KeyBank National Association v. Nielsen et al

Filing 170

THIRD AMENDED JUDGMENT.JUDGMENT is entered in favor of Plaintiff Oreo Corp., as successor-in-interest to KeyBank National Association and against Defendants Lawrence J. Winnerman, Sanford B. Winnerman, and WW Centennial Hills, LLC, in the amoun t of: $4,417,786.74,25 together with post-foreclosure interest through December 5, 2013, in the amount of $1,361,690.73, for a total of $5,779,477.47 on which post-judgment interest will accrue under 28 U.S.C. § 1961 from Decem ber 5, 2013, at a rate of.13% until paid; plus $336,505.94 in attorneys fees and $1,353.59 in taxable costs, for a total of $337,859.53 on which post-judgment interest will accrue under 28 U.S.C. § 1961 from February 18, 2014, a rate of.12% until paid. Signed by Judge Jennifer A. Dorsey on 6/23/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Oreo Corp., an Ohio corporation, as successor in
interest to Keybank National Association,

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Case No. 2:10-cv-0352-JAD-VCF

Plaintiff
Order Recalculating Post-Judgment
Interest Award on Remand and Entering
Third Amended Judgment

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v.

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Lawrence J. Winnerman, et al,

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Defendants

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This deficiency-judgment action finds its way to me after a partially successful appeal and the

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retirement of the trial judge. After a 2013 bench trial, District Judge Philip M. Pro entered a

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$4,587,786.74 judgment in favor of the Plaintiff Oreo Corp. as successor in interest to Keybank

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National Association,1 and the parties stipulated to amend the judgment to $4,417,786.74 to reflect

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tendered settlement payments.2 Post-judgment motions resulted in a second amended judgment in

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February 2014 that added prejudgment interest through the December 5, 2013, date of the original

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judgment and post-judgment interest thereafter, all at the parties’ contractual default rate of 8.25%.3

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By separate order that same day, Judge Pro awarded plaintiff attorneys fees and costs.4
On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the damages

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award but vacated the district court’s award of post-judgment interest at the default contractual rate

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of 8.25%.5 The panel found that the district court “abused its discretion in applying the Default Rate

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ECF Nos. 122, 123.

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ECF Nos. 128, 129.

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ECF No. 142.

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ECF No. 144.

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ECF No. 161.

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instead of the statutory rate” prescribed by 28 U.S.C. § 1961 because the statutory rate is mandatory

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in the absence of a “specific agreement” to apply a different post-judgment interest rate, and the

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parties’ contract contained no such agreement.6 It vacated the award of post-judgment interest and

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directed me to “recalculate the interest and amend the judgment accordingly.”7

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The parties disagree over the form and content of the amended judgment that I must now

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enter. In their brief on the topic and during the oral argument that I conducted on June 13, 2016, the

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defendants argue that I must simply apply the § 1961 rate (.13%) and run it from the date of the

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original December 5, 2013, judgment.8 The plaintiff argues instead that the trigger date for post-

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judgment interest is today, with the filing of this amended order; all interest before today should be

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prejudgment interest at the much higher 8.5% contractual rate.9 Alternatively, plaintiff argues that

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post-judgment interest did not begin to accrue until at least the February 2014 entry of the second

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amended judgment because that was the judgment that awarded pre- and post-judgment interest.10

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Finally, both parties agreed during oral argument that the post-remand judgment should include the

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award of fees and costs, with post-judgment interest accruing from the date of that award.

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I accept the parties’ stipulated position on the fees-and-costs issue, conclude that the revised

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post-judgment interest on all but the fees-and-cost award runs from the date of the original judgment

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at the rate set by 28 U.S.C. § 1961, and amended the judgment accordingly.

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Discussion

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28 U.S.C. § 1961(a) provides that “Interest shall be allowed on any money judgment in a
civil case recovered in a district court” and is “calculated from the date of the entry of the judgment,

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ECF No. 161 at 7 (citing Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1023 (9th Cir.
2004).

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Id. at 7–8.

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ECF No. 167.

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ECF No. 168.

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Id.
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at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the

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Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the

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judgment.” In Kaiser Aluminum & Chemical Corp. v. Bonjorno, the Supreme Court interpreted §

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1961 to require post-judgment interest under that statute to run from the date of the entry of a

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judgment that sufficiently ascertains the plaintiff’s damages.11 In AT&T v. United Computer

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Systems, Inc., 98 F.3d 1206 (9th Cir. 1996), the Ninth Circuit noted the Kaiser rule12 but recognized

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the exception that “[w]here a prior judgment awarding damages has been vacated pursuant to the

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actions of an ultimately losing party, equitable principles favor calculating the interest in a manner

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that more fully compensates the prevailing party.” Oreo argues that the AT&T exception applies, so

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post-judgment interest accrues from today’s modified judgment, not the original judgment.

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“Determining from which judgment interest should run ‘requires an inquiry into the nature of

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the initial judgment, the action of the appellate court, the subsequent events upon remand, and the

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relationship between the first judgment and the modified judgment.’”13 Each of these considerations

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leads me to the conclusion that post-judgment interest runs—on everything but fees and costs—from

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the original judgment; and post-judgment interest on the fee-and-cost award runs from the date of

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that award.

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This was a deficiency action. The district court’s findings and facts and conclusions of law

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set “the resulting deficiency at the time of the foreclosure sale” at $4,587,786.74,14 and the court

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entered the original judgment in that amount on December 5, 2013.15 Although the court amended

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Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835 (1990).

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See also Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 702 (9th Cir. 1996)
(“Kaiser simply precludes the award of post-judgment interest from the date of initial judgment
where it has been determined that the initial judgment was not supported by the evidence.”).

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Guam Soc’y of Obstetricians & Gynecologists, 100 F.3d at 702 (quoting Bailey v. Chattem, Inc.,
838 F.2d 149, 154 (6th Cir. 1988)).

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ECF No. 122 at 5.

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ECF No. 123.

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the judgment by stipulation a few weeks later to reflect settlement payments,16 it is the original

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judgment that sufficiently ascertains the plaintiff’s damages. So, under Kaiser, it is from that

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original judgment that post-judgment interest should run.

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AT&T does not dictate a different conclusion. Its exception does not apply in this case

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because no “prior judgment awarding damages has been vacated pursuant to the actions of an

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ultimately losing party.”17 The Ninth Circuit panel only vacated the district court’s award of post-

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judgment interest; it affirmed the damages award.18 The AT&T exception is designed to avoid

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penalizing the prevailing party and “encouraging losing parties to instigate post-judgment litigation

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so they can reap the benefits of a low interest rate.”19 In this case, the panel agreed with the

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appellants (defendants here) that the trial judge should have applied the lower post-judgment interest

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rate from the date of entry of that original judgment, and to apply AT&T would deprive defendants of

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the effect of that ruling.

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Running the post-judgment interest from the date of the original judgment is also consistent

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with Rule 37 of the Federal Rules of Appellate Procedure. “Promulgated as a reminder of” the

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“settled principle that once [the appellate court has] instructed the district court on a matter, it must

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faithfully carry out [the court’s] command and go no further,”20 Rule 37 directs that, “if a money

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judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date

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when the district court’s judgment was entered.”21 The Second Amended Judgment awards pre-

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judgment interest of 8.5% through the fixed date of December 5, 2013, (the date of the original

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ECF No. 128.

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AT&T, 98 F.3d at 1211 (emphasis added).

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ECF No. 161 at 7–8.

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AT&T, 98 F.3d at 1211.

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Planned Parenthood of Columbia/Williamette Inc. v. American Coalition of Life Activists, 518
F.3d 1013, 1018 (9th Cir. 2008) (citing Briggs v. Pennsylvania R.R. Co., 334 U.S. 304 (1948)).

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Fed. R. Civ. P. 37(a).
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judgment) in the fixed amount of $1,361,690.73, and it awards post-judgment interest at that same

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8.5% rate beginning “each day after December 5, 2013,” until the judgment is satisfied.22 The

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damages award in this case was affirmed with the singular instruction to recalculate only the post-

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judgment interest on remand.23 Were I also to recalcuate the prejudgment interest award to run it

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through today’s modified judgment or any date other than December 5, 2013, I would be going

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beyond the panel’s command, thus violating Rule 37 and the principles it promulgates. Nothing

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plaintiff offers persuades me to do so. Accordingly, I conclude that post-judgment interest begins to

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accrue from the date of the original judgment.

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There is one final wrinkle in this calculation to iron out. On February 18, 2014, Judge Pro

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awarded plaintiff attorneys fees and costs, and these components of the award have not yet been

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incorporated into any judgment.24 During the February 13, 2016, hearing on these post-remand

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issues, all counsel agreed that the fees and costs should be incorporated into the judgment and that

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the post-judgment interest on the fees-and-costs award should run from the date of that award on

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February 18, 2014. I accept the parties’ stipulated approach.

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Conclusion

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Accordingly, with good cause appearing and no reason to delay, IT IS HEREBY ORDERED,

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ADJUDGED, AND DECREED that JUDGMENT is entered in favor of Plaintiff Oreo Corp., as

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successor-in-interest to KeyBank National Association and against Defendants Lawrence J.

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Winnerman, Sanford B. Winnerman, and WW Centennial Hills, LLC, in the amount of:
!

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$4,417,786.74,25 together with post-foreclosure interest through December 5, 2013, in
the amount of $1,361,690.73, for a total of $5,779,477.47 on which post-judgment

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ECF No. 142.

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ECF No. 161 at 8.

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ECF No. 144.

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ECF No. 129.

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interest will accrue under 28 U.S.C. § 1961 from December 5, 2013,26 at a rate of

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.13% until paid;27 plus
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$336,505.94 in attorneys’ fees and $1,353.59 in taxable costs, for a total of

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$337,859.53 on which post-judgment interest will accrue under 28 U.S.C. § 1961

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from February 18, 2014, a rate of .12% until paid.28

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DATED June 23, 2016

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________________________________
______________________
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Jennifer A. Dorsey
nifer A. Dorsey
r D
United States District Judge
ted States
t
Judge
dg

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ECF No. 123.

This is the rate equal to the weekly average 1-year constant maturity Treasury yield, as published
by the Board of Governors of the Federal Reserve System, for the calendar week ending 11/29/13.
http://www.federalreserve.gov/releases/h15/20131202/. Last visited June 22, 2016.
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This is the rate equal to the weekly average 1-year constant maturity Treasury yield, as published
by the Board of Governors of the Federal Reserve System, for the calendar week ending 2/14/14.
http://www.federalreserve.gov/releases/h15/20140218/. Last visited June 22, 2016.
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