Wachovia Bank, National Association v. L&H Investments, LLC et al

Filing 23

MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff Wachovia Bank, National Association's 15 MOTION for Summary Judgment; finding that summary judgment is appropriate for Loans/Notes I, II, III, IV, VI, and VIII in the amount of $936,862.31 which includes principal and interest accrued through the date of this Opinion; that Summary judgment is denied as to Loans/Notes V and VII; the Court ORDERS that Plaintiff Wachovia Bank may file a new motion for summary ju dgment as to those loans/notes on or before August 27, 2010 and said motion would be treated as a new motion for summary judgment and a briefing schedule would be issued where L&H would have the opportunity to respond to those issues remaining; deferring ruling on attorneys' fees until that time. Signed by Honorable Terry F. Moorer on 7/27/2010. (cc, )

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Wachovia Bank, National Association v. L&H Investments, LLC et al (CONSENT) Doc. 23 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION W A C H O V IA BANK, NATIONAL A S S O C IA T IO N , P la in tif f , v. L & H INVESTMENTS, LLC., a n Alabama limited liability company, e t al., D e f e n d a n ts. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:09-cv-966-TFM MEMORANDUM OPINION AND ORDER T h is action is assigned to the undersigned magistrate judge to conduct all proceedings a n d order entry of judgment by consent of all the parties (Docs. 8-9, filed November 20, 2 0 0 9 ) and 28 U.S.C. 636(c). Pending before the Court is Plaintiff Wachovia Bank, N a t io n a l Association's Motion for Summary Judgment and supporting brief (Docs. 15-16, f ile d June 4, 2010). The motion is now ripe for review. Upon consideration of the motion, th e Court finds it is due to be GRANTED in part and DENIED in part. I. JURISDICTION T h e district court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. 1332 (diversity jurisdiction). The parties do not contest personal jurisdiction o r venue, and there are adequate allegations to support both. Page 1 of 17 Dockets.Justia.com II. NATURE OF THE CASE AND MOTION FOR SUMMARY JUDGMENT T h e underlying facts of this case are necessarily viewed in favor of the nonmovant D e f e n d a n ts . Plaintiff, Wachovia Bank, National Association ("Wachovia" or "Plaintiff") is a national banking association with its principal place of business location in Charlotte, North C a ro lin a . See Doc. 1. Wachovia initiated this lawsuit with a three count Complaint stating D e f e n d a n ts L&H Investments ("L&H"), W.G. Liddon ("Liddon"), and M.E. Hawker (" H a w k e r" ) defaulted on the terms of eight loan agreements. Id. The loans are summarized a s follows: (1 ) L o a n I - On or about February 14, 2005, Wachovia made a loan to Defendants in the original principal amount of $271,750.00. The note matured on April 3 0 , 2009 and was due and payable in full on that date. Defendants failed to re p a y the amount due. (2 ) L o a n II - On or about April 8, 2005, Wachovia made a loan to Defendants in th e original principal amount of $455,000.00. The note matured on April 30, 2 0 0 9 and was due and payable in full on that date. Defendants failed to repay th e amount due. (3 ) L o a n III - On or about March 10, 2005, Wachovia made a loan to Defendants in the original principal amount of $415,000.00. The note matured on April 3 0 , 2009 and was due and payable in full on that date. Defendants failed to re p a y the amount due. Page 2 of 17 (4) L o a n IV - On or about June 29, 2006, Wachovia made a loan to L&H in the o rig in a l principal amount of $64,320.00. As a result of Defendants' failure to re p a y the amounts owed under Loans I, II, III, and VIII, Wachovia declared th is note to be in default and accelerated the maturity of the loan pursuant to its Notice of Default and Demand for Payment on May 21, 2009. Defendants f a ile d to repay this amount as well. (5 ) L o a n V - On or about November 17, 2006, Wachovia made a loan to L&H in th e original principal amount of $60,000.00. Both Liddon and Hawker secured th e L&H loan with an Unconditional Guarantee. As a result of Defendants' f a ilu re to repay the amounts owed under Loans I, II, III, and VIII, Wachovia d e c la re d this note to be in default and accelerated the maturity of the loan p u rsu a n t to its Notice of Default and Demand for Payment on May 21, 2009. Defendants failed to repay this amount as well. (6 ) L o a n VI - On or about February 23, 2007, Wachovia made a loan to L&H in th e original principal amount of $59,200.00. Both Liddon and Hawker secured th e L&H loan with an Unconditional Guarantee. As a result of Defendants' f a ilu re to repay the amounts owed under Loans I, II, III, and VIII, Wachovia d e c la re d this note to be in default and accelerated the maturity of the loan p u rsu a n t to its Notice of Default and Demand for Payment on May 21, 2009. Defendants failed to repay this amount as well. Page 3 of 17 (7) L o a n VII - On or about June 27, 2007, Wachovia made a loan to Defendants in the original principal amount of $60,000.00. As a result of Defendants' f a ilu re to repay the amounts owed under Loans I, II, III, and VIII, Wachovia d e c la re d this note to be in default and accelerated the maturity of the loan p u rsu a n t to its Notice of Default and Demand for Payment on May 21, 2009. Defendants failed to repay this amount as well. (8 ) L o a n VIII - On or about September 13, 2004, Wachovia made a loan to L&H in the original principal amount of $59,000.00. Both Liddon and Hawker s e c u re d the L&H loan with an Unconditional Guarantee. The note matured on A p ril 30, 2009 and was due and payable in full on that date. Defendants failed to repay the amount due. S e e Doc. 1 at p. 3-14. On June 4, 2010, Wachovia filed its motion for summary judgment. See Docs. 15-16. W a c h o v ia asserts there are no material facts at issue thus making it entitled to judgment as a matter of law. Specifically, Wachovia states the Defendants failed to repay the amounts d u e and as a result of the alleged default, Defendants owe Wachovia $944,769.34 through J u n e 3, 2010 not including attorney's fees and expenses. This number includes principal, in te re s t accrued through June 3, 2010, and late fees. Adding in the fees and expenses, D e f e n d a n ts allegedly owe $1,015,586.41 under the terms of the Notes and Guaranty A g re e m e n ts with additional interest accruing per diem. Page 4 of 17 On June 7, 2010, the Court issued a briefing schedule on the summary judgment m o tio n wherein Defendants were given until June 28, 2010 to file their respective responses. To date, no response has been filed. Based on all the above, the motion for summary ju d g m e n t is ripe for this Court's review. I II . SUMMARY JUDGMENT STANDARD A party in a lawsuit may move a court to enter summary judgment before trial. FED. R . CIV. P. 56(a) and (b). Summary judgment is appropriate when the moving party e s ta b lis h e s that there is no genuine issue of material fact and the moving party is entitled to ju d g m e n t as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 3 2 2 -2 4 , 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gonzalez v. Lee County Housing Authority, 1 6 1 F.3d 1290, 1294 (11th Cir. 1998). "[T]he substantive law will identify which facts are m a te ria l." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L .E d .2 d 202 (1986). At the summary judgment juncture, the court does not "weigh the e v id e n c e and determine the truth of the matter," but solely "determine[s] whether there is a g e n u in e issue for trial." Id. at 249. Only disputes about the material facts will preclude the g ra n tin g of summary judgment. Id. at 249. A material fact is one "that might affect the o u tc o m e of the suit under governing law," and a dispute about a material fact is "genuine" " if the evidence is such that a reasonable jury could return a verdict for the nonmoving p a rty." Id.; accord Greenberg v. Bell-South Telecomms., Inc., 498 F.3d 1258, 1263 (11th C ir. 2007); see also Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1277 (11th Cir. 2005) Page 5 of 17 (quoting Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1344-45 (11th Cir. 2003)) ("In d e te rm in in g whether an issue of fact is `genuine' for the purpose of defeating summary ju d g m e n t, we ask whether the evidence is `such that a reasonable jury could return a verdict f o r the nonmoving party.'"). Thus, the initial burden of proof rests on the movant. Celotex, 4 7 7 U.S. at 325, 106 S.Ct. at 2554; Gonzalez, 161 F.3d at 1294. This burden is satisfied w h e n the movant shows that if the evidentiary record were reduced to admissible evidence a t trial, it would be insufficient to permit the non-movant from carrying its burden of proof. Celotex, 477 U.S. at 322-23; 106 S.Ct. at 2552-53. The admissibility of evidence is subject to the same standards and rules that govern admissibility of evidence at trial. Clemons v. D o u g h e r ty County, Georgia, 684 F.2d 1365, 1369 n.5 (11th Cir. 1982) (citing Pan-Islamic T r a d e Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980)). Once the movant meets its burden under Rule 56, the non-movant must designate s p e c if ic facts showing there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Z e n ith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). C o n c lu s o ry assertions, unsupported by specific facts, presented in affidavits opposing the m o tio n for summary judgment are likewise insufficient to defeat a proper motion for s u m m a ry judgment. Lejaun v. Nat'l Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 1 1 1 L.Ed.2d 695 (1990); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (c o n c lu s o ry assertions in absence of supporting evidence are insufficient to withstand s u m m a ry judgment). "Speculation does not create a genuine issue of fact." Cordoba v. Page 6 of 17 Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citation omitted) (emphasis in o rig in a l). The party opposing summary judgment must respond by setting forth specific e v id e n c e in the record and articulating the precise manner in which that evidence supports h is or her claim, and may not rest upon the mere allegations or denials of the pleadings. FED. R . CIV. P. 56(e); Johnson v. Board of Regents of University of Georgia, 263 F.3d 1234, 1264 (1 1 t h Cir. 2001). If the evidence is merely colorable or is not significantly probative, s u m m a ry judgment may be granted. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (c ita tio n s omitted). Thus, to avoid summary judgment, the nonmoving party "must do more th a n simply show that there is some metaphysical doubt as to the material facts." Matsushita E le c . Indus., 475 U.S. at 586 106 S.Ct. at 1356 (citations omitted). In determining whether a genuine issue for trial exists, the court must view all the e v id e n c e in the light most favorable to the nonmovant. McCormick v. City of Fort L a u d e rd a le , 333 F.3d 1234, 1243 (11th Cir. 2003); Johnson, 263 F.3d at 1242-43. Further, " a ll justifiable inferences are to be drawn in [that party's] favor." Anderson, 477 U.S. at 255; 1 0 6 S.Ct. at 2513; see also McCormick, 333 F.3d at 1243 (the evidence and all reasonable in f e re n c e s from the evidence must be viewed in the light most favorable to the nonmovant). If the non-moving party fails to make a showing sufficient to establish the existence of an e le m e n t essential to its case on which it will bear the burden of proof at trial, summary j u d g m e n t must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. In other w o rd s, summary judgment is proper after adequate time for discovery and upon motion Page 7 of 17 against a party who fails to make a showing sufficient to establish the existence of an element e s s e n tia l to that party's case. Id. at 322, 106 S.Ct. at 2552. I V . DISCUSSION AND ANALYSIS A. D e fic ie n c y W h e n an action brought is before a federal court pursuant to its subject matter ju ris d ic tio n under 28 U.S.C. 1332, that court must employ the choice-of-law rules of the ju ris d ic tio n in which it sits in determining the proper law to apply in the case. See, e.g., K la x o n Co. v. Stentor Elec. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Morris v . SSE, Inc., 912 F.2d 1392, 1394 n. 1 (11th Cir.1990); see also Benchmark Med. Holdings, In c . v. Rehab Solutions, LLC, 307 F.Supp.2d 1249, 1258-59 (M.D. Ala. 2004) ("When a f e d e ra l court decides a state law claim, whether acting pursuant to diversity or supplemental ju ris d ic tio n , it applies the choice-of-law rules of the jurisdiction in which its sits."). Thus, th e Court looks to Alabama choice-of-law rules. In a contractual dispute, Alabama law must " f irs t look to the contract to determine whether the parties have specified a particular s o v e re ig n 's law to govern." Stovall v. Universal Const. Co., Inc., 893 So.2d 1090, 1102 (A la . 2004); see also Clanton v. Inter.Net Global, L.L.C., 435 F.3d 1319, 1323 (11th Cir. 2 0 0 6 ) (quoting Stovall). In the case between Wachovia and the Defendants, the contracts all p ro v id e that they shall be "governed by and construed under the laws of the state named in t h e Bank's address on the first page hereof without regard to that state's conflict of laws p rin c ip le s ." See Doc. 15, Ex. 2-2 through Ex. 2-16. In all the contracts, the state named is Page 8 of 17 Alabama. Thus, all substantive matters are governed by Alabama law. In considering an unopposed motion for summary judgment, the court "cannot base th e entry of summary judgment on the mere fact that the motion was unopposed, but, rather, m u s t consider the merits of the motion." United States v. One Piece of Real Prop. Located a t 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). "The district court n e e d not sua sponte review all of the evidentiary materials on file at the time the motion is g ra n te d , but must ensure that the motion itself is supported by evidentiary materials. At the le a s t, the district court must review all of the evidentiary materials submitted in support of th e motion for summary judgment." Id. at 1101-02 (citations omitted). In first looking to the appropriate law, the Court determines the breach of contract c la im itself is covered by Alabama law. To prevail on a breach of contract claim under A la b a m a law, the plaintiff must establish: (1) the existence of a valid contract binding the p a rtie s in the action, (2) its own performance under the contract, (3) the defendant's n o n -p e rf o rm a n c e , and (4) damages. Ex parte American Heritage Life Ins. Co., -- So.3d -- , -- , 2010 WL 1170513, *2 (Ala. 2010) (citing Congress Life Ins. Co. v. Barstow, 799 So.2d 9 3 1 , 937 (Ala. 2001)); Shaffer v. Regions Fin. Corp., 29 So.3d 872, 880 (Ala. 2009) (quoting R e y n o ld s Metals Co. v. Hill, 825 So.2d 100, 105 (Ala. 2002)). i. L o a n s/N o te s I, II, III, IV, VI, and VIII In this case, Wachovia has clearly met those four elements. The undisputed evidence e s ta b lis h e s the debt, the default, and the deficiency. Specifically, the existence and terms of Page 9 of 17 the loan are evidence by a the eight Promissory Notes and the Unconditional Guaranties. See D o c . 15, Exhibit 2-2 through 2-16. The Promissory Notes and Unconditional Guaranties c o n ta in all the terms agreed to by the parties. Id. This includes what occurs in the event of d e f a u lt. Id. The uncontroverted affidavit of John Cathey, Director of the Special Assets M a n a g e m e n t Department for Wells Fargo Bank, National Association (successor-by-merger to Wachovia), clearly establishes that these six loans are in default and Defendants have m a d e no further payments. Id., Ex. 2, Cathey Affidavit. Cathey further avers that, as a result o f the default, the outstanding indebtedness is as listed in the subsections below. The a m o u n ts are clearly established by the record and are uncontroverted. As such, summary ju d g m e n t is appropriate for these amounts. A s there is default, the Court must look to Alabama law as to whether the interest is a p p r o p r ia te . In Alabama, pre-judgment interest on damages stemming from a breach of c o n tra c t are governed by ALA. CODE 8-8-8. It provides that "All contracts, express or im p lie d , for the payment of money, or other thing, or for the performance of any act or duty b e a r interest from the day such money, or thing, estimating it at its money value, should have b e e n paid, or such act, estimating the compensation therefor in money, performed." ALA. C ODE 8-8-8. Therefore, prejudgment accrued interest is appropriate under Alabama law a n d is governed by the Promissory Notes. Page 10 of 17 a. L o a n /N o t e I A s of June 3, 2010, Defendants owe Wachovia $170,397.72 in principle plus interest in the amount of $8,205.32. Interest continues to accrue at the rate of $20.12 per day. This a m o u n t is uncontroverted and clearly established by the record. As such, through July 27, 2 0 1 0 - the date of this opinion - the additional interest is $1,086.48 ($20.12 multiplied by 54 d a ys ). This brings the total indebtedness on Loan/Note I to $179,689.52. b. L o a n /N o te II A s of June 3, 2010, Defendants owe Wachovia $231,403.62 in principle plus interest in the amount of $15,625.10. Interest continues to accrue at the rate of $27.32 per day. This a m o u n t is uncontroverted and clearly established by the record. As such, through July 27, 2 0 1 0 - the date of this opinion - the additional interest is $1,475.28 ($27.32 multiplied by 54 d a ys ). This brings the total indebtedness on Loan/Note II to $248,504.00. c. L o a n /N o te III A s of June 3, 2010, Defendants owe Wachovia $415,000.00 in principle plus interest in the amount of $19,550.91. Interest continues to accrue at the rate of $48.99 per day. This a m o u n t is uncontroverted and clearly established by the record. As such, through July 27, 2 0 1 0 - the date of this opinion - the additional interest is $2,645.46 ($48.99 multiplied by 54 d a ys ). This brings the total indebtedness on Loan/Note III to $437,196.37. d. L o a n /N o te IV A s of June 3, 2010, Defendants owe Wachovia $2,285.22 in principle plus interest in Page 11 of 17 the amount of $3,156.30 and late fees in the amount of $109.16. Interest continues to accrue a t the rate of $0.50 per day. This amount is uncontroverted and clearly established by the re c o rd . As such, through July 27, 2010 - the date of this opinion - the additional interest is $ 2 7 .0 0 ($0.50 multiplied by 54 days). This brings the total indebtedness on Loan/Note IV to $5,577.68. e. L o a n /N o te VI A s of June 3, 2010, Defendants owe Wachovia $2,000.00 in principle plus interest in th e amount of $4,296.46 and late fees in the amount of $399.92. Interest continues to accrue a t the rate of $0.42 per day. This amount is uncontroverted and clearly established by the re c o rd . As such, through July 27, 2010 - the date of this opinion - the additional interest is $ 2 2 .6 8 ($0.42 multiplied by 54 days). This brings the total indebtedness on Loan/Note VI to $6,719.06. f. L o a n /N o te VIII A s of June 3, 2010, Defendants owe Wachovia $56,171.74 in principle plus interest in the amount of $2,645.92. Interest continues to accrue at the rate of $6.63 per day. This a m o u n t is uncontroverted and clearly established by the record. As such, through July 27, 2 0 1 0 - the date of this opinion - the additional interest is $358.02 ($6.63 multiplied by 54 d a ys ). This brings the total indebtedness on Loan/Note VIII to $59,175.68. g. T o ta l Indebtedness of Loans/Notes I, II, III, IV, VI, and VIII T h e indebtedness of these six loans reaches a total of $936,862.31. This is the Page 12 of 17 cumulative total of the principal and interest accrued through July 27, 2010. Summary ju d g m e n t is appropriate as to that amount. ii. L o a n s/N o te s V and VII T h e Court is unable to grant summary judgment on these loans/notes. The facts, while n o t necessarily in dispute, are not clear from the record. Specifically, the amounts listed in th e affidavit and in the summary judgment brief do not match. On Note V, the affidavit s ta te s : "As of June 3, 2010, the outstanding indebtedness due under Loan V was $5,777.40. This debt consists, in part, of $1,000.00 of principal, $4,370.49 in accrued interest, and $ 4 0 6 .4 1 . Interest continues to accrue on Loan V as the per diem rate of $0.22 per day." See D o c . 15, Exhibit 2, Cathey Affidavit at 36. (emphasis added). However, the brief in s u p p o rt of the summary judgment motion states "As of June 3, 2010, L&H owes Wachovia U n d e r Note V the principal sum of $1,000.00, plus interest accrued on said indebtedness in th e amount of $4,370.49 and late fees in the amount of $104.30, plus costs of collection and re a s o n a b le attorneys' fees...Interest continues to accrue on Note V at the rate of $0.22 per day f ro m and after June 3, 2010." See Doc. 16 a p. 9, 32 (emphasis added). At least one, if not b o th , of those numbers are in error and as such, the Court cannot grant summary judgment a s to Note V. A s for Note VII, the Cathey affidavit states: "As of June 3, 2010, the outstanding in d e b te d n e s s under Loan VII was $7,744.55. This debt consists, in part, of $2,000 of p rin c ip a l, $5,237.38 in accrued interest, and $417.17 in late fees. Interest continues to accrue Page 13 of 17 on Loan II at the per diem rate of $0.43 per day." See Doc. 15, Exhibit 2, Cathey Affidavit a t 38 (emphasis added). The brief in support of summary judgment states: "As of June 3, 2 0 1 0 , Defendants owe Wachovia under Note VII the principal sum of $2,000.00, plus in te re s t accrued on said indebtedness in the amount of $5,327.38 and late fees in the amount o f $417.17, plus costs of collection and reasonable attorneys' fees...Interest continues to a c c ru e on Note VII at the rate of $0.43 per day from and after June 3, 2010." See Doc. 16 a t p. 10, 34 (emphasis added). Again, the numbers do not match and thus the Court cannot g ra n t summary judgment on Note VII. T h e Court recognizes that these are likely typographical errors, but is unable to resolve th e s e issues on the current motion for summary judgment. The Court also acknowledges that b a s e d on the evidence before the Court, Wachovia will likely be entitled to summary ju d g m e n t as to Loans/Notes V and VII once the numbers are properly aligned as the evidence c le a rly establishes debt and default on these notes. The question that remains is the deficient a m o u n t. Thus, the Court will reopen the time to submit dispositive motions and permit P la in tif f Wachovia to submit an additional motion for summary judgment as to these two lo a n s /n o te s .1 Details will follow in the conclusion of this opinion. This Court generally does not reset dispositive motion deadlines once the deadline has passed. However, in this case, there is no jury demand and this Court would ultimately be the fact finder in any bench trial. As such, the Court finds there is no prejudice to the defendants in permitting Wachovia to submit an additional motion for summary judgment if Plaintiff decides to do so. Page 14 of 17 1 B. A tto r n e y 's Fees F in a lly, Wachovia requests $70,817.07 in attorney's fees. "In Alabama and most o th e r jurisdictions, the general rule is that attorney's fees and expenses of litigation are not re c o v e ra b le as damages, in the absence of a contractual or statutory duty, other than by a few re c o g n iz e d equity principles." Ex parte Burnham, Klinefelter, Halsey, Jones & Cater, P.C., 6 7 4 So.2d 1287, 1290 (Ala. 1995) (internal modifications and citation omitted). Thus, a m o rtg a g e e may recover attorney fees incurred when the contract imposes a duty on the m o rtg a g o r to pay those fees. See Lunceford v. Monumental Life Ins. Co., 641 So.2d 244, 247 (A la . 1994). The Alabama Supreme Court has also stated that "[t]he claim for an attorney's f e e is as much a part of the contract as any other feature of it. Such fees, under the contract, b e c o m e an effective part of the main debt." Taylor v. Jones, 290 Ala. 268, 276 So.2d 130 (1 9 7 3 ). If the Court finds that attorney's fees are recoverable, it must then determine the re a s o n a b le n e s s of the request. The Alabama Supreme Court has set forth twelve criteria that a trial court may consider in setting attorney fees: (1) the nature and value of the subject m a tte r of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3 ) the time consumed; (4) the professional experience and reputation of the attorney; (5) the w e i g h t of his responsibilities; (6) the measure of success achieved; (7) the reasonable e x p e n s e s incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a p ro f e ss io n a l relationship; (10) the fee customarily charged in the locality for similar legal Page 15 of 17 services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances. Knox Kershaw, In c . v. Kershaw, 598 So.2d 1372, 1374 (Ala. 1992) (citing Peebles v. Miley, 439 So.2d 137, 1 4 0 -4 1 (Ala.1983)). Rarely will all twelve criteria be applicable in a given case. T h e Loan Agreements at issue clearly provides for the recovery of attorneys fees. See D o c . 15, Exhibit 2-2 through 2-16. However, as discussed with regard to the claims, s u m m a ry judgment is granted as to Loans/Notes I, II, III, IV, VI, and VIII and denied as to L o a n s/N o te s V and VII. To wit, Wachovia would only be able to recover attorneys' fees at to those loans/notes for which summary judgment was granted. None of the evidence before th is court shows a breakdown of the attorneys' fees per ote. Nor would the Court expect that i t would given that all the notes were likely addressed concurrently. As such, the Court is p re s e n te d with a dilemma as to how to break up the fees. Rather than randomly choose a m e th o d to divide the attorneys' fees, the Court will defer its ruling on attorneys' fees until a f te r the new dispositive motion deadline. Should Wachovia prevail on the remaining two l o a n s /n o te s , the Court need not break up the fees. If Wachovia does not prevail then the C o u rt will set a hearing on the matter to determine the appropriate resolution of attorneys' fees. V . CONCLUSION P u rs u a n t to the foregoing Memorandum Opinion, the Court grants in part and denies in part Plaintiff Wachovia Bank, National Association's Motion for Summary Judgment Page 16 of 17 (Doc. 15). The Court finds summary judgment is appropriate for Loans/Notes I, II, III, IV, V I, and VIII in the amount of $936,862.31 which includes principal and interest accrued th ro u g h the date of this Opinion. Summary judgment is denied as to Loans/Notes V and VII. However, the Court O R D E R S that Plaintiff Wachovia Bank may file a new motion for summary judgment as to th o s e loans/notes on or before August 27, 2010. The motion would be treated as a new m o tio n for summary judgment and a briefing schedule would be issued where L&H would h a v e the opportunity to respond to those issues remaining. The Court defers its ruling on a tto rn e ys ' fees until that time. D O N E this 27th day of July, 2010. /s/ Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE Page 17 of 17

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