National Credit Union Administration Board v. Osburn et al

Filing 37

ORDER Granting 34 Renewed Motion for Default Judgment Against Mark B. Moody. THE COURT FURTHER ORDERS that Plaintiff shall promptly submit proposed Findings of Fact and Conclusions of Law, and submit proposed Judgment against Mark B. Moody. Signed by Judge Lloyd D. George on 11/28/2012. (Copies have been distributed pursuant to the NEF - DXS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NATIONAL CREDIT UNION
ADMINISTRATION BOARD,

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Case No. 2:11-cv-00769-LDG (RJJ)
Plaintiff,

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ORDER
v.

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MARK B. MOODY, et al.,
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Defendants.
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The plaintiff, National Credit Union Administration Board, in its capacity as

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Liquidating Agent of Ensign Federal Credit Union, has renewed its motion for default

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judgment (#34) against defendant Mark B. Moody.

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Default was entered against Moody on August 19, 2011 (#14). In September 2011,

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the plaintiff moved for default judgment against Moody (#17). Several days later, Moody

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filed a motion in proper person requesting additional time to retain and have legal counsel

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appear in this matter on his behalf (#19). The Court granted that motion (#21), and

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counsel filed an appearance at the end of October 2011. In mid-November 2011, Moody

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(through his counsel) filed an answer without having first obtained an order setting aside

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the default. The Court subsequently granted plaintiff’s motion to strike the answer, but

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denied the plaintiff’s original motion for default judgment without prejudice in light of the

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recent appearance of counsel of Moody’s behalf. The Court indicated that plaintiff could

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renew its motion if Moody failed to move to set aside the default within fourteen days.

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Moody did not move to set aside the default within fourteen days, and the plaintiff has

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renewed the motion for default judgment.

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The record establishes that default has been entered against Moody. Further,

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subsequent to Moody’s retention of counsel, the Court provided Moody an opportunity to

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move to set aside the default. Despite the additional opportunity to move to set aside the

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default, Moody did not do so and he remains in default.

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The plaintiff has established that Russell Ft. Apache and Ensign entered into a

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“Business Loan Agreement,” pursuant to which Ensign loaned $255,000 to Russell Ft.

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Apache. Russell Ft. Apache also executed a Promissory Note in favor of Ensign, by which

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Russell Ft. Apache agreed to repay the amount borrowed according to the terms of the

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Promissory Note.

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The plaintiff has further established that Moody signed a Commercial Guaranty by
which he personally guaranteed the loan.
Pursuant to the terms of the Promissory Note, the interest rate on the Note was

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8.250%. The Promissory Note further provided that this interest rate would be increased

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by 2 percentage points to 10.250% upon default. The plaintiff has established that Russell

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Ft. Apache did not make any payments on the loan, but defaulted on February 1, 2008.

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The plaintiff has further established that the principal amount owing under the Note
as of April 16, 2012, was $255,000.1 As of that date, the accrued interest on the

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The Promissory Note was secured by a Deed of Trust relating to certain
property. The Deed of Trust, however, was second to a senior Deed of Trust relating to the
property. The property was foreclosed upon by another party pursuant to the Deed of
Trust in first position, and the proceeds were insufficient to pay any portion of the defalted
debt of Russell Ft. Apache’s loan to Ensign.
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outstanding principal amounted to $111,748.44. Interest continued and continues to

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accrue at the rate of $72.60 per day since that date. In addition, late fees in the amount of

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$4,470.48 were due as of April 16, 2012.

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The plaintiff has further reasonably and necessarily incurred attorney’s fees in the

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amount of $26,147.50, and estimated that it would incur a further $1,250 in additional fees

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until this matter is concluded.

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Accordingly,

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THE COURT ORDERS that Plaintiff’s Renewed Motion for Default Judgment (#34)

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is GRANTED;
THE COURT FURTHER ORDERS that Plaintiff shall promptly submit proposed

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Findings of Fact and Conclusions of Law, and submit a proposed Judgment against Mark

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B. Moody.

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DATED this ______ day of November, 2012.

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Lloyd D. George
United States District Judge

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