Bank of the Ozarks v. Perfect Health Skin and Body Center PLLC et al
Filing
79
ORDER Granting Plaintiff's 65 Motion for Attorney Fees in Part, Granting Plaintiff's 67 Motion for Default Judgment in Part, Denying Plaintiff's 70 , 72 Motion to Strike and Denying Defendant Bash's 68 Request to Strike. (Plaintiff's Response due by 8/2/2019.) Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BANK OF THE OZARKS,
Case No.: 1:18-cv-11870-TLL-PTM
Plaintiff,
Hon. Thomas L. Ludington
Magistrate Judge Patricia T. Morris
v.
PERFECT HEALTH SKIN
AND BODY CENTER PLLC, and
THEODORE BASH, an individual,
Defendants.
___________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES IN PART,
GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT IN PART,
DENYING PLAINTIFF’S MOTION TO STRIKE AND DENYING DEFENDANT
BASH’S REQUEST TO STRIKE
Plaintiff’s amended complaint (ECF No. 22) contains the following counts: Count I
(Breach of Guaranty against Dr. Bash only); Count II (Breach of Equipment Finance Agreement
against Perfect Health only); Count III (Breach of Deferral Agreement); Count IV (Breach of
Contract Implied in Law); Count IV1 (Breach of Contract Implied in Fact); Count V (Promissory
Estoppel); Count VI (Fraud/Misrepresentation); Count VII (Statutory Conversion); Count VIII
(Common Law Conversion); Violation of RICO (Count IX); and Count X (Claim & Delivery
against Perfect Health only).
On January 24, 2019, the Court granted Plaintiff’s motion for partial summary judgment
against Dr. Bash as to Count I (Breach of Guaranty) and Count III (Breach of Deferral
Agreement). ECF No. 46. On May 24, 2019, the Court granted Defendant Bash’s motion for
summary judgment in part, and dismissed Count IV (Breach of Contract Implied in Law), Count
1
The complaint has two counts labeled “Count IV.”
IV (Breach of Contract Implied in Fact), and Count V (Promissory Estoppel). ECF No. 60. On
June 24, 2019, the Court entered a stipulated order to dismiss Counts VI, VII, VIII, and IX
without prejudice against Dr. Bash only. Thus, there are no claims pending against Dr. Bash.
However, judgment has not yet been entered against Dr. Bash on Counts I and III of the
amended complaint.
A default was entered against Perfect Health on March 5, 2019. ECF No. 54. Plaintiff
now seeks a default judgment against Perfect Health. ECF No. 67. Also pending is Plaintiff’s
motion for attorney fees (ECF No. 65), and motions to strike (ECF Nos. 70, 72), which will be
addressed in turn.
I.
Plaintiff moves for default judgment against Perfect Health, requesting the following
relief:
(1) enter a default judgment for breach of contract on Counts II and III of the
Amended Complaint against Perfect Health in the amount of $318,532.50, plus
interest as allowed by law and future costs of collection and attorney fees as Bank
OZK may request on motion; (2) enter a default judgment for conversion pursuant
to MCL 600.2919(a) on Count VII of the Amended Complaint against Perfect
Health in the amount of $590,079.43, plus interest as allowed by law; (3) enter a
default judgment for fraud on Count VI of the Amended Complaint against
Perfect Health in the amount of $147,920.21, plus interest as allowed by law; and
(4) enter a default judgment for RICO on Count IX of the Amended Complaint
against Perfect Health in the amount of $614,372.29, plus interest as allowed by
law. 5 Bank OZK also requests such other or additional relief as this Court deems
appropriate under the circumstances.
ECF No. 67, PageID.1089.
A.
Before a default judgment may be entered, a party first must obtain a default. Fed. R.
Civ. P. 55(a). “Once a default is entered, the defendants are considered to have admitted the well
pleaded allegations in the complaint, including jurisdiction.” Ford Motor Company v. Cross, 441
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F.Supp.2d 837, 845 (E. D. Mich. 2006) (citing Visioneering Construction v. U.S. Fidelity and
Guaranty, 661 F.2d 119, 124 (6th Cir. 1981)) (emphasis added).
Here, Plaintiff properly obtained a default against Defendant Perfect Health. Federal Rule
of Civil Procedure 55(b)(2) provides that upon application of the party, the court may enter a
default judgment. Rule 55(b)(2) further provides that a court “may conduct hearings . . . to
determine the [applicable] amount of damages” or “establish the truth of any allegation by
evidence.” The rule further provides, in relevant part, “[i]f the party against whom a default
judgment is sought has appeared personally or by a representative, that party or its representative
must be served with written notice of the application at least 7 days before the hearing.” Fed. R.
Civ. P. 55(b)(2).2
While the well-pleaded factual allegations in the complaint are taken as true when a
defendant is in default, damages are not. Ford Motor Company, 441 F.Supp.2d at 848 (citing
Thomson v. Wooster, 114 U.S. 104 (1885)). “Ordinarily, the District Court must hold an
evidentiary proceeding in which the defendant has the opportunity to contest the amount [of
damages].” Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (internal quotation
and citation omitted). However, Rule 55 gives the court the discretion to determine whether an
evidentiary hearing is necessary, or whether to rely on detailed affidavits or documentary
evidence to determine damages. Stephenson v. El Batrawi, 524 F.3d 907, 916 (8th Cir. 2008);
Federal Rules of Civil Procedure, Rules and Commentary Rule 55;
B.
Despite the number of claims advanced by the Plaintiff, the facts are not particularly
complicated, at least from the Plaintiff’s perspective. It entered into an Equipment Finance
2
Bank OZK served Perfect Health with a copy of a Notice of Request for Default Judgment, together with these
motion papers. See Exhibit 1.
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Agreement requiring Perfect Health to make 63 partial monthly payments of $2,922.47 to
Plaintiff Bank of the Ozarks. In return, Perfect Health granted Bank of the Ozarks a security
interest in a Aspen Laser System with accessories and five QANS assessment systems with
accessories. Ultimately, Bank of the Ozarks contends that Perfect Health defaulted for a number
of reasons not the least of which was their failure to make payments. The key provisions of the
Equipment Finance Agreement are as follows:
3. Terms and Payments: You [Perfect Health] promise to pay us the total of all the
payments that are indicated above, which can be determined by multiplying the
number of monthly payments times the monthly payment amount and the other
payments, all as indicated above.
...
4. Security Interest: To secure your obligations to us described in this Agreement,
you hereby grant us a security interest in the Equipment and all accessions
thereto, and replacements thereof, and all proceeds of all the foregoing.
...
5. Equipment: You represent and warrant that you are the sole owner of the
Equipment and hold good title therein free of any liens, encumbrances, or interests
of any kind except for the security interest we hold pursuant to this Agreement.
You agree not to sell, transfer or dispose of Equipment or any interest therein or
to allow the Equipment to become subject to any liens, encumbrances, or security
interests of an kind, except for our security interest, until all amounts payable by
you under this Agreement have been paid in full.
...
11. Default and Remedies: . . . [in the event of a default] we may exercise any one
or more of the following remedies: (i) accelerate, declare due, sue for and receive
from you the sum of (x) all payments and other amounts then due and owing
under this agreement . . .
ECF No. 75-2, PageID.1283–85 (emphasis added).
i.
As explained in the Court’s earlier order granting summary judgment in part against Dr.
Bash, Plaintiff has established that Perfect Health is in default of the Equipment Finance
Agreement and Deferral Agreement and the unpaid indebtedness is accelerated and is due to be
paid. ECF No. 46.
Default Judgment is therefore appropriate. Plaintiff also sufficiently
established damages in the amounts set forth in the Court’s previous order, together with interest
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which has continued to accrue, for a total principal and interest amount through June 6 of
$147,920.21, plus continued interest at a rate of $22.94 per diem until the judgment is satisfied.
ECF No. 67-2. Plaintiff’s contractual collection costs and fees will be addressed below. Default
Judgment will be entered on Counts II and III against Perfect Health in an amount of
$147,920.21 in principal and continuing interest from June 6 until the judgment is satisfied.
ii.
Plaintiff also seeks default judgment on Counts VII (Statutory Conversion) and Count
VIII (Common Law Conversion). MCL § 600.2919a(1) provides that “A person damaged as a
result of either or both of the following may recover three times the amount of actual damages
sustained, plus costs and reasonable attorney fees”:
(a) Another person’s stealing . . . or converting property to the other person’s own
use.
(b) Another person’s . . . receiving, possessing, concealing, or aiding in the
concealment of stolen . . . or converted property when the person . . . receiving,
possessing, concealing, or aiding in the concealment of stolen, embezzled, or
converted property knew that the property was stolen . . . or converted. MCL §
600.2919a(1)(b).
“Common law conversion . . . consists of any distinct act of domain wrongfully exerted over
another’s personal property in denial of or inconsistent with the rights therein. Conversion may
occur when a party properly in possession of property uses it in an improper way, for an
improper purpose, or by delivering it without authorization to a third party.” Dep’t of Agric. v.
Appletree Mktg., L.L.C., 485 Mich. 1, 13–14 (2010) (internal quotations and citations omitted)
(emphasis added).
Plaintiff contends it has stated a claim for conversion by alleging 1) that Andy Park, an
alleged agent and employee of Perfect Health, absconded with the five QANS units, the
equipment collateral subject to Plaintiff’s security interest, and 2) that Dr. Bash, also an alleged
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agent of Perfect Health, facilitated the alleged conversion by obtaining a deferral of the
equipment loan under circumstances where he knew or should have known about the theft of the
five QANS units, thereby depriving Plaintiff of its opportunity to attempt to repossess the five
QANS units (their whereabouts are now unknown).
Perhaps Andy Park and/or Dr. Bash’s alleged conduct constituted conversion of Perfect
Health’s property. However, Perfect Health cannot convert its own property. Perfect Health
owned the collateral. See Equip. Fin. Agt. at 2, ECF No. 75-2, PageId.1284 (“You represent and
warrant that you are the sole owner of the Equipment and hold good title thereto . . .”). Bank
OZK did not own the collateral; rather it had a security interest in the collateral. Id. (“you hereby
grant us a security interest in the Equipment . . .”). The debtor’s act of interference with a
secured party’s rights in the collateral does not constitute conversion of property that the debtor
owns. Platte Valley Bank v. Tetra Fin. Grp., LLC, 682 F.3d 1078 (8th Cir. 2012). It is, however,
a breach of the security agreement entitling the secured party to the rights thereunder. See id.; see
also Equip. Fin. Agt. at 3, ECF No. 75-2, PageId.1285 (setting forth the rights of the secured
party in the event of a default, including acceleration of the outstanding debt and possession of
the collateral). Plaintiff’s motion for default judgment will be denied as to Counts VII and VIII
because Plaintiff has not stated a claim for conversion.
iii.
Plaintiff also seeks default judgment on Count VI (Fraud/Misrepresentation) and Count
IX (RICO). Once an entry of default against a defendant has been made the court must treat the
“well-pleaded” allegations as true. AF Holdings LLC v. Bossard, 976 F. Supp. 2d 927, 929
(W.D. Mich. 2013) (emphasis added).
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The traditional common-law claim of fraudulent misrepresentation requires the plaintiff
to show that: “the defendant made a material representation; the representation was false; the
defendant knew it was false when it was made or made it recklessly, without knowledge of its
truth and as a positive assertion; the representation was made with the intention to induce
reliance by the plaintiff; the plaintiff acted in reliance upon it; and the plaintiff suffered injury.
Hord v Environmental Research Inst, 463 Mich 399, 404, 617 NW2d 543 (2000).
Here, Plaintiff’s primary factual predicate for the fraud claim is that Perfect Health
represented that it intended to pay on the loan but did not do so. Plaintiff also argues that
obtaining a deferral under false pretenses (omitting the fact that the collateral was no longer in
the debtor’s possession) also constituted fraud. This a garden variety breach of contract claim. It
is axiomatic that “misrepresentations relating to the performance of a contract do not give rise to
an independent cause of action in tort.” Huron Tool & Engineering Co. v. Precision Consulting
Servs., Inc., 209 Mich.App 365, 373;532 NW2d 541 (1995). “Fraud must be extraneous to
the contract in order to cause harm distinct from that caused by the breach of contract.” I-Fusion
Tech., Inc. v. TRW Auto. U.S., L.L.C., No. 306466, 2012 WL 6604701, at *2 (Mich. Ct. App.
Dec. 18, 2012); Id. To state a tort claim, the plaintiff must allege a “violation of a legal duty
separate and distinct from the contractual obligation.” Rinaldo's Constr Corp v. Mich. Bell Tel
Co., 454 Mich. 65, 84 (1997). The motion will be denied as to Count VI.
“To state a § 1962(c) RICO claim… a plaintiff must plead a person’s ‘(1) conduct (2) of
an enterprise (3) through a pattern (4) of racketeering activity.’ Hager v. ABX Air, Inc., No. 2:07CV-317, 2008 WL 819293, at *3 (S.D. Ohio Mar. 25, 2008), citing Sedima, S.P.R.L. v. Imrex
Co., Inc., 473 U.S. 479, 496 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Pursuant to Fed. R. Civ. P.
Rule 9(b), when “alleging fraud or mistake, a party must state with particularity the
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circumstances constituting fraud or mistake.” At a minimum a plaintiff must “ ‘allege the time,
place, and content of the alleged misrepresentation on which [they] relied; the fraudulent
scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.’ ” United
States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 643 (6th Cir.2003) (quoting
Coffey v. Foamex L.P., 2 F.3d 157, 161–62 (6th Cir.1993)). See Heinrich v. Waiting Angels
Adoption Servs., Inc., 668 F.3d 393, 404 (6th Cir. 2012).
Here, Plaintiff has not alleged a sufficient factual predicate for the RICO claim. In its
motion, Plaintiff identifies various entities (including Perfect Health, REM Nation, LLC,
Welltech, LLC, and O’Bella Aesthetics, LLC) who entered into “several contracts” with various
“third parties,” including Bank OZK. These are unrelated contracts entered into between
unknown third parties and various affiliates of Perfect Health who are not named as Defendants.
Plaintiff does not explain how those circumstances are relevant to its RICO claim against Perfect
Health.
Perfect Health’s promise to pay on the loan, and failure to fulfill that promise, is not an
act of racketeering activity; again, it is a garden variety breach of contract. Plaintiff also alleges
that Perfect Health repeatedly (and falsely) expressed its intention to pay on the loan. These
additional allegations do not transform the breach of the Equipment Finance Agreement into an
act of racketeering activity.
Even assuming Perfect Health’s act of obtaining a deferral under false pretenses
constitutes a sufficient predicate act of wire fraud (which is far from clear), it is but one act,
whereas RICO requires a pattern of racketeering activity. Plaintiff attempts to break this single
act down into its constituent parts (Perfect Health called a Bank OZK representative on the
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phone, asked for a deferral, omitted information, then signed the deferral). The argument is
unpersuasive. The request for default judgment will be denied as to Count IX.
III.
Plaintiff seeks contractual attorney fees and collection costs of $168,814.00 and
$1,798.29, respectively, against Dr. Bash and Perfect Health, pursuant to the terms of the
Equipment Finance agreement which provided for reasonable attorney fees and costs of
collection in the event of a default. Summary judgment was entered against Dr. Bash on the
Deferral Agreement, which reaffirmed his obligations under the Equipment Finance Agreement.
ECF No. 46. Default Judgment will be entered against Perfect Health on the breach of contract
claims as well, as set forth above. Accordingly, both Defendants are liable for reasonable
attorney fees and costs of collection on the loan.
A.
Contractual attorney fees are an element of damages for breach of contract. First Merit
Bank v. J&B Product, Ltd., 2016 WL 7385714 (E.D. Mich. Dec. 21, 2016). In diversity cases,
federal common law governs the enforcement thereof. JPMorgan Chase Bank v. Winget, 2016
WL 146658 (E.D. Mich. 2016) (“the type and amount of documentation needed to support a
request for attorney’s fees’ pursuant to a contract is procedural . . . and should be analyzed using
Sixth Circuit law.”) (internal quotations omitted).
The award of attorney’s fees must be reasonable as determined under the ‘lodestar’
approach.” Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46
F.3d 1392, 1401 (6th Cir. 1995). The lodestar approach involves multiplying the number of
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hours reasonably spent by a reasonable hourly rate in the community for similar work. Id. The
party requesting attorney’s fees bears the burden of establishing that the number of hours and
hourly rate are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The “essential goal
is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
After determining the lodestar figure, “[t]he trial judge may then, within limits, adjust the
‘lodestar’ to reflect relevant considerations peculiar to the subject litigation. The factors which
the district court may consider, either in determining the basic lodestar fee and/or adjustments
thereto, include the twelve factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 717–19 (5th Cir.1974).” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir.
2000) (citations omitted). Those twelve “Johnson” factors are: …(1) the time and labor required
by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to
perform the legal service properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of
the case; (11) the nature and length of the professional relationship with the client; and (12)
awards in similar cases.” Id. at n. 8.
B.
Defendant Bash opposes the fee request raising many of the same arguments raised
throughout these proceedings including 1) his lack of an agency relationship with Perfect Health,
2) that his signatures on the Guaranty and Equipment Finance Agreement were forgeries, 3) and
that the Equipment Finance Agreement is void. These arguments will not be revisited again.
Suffice it to say, as explained previously, that Dr. Bash admitted that he signed the Deferral
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Agreement. The Deferral Agreement reaffirmed his obligations under the Equipment Finance
Agreement. The latter provided for collection costs and attorney fees.
As for the amount of fees, Defendant Bash raises additional arguments. Defendant Bash
argues that the hourly rates for Plaintiff’s counsel are too high, in that they are at or above the
95th percentile for attorneys in Detroit, whereas the 75th percentile for Bay County (the county in
which this action was brought) would be more appropriate. Defendant Bash provides no legal
authority for the proposition that a “reasonable hourly rate in the community for similar work”
means the community where the action was brought, as opposed to the community in which the
attorneys practice. Additionally, Defendant Bash misreads the data from the State Bar of
Michigan. Plaintiff’s counsel’s rates of $350 and $360 are not at the 95th percentile for
practitioners in Wayne County ($467). They are closer to the 75th Percentile ($317). ECF No. 655, PageID.1029.
Plaintiff’s counsel contends that a rate above the 75th percentile is warranted given their
extensive experience (20-plus years representing fortune 100 companies). The relative simplicity
of this matter (an action to collect on a loan and enforce a security interest) cuts against this
argument. Liability was predicated on essentially one fact: Dr. Bash signed the deferral
agreement (a one-page document), which reaffirmed his obligation under the loan. The
reasonable rate is to be calculated with reference to prevailing market rates for “similar work.”
Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392,
1402 (6th Cir. 1995). An unremarkable $139,000 collection action does not warrant a rate that
counsel would charge for representing a Fortune 100 company in complex commercial litigation,
notwithstanding the perhaps overzealous defense.
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The following information from the State Bar of Michigan’s attorney fee data guides the
Court’s determination of the appropriate rate here: the median hourly rate for
Business/Commercial litigators (across all counties and experience levels) is $304/hr; the median
rate for attorneys with 26-30 years’ experience (across all counties and practice areas) is $278/hr;
the median rate for Wayne County attorneys (across all experience levels and practice areas) is
$269/hr. Plaintiffs’ counsel fit into all three of these relevant categories. Awarding them the
average of the three relevant median rates ($283) is more than sufficient considering the type of
work performed.
Defendant Bash’s analysis of the Johnson factors is largely a re-packaged version of his
arguments as to why he contends he should have prevailed on the merits. These arguments are
non-sequiturs. Defendant Bash does argue that Plaintiff should have broken down the fees
incurred in pursuing the claims against him separately from the fees incurred in pursuing relief
against Perfect Health. Plaintiff correctly notes in reply that this argument is contrary to the
terms of the Equipment Finance Agreement which provides for Plaintiff’s entitlement to “all
expenses incurred in connection with the enforcement of any of our remedies . . .” ECF No. 75-2
at 3. Dr. Bash signed the Deferral Agreement which re-affirmed his obligation under the
Equipment Finance Agreement and the Guaranty, rendering him liable for his own default as
well as the default of the principal debtor, Perfect Health (and the costs and attorney fees arising
from that default).
Defendant Bash does not specifically challenge the hours expended by Plaintiff’s
counsel, as set forth in their detailed billing entries. ECF No. 65-3. The Court will not
independently audit 38 pages of billing entries. However, reductions are warranted in light of
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the relatively uncomplicated nature of the issues and the duplicative nature of the claims
considering Plaintiff’s entitlement to only a single recovery.
Plaintiff’s counsel’s bills reflect 479 hours spent on this matter. ECF No. 65-3. That
figure is high for an unremarkable $139,000 collection action. The additional claims or causes of
action added little to Plaintiff’s substantive entitlement to relief. In total, Plaintiff’s motion for
default judgment requested $1,670,903 in damages (exclusive of costs and fees), which is more
than 12 times the $139,000 outstanding balance on the defaulted loan. Plaintiff also participated
in unnecessarily multiplying these proceedings by engaging defense counsel in immaterial
debates over issues having little to do with the merits of the action.
A 30% reduction in the number of hours expended is warranted, which results in a total
of 335 hours, multiplied by the adjusted rate of $283/hr as set forth above, for a total fee of
$94,805, plus $1,798.29 in costs. This more than sufficiently compensates counsel for
successfully pursuing a $139,000 collection action, particularly given the lack of any meaningful
opposition to the merits of the action. Perfect Health defaulted, and Dr. Bash’s sole defense was
predicated on the alleged forgery of his signature on the finance agreement and guaranty, a
defense which was clearly foreclosed by the reaffirmation clause in the deferral agreement
(which Dr. Bash admitted he signed).
IV.
After reviewing the parties’ requests to strike materials (ECF Nos. 68, 70, 72) the Court
concludes that none of the issues identified warrant the relief requested, nor do they warrant
additional discussion. The requests will be denied.
V.
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Plaintiff has not sought a disposition as to Count X (claim and delivery) against Perfect
Health. Notably, pursuant to MCR 3.105(E)(3)(H), the judgment must determine:
(a) the party entitled to possession of the property,
(b) the value of the property,
(c) the amount of any unpaid debt, and
(d) any damages to be awarded.
The Court Rule further provides that “the party adjudged entitled to possession of the
property described may elect to take judgment for the value of the property instead of possession.
The judgment value may not exceed the unpaid debt, if any, secured by such property.” MCR
3.105(E)(3)(H)(6).
Before final judgment will be issued, Plaintiff will be directed to seek a disposition of
Count X, explain how that requested disposition complies with MCR 3.105(E)(3)(H)(6) (in light
of requested judgment on the underlying loan secured by the property), and file a proposed
judgment the complies with MCR 3.105(E)(3)(H)(a)-(d). Plaintiff will be directed to do so
within 7 days of this order.
VI.
Accordingly, it is ORDERED that Plaintiff’s motion for attorney fees, ECF No. 65, is
GRANTED in part as set forth above. Attorney fees will be entered in favor of Plaintiff and
against Defendants in an amount of $94,805, plus $1,798.29 in costs.
It is further ORDERED that Plaintiff’s motion for default judgment, ECF No. 67, is
GRANTED in part as set forth above, on Counts II and III against Perfect Health in an amount
of $147,920.21 in principal and continuing interest of $22.94 per diem from June 6, 2019 until
the judgment is satisfied.
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It is further ORDERED that Plaintiff’s motions to strike, ECF No. 70, 72, are DENIED,
and Defendant’s requests to strike (contained in response brief ECF No. 68) are also DENIED.
It is further ORDERED that Plaintiff is DIRECTED to seek disposition on Count X by
August 2, 2019 of the entry of this order and file proposed a judgment as explained above.
This is not a final order and does not close this case. Judgment will not be entered, and no
amounts set forth herein are collectible until Plaintiff has complied with this order.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 26, 2019
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