Vanderbilt Mortgage and Finance, Inc. v. Crosby et al

Filing 48

ORDER granting in part and denying in part 47 Motion to Confirm Sale and for Entry of Final Judgment. The foreclosure sale is confirmed and VMF is due a deficiency balance of $508.11. The Court reserves ruling regarding VMF's Motion for Attorney's Fees and Costs. VMF is ordered to supplement its motion by 8/7/15. The Court withholds final judgment until these matters have been resolved. Signed by Judge Kristi K. DuBose on 7/23/2015. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VANDERBILT MORTGAGE AND
FINANCE, INC.,
Plaintiff,
v.
STEPHEN D. CROSBY, et al.,
Defendants.

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CIVIL ACTION NO. 14-00259-KD-C

ORDER
This matter is before the Court on Plaintiff Vanderbilt Mortgage and Finance, Inc.’s
Motion to Confirm Foreclosure Sale and for Entry of Final Judgment. (Doc. 47).
In October 2012, the Defendants (“the Crosbys”) purchased a mobile home from CMH
Homes, Inc., d/b/a Clayton Homes Northport, AL, and executed a manufactured home retail
installment contract and disclosure statement (the contract). (Doc. 1-1; Doc. 35-1 at 2 (Aff.
Ridge); Doc. 29 (amended)). In the contract, the Crobsys promised to repay the principal sum of
$61,380.97 at 11.20% interest in 240 monthly installments of $765.09. (Id.) As part of the
contract, CMH and the Crosbys assigned CMH’s interests to Plaintiff Vanderbilt Mortgage and
Finance, Inc. (VMF). (Doc. 1-1 at 11; Doc. 35-1 at 2 (Aff. Ridge)). In conjunction with the
purchase of the mobile home and as security for that contract, the Crosbys granted VMF a
$64,535.73 mortgage on real property (5 acres) in Toxey, Alabama. (Doc. 1-2).1 Ultimately, the
Crosbys defaulted under the contract.
On March 5, 2015, the Court granted VMF’s motion for summary judgment as to judicial
foreclosure of the land located in Toxey, Alabama. (Doc. 46). As explained in more detail in the

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VMF’s security interest was documented on the Certificate of Title, as the lienholder. (Doc. 1-2).

Court’s previous order, VMF was entitled to sell both the property and the mobile home together
through the foreclosure sale. (Doc. 46).
Prior to the foreclosure sale, VMF published a Notice of Mortgage Foreclosure Sale in
the Choctaw-Sun Advocate once a week for three successive weeks. (Docs. 47 at 2 and 47-1).
VMF also provided written notice of the foreclosure sale to the Defendants. (Doc. 47 at 3). VMF
asserts that on May 14, 2015, “[t]he foreclosure sale was conducted in accordance with the
requirements of the mortgage, with the requirements of the Court’s order of March 5, 2015, and
with the requirements of Alabama law.” (Doc. 47 at 3).2 VMF represents to the Court that it
made the only and highest bid for the property at the foreclosure sale in the amount of
$73,767.07, and that the auctioneer declared VMF the successful bidder.
Courts have broad discretion in determining whether to confirm or refuse to confirm a
judicial sale. See, e.g., Citibank, N.A. v. Data Lease Financial Corp., 645 F.2d 333 (5th
Cir.1981); Wood River Dev. v. Armbrester, 547 So.2d 844, 848 (Ala.1989); Lynn v. Dodge, 727
So.2d 89 (Ala.Civ.App.1997); Davis v. Battle, 675 So.2d 460 (Ala.Civ.App.1996). Such
determinations ordinarily will not be disturbed except for an abuse of discretion, recognizing the
strong public policy in favor of the finality of judicial sales. Id. Generally courts have adopted
the policy that confirmation will not be refused except for substantial reasons, and that in the
absence of fraud or misconduct, the highest bidder will ordinarily be accepted as the purchaser of
the property offered for sale. See, e.g., First Nat. Bank of Jefferson Parish v. M/V Lightning
Power, 776 F.2d 1258 (5th Cir.1985); Harduval v. Merchants' & Mechanics' Trust & Savings
Bank, 86 So. 52 (Ala.1920) (finding that a purchaser at judicial sale is entitled to have the sale
confirmed by the court in the absence of irregularity, misconduct, fraud, mistake, or gross
inadequacy of price amounting in itself to fraud). There is no evidence of record of irregularity,
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The Court has previously determined that Alabama law applies. (Doc. 43 at 6).

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misconduct, fraud, mistake or gross inadequacy of price amounting in itself to fraud in the
foreclosure sale. Accordingly, VMF’s motion to confirm the foreclosure sale is GRANTED IN
PART. The foreclosure sale is CONFIRMED.
In addition to confirmation of the sale, VMF also moves the Court to: 1) Award a
deficiency balance of $508.11; 2.) Award attorney’s fees in the amount of $9,938.79; 3.) Tax
costs of the actions against the Defendants; and 4.) Enter a final judgment on behalf of VMF.
The Court addresses each in turn.
A.

Deficiency

On February 11, 2015, this Court awarded VMF a judgment in the amount of $70,416.88,
which consisted of the following: $62,719.17 in unpaid principal; $6,747.14 in accrued unpaid
interest as of December 11, 2014; $388.58 in late charges; and $561.79 in escrow items. (Doc.
43 at 7). Since then, VMF asserts that an additional $2,964.50 in accrued unpaid interest has
incurred and that it is due $882.00 in costs associated with publication of the foreclosure notice.
With the additional interest and publication costs included, the amount outstanding totals
$74,275.18. Defendants are due credit in the amount of $73,767.07 based on the amount VMF
paid for the motor home at the foreclosure sale. This leaves a deficiency balance of $508.11.
The Eleventh Circuit has held, “If the sales price at a judicial sale does not fully satisfy a
judgment creditor's judgment…the creditor can generally seek a deficiency judgment to recover
the balance of the debt. Although courts today generally calculate deficiency judgments as the
difference between the total debt and the property's fair market value, they also generally
presume that the foreclosure sales price equals the property's fair market value.” Redus Florida
Commercial, LLC v. Coll. Station Retail Ctr., LLC, 777 F.3d 1187, 1193 (11th Cir.
2014)(internal citations omitted).

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The mortgage states, “Lender shall be entitled to collect all expenses incurred in pursuing
the remedies provided in this section 22 [Acceleration; Remedies], including, but not limited to
reasonable attorneys’ fees and costs of title evidence.” (Doc. 35-4 at 15). Upon consideration, the
Court agrees that VMF is owed a deficiency balance of $508.11.
B.

Attorney’s Fees and Costs

VMF has requested $9,938.79 attorney’s fees “which represents 15% of [the Crosbys’]
unpaid balance at the time that this matter was referred to [] counsel.” Generally, the
determination of reasonable attorney’s fees begins with a determination of the reasonable hourly
rate multiplied by the “hours reasonably expended.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348,
1350 (11th Cir.2008); Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292,
1303 (11th Cir.1988). When making this “lodestar” determination, the court may consider the
twelve factors identified in Pharmacia Corp. v. McGowan, 915 So.2d 549, 552–53 (Ala. 2004)
(quoting Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988)); see also Bivins,
548 F.3d at 1350 (addressing the twelve factors from Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717–719 (5th Cir.1974)). “The product of these two figures is the lodestar and
there is a strong presumption that the lodestar is the reasonable sum the attorneys deserve.”
Bivins, 548 F.3d at 1350 (internal citations and quotation omitted).
In support of its claim for attorney’s fees, VMF has submitted the affidavit of VMF
Portfolio Manager Brent Ridge. (Doc. 35-1). In his affidavit he states:
16.
In the event of a default, the Manufactured Home Retail Installment
Contract provides that the buyer agrees to pay the Seller's expenses for
“reasonable attorney’s fees not to exceed 15% of Buyer's Unpaid Balance after
referral to an attorney who is not a salaried employee of the Seller.” In my best
judgment and experience, including my experience with attorneys in matters of
this nature within this industry, 15% of the buyer's unpaid balance is a reasonable
attorney fee to be awarded to cover the efforts incurred in this case thus far and in
future. Because the attorneys have had to respond to several motions that are not

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routine in this type of case, there has been more legal work involved than would
normally occur. Additional attorney work will be needed in completing the
foreclosure of the collateral and pursuing any deficiency after the sale of the
collateral.3
17.
At the time this case was referred to outside counsel who are not a salaried
employee of [VMF], the outstanding balance on the loan was $66,258.61 .
However, VMF has not provided any evidence pertaining to the number of hours
expended or hourly rates. Thus, the Court is without sufficient information to determine whether
the amount of attorney’s fees requested is reasonable. Though the installment contract provides a
15% cap, it does not follow that 15% of the buyer’s unpaid balance is per se reasonable. The
agreement states that the attorney’s fees are “not to exceed 15% of Buyer’s Unpaid Balance,” not
that attorney’s fees shall equal 15% of buyer’s unpaid balance. (emphasis added). See Bank of
the Ozarks v. Bass, No. 1:13-CV-22 WLS, 2014 WL 2769025, at *3 (M.D. Ga. June 18,
2014)(Holding “But Plaintiff has failed to carry its burden of establishing the amount of
attorney’s fees. In support of its request for attorney's fees, Plaintiff points to the
“COLLECTION COSTS AND ATTORNEY’S FEES” provision of the promissory note, which
states: “I agree to pay all costs of collection ... if I am in default. In addition, if you hire an
attorney to collect this note, I also agree to pay any fee, not to exceed 15 percent of the principal
and interest then owed, you incur with such attorney plus court costs (except where prohibited by
law).” Plaintiff claims it is automatically owed 15 percent of the principal and interest because
the Note sets that figure as a cap and [state law] provides that a percentage provision is valid and
enforceable. Although [state law] states that specific percentage provisions are valid, the Parties’
Note in this case does not provide for fees in a specific percentage. Instead, the Note requires the
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The manufactured home retail installment contract states: “In the event of default, Buyer also agrees to pay Seller’s
expenses for (a) reasonable attorney’s fees not to exceed 15% of Buyer’s Unpaid Balance after referral to an
attorney who is not a salaried employee of the Seller (b) court costs and disbursements; and (c) costs of repossessing
the Manufactured Home including the costs of storage, reconditioning, and resale.” (Doc. 35-2 at 7).

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borrower to repay fees incurred, not to exceed 15 percent. It would be superfluous to say fees
shall ‘not exceed’ 15 percent if, in all cases, the fee is automatically 15 percent. Thus, the Court
cannot simply award fees with a ‘mathematical calculation.’”).
VMF also seeks “that the Court tax the costs of this action against the Defendants” but do
not point to any particular costs or provide evidence of additional costs requested. (Doc. 47 at 6).
Parties seeking taxation of costs are directed to follow the proper procedures for doing so, as
outlined in the Southern District of Alabama’s Local Rules, the Federal Rules of Civil Procedure,
and any other applicable law.
Accordingly, the Court RESERVES RULING on the matter of attorney’s fees and costs.
VMF is ORDERED to file, on or before August 7, 2015, a supplement to its motion addressing
the deficiencies in its request for attorney’s fees and costs.4
C.

Conclusion

VMF’s motion to confirm the foreclosure sale is GRANTED in part. The sale is
CONFIRMED and VMF is due a deficiency balance of $508.11. However, the Court
RESERVES RULING with regard to VMF’s motion for attorney’s fees and costs. As outlined
above, VMF is ORDERED to supplement its motion on or before August 7, 2015. The Court
withholds entry of Final Judgment until these matters have been resolved.
DONE and ORDERED this 23rd day of July 2015.
s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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In the event VMF does not supplement its motion, the Court will DENY the request for attorney’s fees and costs.

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