Cadence Bank, N.A. v. 6503 U.S. Highway 301, LLC et al

Filing 170

ORDER: Cadence Bank, N.A.'s Motion for Summary Judgment and Motion for Default Final Judgment 140 are GRANTED to the extent provided herein. Cadence Bank, N.A.'s Motion to Enforce Settlement Agreement 140 is DENIED as moot. The Clerk is directed to enter Judgment in favor of Cadence Bank, N.A. and against all Defendants. Signed by Judge Virginia M. Hernandez Covington on 4/2/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CADENCE BANK, N.A.,
Plaintiff,
v.

Case No. 8:13-cv-840-T-33TGW

6503 U.S. HIGHWAY 301, LLC,
a Florida Limited Liability
Company, et al.,
Defendants.
_____________________________/
ORDER
This cause comes before the Court in consideration of
Plaintiff Cadence Bank, N.A.’s Motion to Enforce Settlement
Agreement,

Dispositive

Motion

for

Summary

Judgment,

and

Motion for Default Final Judgment (Doc. # 140), filed on
February 7, 2014. After careful consideration, and for the
reasons that follow, the Court grants Cadence Bank’s Motion
for Summary Judgment and Motion for Default Final Judgment to
the extent provided herein and denies as moot Cadence Bank’s
Motion to Enforce Settlement Agreement.
I.

Background

On or about December 26, 2007, 6503 U.S. Highway 301,
LLC executed and delivered to Cadence Bank1 a promissory note
in the original principal amount of $2,304,747.69. (Doc. # 1
at ¶ 24, Doc. # 140 at 5, James Russell Aff. Doc. # 133-1 at
¶ 4). To provide security for the promissory note, 6503 U.S.
Highway 301, LLC executed and delivered to Cadence Bank: a
mortgage

encumbering

property

located

two
in

non-contiguous
Hillsborough

parcels
County,

of

real

Florida

(“Property”); an assignment of rents, leases, contracts,
accounts receivable, accounts, and deposit accounts; and an
environmental compliance and indemnity agreement. (Doc. # 1
at ¶ 25, Doc. # 140 at 5, James Russell Aff. Doc. # 133-1 at
¶ 5). Cadence Bank filed a UCC-1 financing statement no.
201002657014 and a UCC-1 financing statement in Official
Records

Book

19911,

Page

505

of

the

Public

Records

of

1

Cadence Bank, a national banking association, is successorin-interest to Superior Bank, N.A., a national banking
association, and to Superior Bank, FSB, a Federal Savings
Bank. (Doc. # 1 at ¶ 4, James Russell Aff. Doc. # 133-1 at ¶
2). “On April 15, 2011, the Federal Deposit Insurance
Corporation (‘FDIC’) was appointed as Receiver for Superior
Bank, FSB, and in its capacity as Receiver, the FDIC sold and
assigned all of the assets of Superior Bank, FSB, to Superior
Bank, N.A.” (Id.). Subsequently, “[o]n or about November 18,
2011, Superior Bank, N.A. merged with and into Cadence Bank.
. . .” (Id.). For the purposes of this Order, the Court will
refer to Cadence Bank, Superior Bank, N.A., and Superior Bank,
FSB, collectively, as “Cadence Bank.”

2 

Hillsborough County, Florida. (James Russell Aff. Doc. # 1331 at ¶ 8).
When the abovementioned documents were recorded, the
Property was owned by and in the possession of 6503 U.S.
Highway 301, LLC. (Id. at ¶ 6). Also on December 26, 2007,
Morris Esquenazi executed and delivered to Cadence Bank a
guaranty

agreement,

in

which

Esquenazi

unconditionally

guaranteed the obligations of 6503 U.S. Highway 301, LLC to
Cadence Bank under the promissory note. (Doc. # 1 at ¶ 26,
Doc. # 140 at 5, Ex. E, James Russell Aff. Doc. # 133-1 at ¶
7).
6503 U.S. Highway 301, LLC defaulted under the terms of
the promissory note and mortgage by failing to make the
payment due on October 26, 2008. (Doc. # 1 at ¶ 28, Doc. #
140 at 6, James Russell Aff. Doc. # 133-1 at ¶ 9). Thereafter,
in February of 2009, Cadence Bank, 6503 U.S. Highway 301,
LLC,

and

Esquenazi

entered

into

a

Forbearance

Agreement

(“First Forbearance Agreement”). (Doc. # 1 at ¶ 29, Doc. #
140 at 6, Ex. G, James Russell Aff. Doc. # 133-1 at ¶ 10).
Subsequently, in December of 2009, Cadence Bank, 6503 U.S.
Highway

301,

LLC,

and

Esquenazi

entered

into

a

Second

Forbearance Agreement (“Second Forbearance Agreement”). (Doc.
# 1 at ¶ 29, Doc. # 140 at 6, Ex. H, James Russell Aff. Doc.

3 

# 133-1 at ¶ 11). Then, in September of 2012, Cadence Bank,
6503 U.S. Highway 301, LLC, and Esquenazi entered into a
Settlement

Agreement

(“Settlement

Agreement”),

wherein

Cadence Bank, extended the maturity of the loan until March
31, 2013. (Doc. # 1 at ¶ 29, Doc. # 140 at 6, Ex. I, James
Russell Aff. Doc. # 133-1 at ¶¶ 12, 14).
6503 U.S. Highway 301, LLC and Esquenazi defaulted by
failing to pay the amounts due on or before March 31, 2013,
and failing to pay 2011 and 2012 ad valorem taxes on the
Property. (Doc. # 1 at ¶ 32, Doc. # 140 at 6, James Russell
Aff. Doc. # 133-1 at ¶ 18).
On April 2, 2013, Cadence Bank initiated this commercial
foreclosure action against 6503 U.S. Highway 301, LLC; Tariq
Subhi Motei Abuzahra; 6503, LLC; Virgil & Brothers, Inc.;
Trekker Tractor, LLC; Safway Services, LLC; Consolidated
Electrical

Distributors,

Inc.,

doing

business

as

Raybro

Electric Supplies; Esquenazi; Jose A. Galindez; Southeastern
Petroleum Contractors, Inc.; Robert Miller; Riviera Isle
Investment Corp.; A. Alami Binani; 301 Truck Stop, Inc.; Cat
Scale Company; Central Florida Laundry Leasing, Inc.; John
Does 1-5; and John Does 6-10.2 (Doc. # 1 at 2).

2

On May 2, 2013, and May 6, 2013, Cadence Bank filed
supplemental memoranda regarding diversity jurisdiction.

4 

Riviera Isle Investment Corp. and Robert Miller filed a
Notice of Waiver of Interest or Claim on May 6, 2013 (Doc. #
33), and the Court, pursuant to the Notice, terminated these
parties from this action on June 3, 2013. Subsequently, on
June 4, 2013, a Clerk’s Entry of Default was entered against
Central

Florida

Electrical

Laundry

Distributors,

Leasing,
Inc.,

Inc.;

doing

Consolidated

business

as

Raybro

Electric Supplies; Jose A. Galindez; Safway Services, LLC;
Southeastern

Petroleum

Contractors,

Inc.;

and

Virgil

&

Brothers, Inc. (Doc. ## 65-70).
On February 7, 2014, Cadence Bank filed the instant
Motions.

(Doc.

#

140).

Subsequently,

on

March

5,

2014,

Cadence Bank filed a Notice of Voluntary Dismissal with
Prejudice of its claims against Cat Scale Company, and as a
result, the claims against Cat Scale Company were dismissed
with

prejudice

on

March

6,

2014.

(Doc.

##

151,

153).

Thereafter, on April 1, 2014, Cadence Bank; 6503 U.S. Highway

(Doc. ## 20, 22). In sufficiently establishing diversity
jurisdiction, Cadence Bank provided adequate information to
support its allegation that “Cadence [Bank] is a citizen of
the State of Alabama [and] [n]one of the Defendants [are]
deemed citizens of Alabama for purposes of diversity
jurisdiction.” (Doc. # 20 at 7, Doc. # 22 at 3). Furthermore,
Cadence Bank has adequately alleged that the amount in
controversy in this action exceeds the jurisdictional
threshold of $75,000.00. (Doc. # 1).

5 

301, LLC; 6503, LLC; and Esquenazi filed a Joint Notice of
Settlement, notifying the Court that the parties settled all
claims Cadence Bank raised against 6503 U.S. Highway 301,
LLC; 6503, LLC; and Esquenazi.3 (Doc. # 168). Pursuant to the
Notice, on April 2, 2014, this Court dismissed Cadence Bank’s
claims against 6503 U.S. Highway 301, LLC; 6503, LLC; and
Esquenazi without prejudice. (Doc. # 169). The Court now
addresses the present Motions filed by Cadence Bank as they
relate to the remaining Defendants.
II.

Analysis
Cadence Bank requests that this Court enter an Order (a)

granting summary judgment in its favor as to Count I of the
Complaint against Abuzahra; 301 Truck Stop, Inc.; Trekker
Tractor, LLC; and A. Alami Binani; and (b) granting default
final judgment of foreclosure on Count I of the Complaint
against

Virgil

&

Brothers,

Inc.;

Safway

Services,

LLC;

Consolidated Electrical Distributors, Inc. doing business as
Raybro Electric Supplies; Jose A. Galindez; Southeastern

3

On February 7, 2014, Cadence Bank filed a Motion to Enforce
Settlement Agreement requesting this Court enforce the
Litigation Settlement Agreement entered into between Cadence
Bank and 6503 U.S. Highway 301, LLC on December 30, 2013.
(See Doc. # 140). However, in light of the Joint Notice of
Settlement, the Court denies the Motion to Enforce Settlement
as moot.  
6 

Petroleum
Florida

Contractors,

Leasing,

Inc.;

Inc.;

Cat

Robert

Scale

Miller;

Company;
and

Central

Riviera

Isle

Investment Corp. The Court will address each request in turn.
A. Motion for Summary Judgment
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at

7 

trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However,

nothing

if

“more

allegations,”

than

summary

8 

the

non-movant’s
a

repetition

judgment

is

response
of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
1. Count I against Abuzahra; 301 Truck Stop, Inc.;
Trekker Tractor, LLC; and A. Alami Binani
The parties do not dispute that (1) 6503 U.S. Highway
301, LLC executed and delivered the relevant promissory note
and mortgage to Cadence Bank; (2) at the time the mortgage
was executed, delivered, and recorded, the Property was owned
by 6053 U.S. Highway 301, LLC; (3) Cadence Bank owns and holds
the promissory note and mortgage; and (4) 6503 U.S. Highway
301, LLC defaulted under the terms of the Loan Documents by,
among other things, failing to pay the promissory note, as
modified and extended, which was due on March 31, 2013. In
fact, none of the relevant Defendants filed a response in
opposition to Cadence Bank’s Motion. However, the Court notes
that

the

relevant

Defendants

have

raised

a

plethora

of

affirmative defenses, and this Court will discuss each in
turn. See The Race, Inc. v. Lake & River Recreational Props.,
Inc., 573 So. 2d 409, 410 (Fla. 1st DCA 1991)(“in order for
a plaintiff to obtain a summary judgment when the defendant
has asserted affirmative defenses, the plaintiff must either
disprove those defenses by evidence or establish their legal
insufficiency.”).

9 

a. Abuzahra & 301 Truck Stop, Inc.
On May 14, 2013, Abuzahra and 301 Truck Stop, Inc. filed
their

Answer

and

Affirmative

affirmative defenses.

Defenses

alleging

two

See (Doc. # 36).

First, Abuzahra and 301 Truck Stop, Inc. “dispute the
calculation of amounts due under the [m]ortgage documents.”
(Id. at ¶ 62). However, Abuzahra and 301 Truck Stop, Inc.
have

not

-

through

specific

factual

allegations

or

evidentiary support – demonstrated their contention that the
amount claimed by Cadence Bank to be due under the mortgage
documents is incorrect. Instead, they have done nothing more
than generally allege this affirmative defense. See Morrison
v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314,
1318 (S.D. Fla. 2005)(explaining that affirmative defenses
must comply with the general pleading requirements of Fed. R.
Civ. P. 8(a), which requires “a short and plain statement” of
the asserted defense. Fed. R. Civ. P. 8(a)); Microsoft Corp.
v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 684 (M.D.
Fla. 2002)(finding that the party raising the affirmative
defense “must do more than make conclusory allegations.”).
The affidavit of James Russell, filed by Cadence Bank in
support of its Motion for Summary Judgment, sets forth the

10 

amount Cadence Bank seeks to recover in this action. See
(James Russell Aff. Doc. # 133-1 at ¶ 22). Abuzahra and 301
Truck Stop, Inc. have failed to provide any evidence to refute
Cadence Bank’s position. Therefore, for the reasons stated,
the Court finds the affirmative defense legally insufficient
as pled.
Next, Abuzahra and 301 Truck Stop, Inc. contend that the
“calculation of default interest and late fees constitute
usurious

interest”

affirmative

(Doc.

defense,

and

#

36

as

at

the

¶

63).

parties

Usury

is

asserting

an

this

defense, Abuzahra and 301 Truck Stop, Inc. bear the burden of
proof. See Valliappan v. Cruz, 917 So. 2d 257, 259–60 (Fla.
4th DCA 2005). Usury must be proven by clear and convincing
evidence,

rather

than

the

lower

“preponderance

of

the

evidence” standard. See id. (citing Dixon v. Sharp, 276 So.
2d 817, 820 (Fla. 1973)(“He who alleges usury to avoid or to
defeat an obligation to pay money must establish his charge
by

clear

and

satisfactory

evidence.”)).

In

determining

whether a transaction is usurious, Florida courts look at the
“substance of the transaction, not the form or designation
given to it by the parties.” L'Arbalete, Inc. v. Zaczac, 474
F. Supp. 2d 1314, 1323 (S.D. Fla. 2007).
Under Florida law, the four requisites of a usurious

11 

transaction are: “(1) a loan, express or implied; (2) an
understanding between the parties that the money lent shall
be returned; (3) payment or agreement to pay a greater rate
of interest than is allowed by law; and (4) a corrupt intent
to take more than the legal rate for the use of the money
loaned.” Valliappan, 917 So. 2d at 260; see Dixon, 276 So. 2d
at 819.
Based on the record before the Court, Abuzahra and 301
Truck Stop, Inc. have not supported their usury affirmative
defense with an iota of evidence. See Madura v. BAC Home Loans
Servicing L.P., No. 8:11-cv-2511-T-33TBM, 2013 WL 3777094
(M.D. Fla. July 17, 2013) reconsideration denied, No. 8:11cv-2511-T-33TBM, 2013 WL 4055851 (M.D. Fla. Aug. 12, 2013)
and motion for relief from judgment denied, No. 8:11-cv-2511T-33TBM, 2013 WL 6002851 (M.D. Fla. Nov. 12, 2013). It is not
the obligation of this Court to scour the record in order to
piece together relevant information to create a well-pled,
supported

affirmative

defense.

See

Lawrence

v.

Wal-Mart

Stores, Inc., 236 F. Supp. 2d 1314, 1322 (M.D. Fla. 2002)(“It
is the obligation of the non-moving party . . . not the Court,
to scour the record in search of the evidence that would
defeat a motion for summary judgment.”). Accordingly, the
Court finds in favor of Cadence Bank on this affirmative

12 

defense as this affirmative defense is legally insufficient
as pled.
As the Court has found in favor of Cadence Bank on all
Abuzahra and 301 Truck Stop, Inc.’s affirmative defenses, and
Abuzahra and 301 Truck Stop, Inc. have failed to demonstrate
a genuine dispute as to a material fact on the record, the
Court grants summary judgment in favor of Cadence Bank and
against Abuzahra and 301 Truck Stop, Inc. on Count I of the
Complaint.
b. Trekker Tractor, LLC
In its Answer and Affirmative Defenses, Trekker Tractor,
LLC contends that:
[Cadence Bank’s] claims are barred to the extent
that [Trekker Tractor, LLC’s] claimed interest in
the [P]roperty . . . is superior to the liens of
[Cadence Bank] or any of the Defendants in this
action, in which case [Trekker Tractor, LLC] is
entitled to recover any surplus funds resulting
from a foreclosure sale of the subject property.
(Doc. # 71 at 2).
However, Trekker Tractor, LLC has not provided this
Court with any support specifically indicating when Trekker
Tractor, LLC recorded its interest in the relevant Property
that

disputes

the

information

Complaint:

13 

found

in

Cadence

Bank’s

[Trekker Tractor, LLC] may claim an interest in the
Property . . . by virtue of, among other things,
that certain Claim of Lien recorded in Official
Records Book 21480, Page 1320 of the Public Records
of Hillsborough County, Florida. The interest that
[Trekker Tractor, LLC] may have in the Property is
junior and subordinate to the lien interest of
[Cadence Bank].
(Doc. # 1 at ¶ 43)(emphasis added). Furthermore, as pointed
out in Cadence Bank’s Motion for Summary Judgment, Trekker
Tractor, LLC’s Answer and Affirmative Defenses explicitly
states: “Trekker Tractor, LLC, respectfully requests the
entry of a judgment acknowledging the priority of [Trekker
Tractor, LLC’s] lien over the subject [P]roperty, requiring
that any surplus proceeds once [Cadence Bank’s] lien is
liquidated through foreclosure sale of the property at issue
in this case be applied towards [Trekker Tractor, LLC’s] lien
. . . .” (Doc. # 71 at 2)(emphasis added). Therefore, the
Court finds that it is undisputed that Trekker Tractor, LLC’s
interest in the Property is junior and subordinate to Cadence
Bank’s interest in the Property. As a result, this Court finds
in favor of Cadence Bank on this affirmative defense.
Trekker Tractor, LLC further posits that its “claimed
interest in the [P]roperty is superior to all unrecorded liens
and all liens, claims of liens, mortgages, or other interests
recorded

after

[Trekker

Tractor,

14 

LLC’s]

claim

of

lien.”

(Id.). However, the present Motion before the Court does not
request that the Court determine the priority of all interests
claimed in the Property. If Trekker Tractor, LLC was inclined
to seek such relief, it should have filed a dispositive motion
within the deadline imposed by this Court, which has lapsed.
However, Trekker Tractor, LLC has not filed a dispositive
motion requesting such relief, and in fact, no party to this
action has. As a result, the Court refrains from making such
a determination.
Finally, Trekker Tractor, LLC asserts that “[Cadence
Bank’s] claims are barred to the extent that it has failed to
mitigate appropriately its damages, if any.” (Id.). Trekker
Tractor, LLC has failed to provide this Court with any record
evidence to support this affirmative defense.

As a result,

Trekker Tractor, LLC has done nothing more than make a
general, conclusory allegation. Accordingly, the Court finds
that this affirmative defense is legally insufficient as
pled.
As the Court has found in favor of Cadence Bank on all
Trekker Tractor, LLC’s affirmative defenses, and Trekker
Tractor, LLC has failed to demonstrate a genuine dispute of
material fact, the Court grants summary judgment in favor of
Cadence Bank and against Trekker Tractor, LLC on Count I of

15 

the Complaint.
c. A. Alami Binani
In the present Motion for Summary Judgment, Cadence Bank
submits that “Binani and [Cadence Bank] have entered into a
separate written settlement agreement, pursuant to which
Binani has agreed that the [Cadence Bank] Mortgage is superior
over any claim Binani may have against the Property.” (Doc.
# 140 at 20-21). The Court is mindful that neither party
notified the Court of this agreement, in violation of Local
Rule 3.08, which states “it shall be the duty of all counsel
to immediately notify the Court upon the settlement of any
case.” Nonetheless, as there is no dispute that Binani made
these concessions, the Court takes notice of this agreement
and finds that summary judgment in favor of Cadence Bank on
Count I of the Complaint is warranted.
B. Motion for Default Final Judgment
Federal Rule of Civil Procedure 55(a) provides: “When a
party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s

default.”

A

district

court

may

enter

a

default

judgment against a properly served defendant who fails to

16 

defend or otherwise appear pursuant to Federal Rule of Civil
Procedure 55(b)(2). DirecTV, Inc. v. Griffin, 290 F. Supp. 2d
1340, 1343 (M.D. Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment. See
Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863 (11th
Cir. 2007) (citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)). Rather, a Court must
ensure that there is a sufficient basis in the pleadings for
the judgment to be entered. Id. A default judgment has the
effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal. Id.
Cadence Bank seeks to foreclose the interests of a number
of Defendants in this action that have or claim to have an
interest in the relevant Property: Virgil & Brothers, Inc.;
Safway Services, LLC; Consolidated Electrical Distributors,
Inc., doing business as Raybro Electric Supplies; Jose. A.
Galindez; Southeastern Petroleum Contractors, Inc.; Cat Scale
Company;

Central

Florida

Laundry

Leasing,

Inc.;

Robert

Miller; and Riviera Isle Investment Corp.4 (Doc. # 140 at 21).

4

The Court notes that on May 6, 2013, Riviera Isle Investment
Corp. and Robert Miller filed a Notice of Waiver of Interest

17 

On June 4, 2013, a Clerk’s Entry of Default was entered
against Central Florida Laundry Leasing, Inc.; Consolidated
Electrical

Distributors,

Inc.,

doing

business

as

Raybro

Electric Supplies; Jose A. Galindez; Safway Services, LLC;
Southeastern

Petroleum

Contractors,

Inc.;

and

Virgil

&

Brothers, Inc. (Doc. ## 65-70). Thereafter, Cadence Bank
filed the present Motion for Default Final Judgment against
these Defendants on February 7, 2014. (Doc. # 140). These
Defendants have failed to respond in opposition to Cadence
Bank’s Motion for Default Final Judgment.
Based upon the Clerk’s entry of default, the well-pled
factual allegations in the Complaint, and the Motion itself,
the Court determines that Cadence Bank’s allegations support
a finding that the interests of each defaulted Defendant in
the relevant Property was obtained after the recording of the
mortgage held by Candace Bank. Therefore, any interest of the
defaulted

Defendants

in

the

Property

is

subordinate

and

or Claim (Doc. # 33), and the Court, pursuant to the Notice,
terminated these parties from this action on June 3, 2013.
Furthermore, on March 5, 2014, Cadence Bank filed a Notice of
Voluntary Dismissal with Prejudice of its claims against Cat
Scale Company, and as a result, the claims against Cat Scale
Company were dismissed with prejudice on March 6, 2014. (Doc.
## 151, 153). Therefore, the Court will not address Cadence
Bank’s Motion with respect to these Defendants.

18 

inferior to the mortgage held by Cadence Bank. As a result,
Cadence Bank’s Motion for Default Final Judgment is granted
and a hearing on this matter is not needed.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Cadence Bank, N.A.’s Motion for Summary Judgment (Doc.
# 140) is GRANTED to the extent provided herein.

(2)

Cadence Bank, N.A.’s Motion for Default Final Judgment
(Doc. # 140) is GRANTED to the extent provided herein.

(3)

Cadence

Bank,

N.A.’s

Motion

to

Enforce

Settlement

Agreement (Doc. # 140) is DENIED as moot.
(4)

The Clerk is directed to enter Judgment in favor of
Cadence Bank, N.A. and against all Defendants.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd

day of April, 2014.

Copies: All Counsel and Parties of Record

19