     Case: 15-20073       Document: 00513191884         Page: 1    Date Filed: 09/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 15-20073                            September 14, 2015
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
US BANK NATIONAL ASSOCIATION AS TRUSTEE, For the Registered
Holders of CSMC Asset-Backed Trust 2007-NC1 OSI, CSMC Asset-Backed
Pass-Through Certificates, Series 2007-NC1 OSI,

               Plaintiff - Appellee

v.

RUSSELL S. BUDNICK; COLLEEN DIANE DEVINE,

               Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-86


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendants-Appellants Russell S. Budnick and Colleen Diane Devine 1
defaulted on a home equity loan. Plaintiff-Appellee US Bank commenced a
judicial foreclosure action against Budnick and Devine in federal court.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 The record is inconsistent with respect to whether Devine’s name is spelled “Devine”
or “Divine.” For the sake of consistency, we will use the spelling in the case caption.
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Budnick and Devine failed to appear, so the district court granted a default
judgment in US Bank’s favor. Budnick and Devine subsequently moved to set
aside the default judgment pursuant to Federal Rule of Civil Procedure 60(b).
The district court denied the motion. We affirm.


                                            I.
      The court “may set aside a final default judgment under Rule 60(b),” 2
which authorizes the court to “relieve a party or its legal representative from
a final judgment, order, or proceeding” if certain prerequisites are met. 3 “We
review a district court’s decision to grant or deny relief pursuant to Rule 60(b)
for abuse of discretion.” 4 “Under this standard, the district court’s ruling is
‘entitled to deference,’ but we review de novo ‘any questions of law underlying
the district court’s decision.’” 5


                                            II.
       Budnick and Devine first argue that the district court should have
granted relief pursuant to Rule 60(b)(4), which authorizes relief from a void
judgment. According to Budnick and Devine, the default judgment is void
because US Bank failed to effectively serve them with legal process.




      2  FED. R. CIV. P. 55(c).
      3  FED. R. CIV. P. 60(b).
       4 Frew v. Janek, 780 F.3d 320, 326 (5th Cir. 2015) (citing League of United Latin A.

Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 437 (5th Cir. 2011)).
       5 Id. (quoting Frazar v. Ladd, 457 F.3d 432, 435 (5th Cir. 2006)).

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       “If a court lacks jurisdiction over the parties because of insufficient
service of process, the judgment is void and the district court must set it
aside.” 6 However, a party may waive service of process. 7
       US Bank at least attempted to personally serve Budnick and Devine
pursuant to Federal Rule of Civil Procedure 4(e), but the record contains
conflicting evidence regarding whether that attempt ultimately succeeded. The
district court never made factual findings to resolve those evidentiary conflicts.
Nonetheless, even assuming arguendo that US Bank never successfully served
Budnick and Devine, the record unequivocally establishes that Budnick and
Devine explicitly agreed not to raise any objections to service of process.
Shortly after US Bank’s process server attempted to serve Budnick and
Devine, Budnick and Devine sent US Bank’s counsel the following e-mail:
       [D]ue to the fact that service of process is defective and therefore
       not proper and legal/lawful notice as required by law, we are
       willing to overlook this defective service of process provided that
       you and your client US BANK, NA., agree to provide us with an
       adequate extention [sic] of time to respond to this Civil Action
       properly.

The record contains no indication that US Bank had previously asked Budnick
and Devine to waive service of process; Budnick and Devine’s offer to “overlook”
any alleged defects in service was therefore unsolicited. US Bank’s counsel
promptly responded: “In your e-mail, you don’t say how long of an extension
you’re looking for. When do you and your wife want to file your response?”
Budnick and Devine replied, “We would like to file a response by March 20,
2014.” US Bank’s counsel responded, “OK.” In reliance on its agreement with



       6  See Thompson v. Deutsche Bank Nat’l Trust Co., 775 F.3d 298, 306 (5th Cir. 2014)
(quoting Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir.
1986)).
        7 See Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1140 (5th Cir.), cert.

denied, 451 U.S. 1008 (1981).
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Budnick and Devine, US Bank did not ask the district court to enter a default
against Budnick and Devine or move for a default judgment until July 9, 2014.
      Budnick and Devine argue that their agreement is unenforceable
because it does not comply with Federal Rule of Civil Procedure 4(d)(1)’s
requirements for waiver of service. 8 We disagree. Rule 4(d)(1), by its plain
terms, applies only when the “plaintiff . . . request[s] that the defendant waive
service of a summons.” 9 Budnick and Devine cite no authority for the
proposition that a waiver of service must comply with Rule 4(d)(1) when the
defendant, without any prior solicitation from the plaintiff, volunteers to waive
service in exchange for an extension of time. Nor has our independent research
revealed any such authority.
      In sum, Budnick and Devine promised to overlook any defects in service
of process. In exchange, US Bank accorded Budnick and Devine extra time to



      8   Specifically, the version of Rule 4(d)(1) effective until December 1, 2015 provides:

      The plaintiff may notify such a defendant that an action has been commenced
      and request that the defendant waive service of a summons. The notice and
      request must:
             (A) be in writing and be addressed:
                     (i) to the individual defendant; or
                     (ii) for a defendant subject to service under Rule 4(h), to an
                     officer, a managing or general agent, or any other agent
                     authorized by appointment or by law to receive service of
                     process;
             (B) name the court where the complaint was filed;
             (C) be accompanied by a copy of the complaint, two copies of a waiver
             form, and a prepaid means for returning the form;
             (D) inform the defendant, using text prescribed in Form 5, of the
             consequences of waiving and not waiving service;
             (E) state the date when the request is sent;
             (F) give the defendant a reasonable time of at least 30 days after the
             request was sent--or at least 60 days if sent to the defendant outside
             any judicial district of the United States--to return the waiver; and
             (G) be sent by first-class mail or other reliable means.

      9   FED. R. CIV. P. 4(d) (emphasis added).
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answer the complaint. Budnick and Devine broke that promise by raising a
service of process objection in their Rule 60(b) motion. The district court
therefore did not abuse its discretion by denying that motion.


                                            III.
       Budnick and Devine also argue that the district court should have
vacated the default judgment under Rule 60(b)(1), which permits the court to
relieve a party of a final judgment on the basis of “mistake, inadvertence,
surprise, or excusable neglect.” 10 Budnick and Devine do not explain how any
of those factors are present in this case, so they have abandoned this
argument. 11


                                            IV.
       Finally, Budnick and Devine argue that the district court should have
vacated the default judgment under Rule 60(b)(6), which permits the court to
set aside a judgment for any “reason that justifies relief” other than those
explicitly listed in Rule 60(b)(1)-(5). According to Budnick and Devine, they are
entitled to Rule 60(b)(6) relief because they have a valid statute of limitations
defense against US Bank’s claim.
       Rule 60(b)(6) permits relief from a final judgment only if “‘extraordinary
circumstances” exist. 12 No extraordinary circumstances are present here. If
Budnick and Devine had a viable statute of limitations defense, they could




       10FED. R. CIV. P. 60(b)(1).
       11See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008) (citing Cal. Gas
Transp., Inc. v. NLRB, 507 F.3d 847, 853 n.3 (5th Cir. 2007)).
      12 Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 501 (5th Cir. 2015) (quoting

Hesling v. CSX Transp., Inc., 396 F.3d 632, 642 (5th Cir. 2005)).
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have raised it before their time to file an answer had expired. 13 The district
court therefore did not abuse its discretion by denying Budnick and Devine’s
motion.
      AFFIRMED.




      13  We therefore need not resolve whether that defense had any merit under the facts
of this case.
                                            6
