PRODUCERS CREDIT CORPORATION v. MCCLESKEY
ORDER granting 6 Motion for Default Judgment. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff against Defendant and issue a summons to Defendant regarding the Writ of Possession. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 10/16/15 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
NO. 5:15‐CV‐214 (CAR)
STUART EUGENE MCCLESKEY,
ORDER ON MOTION FOR DEFAULT JUDGMENT
On June 5, 2015, Plaintiff Producers Credit Corporation (“Plaintiff”) filed a
Complaint against Defendant Stuart Eugene McCleskey (“Defendant”) seeking to recover
the unpaid balance, accrued interest, and late charges due and outstanding under a
promissory note (the “Note”) executed by Defendant. Plaintiff also seeks attorney’s fees
pursuant to O.C.G.A. § 13‐1‐11. Defendant was served with process on June 10, 2015, but
failed to answer or respond. At Plaintiff’s request, the Clerk of Court entered a default
against Defendant on July 7, 2015.
Now, Plaintiff moves the Court for entry of default judgment and petitions the
Court for a writ of possession pursuant to O.C.G.A. § 44‐14‐230 et seq. Defendant has not
appeared or filed a response, and the time for doing so has passed. For the reasons set
forth below, Plaintiff’s Motion for Entry of Default Judgment [Doc. 6] is GRANTED.
According to the Complaint, on May 1, 2014, Defendant made, executed, and
delivered a promissory note in favor of Plaintiff in the original principal amount of
$250,122.00. Under the terms and conditions of the Note, Defendant was to repay the note
in consecutive monthly installments. The Note matured on February 10, 2015, at which
point the principal sum owed and interest accrued thereon became due and payable.
Defendant also agreed to pay reasonable attorney’s fees and other expenses incurred by
Plaintiff if placed with an attorney for collection.1
Defendant defaulted under the terms of the note by failing to pay monthly
installments to Plaintiff and failing to pay the entire balance due on or before the Note’s
maturity date.2 Accordingly, on June 1, 2015, Plaintiff notified Defendant that the entire
balance of $257,541.93 was due as a result of the indebtedness maturing on February 20,
2015.3 Plaintiff provided Defendant ten (10) days from the date of receipt of the letter to
satisfy the entire obligation, and notified Defendant that if he failed to do so he would be
responsible for all costs, including reasonable attorney’s fees pursuant to O.C.G.A. § 13‐1‐
11.4 Plaintiff further provided Defendant thirty (30) days after receipt of the letter to
dispute the validity of the debt or any portion thereof, otherwise it would be assumed to
Pl. Compl., [Doc. 1] at 5‐8, 15.
2 Id. at 15; Mosier Aff., [Doc. 6‐3] at para. 14.
3 Id. at 6‐7.
4 Pl. Compl., [Doc. 1‐2, Exhibit B].
be valid.5 As of July 10, 2015, Defendant has failed to make any payments on the Note.6
Now, Plaintiff alleges Defendant is liable for the unpaid principal balance, accrued
interest, and late charges due and outstanding in the amount of $261,551.98. Plaintiff seeks
per diem interest in the amount of $50.18 per day after July 10, 2015, through the date of
Judgment, as well as per diem late charges in the amount of $42.96 per day after July 10,
2015, through the date of Judgment. Plaintiff also demands attorney’s fees in the amount
of $25,535.79. Finally, Plaintiff petitions the Court for a writ of possession regarding the
underlying collateral of the Note.7
The entry of default judgment is appropriate “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend … and
that fact is made to appear by affidavit or otherwise.”8 Prior to obtaining a default
judgment, the party seeking judgment must first obtain an entry of default from the Clerk
of Court.9 Plaintiff has satisfied this requirement.
However, the entry of default does not mandate the entry of a default judgment.
Instead, the Court must find a sufficient basis in the pleadings for judgment to be
entered.10 Default is not an admission of liability, but it is an admission as to the well‐
Mosier Aff., [Doc. 6‐3] at para. 14.
7 Pl. Motion for Entry of Final Default Judgment, [Doc. 6] at 3.
8 Fed. R. Civ. P. 55(a).
10 Surtain v. Hamlin Terrace Foundation, 789 F.3d 1239,1245 (11th Cir. 2015) (citing Nishimatsu Constr.
pleaded facts in the complaint, and the defendant may not challenge those facts on
appeal.11 Once a court determines that default judgment should be entered, the court
must then determine the amount and character of the recovery for which a sufficient basis
is asserted in the complaint.12
In considering any motion for default judgment, the Court must examine (1) its
jurisdiction, (2) liability, and (3) damages.13 The Court has diversity jurisdiction over the
instant case pursuant to 28 U.S.C. § 1332. The remaining considerations are addressed
A. Liability on the Promissory Note
A party who claims breach of contract under Georgia law has the burden of
establishing (1) the subject matter of the contract, (2) consideration, and (3) mutual assent
by the parties to the contract terms.14 “Once such a contract is shown, the elements of a
right to recover for the breach of said contract are (1) the breach and (2) the resultant
damages to the party who has the right to complaint about the contract being broken.”15
In an action to recover amounts due on a promissory note, a plaintiff is entitled to
judgment as a matter of law if the record shows that the promissory note was executed by
Co. Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (In Bonner v. City of Pritchard, 661
F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted all cases decided by the former Fifth
Circuit before October 1, 1981.))
11 Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009).
12 Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).
13 See Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1356 (S.D. Ga. 2004).
14 Imps. Serv. Corp. v. GP Chems. Equity, LLC, 652 F. Supp. 2d 1292, 1300 (N.D. Ga. 2009).
15 Id. (internal quotation marks and citation omitted).
a defendant who is in default, unless the defendant produces or points to evidence in the
record that establishes an affirmative defense.16
The Court finds the factual allegations in the Complaint and attached exhibits,
deemed admitted by Defendant, establish Plaintiff has a right to recover amounts due
under the promissory note.
No evidentiary hearing is necessary to determine Plaintiff’s damages because “the
amount of damages is liquidated or can be reduced to a sum certain.”17 Under the terms of
the promissory note, Defendant is liable for the aggregate amount of $261,551.98 as of July
10, 2015. This amount consists of unpaid principal in the amount of $236,882.07, interest in
the amount of $18,225.91, and late charges in the amount of $6,444.00. Defendant is also
liable for per diem interest in the amount of $50.18 for each and every day after July 10,
2015, through the date of Judgment, and per diem late charges in the amount of $42.96 for
each and every day after July 10, 2015, through the date of Judgment, as well as the cost of
this action in the amount of $400.00.
C. Attorney’s Fees
Similarly, the Court may grant Plaintiff’s request for attorney’s fees without an
evidentiary hearing because O.C.G.A. § 13‐1‐11 provides a statutory formula for their
calculation. Pursuant to this statute, “[o]bligations to pay attorney’s fees upon any note or
Secured Realty Inv. v. Bank of N. Ga., 314 Ga. App. 628, 629 (2012); see also Collins v. Regions Bank,
282 Ga. App. 725, 726 (2006).
17 Langsfeld v. Wynne, No. 1:08‐CV‐0225‐JOF, 2009 WL 383395, at *3 (N.D. Ga. 2009).
other evidence of indebtedness … shall be valid and enforceable and collectable as a part
of such debt if such note or other evidence is collected by or through an attorney after
maturity.”18 If the note provides for attorney’s fees without identifying a specific
percentage of recovery, “such provision shall be construed to mean 15 percent of the first
$500.00 of principal and interest owing on such note or other evidence of indebtedness and
10 percent of the amount of principal and interest owing thereon in excess of $500.00[.]”19
A party who seeks to collect attorney’s fees allowed by O.C.G.A. § 13‐1‐11 must
give the debtor written notice after maturity, and the notice must state the debtor has ten
days to pay the principal and interest due without being liable for attorney’s fees.20 If all
these requirements are met, the attorney’s fees provision is enforceable.21
Here, the factual allegations in the Complaint demonstrate that the above
requirements have been satisfied. Therefore, pursuant to the terms of the promissory note,
Defendant is liable for attorney’s fees in the amount of $25,535.79. These attorney’s fees
consist of fifteen percent (15%) of the first $500.00 of principal and interest set forth above
and ten percent (10%) of the amount of principal and interest in excess of $500.00.22
D. Petition for Writ of Possession
Additionally, Plaintiff filed a petition for writ of possession against Defendant in
accordance with O.C.G.A. § 44‐14‐230 et seq. Defendant executed the Note and pledged
O.C.G.A. § 13‐1‐11(a).
19 Id. § 13‐1‐11(a)(2)
20 Id. § 13‐1‐11(a)(3).
21 TermNet Merc. Servs., Inc. v. Phillips, 277 Ga. 342, 344 (2003).
22 Pl. Amended Motion, [Doc. 7] at 1.
the following collateral as security:
(a) All crops growing, grown, or to be grown in 2014 and the subsequent years, all
harvested crops, all warehouse receipts or other documents (negotiable and
non‐negotiable) issued for storage of such crops;
(b) All seed fertilizer, chemicals and petroleum, and any other crop input products;
(c) All contract rights, chattel paper, documents, instruments, accounts, general
intangibles, and cash and non‐cash proceeds from the sale, exchange, collection,
or disposition of any of the Collateral;
(d) All entitlements and payments, whether in cash or in kind, arising under any
governmental, whether federal or state, agricultural subsidy, deficiency,
diversion, conservation, disaster, or any similar or other programs;
(e) All farm and business machinery, equipment and tools; and
(f) All rebates, in whatever form made or paid, that Borrowers receive from each
cotton gin to which Borrowers have delivered or sold crops that are collateral for
Under Georgia law, a Plaintiff may petition the Court for a writ of possession to
recover personal property where there has been a violation of the terms of a security
agreement.24 The petition must be verified by an affidavit and contain statement of facts
sufficient to make a prima facie showing that an indebtedness is owed.25 Specifically, the
Note must be secured by described collateral and in default.26 Once a verified petition is
filed, the Court will grant and issue summons to Defendant, providing Defendant with
Pl. Compl., [Doc. 1‐1] at 5.
24 O.C.G.A. § 44‐14‐231 (“Upon a statement of the facts under oath, any person holding a security
interest on personal property and wishing to foreclose the security interest may petition, by
affidavit, either in person or by his or her agent or attorney in fact or at law, for a writ of
possession. Such affidavit shall be made pursuant to the requirements of [O.C.G.A. §] 9‐10‐113 and
forwarded with the petition to the appropriate judge, magistrate, or clerk in the county where the
debtor may reside or where the secured property is located.”).
26 See id.
seven (7) days to respond, either written or orally, to the petition for writ of possession.27
Here, Plaintiff filed a complaint with the necessary statement of facts and an
affidavit in accordance with O.C.G.A. § 44‐14‐231. Further, the Note provides a
description of all the collateral, and Plaintiff provided the financing statements for the
same collateral. 28 Based on Plaintiff’s compliance with O.C.G.A. § 44‐14‐231, the Court
directs the Clerk of Court to issue a summons to Defendant pursuant to O.C.G.A. § 44‐14‐
Plaintiff’s Motion for Entry of Default Judgment [Doc. 6] is GRANTED. Judgment
will be entered in favor of Plaintiff against Defendant in the following amounts:
a. $261,551.98 representing unpaid principal, accrued interest, and fees under the Note
O.C.G.A. § 44‐14‐232(b) (“The summons served on the defendant pursuant to subsection (a) of
this Code section shall command and require the defendant to answer either orally or in writing
within seven days from the date of the actual service unless the seventh day is a Saturday, a
Sunday, or a legal holiday, in which case the answer may be made on the next day which is not a
Saturday, a Sunday, or a legal holiday.”); see also McGowan v. W.S. Badcock Corp., 144 Ga. App. 255,
255 (1977) (finding the trial court was devoid of jurisdiction where Plaintiff fails to provide
Defendant with a copy of the summons).
28 Pl. Compl. [Doc. 1‐1] at 5; Pl. Compl. [Doc. 1‐3] at 1‐5.
29 O.C.G.A. § 44‐14‐232(a) (“When the petition provided for in Code Section 44‐14‐231 is made, the
judge, the magistrate, or the clerk shall grant and issue a summons as prescribed in this Code
section to the sheriff, his deputy or marshal, or any lawful constable of the county where the
debtor resides or the secured property is located. Service shall be made by the officer by delivering
a copy of the summons attached to a copy of the petition to the defendant personally; or, if the
officer is unable to serve the defendant personally, service may be had by delivering the summons
and the petition to any person sui juris residing on the premises; or, if no such person is found
residing on the premises after reasonable effort, service may be had by tacking a copy of the
summons and the petition on the door of the premises and, on the same day of the tacking, by
enclosing, directing, stamping, and mailing by first‐class mail a copy of the summons and the
petition to the defendant at his last known address, if any, and making an entry of this action on
the petition filed in the case.”).
as of July 10, 2015;
b. $50.29 in per diem interest for each and every day after July 10, 2015, through the
date of Judgment;
c. $42.96 in per diem late charges for each and every day after July 10, 2015, through
the date of Judgment;
d. $25,535.79 in attorney’s fees; and
e. $400.00 in the costs of this action.
The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff against
Defendant and issue a summons to Defendant regarding the Writ of Possession.
SO ORDERED, this 16th day of October, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT COURT JUDGE
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