United States District Court, S.D. Ohio, Western Division
U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
NAPLES MARIETTA VENTURE, LLC, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT (DOC. 13)
Timothy S. Black, United States District Judge
civil action is before the Court on Plaintiffs motion for
default judgment. (Doc. 13). Defendant did not respond.
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.
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.
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).
STANDARD OF REVIEW
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)).
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.
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).
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.
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, ...