1:18-cv-01221•McPherson et al v. Resolute Real Estate Investments, LLC
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE David M. McPherson and Gail L. Gugel v. Civil No. 18-cv-1221-JL Resolute Real Estate Investments, Inc. REPORT AND RECOMMENDATION Plaintiffs David M. McPherson and Gail M. Gugel, holders of a promissory note in the principal amount of $200,000, filed this action in December 2018 to collect the unpaid note balance from the borrower, defendant Resolute Real Estate Investments, Inc. (“Resolute”). See Complaint (Doc. No. 1). The defendant has defaulted. Doc. No. 5. Plaintiff’s unopposed motions for default judgment (Doc. No. 8) is before the undersigned magistrate judge for a report and recommendation. For the reasons that follow, the district judge should grant plaintiff’s motion for default judgment. I. Standard of Review After default is entered and when, as here, the amount at issue is not a sum certain, “the party must apply to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2); see also KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 18-19 (1st Case 1:18-cv-01221-JL Document 9 Filed 10/24/19 Page 1 of 5
2 Cir. 2003). “Although a defaulting party admits the factual basis of the claims asserted against it, the defaulting party does not admit the legal sufficiency of those claims.” 10 James Wm. Moore, Moore's Federal Practice § 55.32[1][b] (3d ed. 2013). Before entering default judgment, the court must determine whether “[t]he claimant [has] state[d] a legally valid claim for relief.” Id.; see also Ramos–Falcon v. Autoridad de Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002). II. Background By virtue of their default, defendants have admitted the following facts, as set forth in plaintiff’s Complaint. During the fall of 2015, plaintiffs loaned $200,000 to Resolute, whose principal, Philip LoChiatto, was a long-time acquaintance. The purpose of the loan was to help LoChiatto, a construction manager, complete a Resolute project. The loan was evidenced by a written promissory note. The note provided for an annual interest rate of the lesser of five percent, compounded quarterly, or the maximum legal rate of interest. The note permitted Resolute to prepay all outstanding principal and interest at any time without penalty. In the absence of prepayment, the full principal amount and all accrued interest would be due and payable on November 21, 2015. Failure to pay all amounts due at that time would result in a default which, if Case 1:18-cv-01221-JL Document 9 Filed 10/24/19 Page 2 of 5
3 uncured within five days following the due date, would result in an increase in the applicable annual interest rate to the lesser of twelve percent, compounded annually, or the maximum legal rate of interest. The default interest rate would accrue from the date of the default forward. In addition to these terms, the note also provided that the defaulting borrower would be responsible for collections costs, including attorneys’ fees. At LoChiatto’s request the payment deadline was extended by one year, to November 21, 2016. Resolute failed to pay the principal and accrued interest by the extended due date. LoChiatto ignored plaintiff’s demands for payment. This suit timely followed. I. Discussion A. Liability The foregoing facts and the plain language of the note, supported by plaintiffs’ affidavit (Doc. No. 8-2), establishes Resolute’s liability for default on the note. B. Damages Plaintiff seeks to recover principal and interest totaling $306,528,56 through May 1, 2019, plus interest through the date of judgment. Affidavit (Doc. No. 8-2) ¶ 8. The supporting documentation supports such an award. Id. Case 1:18-cv-01221-JL Document 9 Filed 10/24/19 Page 3 of 5
4 C. Costs and Attorneys’ Fees As previously noted, the terms of note allow the lender to recoup its costs and fees from the borrower in the event of a default. Plaintiffs seek $6,890.68 in fees and costs. Warecki Decl. (Doc. No. 8-3). This represents roughly 10.5 hours of billed time between December 17, 2018 and March 31, 2019, plus approximately 3.5 hours of unbilled time accrued during April 2018. “In determining the amount of fees that should be awarded the court will consider, among other things, counsel's time and labor, the complexity of the case, the amount recovered, and the reasonableness of the time spent by counsel.” Sailor Music v. Mai Kai of Concord, Inc., 640 F. Supp. 629, 636. (D.N.H. 1986). Defendants have not objected to the reasonableness of the fees and costs, and considering the factors listed above, the court finds that the requested amounts are reasonable. Therefore, the district judge should grant plaintiffs’ request for costs and attorney's fees in the amount of $6,890.68. II. Conclusion For the reasons set forth herein, the district judge should grant plaintiff’s motion for default judgment (Doc. No. 8) as follows: Case 1:18-cv-01221-JL Document 9 Filed 10/24/19 Page 4 of 5
5 1) the plaintiff shall recover from the defendant $306,528.56, reflecting the note principal and interest through May 1, 2019; 2) the plaintiff shall recover $6,890.68 in attorneys’ fees and costs. Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file objections within the specified time waives the right to appeal the district court’s order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). __________________________ Andrea K. Johnstone United States Magistrate Judge October 24, 2019 cc: Counsel of record Case 1:18-cv-01221-JL Document 9 Filed 10/24/19 Page 5 of 5
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