BMO Harris Bank N.A. v. Anderson et al

Filing 64

OPINION AND ORDER granting 56 Stipulation for entry of agreed order; granting 47 Renewed Motion for summary judgment as stated in the Opinion and Order and granting Renewed Motion for default judgment. The Clerk shall enter judgment in favor of plaintiff and against defendants as provided in the Opinion and Order, terminate all deadlines, and close the file. Any motion for attorney's fees and costs shall be filed within 14 days of the entry of judgment. Signed by Judge John E. Steele on 5/19/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BMO
HARRIS
BANK
N.A.,
successor-by-merger to M&I
Marshall & Ilsley Bank,
Plaintiff,
v.

Case No: 2:12-cv-631-FtM-29CM

ROBERT
M.
ANDERSON,
an
individual,
ROBERT
M.
ANDERSON, as Trustee for the
Robert M. Anderson Trust
dated 12/5/05, and MARGARET
VENEIGH, an individual,
Defendants.

OPINION AND ORDER
This matter comes before the Court on the Stipulation for
Entry of Agreed Order Granting Plaintiff’s Motion for Summary
Judgment (Doc. #56) filed on April 18, 2014 by plaintiff and
defendants Robert M. Anderson (Anderson) and Robert M. Anderson
Trust Dated 12/05/2005 (Anderson Trust).

The Court initially took

the Stipulation under advisement pending further action as to the
non-stipulating defendants, Margaret Veneigh and Daniel Veneigh.
On April 24, 2014, a Clerk’s Entry of Default (Doc. #61) was issued
as to Margaret Veneigh, and an Order (Doc. #62) was also issued
dropping Daniel Veneigh as a party-defendant.

On April 25, 2014,

plaintiff filed a Response to Order (Doc. #63) seeking a ruling on

the summary judgment.

Also before the Court is an incorporated

Renewed Motion for Default Judgment (Doc. #47) as to Margaret
Veneigh, which the Court will consider as if filed after the entry
of the default.
On March 12, 2014, plaintiff filed a Third Amended Complaint
for Foreclosure and Other Relief (Doc. #46) seeking to foreclose
on the secured property for judgment for the amount owing on a
Promissory Note in the amount of $150,000 executed by Anderson and
secured by a Mortgage on the subject property owned by Anderson
Trust. Defendant Margaret Veneigh was named as a possible claimant
by tenancy or by virtue of possession of the property.
Plaintiff and defendants Anderson and Anderson Trust have
agreed to the entry of an Order granting plaintiff’s Renewed Motion
for Summary Judgment and Default Judgment (Doc. #47) filed on March
12, 2014.

Defendants Anderson and Anderson Trust filed a Response

to the Plaintiff's Renewed Motion for Summary Judgment and Default
Judgment (Doc. #51) on March 26, 2014, and thereafter stipulated
to the granting of the motion.

No response or appearance has been

filed by Margaret Veneigh since the entry of the April 24, 2014
Clerk’s Default, and the time to respond has expired.

Margaret

Veneigh was previously in default and has filed no claim or
interest to the property.

Therefore, the Court finds that the

entry of a default judgment is appropriate.
Accordingly, it is now

2

ORDERED:
1.

The

Stipulation

for

Entry

of

Agreed

Order

Granting

Plaintiff’s Motion for Summary Judgment (Doc. #56) is GRANTED.
2.

Plaintiff’s Renewed Motion for Summary Judgment (Doc.

#47) is GRANTED as follows:
A.

Defendants Anderson and Anderson Trust owe Plaintiff the

total

sum

of

$163,055.65,

which

amount

includes

the

following: (i) $150,000 in principal; (ii) $430.92 in flood
insurance; (iii) $12,124.81 in interest through 2/25/14; and
(iv) $499.92 in interest from 2/26/14 to 4/14/14 (the “Total
Sum”).
B.

Anderson shall remit the Total Sum to the trust account

of Quarles & Brady LLP within two (2) business days from the
entry of this Order, and Quarles & Brady LLP shall be entitled
to immediately remit the Total Sum to Plaintiff without
further order from the Court. If the Total Sum is timely
remitted as stated in this paragraph, Plaintiff shall provide
to Anderson's counsel the original note.
C.

If Anderson fails to remit the Total Sum in accordance

with paragraph 3, Plaintiff shall, upon the filing of an
affidavit of non-compliance by Plaintiff or its counsel and
the original note with the Court, be entitled to the immediate
entry a final judgment of foreclosure in the amount of the
Total Sum plus $499.92 and per diem interest in the amount of

3

$20.83 from 4/15/14 to the date of the judgment, which
judgment shall bear interest at the prevailing legal rate of
interest, and Matthew J. Meyer shall be appointed to serve as
special master to advertise and conduct the foreclosure sale.
D.

The parties agree that, notwithstanding the payment of

the Total Sum, Plaintiff is entitled to recover its reasonable
attorney's fees and permissible costs in connection with this
action.

The

parties

are

in

dispute

over

the

amount

of

attorney's fees and costs to which Plaintiff is entitled to
and this Court reserves jurisdiction to award attorney's fees
and costs upon application by the Plaintiff within FOURTEEN
(14) DAYS of the entry of judgment. Any attorney's fees and
costs awarded shall be a lien on the subject property.
Further, the mortgage shall remain a lien on the subject
property until the attorney's fees issue is resolved either
by (i) Anderson's payment in full of the attorney's fees and
costs awarded by order of this Court, in which case Plaintiff
will record a satisfaction of mortgage; or (ii) the entry of
a

final

judgment

of

foreclosure

in

the

amount

of

the

attorney's fees and costs awarded by order of this Court,
which will extinguish the mortgage.
3.

Plaintiff’s Renewed Motion for Default Judgment (Doc.

#47) is GRANTED and any potential claim or interest in the subject
property that could be asserted by Margaret Veneigh is dismissed

4

with

prejudice,

and

plaintiff

shall

take

nothing

from

this

defendant.
4.

The Clerk shall enter judgment in favor of plaintiff and

against defendants as provided above, terminate all deadlines, and
close the file.
DONE AND ORDERED at Fort Myers, Florida, this
May, 2014.

Copies:
Counsel of record

5

19th

day of