United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter comes before the Court on plaintiff's
“motion asking the court to calculate the damages in
her default judgment against Conseco Bank, Inc.” (#37).
This Court previously found that Conseco Bank was in default
on the allegations in the complaint (#34). Plaintiff's
motion seeks $11, 488.00 in damages against Conseco Bank for
its “violat[ion] of the covenant of good fair (sic) and
fair dealing … by promising the (sic) it would reduce
[plaintiff's] interest payments from an annual rate of
14.1% to 3.785% if she paid $2, 300 on her mortgage, and
then-pocketing the $2, 300-not making the promised
change.” In support of those damages, plaintiff
attaches a one-page spreadsheet purporting to show the
amounts she was overcharged as between the two interest
a default judgment is entered, facts alleged in the complaint
are taken as true, but it remains for the district court to
consider whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law.” Martinizing
International, LLC. v. BC Cleaners, LLC., 855 F.3d 847,
850 (8th Cir. 2017). Thus, after a default judgment is
entered, the plaintiff must nonetheless “prove [they
are] entitled to the relief sought.” Id. And
even if the facts alleged in a complaint are taken as true,
“facts relating to the amount of damages  must be
proved in a supplemental hearing or proceeding.”
Everyday Learning Corp. v. Larson, 242 F.3d 815, 818
(8th Cir. 2001); see also 10A Wright & Miller,
Federal Practice and Procedure § 2688 (4th ed. 2018)
(noting that when a claim is for a sum certain or for sum
capable of computation, a hearing is ordinarily not
required). Accordingly, a district court may not make
“generic reference[s] to evidentiary support for the
damages, ” but must instead provide detailed findings.
Stephenson v. El-Batrawi, 525 F.3d 907, 916-917 (8th
mentioned, plaintiff bases her motion on Count IV, which
asserts that Conseco Bank violated the implied covenant of
good faith and fair dealings. “In Missouri, all
contracts have an implied covenant of good faith and fair
dealings.” Lucero v. Curators of Univ. of
Mo., 400 S.W.3d 1, 9 (Mo. App. W.D. 2013). “To
establish a breach[, ] the plaintiff has the burden to
establish that the defendant exercised a judgment conferred
by the express terms of the agreement in such a manner as to
evade the spirit of the transaction or so as to deny the
plaintiff the expected benefit of the contract.”
Rock Port Market, Inc. v. Affiliated Foods Midwest
Cooperative, Inc., 532 S.W.3d 180, 190 (Mo. App. W.D.
2017); see also Reliance Bank v. Paramont Properties,
LLC., 425 S.W.3d 202, 207 (Mo. App. E.D. 2014).
“[A] plaintiff must show more than just that the
defendant made an erroneous decision but that the decision
was made in bad faith or was arbitrary and capricious so as
to amount to an abuse of discretion.” Reitz v.
Nationstar Mortg., LLC., 954 F.Supp.2d 870, 891 (E.D.
has not come close to meeting that burden. Foremost,
plaintiff states matter-of-factly that her note was subject
to a “HARP mortgage interest rate reduction.”
But, whether the note was-by its terms-subject to such a rate
reduction is a question of law, not a fact Conseco Bank has
conceded by virtue of its default. See Webbe v.
Keel, 369 S.W.3d 755, 756 (Mo. App. S.D. 2012). The note
is not before this Court, so it is impossible to know what
the express terms were on the issue of an interest rate
reduction. And even if some sort of reduction was warranted,
because a breach of the covenant of good faith and fair
dealings is recognized as a contract action, and because
“the damages associated with a breach of contract arise
from the terms of the contract, ” the absence of the
underlying note makes it impossible to calculate damages, if
any. Rock Port Market, Inc., 532 S.W.3d at 188.
Moreover, without the benefit of knowing what terms Conseco
Bank was bound to, it is likewise impossible to gauge whether
it “evade[d] the spirit of the transaction” or
“den[ied] the plaintiff the expected benefit, ”
Id. at 190. To be sure, the covenant of good faith
and fair dealing does not “give rise to new obligations
not otherwise contained in a contract's express terms,
” therefore it is possible that, in denying an interest
rate reduction, Conseco Bank was doing exactly what the note
permitted it to do. Park Irmat Drug Corp. v. Express
Scripts Holding Co., 310 F.Supp.3d 1002, 1023 (E.D. Mo.
2018); see also Bishop & Assocs., LLC. v. Ameren
Corp., 520 S.W.3d 463, 471 (Mo. banc. 2017). The
admitted facts of plaintiff's complaint simply do not
build the case against Conseco Bank alone for purposes of
establishing that it owes damages.
addition, it is noteworthy that the complaint states Conseco
Bank assigned its rights to “Green Tree Financial
Servicing Corporation” in 2004. The complaint also
states that it was Green Tree, not Conseco Bank, who told
plaintiff in 2013 that she was eligible for a “HARP
mortgage interest rate reduction.” And in her motion,
plaintiff states that it was Green Tree, not Conseco Bank,
who told her that her interest rate would be reduced if she
paid a $2, 300 fee. In unrelated filings, plaintiff admitted
she does not know whether Green Tree is an agent of Conseco
Bank. (#33 at p. 9 (“Conseco Bank/Synchrony has
intentionally defaulted and has not answered the question of
whether Green Tree was an independent contractor.”)).
Therefore, once again, even if default judgment works to
admit all facts in the complaint against Conseco Bank,
plaintiff has done nothing to show why Count IV states a
valid claim against it-Conseco Bank seems to have played no
real part in the underlying facts supporting plaintiff's
plaintiff's motion does more telling than
showing, leaving a number of questions unanswered
that might otherwise demonstrate an entitlement to damages.
These circumstances do not satisfy the burden of proving
either a valid cause of action against Conseco Bank or an
entitlement to damages thereunder. See, e.g., PCEF, LLC.
v. Hendricks Bldg Supply LLC, 740 F.Supp.2d 1287 (S.D.
Ala. 2010) (plaintiff, who was entitled to default judgment,
failed to establish damages in that it attempted to tell the
court what its damages were rather than show the court what
they were through reference to the underlying agreement and
supporting documentation). Plaintiffs motion will be denied.
She has not demonstrated to the satisfaction of this Court
that she is entitled to damages against Conseco Bank.
IT IS HEREBY ORDERED that plaintiff's
“motion asking the court to calculate the damages in
her default judgment against Conseco Bank, Inc.” (#37)
is DENIED without prejudice.
 On April 8, 2019-several months after
plaintiff filed her motion-she filed a supplemental
“affidavit in further support of motion to set dfault
(sic) judgment damages.” (#41). That supplemental
briefing mostly pertains to “new documents submitted to
a federal bankruptcy court” that, in plaintiff's
opinion, makes clear “the trust does not own the
mortgage on [her] home and lacked standing to accelerate her
note.” Whatever veracity that ...