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U.S. Bank National Association v. Naples Marietta Venture, LLC

United States District Court, S.D. Ohio, Western Division

August 17, 2017



          Timothy S. Black, United States District Judge

         This civil action is before the Court on Plaintiffs motion for default judgment. (Doc. 13). Defendant did not respond.


         Plaintiff filed a Complaint on April 27, 2017. (Doc. 1). Defendant was served with a copy of the summons and complaint on May 12, 2017. (Doc. 5). Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A), Defendant was required to file and serve his answer no later than June 2, 2017. To date, no responsive pleading has been filed or served. On June 13, 2017, the Clerk properly entered default. (Doc. 11). Subsequently, Plaintiff filed the instant motion for default judgment. (Doc. 13).


         Plaintiff is the successor in assignment to a $1, 732, 500.00 loan made to Defendant on or about October 20, 2006. The loan was secured by assigning the original lender a mortgage on real property located at 107 Industry Road, Marietta, Ohio 45750. (Doc. 1-2). The original lender was also provided a security interest in the personal property of Defendant, along with other items and things as fully described in a properly recorded UCC financing statement that has been entered into the record. (Doc. 1-4). Defendant also provided the original lender a security interest in all income and proceeds generated from the mortgaged property.

         Defendant has defaulted on its obligations under the terms of the loan agreement. The terms of the agreement stipulate that the entire unpaid amount remaining on the loan became due and payable on the loan maturity date of November 1, 2016. (Doc. 13-2, at 3). As of April 7, 2017, $1, 465, 609.99 of the principal is unpaid and due. (Doc. 13-1, at 2). Adding interest and fees, Defendant's total obligation stood at $1, 496, 330.45 as of April 7, 2017. (Id.). The terms of the agreement set interest on the loan at 5.850% per annum and an additional default interest rate of 5% per annum; accordingly, Defendant's obligation under the agreement is increasing at a rate of $441.22 per diem ($238.16 per diem based on the standard interest rate and $203.06 per diem based on the default interest rate). (Id.).


         Applications for default judgment are governed by Fed.R.Civ.P. 55(b)(2). Following the clerk's entry of default pursuant to Fed.R.Civ.P. 55(a) and the party's application for default under Rule 55(b), "the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven." Morisaki v. Davenport, Allen & Malone, Inc., No. 2:09cv298, 2010 U.S. Dist. LEXIS 86241, at *1 (E.D. Cal. Aug. 23, 2010) (citing Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d 1319. 1323 (7th Cir. 1983)).

         While liability may be shown by well-pleaded allegations, this Court is required to "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Osbeck v. Golfside Auto Sales, Inc., No. 07-14004, No. 07-14004, 2010 U.S. Dist. LEXIS 62027, at *5 (E.D. Mich. June. 23, 2010). To do so, the civil rules "require that the party moving for a default judgment must present some evidence of its damages." Mill's Pride, UP. v. W.D. Miller Enter., No. 2:07cv990, 2010 U.S. Dist. LEXIS 36756, at *1 (S.D. Ohio Mar. 12, 2010).

         IV. ANALYSIS

         Defendant having defaulted, the factual allegations in the complaint, except those related to the amount of damages, are deemed true. Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995). To ascertain an uncertain sum of damages, Rule 55(b)(2) "allows but does not require the district court to conduct an evidentiary hearing." Vesligaj v. Peterson, 331 F.App'x 351, 354-55 (6th Cir. 2009). An evidentiary hearing is not required if the Court can determine the amount of damages by computation from the record before it. HICA Educ. Loan Corp. v. Jones, No. 4:12cv962, 2012 U.S. Dist. LEXIS 116166, at* 1 (N.D.Ohio Aug. 16, 2012). The Court may rely on affidavits submitted on the issue of damages. Schilling v. Interim Healthcare of Upper Ohio Valley, Inc., No. 206-cv-487, 2007 U.S. Dist. LEXIS 3118, at *2 (S.D. Ohio Jan. 16, 2007).

         Plaintiff has incurred $1, 465, 609.99 in damages under the loan agreement as of April 7, 2017. (Doc. 13-1, at 2), Although Plaintiff may be entitled to attorney's fees and litigation fees as a result of Defendant's default, the Court lacks sufficient information to award any such fees at this time. Plaintiff may make a further motion for additional fees containing proper evidentiary support.

         Therefore, as established by the facts set forth in the Complaint, as well as by affidavit, Plaintiff is entitled to damages against the Defendant in the amount of $1, 465, ...

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