Bank of the Ozarks v. Jon Jons Waste Disposal, Inc. et al

Filing 24

ORDER granting 18 Motion for Default Judgment. The Clerk is directed to enter judgment in favor of Plaintiff against Defendant Jon Jons for First, Second, Third and Fourth Promissory Note. Signed by Chief Judge Lisa G. Wood on 7/8/2013. (csr)

N the Rniteb Atateg Ditritt Court
for the £'outhern Martet of 4eorgta
runtuttk Aibioton
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Plaintiff,
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VS.
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W. NEAL BOATRIGHT; JON JONS WASTE *
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DISPOSAL, INC.; and THOMAS BAKER
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WARREN, II,
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Defendants.

BANK OF THE OZARKS,

CV 213-035

ORDER
Presently before the Court is Plaintiff's motion for
default judgment against Defendant Jon Jons Waste Disposal,
Incorporated ("Defendant Jon Jons"). Dkt. No. 18. Upon due
consideration, Plaintiff's motion for default is GRANTED.
The clerk's office granted an entry of default as to
Defendant Jon Jons on April 3, 2013. Dkt. No. 14. This entry
constitutes an admission of Plaintiff's "well-pleaded
allegations of fact." Nishimatsu Constr. Co., Ltd. v. Houston
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).' Defendant Jon
Jons, however, "is not held to admit facts that are not well-

In Bonner v. Prichard, the Eleventh Circuit adopted as binding
precedent all Fifth Circuit decisions handed down prior to the close
of business on September 30, 1981. 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc)
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pleaded or to admit conclusions of law." Id. Accordingly,
before entering a default judgment for damages, the Court "must
ensure that the well-pleaded allegations in the complaint, which
are taken as true due to the default, actually state a
substantive cause of action and that there is a substantive,
sufficient basis in the pleadings for the particular relief
sought." Tyco Fire & Sec., LLC v. Alcocer, 2007 WL 542583, at
*2 (11th Cir. Feb. 22, 2007); see also Cotton v. Mass. Mut. Life
Ins. Co., 402 F.3d 1267, 1277-78 (11th Cir. 2005).
According to Plaintiff's Complaint, on or about August 28,
2008, Defendant Jon Jons consolidated two notes into a single
loan by execution of a promissory note in favor of Oglethorpe
Bank in the principal amount of $342,757.90 ("First Promissory
Note"). Dkt. No. 1 at ¶ 20. Defendant Jon Jons has defaulted
on its obligations under the First Promissory Note. Dkt. No. 1
at ¶ 33,
Additionally, according to Plaintiff's Complaint, Defendant
Jon Jons executed a promissory note in favor of Oglethorpe Bank
on May 27, 2099 in the principal amount of $102,914.20 ("Second
Promissory Note"). Dkt. No. 1. at ¶ 35. Defendant Jon Jons has
defaulted on its obligations under the Second Promissory Note.
Dkt. No. 1. at ¶ 46.
Defendant Jon Jons executed a third promissory note on or
about April 3, 2009 for the principal amount of $36,843.00
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("Third Promissory Note"). Dkt. No. 1 at ¶ 48. Defendant Jon
Jons is now in default under the Third Promissory Note. Dkt.
No. 1 at ¶ 62.
On or about December 16, 2010, Defendant Jon Jons renewed a
short term loan consolidation by execution of a promissory note
in favor of Oglethorpe Bank in the principal amount of
$20,475.00 ("Fourth Promissory Note") . Dkt. No. 1 at ¶ 67.
Defendant Jon Jons has defaulted on its obligations under the
Fourth Promissory Note. Dkt. No. 1 at ¶ 74.
Under the terms of the First, Second, Third, and Fourth
Promissory Notes, Defendant Jon Jons was obligated to make
monthly periodic payments. Dkt. No. 1 at ¶I 27, 40, 56, 69.
The First, Second, and Third Promissory Notes provided for the
accrual of interest on the principal amount at a rate of six and
one-half percent per year. Dkt. No. 1 at ¶t 28, 41, 57. The
Fourth Promissory Note provided for the accrual of interest on
the principal amount at a rate of seven percent per year. Dkt.
No. 1 at ¶ 70. The First, Second, Third, and Fourth Promissory
Notes further provide for the imposition of a late charge equal
to ten percent of the payment amount or $5.00, whichever is
greater, in the event a payment is made more than fifteen days
after it is due. Dkt. No. 1 at 9111 29, 42, 58, 71. The
promissory notes further provide for the collection of
attorney's fees in the event of default of fifteen percent of
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the principal and interest then owed. Dkt. No. 1, Ex. G, Ex. K,
Ex. P, Exhibit X.
Bank of the Ozarks acquired the loan documents through a
Purchase and Assumption Agreement dated January 14, 2011 between
Bank of the Ozarks and the Federal Deposit Insurance
Corporation, as receiver of Oglethorpe Bank. Dkt. No. 1, 191 34,
47, 63, 75.
The facts discussed above were corroborated through
testimony presented at the Court's July 8, 2013 hearing.
Defendant Jon Jons did not appear nor did Defendant Jon Jons
present written objection to the entry of a default judgment in
favor of Plaintiff.
In considering any default judgment, the Court must examine
(1) jurisdiction, (2) liability, and (3) damages. See Pitts v.
Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1356 (S.D. Ga. 2004).
In this case, the Court is satisfied that it has personal and
subject-matter jurisdiction, as established by the Complaint.
Dkt. No. 1 at 191 6-9. Plaintiff Bank of the Ozarks is a citizen
of Arkansas and all defendants appear to be citizens of Georgia.
Dkt. No. 1, IT 1-6. The amount in controversy exceeds $75,000.
See Dkt. No. 1, ¶ 118. Additionally, Jon Jons was formerly a
corporation organized and operating under the laws of the State
of Georgia. Dkt. No. 1, ¶ 3. Jon Jons was served through its
registered agent Neal Boatright. Dkt. No. 9.
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Liability has also been established, as the admission to
the facts set forth in the Complaint constitutes a breach of
contract by Defendant Jon Jons. Finally, the Court is satisfied
that the allegations set forth in the Complaint and the evidence
presented at the Court's hearing on the matter adequately
demonstrate Plaintiff's damages.
Specifically, with regards to the First Promissory Note,
evidence submitted at the hearing establishes that Plaintiff is
owed $235,851.63 for the unpaid past principal; $53,797.85 for
unpaid interest; $5,778.76 for late charges; and $43,447.42 for
attorney's fees. 2
With regards to the Second Promissory Note, evidence
submitted at the hearing establishes that Plaintiff is owed
$61,160.38 for unpaid past principal; $15,704.50 for unpaid

2 O.C.G.A. § 13-1-11(a) provides:
(a)Obligations to pay attorney's fees upon any note or other evidence of
indebtedness, in addition to the rate of interest specified therein, shall
be valid and enforceable and collectable as a part of such debt if such
note or other evidence of indebtedness is collected by or through an
attorney after maturity, subject to the following provisions:
(1) If such note or other evidence of indebtedness provides for
attorney's fees in some specific percent of the principal and
interest owing thereon, such provision and obligation shall be
valid and enforceable up to but not in excess of 15 percent of the
principal and interest owing on said note or other evidence of
indebtedness. (Emphasis added).
The attorney's fees figure listed above is derived by adding the principal
and interest due on the loan and multiplying this number by 15 percent.

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interest; $1,855.20 for late charges; and $11,529.73 for
attorney's fees.
With regards to the Third Promissory Note, evidence
submitted at the hearing establishes that Plaintiff is owed
$21,641.31 for unpaid past principal; $5,751.47 for unpaid
interest; $1,624.49 for late charges; and $4,108.92 for
attorney's fees.
With regards to the Fourth Promissory Note, evidence
submitted at the hearing establishes that Plaintiff is owed
$19,488.30 for unpaid past principal; $3,327.95 for unpaid
interest; $284.41 for late charges; and $3,422.43 for attorney's
fees.
Accordingly, default judgment is hereby entered pursuant to
Federal Rule of Civil Procedure 55 (b) . The clerk is directed to
enter judgment in favor of Plaintiff against Defendant Jon Jons
for the First Promissory Note in the amount of:
1. $235,851.63 for unpaid principal;
2. $53,797.85 for unpaid interest;
3. $5,778.76 for late charges; and
4. $43,447.42 for attorney's fees.
The clerk is directed to enter judgment in favor of
Plaintiff against Defendant Jon Jons for the Second Promissory
Note in the amount of:
1. $61,160.38 for unpaid principal;
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2. $15,704.50 for unpaid interest;
3. $1,855.20 for late charges; and
4. $11,529.73 for attorney's fees.
The clerk is directed to enter judgment in favor of
Plaintiff against Defendant Jon Jons for the Third Promissory
Note in the amount of:
1. $21,641.31 for unpaid principal;
2. $5,751.47 for unpaid interest;
3. $1,624.49 for late charges; and
4. $4,108.92 for attorney's fees.
The clerk is directed to enter judgment in favor of
Plaintiff against Defendant Jon Jons for the Fourth Promissory
Note in the amount of:
1. $19,488.30 for unpaid principal;
2. $3,327.95 for unpaid interest;
3. $284.41 for late charges; and
4. $3,422.43 for attorney's fees.

SO ORDERED, this 8th day of July, 2013.

L A GODBEY W OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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