MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE.

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion for Default Judgment Against Defendant Shellpoint Mortgage Servicing, filed February 21, 2018 (Doc. 15)("Judgment Motion"); and (ii) Defendant New Penn Financial, LLC DBA Shellpoint Mortgage Servicing's Motion to Quash Service of Summons on Complaint, filed August 20, 2018 (Doc. 52)("Motion to Quash"). The Court held a hearing on August 22, 2018. The primary issues are: (i) whether Plaintiff Leonard Martinez properly served Defendant Shellpoint Mortgage Servicing with the Summons on Complaint for Violation of the Unfair Practices Act, Violation of the Real Estate Settlement Procedure Act ("RESPA"), Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, filed January 25, 2018 (Doc. 8)("Summons"), and Complaint for Violation of the Unfair Practices Act, Violation of the Real Estate Settlement Procedures Act ("RESPA"), Breach of Contract, and Breach of the Covenant of Good Faith and Fair Dealing, D-202-CV-2017-07661 (Second Judicial District Court, County of Bernalillo, State of New Mexico, filed October 25, 2017), filed in federal court December 5, 2017 (Doc. 1-1)("Complaint"), when he sent those documents via certified mail to the general payment address that was listed on the monthly mortgage statements that Shellpoint Mortgage gave Martinez; and (ii) if there was proper service, whether the Court should enter default judgment against Shellpoint Mortgage. The Court concludes that Martinez did not properly serve the Summons and the Complaint, because sending the Summons and Complaint to a general payment address does not satisfy rule 4 of the Federal Rules of Civil Procedure or rule 4 of the New Mexico Rules of Civil Procedure. Accordingly, the Court will not enter default judgment against Shellpoint Mortgage, it will deny the Judgment Motion, and it will grant the Motion to Quash.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint. The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely Martinez' version of events.

Martinez is a homeowner in Bernalillo County, New Mexico. See Complaint ¶¶ 5, 7, at 2. A mortgage mote secures the property Martinez owns at 34 Vallecitos, Tijeras New Mexico 87059. See Complaint ¶ 9, at 2. Defendants CitiMortgage, Inc. and Ditech Financial, LLC are prior servicers of the mortgage note, and Shellpoint Mortgage is the current servicer. See Complaint ¶¶ 10-12, at 2.

Around December, 2015, Martinez wanted to modify his loan agreement, so he entered a Trial Payment Plan ("TPP") with CitiMortgage, Inc. that, if he successfully completed, would qualify him for a loan modification. See Complaint ¶ 14, at 2. Martinez made his first four TTP payments in December, 2015, January, 2015, February, 2016, and April, 2016, respectively. See Complaint ¶ 16, at 2-3. In April, 2016, however, Martinez received a letter from CitiMortgage, Inc. stating that the "Repayment/Forbearance plan on your account has been removed." Complaint ¶ 19, at 3. CitiMortgage, Inc. subsequently transferred Martinez' loan to Ditech Financial. See Complaint ¶¶ 20-23, at 3. Although Martinez made several mortgage payments to Ditech Financial, Ditech Financial informed Martinez that he was not eligible for a loan modification and initiated foreclosure proceedings on Martinez' home. See Complaint ¶ 25, at 3. Despite those proceedings, Ditech Financial transferred the loan to Shellpoint Mortgage, which began servicing the loan on June 16, 2017. See Complaint ¶ 26, at 4. Shellpoint Mortgage did not recognize or honor the TPP that CitiMortgage, Inc. offered to Martinez. See Complaint ¶ 26, at 4.

Findings of Fact of Rule 12(b)(5) Motion

There are several factual issues in deciding the motion. The Court makes the following findings of fact:

1. On November 7, 2017, Martinez sent the Summons and Complaint via certified mail to Shellpoint Mortgage at: Shellpoint Mortgage Servicing, P.O. Box 740039, Cincinnati, Ohio, 45274-003. See Plaintiff's Response to Defendant New Penn Financial, LLC DBA Shellpoint Mortgage Servicing's Motion to Quash Service of Summons on Complaint, App. 1, filed August 21, 2018 (Doc. 52)("Motion to Quash Response").

2. The certified mail receipt was signed, and the envelope was stamped with a delivery date of November 7, 2017. See Exhibit 1, at 1, filed August 21, 2018 (Doc. 53).

3. Shellpoint Mortgage did not respond to the service or defend the action. See Affidavit of Eric N. Ortiz ¶¶ 4-5, at 1 (executed February 21, 2018), filed February 21, 2018 (Doc. 15)("Ortiz Aff.")(attesting that Shellpoint Mortgage has not defended in this action).

4. On July 19, 2018, Martinez corresponded with Shellpoint Mortgage via telephone to notify Shellpoint Mortgage that "he was going to court." Affidavit of Caroline Trinkley ¶ 12, at 3 (executed August 20, 2018), filed August 20, 2018 (Doc. 52)("Trinkley Aff.").

5. On August 10, 2018, Shellpoint Mortgage's "legal department was advised by co-defendant Ditech Financial, LLC ("Ditech")" of the Judgment Motion. Trinkley Aff. ¶ 13, at 3.

6. Shellpoint Mortgage filed the Motion to Quash on August 20, 2018. Motion to Quash, ¶ 21, at 7.

7. Shellpoint Mortgage uses the P.O. Box in Cincinnati, Ohio "for the sole purpose of collecting mortgage loan payments submitted by borrowers." Trinkley Aff. ¶ 8, at 2.

8. Shellpoint Mortgage does not maintain "any officers, managers, general agents or persons authorized by appointment or law to receive service of process" on its behalf at P.O. Box 740039 in Cincinnati, Ohio. Trinkley Aff. ¶ 9, at 2.

9. New Penn Financial, LLC does business as Shellpoint Mortgage. See Trinkley Aff. ¶ 2, at 1.

10. On June 19, 2015, Shellpoint Mortgage registered an agent for service of process in New Mexico. See Trinkley Aff. ¶ 10, at 3.

11. On the website for the Secretary of State of New Mexico, the registered agent is listed under entity name "New Penn Financial, LLC." See Search Information, at 1, filed August 20, 2018 (Doc. 52)(dated August 17, 2018).

12. The address for the registered agent is: 123 East Marcy St., Suite 101, Santa Fe, New Mexico, 87501. See Search Information, at 1.

13. The case presents a federal question as to whether Defendants violated the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-17 ("RESPA"). See Complaint ¶¶ 52-63, at 7-8.

PROCEDURAL BACKGROUND

Martinez sues, contending that Citi-Mortgage, Inc., Ditech Financial, and Shellpoint Mortgage violated the TPP Agreement, which specifies that, if Martinez makes three TPP payments, his loan will be modified. See Complaint ¶ 31, at 4; id. ¶ 45, at 6. He argues, under similar theories, that CitiMortgage, Inc., Ditech Financial, and Shellpoint Mortgage breached the implied covenant of good faith and fair dealing, and that CitiMortgage, Inc. violated the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-17 ("RESPA") and the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26 ("NMUPA"). Complaint ¶¶ 34-43, 47-63, at 4-8. CitiMortgage, Inc. removed the case to federal court, asserting that the Court had jurisdiction, because the Complaint presents a federal question. Notice of Removal ¶ 2, at 1, filed December 5, 2017 (Doc. 1)("Notice of Removal").

1. The Judgment Motion.

On February 21, 2018, Martinez filed the Judgment Motion, arguing that the Court should enter a default judgment against Shellpoint Mortgage, because he served Shellpoint Mortgage via certified mail on November 7, 2017, and Shellpoint Mortgage did not timely respond to that service. See Judgment Motion ¶¶ 2-4, at 1-2. According to Martinez, "`[w]hen a party... has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.'" Judgment Motion ¶ 5, at 2 (quoting Fed. R. Civ. P. 55(a)(emphasis in Judgment Motion)). Martinez concludes, thus, that, because Shellpoint Mortgage has not defended and because Martinez presents an affidavit attesting that Shellpoint Mortgage has not defended, the Court should enter default judgment against Shellpoint Mortgage. See Judgment Motion ¶ 6, at 2. See also Ortiz Aff.

2. Motion to Quash.

Shellpoint Mortgage moves to quash service of the Summons and Complaint, arguing that the address Martinez used for service is used "solely to collect mortgage payments in its regular course of business as a mortgage servicer." Motion to Quash at 2 (emphasis original). According to Shellpoint Mortgage, Martinez' use of that mailing address does not satisfy the federal or state servicing rules, because Martinez did not deliver the Summons and Complaint on an officer, manager, general agent, or any other agent authorized to accept service. See Motion to Quash at 5-6 (citing Fed. R. Civ. P. 4(e)(1), (h)(1); N.M. Rules Ann. 1-004(G)(1)(a)-(G)(3)). Shellpoint Mortgage adds that it was not aware of this action until August 14, 2018, when Ditech Financial contacted Shellpoint Mortgage about it. See Motion to Quash at 6. It concludes that, because service was improper and because it did not have actual notice of the lawsuit until six days before it filed the Motion to Quash, the Court should quash service, and deny the requests in the Judgment Motion. See Motion to Quash at 6-7.

3. Motion to Quash Response.

Martinez responded. See Motion to Quash Response. He contends that his service on Shellpoint Mortgage is proper, because he served it in a "manner reasonably calculated ... to apprise the defendant of the existence and pendency of the action." Motion to Quash Response at 1 (citing N.M. Rules Ann. 1-004(E)(1)). He argues that he is authorized to complete service "by mail" as long as: (i) the "envelope is addressed to the named defendant"; and (ii) "the defendant signs a receipt for the envelope containing the summons and complaint." Motion to Quash Response at 1-2 (citing N.M. Rules Ann. 1-004(E)(3), (G)(3)). He contends that he satisfies both of those requirements, because he mailed an envelope with the Summons and Complaint to the named Defendant — Shellpoint Mortgage — and because someone from Shellpoint "signed for it." Motion to Quash Response at 2. Martinez also asserts that Shellpoint Mortgage regularly receives mail at the address to which he sent it, so according to Martinez, he served Shellpoint Mortgage in a manner reasonably calculated to alert it to the lawsuit. See Motion to Quash Response at 2. He argues that, contrary to Shellpoint Mortgage's representations, he did not need to mail the Summons and Complaint to a registered agent, because service by mail suffices. See Motion to Quash at 3. He concludes by asking the Court to deny the requests in the Motion to Quash and to grant the Judgment Motion. See Motion to Quash at 3.

4. The Hearing.

The Court held a hearing on August 22, 2018. See Clerk's Minutes at 1, filed August 21, 2018 (Doc. 54). The Court noted that default is a two-step process. See Transcript of Hearing at 4:11-12, taken August 22, 2018 (Court)("Tr.").1 It asked whether it should deny the Judgment Motion, because the Clerk of the Court had not filed a Certificate of Default. See Tr. at 4:6-21. Martinez stated that he understood the Clerk of the Court had filed a certificate of default. See Tr. at 4:23-25 (Gonzales.) The Court noted that it did not have a Certificate of Default from the Clerk of the Court. See Tr. at 5:20-23 (Court). See Civil Docket for Case #: 1:17-cv-01195-JBLF, CMECF, https://ecf.nmd.circ10.dcn/cgi-bin/DktRpt.pl?902308060071476-L_1_0-1.

Martinez contended that New Mexico requires that service occur "in a manner reasonably calculated under all circumstances to apprise a defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend." Tr. at 7:20-26 (Gonzales)(citing N.M. Rules Ann. 1-004(E)(1)).2 Under Martinez' interpretation, rules 1-004(E)(3) and 1-004(G(3) authorize service by certified mail when the defendant signs a receipt for the delivery. See Tr. at 9:8-10 (Gonzales)(citing N.M. Rules Ann. 1-004(E)(3), (G)(3)).3 Martinez argued that he satisfied New Mexico law, because he sent service through certified mail to an address that Shellpoint Mortgage regularly checked and the envelope was stamped, indicating that Shellpoint Mortgage received the delivery. See Tr. at 8:14-16 (Gonzales); id. at 9:18-21 (Gonzales). Further, Martinez argued that he could not have discovered the address for the registered agent for Shellpoint Mortgage. See Tr. at 10:11-18 (Gonzales).

Shellpoint Mortgage responded that the summons and complaint must be mailed to an agent authorized to accept service, and that Martinez did not satisfy that requirement. See Tr. at 13:7-9 (Edwards)(citing N.M. Rules Ann. 1-004(G)(1)(a), (c)).4 Shellpoint Mortgage also cited Hukill v. Oklahoma Native American Domestic Violence Coalition, 542 F.3d 794 (10th Cir. 2008), to support its argument. See Tr. at 13:24-14:1 (Edwards). Shellpoint Mortgage explained that, in Hukill v. Oklahoma Native American Domestic Violence Coalition, the United States Court of Appeals for the Tenth Circuit concluded that the plaintiff should have served an authorized person even though the Oklahoma statute stated only that "service by mail should be accomplished by mailing a copy of the summons and petition by certified mail return receipt requested and delivery restricted to the addressee." Tr. at 15:13-16 (Edwards)(citing Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d at 798)(citing Okla Stat. tit. 12 § 2004(C)(2)(b))). The Court asked for the language that the Tenth Circuit used. See Tr. at 23:15-25:15(Court). Shellpoint Mortgage explained that, in that case, a corporation was "served via unauthorized people." Tr. at 3:16 (Edwards). The Tenth Circuit held that, because "Ms. Hukill's attempted service by mail was accepted by an unauthorized person, it did not substantially comply with the statute and wasn't valid." Tr. at 15-17:16 (Edwards)(citing Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d at 802). The Court returned the discussion to rule 1-004, and asked whether rule 1-004(G)(1) had to be satisfied. See Tr. at 15:17-17:17 (Court). Shellpoint Mortgage concluded that service had to satisfy rule 1-004(G)(1). See Tr. at 19:17-25:17 (Edwards). The Court then asked whether Shellpoint Mortgage read Hukill v. Oklahoma Native American Domestic Violence Coalition to mean that due process requires a plaintiff to mail a summons and complaint to an authorized person, and Shellpoint Mortgage agreed that it read the case in that manner. See Tr. ¶¶ 19:17-25:17 (Court).

Shellpoint Mortgage contended that Martinez sent a Summons and Complaint to an address that Shellpoint Mortgage used only to receive payments, and that address was not used for litigation. See Tr. at 11:22-24 (Edwards). Shellpoint Mortgage admitted that there is a return stamp on the envelope with which Martinez tried to serve Shellpoint Mortgage, but no person authorized to accept service signed the envelope. See Tr. at 2:1-6 (Edwards). Shellpoint Mortgage contended that such service does not suffice under federal or New Mexico rules. See Tr. at 13:7-9 (Edwards). Shellpoint Mortgage further noted that Martinez could have discovered that New Penn Financial LLC does business as Shellpoint Mortgage and that Martinez could have discovered the registered agent by searching for New Penn Financial LLC on the New Mexico Secretary of State's website. See Tr. at 19:5-11 (Edwards).5

Martinez reiterated that New Mexico does not require that the summons and complaint be mailed to a registered agent. See Tr. at 21:6-8 (Gonzales). He asserted that New Mexico requires only that they be mailed to an address at which the defendant regularly receives mail. See Tr. at 21:9-12 (Gonzales). The Court asked Martinez about Hukill v. Oklahoma Native American Domestic Violence Coalition, see Tr. at 24:11-35 (Court), and Martinez differentiated the case from the present facts, citing the Tenth Circuit's reliance on an Oklahoma statute, see Tr. at 21:9-12 (Gonzales). The Court looked at rule 1-004(G) and explained that the Court reads the statute by beginning with rule 1-004(G)(1)(a), which describes on whom a plaintiff may serve the summons and complaint. See Tr. at 27:4-14 (Court)(citing N.M. Rules Ann. 1-004(G)(1)(a)). Then, the Court turned to rule 1-004(G)(1)(c), according to which, "service may be made on a person or entity described in paragraph 1 of this paragraph." Tr. at 27:14-21 (Court)(citing N.M. Rules Ann. 1-004(G)(1)(c)). The Court stated: "So you've got to go back up to paragraph 1, by mail, or it gives some other provisions." Tr. at 27:14-18 (Court). Following a review of rule 1-004(G), the Court looked to rule 1-004(E)(3) for directions on mailing the summons and complaint. See Tr. at 28:3-8 (Court)(citing N.M. Rules Ann. 1-004(E)(3)). The Court stated that it was inclined to hold that service has to be on a person listed in rule 1-004(G)(1). See Tr. at 28:8-14 (Court)(citing N.M. Rules Ann. 1-004(G)(1)). The Court stated: "Probably the reason that the signature requirement is important [is] to See who signed for it and see if they were in fact authorized." Tr. at 28:17-19 (Court). The Court indicated that it was inclined to grant the Motion to Quash and deny the Judgment Motion. See Tr. at 28:19-24 (Court).

LAW REGARDING 12(b)(5)

Rule 12(b)(5) provides, in pertinent part: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion ... (5) insufficient service of process." Fed. R. Civ. P. 12(b)(5). Under rules 12(b)(4) and 12(b)(5), a "defendant may object to plaintiff's failure to comply with the procedural requirements for proper service set forth in or incorporated by Rule 4." Richardson v. Alliance Tire & Rubber Co., 158 F.R.D. 475, 477 (D. Kan. 1994)(Crow, J.)(quoting 5A C. Wright & A. Miller, Federal Practice and Procedure § 1353 (2d ed. 1990)). "Rules 12(b)(4) and 12(b)(5) allow a defendant to defend against a claim on the grounds of insufficiency of process and insufficiency of service of process." Whitsell v. United States, No. 99-5114, 1999 WL 987355 at *1 (10th Cir. 1999).6 "A Rule 12(b)(4) motion constitutes an objection to the form of process or the content of the summons rather than the method of its delivery." Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F.Supp. 1331, 1349 (D. Kan. 1994)(Lungstrum, J.)(citation omitted). See United States v. Sharon Steel Corp., 681 F.Supp. 1492, 1499 n.14 (D. Utah 1987)(Jenkins, J.). "A Rule 12(b)(5) motion ... challenges the mode or lack of delivery of a summons and complaint." Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F.Supp. at 1349. See United States v. Sharon Steel Corp., 681 F.Supp. 1492, 1499 n.14 (D. Utah 1987).

Where a plaintiff does not meet this burden, a court may dismiss for failure to properly serve. See Lasky v. Lansford, 76 F. App'x. 240, 240-41 (10th Cir. 2003)(unpublished). "Motions under Federal Rules 12(b)(4) and 12(b)(5) differ from the other motions permitted by Rule 12(b) somewhat in that they offer the district court a course of action — quashing the process without dismissing the action — other than simply dismissing the case when the defendant's defense or objection is sustained." 5B C. Wright & A. Miller, Federal Practice and Procedure § 1354, at 346 (3d ed. 2004). "Technical defects in a summons do not justify dismissal unless a party is able to demonstrate actual prejudice." Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)(citing Fed. Deposit Ins. Corp. v. Swager, 773 F.Supp. 1244, 1249 (D. Minn. 1991)(Devitt, J.); United Food v. Commercial Workers Union, 736 F.2d 1371, 1382 (9th Cir. 1984)(Reinhardt, J.)). See U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140 F.Supp.2d 1049, 1052-53 (N.D. Cal. 2001)(Hamilton, J.)("Dismissals for defects in the form of summons are generally disfavored. Such defects are considered `technical' and hence are not a ground for dismissal unless the defendant demonstrates actual prejudice."(citing Chan v. Soc'y Expeditions, Inc., 39 F.3d at 1404)). "[W]hen a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant." Pell v. Azar Nut Co., Inc., 711 F.2d 949, 950 n.2 (10th Cir. 1983)(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1354, at 586-87 (1969)).

Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985)(internal quotations and citations omitted). In addition, the court has discretion to dismiss the action if it appears unlikely that proper service can or will be instituted. See Pell v. Azar Nut Co., Inc., 711 F.2d at 950 n.2. "The party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)(internal citations and quotations omitted). See Serna v. Webster, No. CV 17-0020 JB/WPL, 2017 WL 4386359, at *26 (D.N.M. Sept. 30, 2017)(Browning, J.), appeal dismissed, No. 17-2177, 2017 WL 8786138 (10th Cir. Nov. 27, 2017), reh'g denied (Dec. 5, 2017)("The burden of establishing validity of service is on the plaintiff."(citing Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992))); Payne v. Wilder, No. CV 16-0312 JB/GJF, 2017 WL 3025912, at *7 (D.N.M. July 7, 2017)(Browning, J.)(same); McGrath v. City of Albuquerque, No. CIV 14-0504 JB/SCY, 2015 WL 4994735, at *26 (D.N.M. July 31, 2015)(Browning, J.)(same).

LAW REGARDING SERVICE OF PROCESS

The Federal Rules of Civil Procedure provide the rules for service of process. A defendant may be served by the means listed in rule 4(h) of the Federal Rules of Civil Procedure or by the means provided by the state in which "the district court is located or where service is made." Fed. R. Civ. P. 4(h)(1)(a); 4(e)(1). Under rule 4(h), a party may serve

See Fed. R. Civ. P. 4(h), 4(h)(1)(b).

Rule 1-004(G) of the New Mexico Rules of Civil Procedure specifies procedures by which service of process on business entities, including limited liability companies, may be accomplished. See N.M. Rules Ann. 1-004(G)(1); Comment to N.M. Rules Ann. 1-004(G). "New Mexico law permits service to be made upon a designated agent." Aranda v. Foamex Int'l, 884 F.Supp.2d 1186, 1212 (D.N.M. 2012)(Browning, J.)(citing N.M. Rules Ann. 1-004(G)). Rule 1-004(G)(1)(a) and (c) provide:

N.M. Rules Ann. 1-004(G)(1)(a), (c). Rule 1-004(G)(3) allows service by mail on defendants and authorized persons, stating: "Service may be made on a person or entity described in Subparagraph (1) of this paragraph by mail or commercial courier service in the manner provided in Subparagraph (3) of Paragraph E of this rule." N.M. Rules Ann. 1-004(G)(3). Pursuant to rule 1-004(E)(3), service by mail is sufficient "provided that the envelope is addressed to the defendant and that the defendant or a person authorized by appointment sign a receipt for the envelope containing the summons and complaint." Kabana, Inc. v. King Larimar, Inc., No. CIV 15-00995 WJ/CG, 2016 WL 10538834, at *3 (D.N.M. May 24, 2016) (citing N.M. Rules Ann. 1-004(E)(3)). See Glasener v. Farrell & Seldin, No. CV 14-621 KK/WPL, 2014 WL 12786900, at *3 (D.N.M. Oct. 24, 2014); McKeown v. Farrell & Seldin, No. CV 14-597 SMV/WPL, 2014 WL 12786899, at *3 (D.N.M. Oct. 24, 2014); Roybal v. Roybal, No. 29806, 2010 WL 3971587, at *2 (N.M. Ct. App. Jan. 6, 2010). Rule 1-004(E)(3) states in full:

N.M. Rules Ann. 1-004(E)(3).

LAW REGARDING DEFAULT JUDGMENTS AND THE ENTRY OF DEFAULT UNDER RULE 55

Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for a default judgment. See United States v. Rivera, No. CIV 14-0579 JB/CG, 2015 WL 4042197, at *9-12 (D.N.M. June 30, 2015)(Browning, J.). First, a party must obtain a Clerk of Court's entry of default. See Fed. R. Civ. P. 55(a)("When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default."); Watkins v. Donnelly, 551 F. App'x 953, 958 (10th Cir. 2014)(unpublished)("Entry of default by the clerk is a necessary prerequisite that must be performed before a district court is permitted to issue a default judgment."). Second, the party must either request the Clerk to enter default judgment when the claim is for "a sum certain or a sum that can be made certain by computation," Fed. R. Civ. P. 55(b)(1), or, "[i]n all other cases, the party must apply to the court for a default judgment," Fed. R. Civ. P. 55(b)(2).

After entering default judgment, a district court takes all of the well-pleaded facts in a complaint as true. See United States v. Craighead, 176 F. App'x 922, 925 (10th Cir. 2006)(unpublished); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)("While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation." (citations omitted)). "If defendant does not contest the amount prayed for in the complaint [by failing to answer] and the claim is for a sum certain or a sum that can be made certain by computation, the judgment generally will be entered for that amount without any further hearing." United States v. Craighead, 176 F. App'x at 925 (alteration in original)(quoting 10A Wright & Miller, Federal Practice & Procedure § 2688 (3d ed. 1998)). See Fed. R. Civ. P. 8(d)("Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading."). A court may enter a default judgment for a damage award without a hearing if the amount claimed is "one capable of mathematical calculation." Applied Capital, Inc. v. Gibson, 558 F.Supp.2d 1189, 1202 (D.N.M. 2007)(Browning, J.)(quoting H.B. Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir. 1985))(citing Venable v. Haislip, 721 F.2d 297, 300 (10th Cir. 1983)). "It is a familiar practice and an exercise of judicial power for a court upon default, by taking evidence when necessary or by computation from facts of record, to fix the amount which the plaintiff is lawfully entitled to recover and to give judgment accordingly." 10A Wright & Miller, supra, § 2688 (quoting Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 S.Ct. 3 (1944)). "If the damages sum is not certain or capable of easy computation, the court may" conduct such hearings or order such references as it deems necessary. Applied Capital, Inc. v. Gibson, 558 F.Supp.2d at 12027 (citing Beck v. Atl. Contracting Co., 157 F.R.D. 61, 64 (D. Kan. 1994)(Lungstrum, J.) superseded by statute, Kan. Stat. Ann. 60-308, as recognized in Cessna Fin. Corp. v. VYWB, LLC, 982 F.Supp.2d 1226, 1233 (D. Kan. 2013)(Crow, J.)). See Fed. R. Civ. P. 55(b)(2)(B)("The court may conduct hearings or make referrals ... when, to enter or effectuate judgment, it needs to... determine the amount of damages.").

"Default judgments are a harsh sanction." Ruplinger v. Rains, 946 F.2d 731, 732 (10th Cir. 1991)(per curiam)("In re Rains"). The Court has noted that, "[b]ecause default judgment is a harsh sanction involving a court's power to enter and enforce judgments regardless of the merits of a case, courts do not favor such a sanction `purely as a penalty for delays in filing or other procedural error.'" Noland v. City of Albuquerque, No. CIV 08-0056 JB/LFG, 2009 WL 2424591, at *1 (D.N.M. June 18, 2009)(Browning, J.)(quoting In re Rains, 946 F.2d at 733).

In re Rains, 946 F.2d at 732-33 (citations and internal quotation marks omitted). See Noland v. City of Albuquerque, 2009 WL 2124591, at *1 (denying motion for default judgment, because the counsel for the defendant City of Albuquerque "entered an appearance three days after Noland filed his motion for default judgment," and, thus, the Court could not "reasonably say that the City of Albuquerque is an essentially unresponsive party, that the adversary process has been halted, or that Noland faces interminable delay because of the City of Albuquerque's actions").

"The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Fed. R. Civ. P. 55(c). "[T]he good cause required by Fed. R. Civ. P. 55(c) for setting aside entry of default poses a lesser standard for the defaulting party than the excusable neglect which must be shown for relief from judgment under Fed. R. Civ. P. 60(b)." Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App'x 744, 750 (10th Cir. 2009)(unpublished)(quoting Dennis Garberg & Assocs., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 775 n.6 (10th Cir. 1997)). See Hunt v. Ford Motor Co., No. 94-3054, 1995 WL 523646, at *3 (10th Cir. 1995)(unpublished). The distinction between setting aside an entry of default and setting aside a default judgment "reflects the different consequences of the two events and the different procedures that bring them about." 10A Wright & Miller, supra, § 2692.

10A Wright & Miller, supra, § 2692 (footnotes omitted).

While there are some differences between setting aside the entry of default and setting aside a default judgment, there are some important similarities, including that courts may consider the same factors: whether the party willfully defaulted, whether setting aside the entry of default or default judgment would prejudice the non-movant, and whether the movant has presented a meritorious defense. See United States v. $285,350.00 in U.S. Currency, 547 F. App'x 886, 887 (10th Cir. 2013)(unpublished)("Three requirements must be met when setting aside a default judgment under Rule 60(b): `(1) the moving party's culpable conduct did not cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.'" (quoting United States v. Timbers Preserve, 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other grounds by Degen v. United States, 517 U.S. 820, 825, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996))); Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App'x at 750 ("In deciding whether to set aside an entry of default, courts may consider, among other things, `whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented.'" (quoting Dierschke v. O'Cheskey (In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992)("Dierschke"))). The Tenth Circuit has, at times, listed two factors rather than three for the standard in setting aside a default judgment:

In re Stone, 588 F.2d 1316, 1319 (10th Cir. 1978). See Sawyer v. USAA Ins. Co., 839 F.Supp.2d 1189, 1230 (D.N.M. 2012)(Browning, J.)(setting aside a default judgment, because, "when a plaintiff fails to properly serve a defendant, a default judgment is void and should be set aside under rule 60(b)(4)"). "Although how these factors will be evaluated and weighed lies within the discretion of the trial court to a considerable degree, ... federal courts are willing to grant relief from a default entry more readily and with a lesser showing than they are in the case of a default judgment." 10A Wright & Miller, supra, § 2692 (footnotes omitted). "The standard for setting aside an entry of default under Rule 55(c) is fairly liberal because `[t]he preferred disposition of any case is upon its merits and not by default judgment.'" Crutcher v. Coleman, 205 F.R.D. 581, 584 (D. Kan. 2001)(Vratil, J.)(quoting Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970)). See Applied Capital, Inc. v. Gibson, No. Civ 05-98 JB/ACT, 2007 WL 5685131, at *20-23 (D.N.M. Sept. 27, 2007)(Browning, J.)(liberally construing a pro se defendant's motion to dismiss as a motion to set aside the default, but concluding that the pro se defendant did not show good cause for the Court to set aside the entry of default, because, although setting aside the entry of default would not prejudice the plaintiff, the pro se defendant was "fully aware of the need to answer within the given time limitation and chose not to respond timely," and he failed to appear at a hearing to support his allegation that he had a meritorious defense). See also Dogs Deserve Better, Inc. v. N.M. Dogs Deserve Better, Inc., No. Civ 05-98 JB/ACT, 2016 WL 6396392, at *22 (D.N.M. Oct. 12, 2016)(Browning, J.)("The standard for setting aside an entry of default under rule 55(c) is liberal, allowing the Court to consider, among other things, whether the default was willful and culpable, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented.").

ANALYSIS

There are two primary reasons why the Court should not enter default judgment and should grant the challenge to service. First, Martinez did not properly serve Shellpoint Mortgage; hence, the Court will grant the Motion to Quash. Second, because the Clerk of the Court has not entered default, the Court will deny the Judgment Motion.

I. MARTINEZ DID NOT SERVE THE SUMMONS AND COMPLAINT ON AN AUTHORIZED PERSON.

Because Martinez mailed a summons and complaint to a general address, where an authorized agent did not sign the envelope, he did not satisfy rule 4 of the Federal Rules of Civil Procedure or rule 1.004(G) of the New Mexico Rules of Civil Procedure. See Glasener v. Farrell & Seldin, 2014 WL 12786900, at *3; McKeown v. Farrell & Seldin, 2014 WL 12786899, at *3; Roybal v. Roybal, 2010 WL 3971587, at *2. No officer, general or managing agent, or authorized agent accepted the package at the Ohio P.O. Box, because Shellpoint Mortgage maintains that address only to collect mortgage payments. See Trinkley Aff. ¶ 9, at 2; N.M. Rules Ann. § 1-004(G). Hence, the service of process was not proper. See N.M. Rules Ann. § 1-004(G).

In the hearing, Shellpoint Mortgage cited Hukill v. Oklahoma Native American Domestic Violence Coalition for the proposition that, regardless of statutory language, a plaintiff must serve an authorized person. The Tenth Circuit's conclusion in Hukill v. Oklahoma Native American Domestic Violence Coalition, however, rested on an interpretation of an Oklahoma statute. See Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d at 798. The Tenth Circuit noted that "defendants did not raise a constitutional claim that service was invalid despite technical compliance with the applicable statute. They argued that service was invalid because it did not satisfy the statutory requirements." 542 F.3d at 801. Oklahoma applies a rule of "substantial compliance" in determining whether its statutory requirements for service have been met. 542 F.3d at 798. The Tenth Circuit, in reaching its conclusion that, "because Ms. Hukill's attempted service by mail was not accepted by an authorized person, it did not substantially comply with the statute and was invalid," Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d at 802, relied on Okla. Stat. tit. § 2004(C)(2)(c), which provides: "[A]cceptance or refusal by any officer or by any employee of the registered office or principal place of business who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed." Okla. Stat. tit. § 2004(C)(2)(c).

Based on rule § 1-004(G), Martinez should have served an officer, agent or authorized person. See N.M. Rules Ann. § 1-004(G). Martinez focuses too exclusively on rule 1-004(E), which states:

N.M. Rules Ann. 1-004(E)(3). Martinez reads this literally: if he mails the Summons and Complaint to Shellpoint Mortgage, service is complete and valid. Rule 1-004(E) governs only the method of service. Rule 1-004(G)(1)(a) governs upon whom service must be made: "Service may be made upon ... a limited liability company... by serving a copy of the process to an officer, a managing or a general agent or to any other agent authorized by appointment, by law or by this rule to receive service of process." N.M. Rules Ann. 1-004(G)(1)(a). Thus, while Martinez is correct that he can use rule 1-004(E), and mail the Summons and Complaint, he still has to serve the right person. If the addressee is a registered agent, Martinez may use mail to serve to that person. See N.M. Rules Ann. 1-004(G)(1)(a). Martinez also is correct that he does not have to serve a registered agent, but if he does not serve a registered agent, he still has to serve "an officer, a managing or a general agent." N.M. Rules Ann. 1-004(G)(1)(a). Martinez' focus on rule 1-004(E) without also considering all rule 1-004(G) makes the service here invalid.

New Penn Financial, LLC maintains a registered agent for service of process, as N.M. Stat. Ann. § 53-17-11 requires. See Search Information, at 1; N.M. Stat. Ann. § 53-17-11. The registered agent has an address in New Mexico. See Trinkley Aff. ¶ 10 at 3 ("Shellpoint appointed its current agent for service of process in the State of New Mexico, Corporation Service Company, on June 19, 2015."); Search Information, at 1 ("Registered Agent Information: Name: Corporation Service Company; Physical Address: 123 East Marcy St., Suite 101, Santa Fe, New Mexico 87501"). To comply with rule 1.004(G), Martinez could have mailed the summons and complaint to the registered agent. See N.M. Rules § 1-004(G). The Court thus grants the Motion to Quash.

II. MARTINEZ DID NOT OBTAIN A CLERK'S ENTRY OF DEFAULT.

The Court could not properly grant the Judgment Motion because of the invalid service. Martinez also did not obtain a Clerk's entry of default before seeking a default judgment. See Watkins v. Donnelly, 551 F. App'x at 958. The default process is a two-step process, and the first step is entry of default. See Fed. R. Civ. P. 55(a)("When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default."). It would not be proper for the Court to grant a default judgment. See Watkins v. Donnelly, 551 F. App'x at 958 ("Entry of default by the clerk is a necessary prerequisite that must be performed before a district court is permitted to issue a default judgment."). Martinez concedes this point. See Tr. at 5:13-15 (Gonzales). The Court accordingly denies the Judgment Motion.

IT IS ORDERED that (i) Plaintiff's Judgment Motion, filed February 21, 2018 (Doc. 15), is denied, and (ii) Defendant Shellpoint Mortgage's Motion to Quash, filed August 20, 2018 (Doc. 52), is granted.