Coniglio et al v. Bank of America, N.A.

Filing 49

ORDER granting 34 motion to stay; denying 36 motion to amend/correct; denying as moot 37 Motion for Attorney Fees; denying 40 Motion to Strike ; granting 43 Motion for Attorney Fees; denying without prejudice 32 Motion for Writ. See order for details. Signed by Judge Elizabeth A. Kovachevich on 3/20/2015. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NELSON CONIGILIO, et al.,
Plaintiffs,

vs.

CASE NO. 8:14-CIV-1628-T-EAK-MAP

BANK OF AMERICA, etc.,
Defendant.
/

ORDER ON MOTIONS
This cause is before the Court on the Plaintiff’s motion for writ of execution
(Doc. 32); Defendant’s motion to stay execution of final judgment (Doc. 34) and
response (Doc. 38); Plaintiffs’ motion for award of attorneys’ fee (Doc. 37) and
response (Doc. 42); Defendant’s motion to alter or amend order (Doc. 36) and
response (Doc. 41); Plaintiffs’ motion to strike bond copy filing (Doc. 40) and
response (Doc. 47); and joint motion for conditional allowance of attorneys fee award
(Doc. 43). On October 21, 2014, the Court granted default judgment against the
Defendant. The Court subsequently denied the Defendant’s amended motion to vacate
and motion to alter or amend default final judgment. The Defendant filed its notice of
appeal on Motion to Vacate Order on Motion to Alter Judgment on December 26,
2014. Thereafter, the above listed motions were filed.

DISCUSSION
I. Motion to Alter or Amend and/or to Vacate and Set Aside Default and Default Final
Judgment
The Defendant has filed its second motion asking this Court to overturn its
decision at the time of the denial of the first motion of the same nature. The Court has
reviewed the record and finds no basis upon which it would do so. The Court cites
with approval the response in opposition to this motion and the motion will be denied.
II. Motion to Stay Execution of Final Judgment
The Defendant asks this Court to stay the execution and enforcement of the
final judgment pending the appeal taken by Bank of America. The Defendant further
seeks this stay to be had without the posting of a bond The Plaintiffs object and at the
time of the objection no notice of appeal had been filed in the matter. As of this date,
the notice of appeal has been filed. Having considered the issues and the arguments,
the Court finds that the motion for stay of execution and enforcement of the default
judgment should be granted. The Court notes that the Defendant subsequent to the
filing of the motion posted a notice of bond in the amount of $1,051,000. The Court
finds that bond to be sufficient and thus requires the posting of the bond, which has
already been accomplished.
III. Motion for Attorney Fees
The Court would have denied this motion without leave to reassert, if
appropriate, after the conclusion of the appeal in this case. However, the parties have
resolved the fee issue, see VI below. Therefore, the Court finds this motion moot.

IV. Motion to Strike Bond Copy Filing
The Plaintiffs move to strike the “Notice of Posting Copy of Bond” (Doc. 39)
from the record. The Court finds no reason to strike the notice from the record as it
has no adverse effect on the record and the Court is requiring the posting of the bond
as noticed.
V. Motion for Writ of Execution
In light of the previous rulings in this order, the Motion for Writ of Execution is
denied without prejudice to reassert, if appropriate, at the conclusion of the appeal.
VI. Joint Motion for Conditional Allowance of Attorney Fees
The parties jointly ask this Court to conditionally allow an attorney fee award of
the $75,000.00. The parties are in agreement as to the following
a. Parties Agreement Regarding Consensual Attorney Fee Award: Although the
Parties might differ with respect to time and charges reflected in the Fee Motion
and Expert Affidavit, or the amount of time and charges recorded by each of the
Plaintiff Firms during the period between the Fee Motion Deadline and the
Consensual Attorney Fee Award Deadline, the Parties are in agreement that the
Consensual Attorney Fee Award is an appropriate award in light of the totality
of the circumstances. The Parties believe that the record adequately reflects
effort on behalf of the Plaintiff Firms to justify a $75,000 award in favor of the
Plaintiffs for time and charges incurred by the Plaintiff Firms through the
Consensual Attorney Fee Award Deadline, and the Parties join in requesting
such a finding by this Court.

b. Attorneys’ Fees and Costs Excluded: Because the Parties recognize that the
Pending Matters remain open, the Anticipated Appeal has not operated to
transfer jurisdiction to the Eleventh Circuit, and other matters may hereafter
arise before this Court or at the Eleventh Circuit that in fairness require
additional effort on the part of the Plaintiff Firms, the Parties agree that while
the Consensual Attorney Fee Award is binding with respect to all fees and costs
sought or that could be sought by the Plaintiffs and the Plaintiff Firms through
the Consensual Attorney Fee Award Deadline, it is without prejudice to the

Plaintiffs’ rights to seek additional compensation and reimbursement for any
services rendered and costs incurred following the Consensual Attorney Fee
Award Deadline, whether before this Court, before the Eleventh Circuit, or
otherwise in the furtherance of the Plaintiff Firms’ representations of the
Plaintiffs.
c. Conditions of Payment: Notwithstanding the intent of the Parties that the
Consensual Attorney Fee Award be final, and that an order upon consideration
of this motion shall be deemed final and non-appealable, with all Parties
waiving all rights of rehearing or appeal with respect to the foregoing, the
Defendant’s payment obligations shall be tied expressly to the Defendant’s
obligation to pay the underlying Judgment Amount. Specifically, it is noted that
the Judgment is currently appealable, such that neither the Judgment Amount
nor the Consensual Attorney Fee Award are currently due to be paid to the
Plaintiffs. However, the Consensual Attorney Fee Award will be appropriately
payable as part of the adjudicated liability as reflected in the Judgment if, inter
alia, the Anticipated Appeal, and any further appeal therefrom, is adjudicated or
otherwise resolved in favor of the Plaintiffs.
d. Continued Jurisdiction of this Court: The Parties agree that the stipulation
with respect to the computation and payment terms of the Consensual Attorney
Fee Award advances principles of judicial economy in a manner that also
benefits the Parties in terms of speed, efficiency, economy, and predictability.
However, the Parties also agree that the construction, application, and
enforcement of the terms of an order embodying the Parties’ agreement should
remain within the firm jurisdiction of this Court.
The Court grants this joint motion. Accordingly, it is
ORDERED that Plaintiff’s motion for writ of execution (Doc. 32) be denied
without prejudice to refile if appropriate following the resolution of the appeal;
Defendant’s motion to stay execution of final judgment (Doc. 34) be granted and the
Defendant be directed to post a bond as set out above; Plaintiffs’ motion for award of
attorneys’ fee (Doc. 37) be found moot in light of the ruling on Document 43;
Defendant’s motion to alter or amend order (Doc. 36) be denied (Doc. 41); Plaintiffs’
motion to strike bond copy filing (Doc. 40) be denied; and joint motion for conditional

allowance of attorneys fee award (Doc. 43) be granted.
Further, the Courts holds that the Plaintiffs shall recover from the Defendant the
Consensual Attorney Fee Award, in the sum of $75,000.00 to compensate and
reimburse all fees and costs incurred or that could have been incurred through the
Consensual Attorney Fee Award Deadline, December 19, 2014, pursuant to Fed. R.
Civ. P. 54(d); verifies the Parties’ knowing and intelligent waiver of rehearing in
appellate rights, whatever they may be, with respect to the Consensual Attorney Fee
Award; conditions payment of the Consensual Attorney Fee Award upon the Judgment
becoming final and non-appealable in a manner consistent with the provisions above;
and confirms that the Consensual Attorney Fee Award is without prejudice to the
Plaintiffs’ right to seek additional compensation and reimbursement for time and
charges after the Consensual Attorney Fee Award Deadline.
DONE and ORDERED in Chambers, in Tampa, Florida, this 20th day of
March, 2015.

Copies to: All parties and counsel of record