PNC Bank, N.A. v. Starlight Properties & Holdings, LLC et al

Filing 42

ORDER adopting 41 Report and Recommendation of the Magistrate Judge. 1. The Report and Recommendation of the Magistrate Judge is adopted, confirmed, and approved in all respects and is made a part of this Order for all purposes, including appella te review. 2. PNC's Renewed Motion for Default Judgment (Doc. 33) is GRANTED in part and DENIED in part as follows: a. Starlight is liable for breach of the Promissory Note (Count I); b. Cirrus and Ali are liable for breach of the Commercial G uaranty Agreements (Count II); c. Entry of a Final Judgment of Foreclosure against Defendants and an order to conduct a foreclosure sale of the property commonly known as 13650 West Colonial Drive, Unit 10, Building B, Winter Garden, FL is appropriat e (Count III); d. PNC is awarded damages against Starlight, Ali, and Cirrus, jointly and severally, in the form of unpaid principal, interest, and late charges under the Promissory Note, the Change in Terms Agreement, and the Commercial Guaranties. Within FOURTEEN (14) DAYS from the date of this Order, PNC shall submit a notice to the Court indicating the amount of unpaid principal, interest, and late charges as of the date of submission of the notice and showing how it was calculated. If the Court finds the total amount of unpaid principal, interest, and late charges noticed by PNC to be properly calculated, the Court will include the total amount in the judgment. e.Except as noted in the Report and Recommendation and in this Order, the Court finds the hourly rate and hours expended to be reasonable. Therefore, PNC is awarded damages against Starlight, Ali, and Cirrus, jointly and severally, in the total amount of $7,198.71, which represents $5,172.50 in attorney's fe es and $2,026.21 in costs. f. It is further ordered and adjudged that Starlight, Ali, and Cirrus shall complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet), including all required attachments, and serve it on P NC's attorney within FORTY-FIVE (45) DAYS from the date of the final judgment. Failure to obey this Order may subject the parties to contempt of court. 3. Within FOURTEEN (14) DAYS from the date of this Order, PNC shall tender the original pr omissory notes at issue in this case to the Clerk of Court for cancellation. 4. Within FOURTEEN (14) DAYS from the date of this Order, PNC shall submit a proposed Final Judgment which incorporates the amounts awarded in this Order, including unpaid principal, interest, and late charges calculated through the date of submission. The proposed Final Judgment should be emailed to [e-mail]. SEE ORDER FOR COMPLETE DETAILS. Signed by Judge Charlene Edwards Honeywell on 6/9/2014. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PNC BANK, N.A.,
Plaintiff,
v.

Case No: 6:13-cv-408-Orl-36KRS

STARLIGHT PROPERTIES &
HOLDINGS, LLC, CIRRUS CARE,
INC., SHAMEEM ALI, WEST OAKS
COMMERCE PARK CONDOMINIUM
ASSOCIATION, INC. and GRANT
STREET CORPORATION,
Defendants.
ORDER
This cause comes before the Court on the Report and Recommendation of Magistrate Judge
Karla R. Spaulding, filed on April 25, 2014 (Doc. 41). In the Report and Recommendation,
Magistrate Judge Spaulding recommends that Plaintiff PNC Bank, N.A.’s (“PNC”) Renewed
Motion for Final Default Judgment (“Renewed Motion for Default Judgment”) (Doc. 33) be
granted in part and denied in part. See Doc. 41. No party has objected to the Report and
Recommendation and the time to do so has expired.
Pursuant to Federal Rule of Civil Procedure 55(a), default was entered against Defendant
Grant Street Corporation (“Grant Street”) on April 19, 2013, against Defendant West Oaks
Commerce Park Condominium Association, Inc. (“West Oaks”) on May 14, 2013, and against
Defendants Shameem Ali (“Ali”), Cirrus Care, Inc. (“Cirrus”), and Starlight Properties &
Holdings, LLC (“Starlight”) on June 26, 2013. Docs. 18, 21, 28. On November 26, 2013, PNC
filed its Renewed Motion for Default Judgment pursuant to Federal Rule of Civil Procedure
55(b)(2). Doc. 33. After Defendants failed to respond or enter an appearance, Magistrate Judge

Spaulding scheduled a hearing on the Renewed Motion for Default Judgment. Doc. 34. Ali
appeared at the hearing on behalf of himself and, purportedly, Cirrus and Starlight, and he
requested that the Magistrate Judge grant him, Starlight, and Cirrus 30 days to respond to the
Renewed Motion for Default Judgment or to file a motion for relief from the defaults. Doc. 37;
Doc. 41 at 3. Magistrate Judge Spaulding granted Ali’s request both orally at the hearing and in a
subsequent written order, providing him, Starlight, and Cirrus up to and including February 24,
2014 to respond to the Renewed Motion for Default Judgment or to file a motion for relief from
the defaults. Doc. 38; Doc. 41 at 3. Copies of the written order were mailed by the Clerk to each
Defendant, but the mailings to Ali and Cirrus were returned as undeliverable.

Doc. 39.

Accordingly, pursuant to the Magistrate Judge’s instruction, copies were mailed to Ali, Starlight,
and Cirrus via certified mail, return receipt requested at an alternative address. Id. Court records
show that the mailing was received and signed for by one Esther Lucas. To date, no Defendant
has filed a response to the Renewed Motion for Default Judgment (or any other document) or
entered an appearance in this action.
Upon review, the Court is in agreement with the Magistrate Judge that PNC has adequately
established that: (i) Starlight is liable for breach of the Promissory Note, as amended by the
Change in Terms Agreement (Count I); (ii) Ali and Cirrus are liable for breach of their respective
Commercial Guaranties (Count II); and (iii) PNC is entitled to entry of a final judgment of
foreclosure against all Defendants and an order to conduct a foreclosure sale of the property
commonly known as 13650 West Colonial Drive, Unit 10, Building B, Winter Garden, FL (Count
III).

See Doc. 41 at 9–13.

The Court is also in agreement with the Magistrate Judge’s

determination that PNC is entitled to damages in the form of unpaid principal, interest, and late
charges under the Promissory Note, the Change in Terms Agreement, and the Commercial

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Guaranties. See id. at 13–14. The Court further agrees that PNC is entitled to an award of
attorney’s fees against Starlight, Ali, and Cirrus pursuant to the terms of the Promissory Note, the
Change in Terms Agreement, and the Commercial Guaranties, but that the fee amount requested
must be reduced for the reasons discussed by the Magistrate Judge. See id. at 14–20. However,
an additional 0.2 hour of work by attorney John A. Anthony on March 21, 2013, was not deducted
by the Magistrate Judge, and should be deducted, because that time was spent reviewing the
Magistrate Judge’s first order to show cause. See Doc. 33-3 at 7. As the Magistrate Judge
explained, time spent related to the orders to show cause is not compensable because it was the
result of deficient pleading by counsel. See Doc. 41 at 16–18. Accordingly, the attorney’s fee
award will be reduced to $5,172.50. Finally, the Court agrees with the Magistrate Judge that PNC
is entitled to an award of $2,026.21 in costs against Starlight, Ali, and Cirrus. See id. at 20–22.
Therefore, after careful consideration of the Report and Recommendation of the Magistrate
Judge, in conjunction with an independent examination of the court file, the Court is of the opinion
that the Magistrate Judge’s Report and Recommendation should be adopted, confirmed, and
approved in all respects.
Accordingly, it is hereby ORDERED and ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 41) is adopted,
confirmed, and approved in all respects and is made a part of this Order for all
purposes, including appellate review.

2.

PNC’s Renewed Motion for Default Judgment (Doc. 33) is GRANTED in part
and DENIED in part as follows:
a. Starlight is liable for breach of the Promissory Note (Count I);

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b.

Cirrus and Ali are liable for breach of the Commercial Guaranty Agreements
(Count II);

c. Entry of a Final Judgment of Foreclosure against Defendants and an order to
conduct a foreclosure sale of the property commonly known as 13650 West
Colonial Drive, Unit 10, Building B, Winter Garden, FL is appropriate (Count
III)
d.

PNC is awarded damages against Starlight, Ali, and Cirrus, jointly and
severally, in the form of unpaid principal, interest, and late charges under
the Promissory Note, the Change in Terms Agreement, and the Commercial
Guaranties. Within FOURTEEN (14) DAYS from the date of this Order,
PNC shall submit a notice to the Court indicating the amount of unpaid
principal, interest, and late charges as of the date of submission of the notice
and showing how it was calculated. If the Court finds the total amount of
unpaid principal, interest, and late charges noticed by PNC to be properly
calculated, the Court will include the total amount in the judgment.

e.

Except as noted in the Report and Recommendation and in this Order, the
Court finds the hourly rate and hours expended to be reasonable. Therefore,
PNC is awarded damages against Starlight, Ali, and Cirrus, jointly and
severally, in the total amount of $7,198.71, which represents $5,172.50 in
attorney’s fees and $2,026.21 in costs.

f.

It is further ordered and adjudged that Starlight, Ali, and Cirrus shall
complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact
Information Sheet), including all required attachments, and serve it on

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PNC’s attorney within FORTY-FIVE (45) DAYS from the date of the final
judgment. Failure to obey this Order may subject the parties to contempt
of court.
3.

Within FOURTEEN (14) DAYS from the date of this Order, PNC shall tender the
original promissory notes at issue in this case to the Clerk of Court for cancellation.

4.

Within FOURTEEN (14) DAYS from the date of this Order, PNC shall submit a
proposed Final Judgment which incorporates the amounts awarded in this Order,
including unpaid principal, interest, and late charges calculated through the date of
submission.

The

proposed

Final

Judgment

should

be

emailed

to

[e-mail].
5.

The Clerk of Court is DIRECTED to mail a copy of this Order to Starlight, Cirrus,
Ali, West Oaks, and Grant Street at the following addresses:
Starlight Properties & Holding, LLC
c/o Shameem D. Ali, R.A.
13650 W. Colonial Drive, Suite 190
Winter Garden, FL 34787
Shameem D. Ali
13650 W. Colonial Dr., Suite 190
Winter Garden, FL 34787
Cirrus Care, Inc.
c/o Shameem Ali, Registered Agent
13650 W. Colonial Dr., #190
Winter Garden, FL 34787
West Oaks Commerce Park Condominium Association, Inc.
c/o Gary L. Hagel, R.A.
6721 Precourt Drive
Orlando, FL 32809
Grant Street Corporation
c/o Robert D. Trost, R.A.
3041 Tindall Acres Road

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Kissimmee, FL 34744
In addition to mailing a copy of this Order to the above addresses, the Clerk of
Court is DIRECTED to mail a copy of this Order to Starlight, Cirrus, and Ali at
the following alternative addresses:
Starlight Properties & Holdings, LLC
ATTN: Shameem D. Ali, Registered Agent
12950 W. Colonial Dr.
Winter Garden, FL 34787
Shameem D. Ali
12950 W. Colonial Dr.
Winter Garden, FL 34787
Cirrus Care, Inc.
ATTN: Shameem D. Ali, Registered Agent
12950 W. Colonial Dr.
Winter Garden, FL 34787
DONE and ORDERED in Orlando, Florida on June 9, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties
United States Magistrate Judge Karla R. Spaulding

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