Vegas Sereno, LLC v. Higgins et al

Filing 20

ORDER that plaintiff's motion for default judgment 18 is GRANTED. Plaintiff is ordered to prepare an appropriate judgment order. Plaintiff may submit a motion for reasonable attorneys fees and costs in accordance with Local Rule 54-16. Signed by Judge James C. Mahan on 11/12/10. (Copies have been distributed pursuant to the NEF - ECS)

Vegas Sereno, LLC v. Higgins et al

Doc. 20

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
James C. Mahan U.S. District Judge

VEGAS SERENO, LLC, Plaintiff, v. PATRICK HIGGINS, et al., Defendants.

2:10-CV-423 JCM (PAL)

ORDER Presently before the court is plaintiff Vegas Sereno, LLC's motion for default judgment against defendants Luis Orozco Madrid and Richard Thomas Habib (collectively, "defendants") pursuant to Federal Rule of Civil Procedure 55. (Doc. #18). The instant litigation stems from a loan agreement between the plaintiff's predecessors-ininterest and the developer Villa Sereno, LLC. The loan, evidenced by a promissory note, was secured with a recorded deed of trust against unimproved real property in Las Vegas, Nevada. In conjunction with the loan, defendants Patrick Higgins, Luis Orozco Madrid and Richard Thomas Habib each executed a personal guaranty unconditionally guaranteeing Villa Sereno's obligation under the note. Villa Sereno defaulted, and the property entered foreclosure proceedings. However, prior to the actual foreclosure sale, the lenders executed and recorded an assignment of their interests in favor of the plaintiff. Finally, at a public sale, the property sold to the plaintiff. The plaintiff now brings suit against the Higgins, Madrid and Habib, as guarantors of the original loan, for the outstanding deficiency balance in the amount of $3,018,354.94. Pursuant to Federal Rule of Civil Procedure 55(a) "[w]hen a party against whom a judgment

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James C. Mahan U.S. District Judge

for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Federal Rule of Civil Procedure 55(b)(2) provides that a court may enter a default judgment after the party seeking default applies to the clerk of the court as required by subsection (a) of this rule. Here, defendants have been duly served (see doc. #4), but have failed to respond to the complaint. Accordingly, plaintiff applied to the clerk of the court for entry of default against defendants Luis Orozco Madrid (doc. #9) and Richard Thomas Habib (doc. #10) on August 12, 2010. The clerk entered default against both defendants on August 13, 2010 (doc. #13). Plaintiff now asks this court to enter a default judgment against defendants in the form of a deficiency judgment for breach of the guaranty. Plaintiff also seeks leave to file a motion for reasonable attorneys' fees and costs in accordance with LR 54-16. The plaintiff has alleged specific facts and has also submitted copies of relevant legal documents ­ the promissory note (doc. #18-2, ex.1), the assignment of deed of trust and promissory note to the plaintiff (doc. #18-2, ex. 9), and the personal guaranty obligating the defendants for the deficiency amount (doc. #18-2, ex.3). Finally, plaintiff has submitted a statement of verification from the senior vice president and chief financial officer of the member-manager of plaintiff Vegas Sereno, LLC, verifying the authenticity of these documents and verifying the value of the deficiency balance on the loan. (Doc. #18-2, ex. A). Furthermore, the promissory note contains a provision granting reasonable attorneys' fees from the non-prevailing party in any litigation to enforce the agreement. (Doc. #18-2, ex.1). Plaintiff has submitted an affidavit from its attorney detailing the attorneys' fees associated with this case in accordance with Federal Rule of Civil Procedure 55. (Doc. #18-2, ex. A). Based on this information, the court finds that plaintiff's requested relief is warranted. Accordingly, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff's motion for default judgment (doc. # 18) be, and the same hereby is, GRANTED. Plaintiff is ordered to prepare an appropriate judgment order.

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IT IS FURTHER ORDERED that the plaintiff may submit a motion for reasonable attorneys' fees and costs in accordance with Local Rule 54-16. DATED November 12, 2010.

UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
James C. Mahan U.S. District Judge

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