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

Filing 80

ORDER deeming withdrawn 68 Motion for Attorney Fees; granting 78 Motion to Withdraw. Signed by Judge John E. Steele on 9/22/2014. (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.
ORDER
This matter comes before the Court on plaintiff's Motion to
Withdraw Motion for Attorneys’ Fees and Costs (Doc. #78) filed on
August 18, 2014.

Defendant filed a Response to the Plaintiff’s

Motion to Withdraw Motion for Attorneys’ Fees and Costs (Doc. #79)
on August 27, 2014.
Plaintiff seeks to withdraw its Motion for Attorneys’ Fees
and Costs (Doc. #68) because Robert M. Anderson wired $17,168.84,
the total amount sought in the motion plus an additional fee for
providing

the

satisfaction
plaintiff

of

payoff
the

asserts

it

information,

attorneys’
has

no

fees
further

to

plaintiff

and

costs.

claim.

in

full

Therefore,
In

response,

defendants state that Anderson entered into a contract to sell the

property at issue which required either full payment immediately
or

risk

a

breach

of

the

pending

contract

on

the

property.

Defendants state that they still wish a decision on the merits so
that the difference may be refunded, and that the payment was not
made with the intent to moot the motion.
On May 19, 2014, the Court issued an Opinion and Order (Doc.
#64) granting a Stipulation for Entry of Agreed Order Granting
Plaintiff’s Motion for Summary Judgment, and granting plaintiff’s
Motion for Summary Judgment based on the stipulation.

As per the

terms of the agreement, the parties agreed:
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.
(Doc. #64, p. 4, ¶ D)(emphasis added).

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“It is a generally accepted rule of law that where a judgment
is appealed on the ground that the damages awarded are inadequate,
acceptance of payment of the amount of the unsatisfactory judgment
does not, standing alone, amount to an accord and satisfaction of
the entire claim.”
(1960).

United States v. Hougham, 364 U.S. 310, 312

The Court looks to the circumstances to see if there are

other reasons the payment might be deemed to end the case, and
“the parties’ objective manifestations of intent” is what matters.
Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 518 F.3d 1302,
1306 & 1307 (11th Cir. 2008).
not relevant.

A subjective intent to continue is

RES-GA Cobblestone, LLC v. Blake Const. & Dev.,

LLC, 718 F.3d 1308, 1315 (11th Cir. 2013).
Anderson asserts he paid the total pay off amount to preserve
the contract on the house, but not with the intent to resolve the
claim.

However, defendants have not provided any evidence or

correspondence

reflecting

that

they

were

reserving

paying while notifying plaintiff of their intent.

rights

or

(Doc. #79-1.)

Defendants also did not seek expedited consideration of the Motion
based on a pending contract on the property, and the terms of the
parties’ agreement clearly provide that payment will be deemed a
satisfaction of the issue of attorney fees and costs.

The only

evidence before the Court is the request for the payoff amount
through Sylvia E. Heldreth, P.A., and the parties’ acknowledgment
that the amount was fully paid.

(Doc. #78-1, Exh. B.)

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Accordingly, it is hereby
ORDERED:
1. Plaintiff's Motion to Withdraw Motion for Attorneys’ Fees
and Costs (Doc. #78) is GRANTED.
2. Plaintiff’s Motion for Attorneys’ Fees and Costs (Doc. #68)
is deemed withdrawn.
3. Plaintiff shall record a satisfaction of mortgage, to the
extent it has not already done so.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2014.

Copies:
Counsel of Record

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22nd

day