Anglin v. New Residential Mortgage LLC et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLARENCE ANGLIN 	CIVIL ACTION
VERSUS 	NO: 24-2545
NEW RESIDENTIAL
MORTGAGE, LLC ET AL. 	SECTION “H”
ORDER AND REASONS
Before the Court are Navy Federal Credit Union’s Motion to Dismiss
(Doc. 22); NewRez LLC’s Motion to Dismiss (Doc. 29); Caliber Home Loans Inc.
and New Residential Mortgage LLC’s Motion to Set Aside Default (Doc. 33);
and New Residential Mortgage LLC’s Motion to Dismiss (Doc. 34). For the
following reasons, Defendant Navy Federal Credit Union’s Motion to Dismiss
is DENIED; Defendant NewRez LLC’s Motion to Dismiss is GRANTED;
Defendants Caliber Home Loans Inc. and New Residential Mortgage LLC’s
Motion to Set Aside Default is GRANTED; and Defendant New Residential
Mortgage LLC’s Motion to Dismiss is GRANTED IN PART and DENIED IN
PART.
BACKGROUND
Plaintiff Clarence Anglin filed this pro se action alleging that a check
issued by his loan servicer for property damage that his home sustained as a
result of Hurricane Ida was sent to the wrong address, stolen by a third party,
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and deposited with forged endorsements. Plaintiff has named as Defendants
his loan servicer, Caliber Home Loans Inc. (“Caliber”); the bank that issued the
check, Bank of America, N.A. (“BANA”); the bank with which the check was
deposited, Navy Federal Financial Group, LLC (“Navy Federal”); and the
successor loan holder, New Residential Mortgage, LLC (“NRM”), and servicer,
NewRez, LLC (“NewRez”). On June 16, 2025, this Court granted BANA’s
Motion to Dismiss the claims against it, holding that Plaintiff’s claims are
preempted by the Uniform Commercial Code (“UCC”) and the UCC precludes
his claim against BANA.
Now before the 	Court are Defendant 	Navy Federal 	Credit Union’s
Motion to Dismiss; Defendant NewRez LLC’s Motion to Dismiss; Defendants
Caliber and NRM’s Motion to Set Aside Default; and Defendant NRM’s Motion
to Dismiss. Plaintiff has responded to only two of these pending Motions. The
Court will consider each motion in turn.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.”1 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”2
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”3 The court need not, however,
1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 547 (2007)).
2 Id.
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
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accept as true legal conclusions couched as factual allegations.4 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
plaintiff’s claims are true.5 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the 	court 	must 	dismiss 	the 	claim.6 The 	court’s 	review 	is 	limited 	to 	the
complaint and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.7
LAW AND ANALYSIS
A. Navy Federal’s Motion to Dismiss
First, 	Navy 	Federal 	moves 	to 	dismiss 	Plaintiff’s 	claims 	against 	it,
arguing that he has not pleaded facts upon which relief can be granted.
Specifically, it argues that it owes Plaintiff no duty. Plaintiff has not responded
to Navy Federal’s Motion.
Plaintiff’s Complaint alleges that Navy Federal is the bank where the
fraudulently endorsed check was deposited. He argues that Navy Federal
failed to inspect the check at the time of deposit, identify alterations, or
recognize that the transaction was unusual for its banking customer. As a
result, the fraudulently endorsed check was processed and the amount was
withdrawn from Plaintiff’s escrow account.
As Navy Federal points out, Plaintiff’s claims are preempted by the UCC.
Under Louisiana law, UCC preemption is “fairly expansive, encompassing
4 Iqbal, 556 U.S. at 678.
5 Id.
6 Lormand, 565 F.3d at 255–57.
7 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
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preemption of any additional claim that is inconsistent not only with the text
of the UCC, but also with its overarching ‘purposes and policies.’”8 “While other
Louisiana law can supplement the UCC, if there is any conflict or inconsistency
with the UCC, 	the 	UCC 	governs.”9 Article 3 	of 	the 	UCC addresses 	the
transaction at issue, applying to “negotiable instruments,” such as checks.10
Accordingly, it is well-settled that “[t]he UCC displaces the Louisiana law
applicable to negligent acceptance, payment, or presentment of a forged check
by a depositary bank prior to its enactment.”11 Plaintiff’s claim is properly
characterized 	as 	conversion 	of 	an 	instrument 	under 	Louisiana 	Revised
Statutes § 10:3-420.
Despite correctly pointing out that the UCC preempts state law, Navy
Federal then argues that Plaintiff’s claim should be dismissed because it did
not owe him a duty under Louisiana negligence law.12 The correct analysis,
however, is whether Navy Federal owed Plaintiff a duty under Louisiana’s
UCC law. The UCC plainly imposes duties of good faith and ordinary care on
8 Mid-S. Metals, LLC v. Rodriguez, No. CV 24-1150, 2025 WL 1005051, at *2 (W.D.
La. Apr. 3, 2025).
9 Id.
10 LA. REV. S TAT. §§ 10:3-102; 10:3-404.
11 Innovative Hosp. Sys., L.L.C. v. Abe’s Inc., 52 So. 3d 313, 316 (La. App. 3 Cir. 2010).
12 Navy Federal cites only to Guidry v. Bank of LaPlace, 954 F.2d 278, 282 (5th Cir.
1992) and Shreveport Prod. Credit Ass’n v. Bank of Com., 405 So. 2d 842, 845 (La. 1981),
which discuss transactions that occurred prior to Louisiana’s adoption of the UCC.
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banks.13 Navy Federal has not put forth any other argument for dismissal.
Accordingly, its Motion to Dismiss is denied.
B. NewRez LLC’s Motion to Dismiss
Next, 	NewRez 	moves 	to 	dismiss 	Plaintiff’s 	claim 	of 	fraudulent
misrepresentation against it, arguing that he has not pleaded facts upon which
relief can be granted. In his Complaint, Plaintiff alleges that his home loan
was transferred from Caliber to NewRez during the investigation into the
fraudulently endorsed check. The Complaint asserts conclusory allegations
against NewRez, including that it was “dishonest” in providing information to
BANA regarding the check and in communicating with Plaintiff regarding the
BANA investigation. Plaintiff alleges that NewRez “acted with the intent to
deceive and deliberately misrepresented facts and information with the intent
to gain an unauthorized financial advantage.”14
Federal Rule of Civil Procedure 9(b) requires that “[i]n alleging fraud or
mistake, 	a 	party 	must 	state 	with 	particularity 	the 	circumstances
constituting fraud or mistake.” Fifth Circuit precedent “interprets Rule 9(b)
strictly, requiring the plaintiff to ‘specify the statements contended to be
fraudulent, identify the speaker, state when and where the statements were
made, 	and 	explain 	why 	the 	statements 	were 	fraudulent.’”15 	Plaintiff’s
Complaint does not meet this standard.
That said, Plaintiff has included additional facts in his opposition to
NewRez’s motion that, if alleged, could state a claim. Specifically, Plaintiff
13 LA. REV. S TAT. § 10:4-103.
14 Doc. 1.
15 Flaherty & Crumrine Preferred Income Fund, Inc. v. TXLI Corp., 565 F.3d 200, 207
(5th Cir. 2009) (quoting Smallwood v. Pearl Brewing Co., 489 F.2d 579, 605 (5th Cir. 1974)).
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alleges that NewRez acted as an agent for Caliber and that both companies
provided 	“constant 	reassurance that 	the funds 	would be returned.”16 He
contends that NewRez and Caliber represented that they would timely file a
claim for return of funds with BANA. He alleges that the Defendants delayed
for 	nearly 	a 	year 	in 	submitting 	the 	claim 	to 	BANA, 	resulting 	in 	its
determination not to reimburse the funds. Plaintiff alleges that he relied to his
detriment on Defendants’ representations that they were working on resolving
the issue and that it would be corrected either by BANA, Caliber, or NewRez.
Accordingly, while Plaintiff’s Complaint fails to state a claim, the Court will
allow Plaintiff leave to amend his Complaint to add additional facts supporting
his claim against NewRez. NewRez’s Motion to Dismiss is granted.
C. NRM and Caliber’s Motion to Set Aside Default
NRM and Caliber have moved for an order setting aside the default
entered against them. On February 24, 2025, the Court received returns of
service 	for 	Defendants 	Caliber 	and 	NRM. 	The 	returns 	show 	that 	both
defendants were served through CT Corporation on February 3, 2025. Both
Defendants failed to respond, and on September 11, 2025, Plaintiff moved for
entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.
The Court entered default on September 16, 2025. On September 23, 2025, CT
Corporation issued a Notice of Rejected Service of Process in regards to the
order of entry of default. The next day, counsel enrolled on behalf of NRM,
16 Doc. 36.
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Caliber, and NewRez. The instant Motion to set aside default was filed on
October 24, 2025.
Rule 55(c) permits the trial court to set aside an entry of default for “good
cause.”17 To determine whether “good cause” has been shown, a district court
should consider (1) whether the default was willful; (2) whether granting the
motion would prejudice the non-moving party; and (3) whether a meritorious
defense is presented.18 These factors, however, are not “talismanic” and the
Court may consider others such as whether the public interest was implicated,
whether there was significant financial loss to the defendant, and whether the
defendant acted expeditiously to correct the default.19 In deciding a Rule 55(c)
motion, the Court is mindful that default judgments are generally disfavored
by the law and that any doubt should be resolved in favor of the movant.20
Defendants ask the Court to set aside default because NRM was not
properly served and the failure to appear was not willful. First, NRM argues
that CT Corporation is not its registered agent for service of process and there
is no evidence that its proper registered agent, Corporation Service Company
(“CSC”) 	was 	served. 	As 	for 	Caliber, 	its 	default 	was 	the 	result 	of
miscommunication and human error in which the service “fell through the
cracks.”21 In any event, Movants argue, they acted immediately to appear in
the matter after receiving notice of the entry of default and that Plaintiff is not
prejudiced by setting aside the default. Each Defendant also contends that it
17 FED. R. CIV. P. 55(c).
18 Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000).
19 Dierschke v. O’Cheskey, 975 F.2d 181, 184 (5th Cir. 1992).
20 See Lacy, 227 F.3d at 292.
21 Doc. 33-2 at 4.
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has a meritorious defense, evidenced in part by NRM’s pending Motion to
Dismiss. Plaintiff has not opposed this Motion.
The Court finds that the balance of Rule 55(c) factors weighs in favor of
setting aside default in this matter. First, the default was not willful. NRM
contends it did not receive notice of the lawsuit, and Caliber’s failure to timely
answer was due to some confusion and miscommunication on the part of its
attorneys. Second, any potential prejudice Plaintiff may suffer as a result of
setting aside default is negligible. The matter is in its infancy, and the Court
has 	not 	set 	any 	deadlines 	or 	a 	trial 	date. 	Third, 	the 	Court 	notes 	that
Defendants acted expeditiously to correct the default, enrolling counsel and
moving 	to 	set 	aside 	the 	default 	within 	a 	month. 	Given 	the 	foregoing,
Defendants have established the good cause necessary under Rule 55(c) to set
aside default. Accordingly, the Motion is granted, and the entry of default
against Defendants shall be set aside.
D. NRM’s Motion to Dismiss
Finally, NRM has moved to dismiss the claims against it for improper
service and failure to state a claim. Plaintiff has opposed.
As to improper service, NRM alleges that Plaintiff served his Complaint
on CT Corporation, but its registered agent for service of process is CSC. The
proof of service filed into the record shows service by a process server on an
employee of CT Corporation “designated by law to accept service of process on
behalf” of NRM on February 3, 2025. In his opposition to this Motion, Plaintiff
attaches a copy of the Louisiana Secretary of State website that he contends
was printed around the time of service showing CT Corporation as NRM’s
agent for service of process. However, a search of the Louisiana Secretary of
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State website shows that CSC was appointed as NRM’s registered agent on
December 4, 2024.22 Accordingly, service on CT Corporation in February 2025
was improper.
“Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim
if service of process was not timely made in accordance with Federal Rule of
Civil Procedure 4 or was not properly served in the appropriate manner.”23 “In
the absence of valid service of process, proceedings against a party are void.”24
Rule 4(m) provides in part:
If a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its 	own after notice 	to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
“To establish good cause, a litigant must demonstrate at least as much as
would be required to show excusable neglect, as to which simple inadvertence
or mistake of counsel or ignorance of the rules usually does not suffice.”25
The Court finds that Plaintiff has shown good cause for his failure to
timely and properly serve NRM. NRM changed its registered agent for service
of process after Plaintiff filed his Complaint but before service could be
effected. Plaintiff’s efforts in serving NRM’s previously listed registered agent,
22 Courts may take judicial notice of public records maintained by the secretary of
state because their accuracy “cannot reasonably be questioned.” Swindol v. Aurora Flight
Scis. Corp., 805 F.3d 516, 519 (5th Cir. 2015).
23 Wallace v. St. Charles Par. Sch. Bd., 2005 WL 1155770, at *1 (E.D. La. 2005).
24 Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th
Cir. 1981).
25 Sys. Signs Supplies v. U.S. Dep’t of Just., Washington, D.C., 903 F.2d 1011, 1013
(5th Cir. 1990) (internal quotations omitted).
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“coupled with his pro se status, arguably provide grounds for leniency in
considering the technical imperfections of service.”26 Further, CT Corporation
did not file its Notice of Rejected Service until after it was served with the entry
of default—more than seven months after the initial improper service—and
therefore Plaintiff did not know that service was improper in sufficient time to
remedy it. Accordingly, the Court will extend the time for service of process for
30 days so that Plaintiff can properly serve NRM. Plaintiff should file proof of
completed service in the docket. Failure to effect service within 30 days of this
Order will result in dismissal of Plaintiff’s claims against NRM without
prejudice.
Because the Court has determined that NRM has not been properly
served, it will not address Defendant’s alternative arguments for dismissal
premised on failure to state a claim at this time.27 NRM’s Rule 12(b)(6) Motion
to Dismiss is denied without prejudice to the right to reurge it after proper
service.
CONCLUSION
For the foregoing 	reasons, Defendant 	Navy Federal Credit Union’s
Motion to Dismiss is DENIED (Doc. 22); Defendant NewRez LLC’s Motion to
Dismiss is GRANTED (Doc. 29); Defendants Caliber Home Loans Inc. and
New Residential Mortgage LLC’s Motion to Set Aside Default is GRANTED
26 Id.
27 See Strausbaugh v. New Orleans VA Hosp., No. 19-740, 2020 WL 9213697, at *3
(S.D. Miss. Feb. 12, 2020).
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(Doc. 33); and Defendant New Residential Mortgage LLC’s Motion to Dismiss
is GRANTED IN PART and DENIED IN PART (Doc. 34).
IT IS FURTHER ORDERED that the entry of default against Caliber
Home Loans Inc. and New Residential Mortgage LLC is set aside (Doc. 21).
IT IS FURTHER ORDERED that Plaintiff shall have an extension of
30 	days 	from 	the 	date 	of 	this 	Order 	to 	properly 	serve 	Defendant 	New
Residential Mortgage LLC. Failure to timely effect proper service will result in
dismissal without prejudice of Plaintiff’s claims against 	New Residential
Mortgage LLC pursuant to Federal Rule 12(b)(5).
IT IS FURTHER ORDERED that Plaintiff shall file an Amended
Complaint within 30 days of this Order to the extent that he can remedy the
pleading deficiencies identified herein. Failure to timely file an amended
complaint will result in dismissal with prejudice of Plaintiff’s claims against
NewRez, LLC pursuant to Federal Rule 12(b)(6).
New Orleans, Louisiana this 29th day of December, 2025.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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