Branch Banking and Trust Company v. Hollon Construction, LLC et al (JOINT ASSIGN)

Filing 22

MEMORANDUM OPINION AND ORDER directing as follows: (1) plf Branch Banking and Trust Company's 16 renewed MOTION for Default Judgment as to Hollon Construction Company, LLC is denied with leave to renew; (2) if plf Branch Banking and Trust Company renew its motion, then it must provide the following: (a) An itemized statement of the calculation of the outstanding principal owed on each of the disputed promissory notes, as further set out; (b) A detailed breakdown of the interest calcul ations as to both notes, as further set out; (c) A statement of how the late charges are calculated, as further set out; (d) An itemized bill for any attorneys fees sought; (e) Documentation of any court costs or fees incurred, as further set out; ( f) an affidavit to the effect that def Hollon Construction, LLC is neither an infant nor incompetent; (g) An affidavit, as further set out; (h) finally, if plf wishes that the court award to it any amounts not mentioned above, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 9/28/15. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BRANCH BANKING and TRUST
COMPANY, successor in
interest to Colonial Bank
by Asset Acquisition From
the FDIC as Receiver for
Colonial Bank,
Plaintiff,
v.
HOLLON CONSTRUCTION, LLC;
ROBERT ALEXANDER HOLLON;
and ROBERT LORAIN HOLLON,
Defendants.

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CIVIL ACTION NO.
2:14cv979-MHT
(WO)

OPINION AND ORDER
Plaintiff Branch Banking and Trust Company (BB&T)
(successor in interest to Colonial Bank) brings suit
against

defendants

Hollon

Construction,

LLC,

Robert

Alexander Hollon, and Robert Lorain Hollon to collect
amounts owed to BB&T on two promissory notes upon which
the defendants allegedly defaulted.

Jurisdiction is

proper pursuant to 28 U.S.C. § 1332 (diversity).

The

case is now before the court on BB&T’s renewed motion

for default judgment against only Hollon Construction.
For the reasons that follow, the motion is denied with
leave to renew.
“A court has an obligation to assure that there is
a legitimate basis for any damage award it enters ....”
Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266
(11th Cir. 2003).

“[J]udgment of default awarding cash

damages [may] not properly be entered without a hearing
unless the amount claimed is a liquidated sum or one
capable of mathematical calculation.
awarded

only

if

the

record

Damages may be

adequately

reflects

the

basis for award via a hearing or a demonstration by
detailed affidavits establishing the necessary facts.”
Adolph Coors Co. v. Movement Against Racism & the Klan,
777

F.2d

1538,

1543-44

(11th

Cir.

1985)

(internal

quotations and citations omitted).
As to the first promissory note, BB&T provided the
court with a copy of the note.

The promissory note and

the complaint both state that the principal amount is
$ 50,000.00.

The note states that the initial interest
2

rate is 7.250 % per annum, and that the rate increases
to 18% per annum if the note goes into default.

BB&T

also provided the court with a demand letter, dated
July 15, 2013, which its counsel sent to the defendants
alleging that the interest “through 7-10” (which the
court takes to mean July 10, 2013), was $ 6,842.70, and
that the late charges were $ 324.57.

However, BB&T has

not provided any more information than that.
does not know the date of default.

The court

The court does not

know whether more late charges have been or will be
added.

BB&T

has

not

shown

any

calculation

of

the

current amount of interest owed, and the court does not
know

the

date

from

which

to

calculate

post-default

interest.
As

to

the

second

promissory

provided a copy of that note.
note,

as

well

as

the

note,

BB&T

also

The second promissory

complaint,

states

that

the

original principal amount on this note is $ 92,969.47.
The

note

also

states

that

initial

interest

rate

is

6.5 % per annum, but the rate increases to 18 % per
3

annum

if

the

discrepancy

note

goes

between

into

the

default.

complaint

and

There
the

is

a

demand

letter, however, as to the current principal amount as
of the filing of the complaint.

The complaint itself

(filed September 23, 2014) states that the outstanding
principal is $ 57,465.07.
15,

2013,

on

the

The demand letter dated July

other

hand,

outstanding principal is $ 87,465.07.

states

that

the

The court needs

clarification as to the current outstanding principal.
The demand letter states that the interest owed on this
amount “through 7-10” is $ 16,155.52, and that the late
charges are $ 577.53.

Here again, the court has no

more information than that.
the date of default.

The court does not know

Though the complaint states that

the second note “matured on August 25, 2010 and HC
failed to pay the note upon demand”, the complaint does
not state whether that is the date of default.

The

court does not know whether more late charges have been
or will be added.

BB&T has not shown any calculation

of the current amount of interest owed, and the court
4

does not know the date from which to calculate postdefault interest.
BB&T has provided a copy of the receipt for the
filing fee in this case, which is sufficient evidence
as to that portion of the requested judgment.
Finally, BB&T has not provided any documentation of
any kind as to attorneys’ fees.

In fact, it has not

even

fees

it

the

two

stated

the

amount

of

the

wishes

to

collect.
The

complaint

adds

together

principal

amounts of $ 50,000.00 and $ 57,465.07 and asks for a
judgment “in the principal amount of $ 107,465.07, plus
interest,
fees.”

late

charges,

court

costs,

and

attorney’s

However, the complaint provides no more detail

as to the amounts it is actually requesting, other than
to

provide

the

exhibits

as

noted

above.

The

application for entry of default, filed December 22,
2014,

and

the

renewed

motion

for

default

judgment,

filed January 27, 2015, do not update the court or
provide

additional

detail

as
5

to

any

of

the

amounts

listed above.

The court requires more documentation

than has been provided.
***
Accordingly, it is ORDERED as follows:
(1) Plaintiff

Branch

Banking

and

Trust

Company’s

renewed motion for default judgment as to Hollon
Construction Company, LLC (doc. no. 16) is denied
with leave to renew.
(2)

If

plaintiff

renews

its

Branch

motion,

Banking
then

and

it

Trust

must

Company

provide

the

following:
(a) An itemized statement of the calculation of the
outstanding

principal

disputed

owed

promissory

on

notes,

each

of

the

including

specifically the amounts of any payments that
the defendants have made on them up until the
time of plaintiff’s filing of the new renewed
motion,

along

with

payments were made.

6

the

dates

that

those

(b) A

detailed

breakdown

of

the

calculations as to both notes.

interest

This statement

must include any relevant dates, such as when
the interest amounts are compounded and added
to the principal (if indeed they are).
statement

should

also

indicate

how

The
much

interest is owed as of the time that plaintiff
files the new renewed motion.
(c) A

statement

of

how

calculated,

as

well

outstanding

late

the
as

late

a

charges

charges

statement
at

the

of

time

are
the
that

plaintiff files the new renewed motion.
(d) An

itemized

bill

for

any

attorneys’

fees

sought.
(e) Documentation

of

any

court

costs

or

fees

incurred, even though it has already provided
the receipt for the court filing fee.
(f) An

affidavit

to

the

effect

that

defendant

Hollon Construction, LLC is neither an infant

7

nor incompetent.

See Fed. R. Civ. P. 55(b)(2).

(g) An affidavit “(A) stating whether or not the
defendant is in military service and showing
necessary facts to support the affidavit; or
(B) if the plaintiff is unable to determine
whether or not the defendant is in military
service, stating that the plaintiff is unable
to determine whether or not the defendant is in
military

service,”

as

required

by

the

Servicemembers Civil Relief Act, 50 App. U.S.C.
§ 521(a) & (b).
(h) Finally,

if

plaintiff

wishes

that

the

court

award to it any amounts not mentioned above, it
should

so

state

similarly-detailed

and

accounting

provide

a

of

a

such

request.
DONE, this the 28th day of September, 2015.
___/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE