court Pursuant to
Fed.R.Civ.P. 55(b)(1) Against Defendant Garette Charlton
is a domestic banking corporation incorporated in Alabama
with its principal place of business in Birmingham, Alabama.
(Compl.  ¶¶ 1, 4(a)). Charlton is a citizen of
September 27, 2004, Charlton applied for and obtained a home
equity line of credit (“HELOC”) in the amount of
$76, 300 from Nexity Bank, Plaintiff's
predecessor-in-interest. ( ¶ 5; HELOC Agreement, Ex. A
[1.1]). The HELOC was secured by a deed to Charlton's
property located in Marietta, Georgia. ( ¶ 7; Deed to
Secure Debt, Ex. C [1.1]). On June 23, 2006, the HELOC was
renewed, and the line of credit was increased to $83, 000.
( ¶ 6; HELOC Renewal Agreement, Ex. B
October 2004 to December 2008, Charlton withdrew from the
HELOC a total principal balance of $75, 980.53. (Statement,
Ex. E [1.1]). Beginning February 5, 2016, Charlton became
delinquent on the payments. ( ¶ 9; Statement, Ex. E
Complaint alleges that Charlton owes (i) unpaid principal
balance in the amount of $75, 924.41; (ii) late fees of
$30.33; (iii) prejudgment interest at the rate of 3.25% per
annum; (iv) postjudgment interest; (v) court costs; and (vi)
attorneys' fees pursuant to O.C.G.A. § 13-1-11. (
¶ 13(a)-(h); Statement, Ex. E [1.1]).
4, 2016, Alostar filed this action to collect on debt owed
under the HELOC. (). On August 17, 2016, Alostar served
the Complaint on Charlton. (). Charlton failed to respond,
and no counsel appeared on his behalf.
September 23, 2016, Alostar filed its Motion for Clerk's
Entry of Default  based on Charlton's failure to
respond to the Complaint. Later that day, the Clerk entered
default against Charlton.
September 28, 2016, Alostar moved for default judgment.
55(b) of the Federal Rules of Civil Procedure provides that
default judgment may be entered against defaulting defendants
(1) By the Clerk. If the
plaintiff's claim is for a sum certain or a sum that can
be made certain by computation, the clerk-on the
plaintiff's request, with an affidavit showing the amount
due-must enter judgment for that amount and costs against a
defendant who has been defaulted for not appearing and who is
neither a minor nor an incompetent person.
(2) By the Court. In all other
cases, the party must apply to the court for a default
judgment. . . . If the party against whom a default judgment
is sought has appeared personally or by a representative,
that party or its representative must be served with written
notice of the application at least 7 days before the hearing.
The court may ...