United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Gateway One Lending
& Finance, LLC's (“Plaintiff”) Motion for
Entry of Default Judgment  (the “Motion”).
Golden Auto Brokers Incorporated a/k/a Auto Brokers, Inc.
(“Golden Auto”) owns and operates an automobile
dealership in Atlanta, Georgia. (Amended Complaint  ¶
10). Ray Maurice Hamilton (“Hamilton”) (together
with Golden Auto, “Defendants”) is the principal
owner of, and Finance Manager for, Golden Auto.
(Id.). Golden Auto sells motor vehicles to consumers
pursuant to motor vehicle installment sales contracts. (
¶ 11). The motor vehicle installment sales contracts are
then approved and purchased by finance companies, such as
Plaintiff. (Id.). The finance companies
contemporaneously receive assignment of the motor vehicle
installment sales contracts. (Id.).
about October 4, 2012, Golden Auto and Plaintiff entered into
a Dealer Agreement (the “Dealer Agreement”). (
¶ 12). The Dealer Agreement established a relationship
in which Golden Auto submitted to Plaintiff, for purchase,
“contract and/or security agreements evidencing
installment sales of goods and/or services to [b]uyers,
including their successors in interest, in connection with
the retail credit sales of motor vehicles.”
(Id.; see also  ¶ 12; [9.1]).
Hamilton signed the Dealer Agreement on behalf of Golden
Auto. ( ¶ 13).
Dealer Agreement sets forth the terms, conditions, and
warranties under which Plaintiff could purchase the motor
vehicle installment sales contracts from Golden Auto. (
¶ 14). Under the Dealer Agreement, Golden Auto
represented and warranted to Plaintiff that Golden Auto had
the right to sell the motor vehicles that were the subject of
the motor vehicle installment sales contracts. ( ¶
15). Golden Auto also made the following representations and
warranties under the Dealer Agreement: (i) that the motor
vehicles sold under the motor vehicle installment sales
contracts were free from all liens and encumbrances except
those in favor of Plaintiff; (ii) that the motor vehicle
installment sales contracts were valid and enforceable; (iii)
that Golden Auto was unaware of any facts indicating the
motor vehicle installment sales contracts were uncollectable;
and (iv) that the motor vehicle installment sales contracts
arose from a bona fide sale in the ordinary course of
business. ( ¶ 16). Golden Auto's failure, for any
reason, to perfect Plaintiff's first priority lien
interest in a vehicle within 120 days of the date of
execution of the motor vehicle installment sales contract
would mean Golden Auto was in breach of the Dealer Agreement.
( ¶ 17).
late 2012 and late 2014, Plaintiff purchased from Golden Auto
numerous motor vehicle installment sales contracts pursuant
to the Dealer Agreement. ( ¶ 18). Beginning in
mid-2014, Golden Auto submitted, and Gateway One purchased,
seven motor vehicle installment sales contracts under the
Dealer Agreement, including the Wakely Contract [9.2], the
Moore Contract [9.3], the Cleveland Contract [9.4], the
Gordon Contract [9.5], the Howard Contract [9.6], the Carter
Contract [9.7], and the Mordica Contract [9.8] (collectively,
the “Contracts”). The Contracts are the subject
of this dispute.
20, 2015, Plaintiff filed its Complaint  asserting seven
counts of breach of contract and two counts of fraud. The
seven counts of breach of contract correspond to each of the
seven Contracts. Plaintiff generally asserts Defendants
failed to secure a perfected first priority lien interest in
favor of Plaintiff and failed to deliver clean title to the
vehicles that are the subject of the Contracts. ( at 10-18).
Plaintiff also claims that Defendants fraudulently
represented that they would perfect a lien interest in favor
of Plaintiff for those vehicles that are the subject of the
Contracts, and that Defendants represented they would do so
within 120 days of the date of execution of each Contract.
( at 18-21). Plaintiff claims that, by submitting the
Contracts, Defendants represented that they could, and would,
convey “good title” and a “perfected lien
interest” in favor of Plaintiff for the vehicles.
(Id.). Plaintiff seeks, in addition to damages,
attorney's fees under O.C.G.A. § 13-1-11 and §
13-6-11. ( at 21-23).
31, 2015, Defendants were served with the summons and
Complaint. (). On August 14, 2015, upon Plaintiff's
request, the Clerk entered default. On May 31, 2016,
Plaintiff filed its initial Motion for Default Judgment 
(“First Default Motion”). On September 22, 2016,
the Court issued an order  (“September 22nd
Order”) directing Plaintiff to amend its Complaint to
adequately allege citizenship of the parties. On September
28, 2016, Plaintiff filed its Amended Complaint pursuant to
the Court's September 22nd Order. On December 28, 2016,
Plaintiff filed its second Motion for Default Judgment 
(“Second Default Motion”). On March 10, 2017, the
Court entered an order denying the Second Default Motion on
the grounds that Plaintiff failed to serve Defendants with
the Amended Complaint. On March 16, 2017, Plaintiff served
Defendants with the Amended Complaint. (). On March 31,
2017, Plaintiff requested the Clerk enter default. On April
3, 2017, the Clerk entered default. The same day, Plaintiff
submitted the Motion-its third Motion for Default Judgment.
Defendants have not filed a response to the Motion.
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 ...