TD BANK, N.A. v. SHREE DUTT SAI, LLC et al
Filing
27
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 11/18/2015; that Plaintiff's Motion for Summary Judgment (Docket Entry 22 ) is GRANTED. FURTHER ORDERED that Defendants are jointly and severally liable to Plai ntiff on the SBA Note, for the sum of $806,416.88 plus interest at the rate of $77.60 per day, from and after May 29, 2015, until date of entry of Judgment and, thereafter, at the legal rate until paid in full. FURTHER ORDERED tha t Defendants are jointly and severally liable to Plaintiff on the Term Note, for the sum of $359,640.14 plus interest at the rate of $59.51 per day, from and after May 29, 2015, until date of entry of Judgment and, thereafter, at the leg al rate until paid in full. FURTHER ORDERED that Defendants are jointly and severally liable to Plaintiff on the SBA Note and SBA Guarantee for $118,250.41 in attorney's fees. FURTHER ORDERED that Defendants are jointly and severally liable to Plaintiff on the Term Note and Term Guaranty for $51,866.15 in attorney's fees. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TD BANK, N.A.,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SHREE DUTT SAI, LLC,
SHAILESH GANDHI, TANVI
JADIA, and MAMTA SHAH,
Defendants.
1:14-CV-852
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Summary Judgment (the “Motion”) (Docket Entry 22). For the reasons
that follow, the Court will grant the Motion.
I. BACKGROUND
A. Procedural History
Plaintiff initiated this action, under the Court’s diversity
jurisdiction, to recover money owed on two promissory notes (the
“Notes”) (Docket Entries 1-2, 1-6) and related guaranty agreements
(the “Guaranties”) (Docket Entries 1-3, 1-7).
admits
that
Shree
Dutt
Sai,
LLC
(the
Defendants’ Answer
“Corporate
Defendant”)
executed the Notes and that Shailesh Gandhi, Tanvi Jadia, and Mamta
Shah (the “Guarantor Defendants,” and collectively with Corporate
Defendant, the “Defendants”) executed the Guaranties.
Entry 16, ¶¶ 9, 11-13, 33, 37-39.)
(Docket
After Plaintiff and Defendants
consented to proceed before a United States Magistrate Judge for
all proceedings, including entry of judgment (Docket Entry 18 at
3),
this action was referred to the undersigned United States
Magistrate Judge (Docket Entry 19).
judgment.
(Docket Entry 22.)
not to respond.
Plaintiff moved for summary
Defendants instructed their counsel
(Docket Entry 25 at 2.)
Therefore, for purposes
of evaluating the Motion, the factual record consists of the
exhibits in support of the Complaint (Docket Entries 1-2 through 17) and the exhibits in support of the Motion (Docket Entries 24 and
24-1 through 24-3).
B. Facts
Corporate Defendant borrowed two million dollars from Commerce
Bank,
N.A.
(“Commerce
Bank”)
through
Administration Note (the “SBA Note”).
a
U.S.
Small
Business
(Docket Entry 1-2; Docket
Entry 16, ¶ 9 (admitting execution of SBA Note).)1
The SBA Note
provides that, in the event of default for failing to make the
required monthly payment, Corporate Defendant bears responsibility
for immediately paying all amounts owing, including the reasonable
attorney’s fees and costs associated with enforcing the SBA Note.
(Docket Entry 1-2 at 3.)
Through their U.S. Small Business
Administration Unconditional Guarantee(s) (the “SBA Guarantees”),
Guarantor Defendants each “unconditionally guarantee[d] payment to
[Commerce
Bank] of
all
amounts
1
owing
under
the
[SBA]
Note,”
TD Banknorth, N.A. and Commerce Bank, N.A. subsequently
merged, with Plaintiff as the surviving corporation. (Docket Entry
1-4 at 1-2; see also Docket Entry 1, ¶¶ 16-18.)
2
including attorney’s fees and costs associated with enforcing the
SBA Guarantees.
(Docket Entry 1-3 at 1, 3, 7, 9, 14, 16; see also
Docket Entry 16, ¶¶ 11-13 (admitting execution of SBA Guarantees).)
In
addition,
Corporate
Defendant
borrowed
an
additional
$670,000.00 from Commerce Bank through a Loan Agreement and related
Term Note (the “Term Note”).
(Docket Entries 1-5, 1-6; see also
Docket Entry 16, ¶¶ 33, 35 (admitting execution of Loan Agreement
and Term Note).)
The Term Note provides that, in the event of
default, Corporate Defendant bears responsibility for immediately
paying all amounts owing under the Term Note, as well as the costs
of collection, including reasonable attorney’s fees and expenses to
the extent permitted by applicable law.
3.)
(Docket Entry 1-6 at 1,
Guarantor Defendants each executed an “Unlimited Guaranty”
wherein
they
“absolutely,
unconditionally
and
irrevocably
guarantee[d] the full and punctual payment to [Commerce Bank] of
all sums” owing under the Term Note, including attorney’s fees
(collectively, the “Term Guaranties”).
(Docket Entry 1-7 at 1, 7,
12; see also Docket Entry 16, ¶¶ 37-39 (admitting execution of Term
Guaranties).)
As security for the Notes, Corporate Defendant
executed and delivered a deed of trust to certain real property in
Durham County (the “Deed of Trust”).
(See Docket Entry 24, ¶¶ 13,
45; Docket Entry 16, ¶ 15 (admitting execution of Deed of Trust);
see also Docket Entry 24-3.)
3
Corporate Defendant defaulted on the Notes by failing to make
the required monthly payments.
also Docket Entry 24-1.)
(Docket Entry 24, ¶¶ 17, 46; see
Plaintiff notified Defendants in writing
of this default, acceleration of the Notes, their obligation to
make payment in full within five days, and Plaintiff’s intent to
enforce the attorney’s fees provisions in the Notes and Guaranties
unless Defendants made timely payment.
(Docket Entry 24-1.)
Defendants continued to make payments on the Notes, but failed
to pay the full amount due within the five-day period.
Entry 24, ¶ 23.)
(Docket
Accordingly, Plaintiff initiated a foreclosure
proceeding on the real property described in the Deed of Trust.
(Id. ¶ 24.)
Through a public sale that included a series of upset
bids, the property sold for $1,580,158.13. (Docket Entry 24-2; see
also Docket Entry 24, ¶ 27.)
Plaintiff deducted its foreclosure
expenses from the proceeds of the sale and applied $1,185,118.60 to
the SBA Note’s outstanding balance and $395,039.53 to the Term
Note’s outstanding balance.
(Docket Entry 24, ¶¶ 32, 50.)
As of
October 7, 2014, the remaining principal-and-interest balance of
the SBA Note was $788,258.48 plus interest at the rate of $77.60
per day (see id. ¶ 34), and the remaining principal-and-interest
balance of the Term Note was $345,714.80 plus interest at the rate
of $59.51 per day (see id. ¶ 51).
4
II. DISCUSSION
A. Summary Judgment Standard
“[I]n considering a motion for summary judgment, the district
court ‘must review the motion, even if unopposed, and determine
from what it has before it whether the moving party is entitled to
summary judgment as a matter of law.’”
Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403, 409 n.8 (4th Cir. 2010) (emphasis in
original).
As the movant, Plaintiff bears the initial burden of
showing “the absence of a genuine issue concerning any material
fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
When
a movant provides evidentiary support for a summary judgment
motion, the nonmoving party generally needs to come forth with some
opposing evidence.
See Campbell v. Hewitt, Coleman & Assocs.,
Inc., 21 F.3d 52, 55 (4th Cir. 1994).
Rule 56(e) of the Federal
Rules of Civil Procedure (the “Rules”) permits the nonmoving party
to oppose a summary judgment motion “by any of the kinds of
evidentiary
materials
pleadings themselves.”
listed
in
Rule
56(c),
except
the
mere
Celotex, 477 U.S. at 324; see also Fed. R.
Civ. P. 56(c) (listing items for court to consider).
“While the
non-moving party runs a great risk by not responding, such positive
action is not required in all instances[,]” because the Court may
grant the motion only if the “record shows a right to judgment with
such clarity as to leave no room for controversy and establishes
affirmatively that the adverse party cannot prevail under any
5
circumstances.” Campbell, 21 F.3d at 55 (quotation marks omitted).
Additionally, in evaluating a motion for summary judgment, the
court must view the facts in the light most favorable to the
non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986) (“The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.”).
B. Analysis
As a federal court sitting in diversity, the Court “must apply
the substantive law of the forum state in resolving the parties’
dispute,
including
the
forum
state’s
choice-of-law
rules.
According to North Carolina’s choice-of-law rules, in a breach of
contract case the law of the state where the contract was made
governs issues of contract construction.” Wheels Sports Grp., Inc.
v. Solar Commc’ns, Inc., 194 F.R.D. 527, 534 (M.D.N.C. 1999)
(citations omitted); see also Tanglewood Land Co., Inc. v. Wood, 40
N.C. App. 133, 136-37, 252 S.E.2d 546, 550 (1979) (“[M]atters
bearing upon the execution, interpretation, and the validity of a
contract are determined by the law of the place where it is
made.”).2
2
Federal law governs the SBA Note and SBA Guarantees when the
U.S. Small Business Administration is the “holder” of the SBA Note.
(Docket Entry 1-2 at 4; Docket Entry 1-3 at 2, 8, 15.) Per the
Complaint, however, Plaintiff is now the “owner and holder of the
SBA Note.” (Docket Entry 1, ¶ 18; see also Docket Entry 24, ¶ 4
(verifying Complaint).)
6
The SBA Guarantees were executed in North Carolina.
(See
Docket Entry 1-3 at 6, 12, 19 (notarized signatures executed in
Guilford County, North Carolina).) Per their notarized signatures,
Defendants also executed the Term Note and Term Guaranties in North
Carolina.
16.)
(Docket Entry 1-6 at 6-7; Docket Entry 1-7 at 5, 11,
The same individuals executed the SBA Note on the same day as
the SBA Guarantees, the Term Note, and the Term Guaranties.
(See
Docket Entry 1-2 at 6; Docket Entry 1-3 at 6, 12, 19; Docket Entry
1-6 at 6-7; Docket Entry 1-7 at 5, 11, 16.)
Plaintiff maintains,
without challenge by Defendants, that, “[a]ccording to their place
of execution . . ., the Notes . . . are governed by North Carolina
law.” (Docket Entry 23 at 7-8.)
In these circumstances, the Court
finds that the SBA Note was executed in North Carolina, such that,
for purposes of this matter, North Carolina law governs.
See
Wheels Sports Grp., 194 F.R.D. at 534 (recognizing North Carolina’s
place-of-execution rule and applying North Carolina law where
parties made their arguments under North Carolina law without
suggesting application of another forum’s laws).
Coordinately, the Term Note and Term Guaranties contain North
Carolina choice of law provisions.
(Docket Entry 1-6 at 4 (“This
[Term] Note . . . shall be governed by the laws of the State of
North Carolina without giving effect to the conflicts of laws
principles thereof.”); 1-7 at 4, 10, 15 (“This [Term] Guaranty, all
acts and transactions hereunder, and the rights and obligations of
7
the parties hereto shall be governed, construed and interpreted
according to the laws of the State of North Carolina without giving
effect to the conflicts of laws principles.”).)
These choice of
law provisions are valid under North Carolina law.
See Volvo
Const. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581,
603 (4th Cir. 2004) (“[C]ontracting parties in North Carolina are
entitled to agree that a particular jurisdiction’s substantive law
will govern their contract, and such a provision will generally be
given effect.”). Accordingly, North Carolina law governs as to the
Term Note and Term Guaranties.
In North Carolina, “[w]hen the language of a written contract
is plain and unambiguous, the contract must be interpreted as
written and the parties are bound by its terms.”
Atlantic & E.
Carolina Ry. Co. v. Wheatley Oil Co., 163 N.C. App. 748, 752, 594
S.E.2d 425, 429 (2004).
Moreover, the parties’ intent is a legal
question for the court to decide.
Shelton v. Duke Univ. Health
Sys., Inc., 179 N.C. App. 120, 123, 633 S.E.2d 113, 115 (2006)
(“When a contract is in writing and free from any ambiguity which
would require resort to extrinsic evidence, or the consideration of
disputed fact, the intention of the parties is a question of law.
The court determines the effect of their agreement by declaring its
legal meaning.” (internal quotations marks omitted)).
Further, North Carolina defines a guaranty as “a promise to
answer for the payment of some debt, or the performance of some
8
duty, in case of the failure of another person who is himself
liable in the first instance for such payment or performance.”
O’Grady v. First Union Nat’l Bank, 296 N.C. 212, 220, 250 S.E.2d
587, 593 (1978).
Put another way:
A guarantor’s liability arises at the time of the default of
the principal debtor on the obligation or obligations which
the guaranty covers. A guaranty of payment is an absolute
promise by the guarantor to pay a debt at maturity if it is
not paid by the principal debtor.
This obligation is
independent of the obligation of the principal debtor, and the
creditor’s cause of action against the guarantor ripens
immediately upon the failure of the principal debtor to pay
the debt at maturity.
Gillespie v. DeWitt, 53 N.C. App. 252, 258, 280 S.E.2d 736, 741
(1981) (internal quotation marks and citations omitted).
1. The Notes and Guaranties
Here, the Notes and Guaranties are unambiguous, making them
ripe for judicial interpretation.
Plaintiff has met its initial
burden of showing the absence of a genuine issue of material fact.
It is undisputed that Corporate Defendant defaulted on the Notes by
failing to make full and timely payments.
46.)
(Docket Entry 24, ¶¶ 17,
Moreover, Corporate Defendant admittedly executed the Notes
(Docket Entry 16, ¶¶ 9, 33), making it responsible for repaying the
borrowed
amounts.
executed
the
Likewise,
Guaranties
(id.
Guarantor
¶¶
11-13,
Defendants
37-39),
admittedly
making
them
personally liable to Plaintiff for the borrowed amounts. Guarantor
Defendants’ signatures appear on the Notes and Guaranties (see
Docket Entries 1-2, 1-3, 1-6, 1-7), and a notary public attested to
9
the validity of the signatures on the Term Note and Guaranties (see
Docket Entries 1-3, 1-6, 1-7).
On this record, the Court finds that the Notes and Guaranties
were properly executed and are valid.
Under the terms of the Notes
and Guaranties, Defendants are jointly and severally liable for the
borrowed amounts.
(See Docket Entry 1-2 at 1 (SBA Note stating:
“In return for the Loan, [Corporate Defendant] promises to pay to
the order of [Commerce Bank] the amount of Two Million Dollars and
Zero Cents . . . and all other amounts required by th[e] [SBA]
Note.”); Docket Entry 1-3 at 1, 3, 7, 9, 14, 16 (SBA Guarantees
stating: “Guarantor [Defendant] unconditionally guarantees payment
to [Commerce Bank] of all amounts owing under the [SBA] Note.”
“All individuals and entities signing [the SBA Guarantee] as
Guarantor are jointly and severally liable.”); Docket Entry 1-6 at
3 (Term Note stating:
“The liabilities of the Borrower and any
endorser or guarantor of this [Term] Note are joint and several.”);
Docket Entry 1-7 at 1, 7, 12 (Term Guaranties stating: “Guarantor
[Defendant] absolutely, unconditionally and irrevocably guarantees
the full and punctual payment to [Commerce Bank] of all sums . . .
due . . . to [Commerce Bank].”
“Guarantor [Defendant] . . . agrees
. . . that the liability of the Guarantor [Defendant] is unlimited
and shall be joint and several with the liabilities of any other
[Guarantor Defendants].”).)
10
Regarding the Notes’ outstanding balances, Plaintiff provided
an
affidavit
from
a
person
with
knowledge
thereof,
giving a
detailed description of the original amounts borrowed, payments
made, interest accrued, and deficiency balances.
24.)
(Docket Entry
Defendants contest neither the accuracy of Plaintiff’s
calculations nor the interest rates or fees applied.
Upon careful
review, the Court finds that the outstanding balance on the SBA
Note was $788,336.08 as of the date Plaintiff filed this action and
$806,416.88 as of May 29, 2015.
Docket Entry 22 at 2-3.)
(See Docket Entry 24, ¶¶ 34-35;
For the Term Note, the respective amounts
were $345,774.31 and $359,640.14. (See Docket Entry 24, ¶¶ 51, 55;
Docket Entry 22 at 3.)
2. Attorney’s Fees
Pursuant to North Carolina General Statute Section 6-21.2,
Plaintiff also seeks attorney’s fees from Defendants.
Entry 22 at 2.)
(Docket
Specifically, Plaintiff requests attorney’s fees
totaling 15% of the outstanding indebtedness on the Notes as of the
date it filed this lawsuit.
(Docket Entry 23 at 11-12.)
The relevant portions of Section 6-21.2 provide:
Obligations to pay attorneys’ fees upon any note . . . or
other evidence of indebtedness, in addition to the legal
rate of interest or finance charges specified therein,
shall be valid and enforceable, and collectible as part
of such debt, if such note, contract or other evidence of
indebtedness be collected by or through an attorney at
law after maturity, subject to the following provisions
. . .
11
(2) If such note . . . or other evidence of indebtedness
provides for the payment of reasonable attorneys’ fees by
the debtor, without specifying any specific percentage,
such provision shall be construed to mean fifteen percent
(15%) of the “outstanding balance” owing on said note,
contract or other evidence of indebtedness.
(3) As to notes and other writing(s) evidencing an
indebtedness arising out of a loan of money to the
debtor, the “outstanding balance” shall mean the
principal and interest owing at the time suit is
instituted to enforce any security agreement securing
payment of the debt and/or to collect said debt.
. . .
(5) The holder of an unsecured note or other writing(s)
evidencing an unsecured debt, and/or the holder of a note
and chattel mortgage or other security agreement and/or
the holder of a conditional sale contract or any other
such security agreement which evidences both a monetary
obligation and a security interest in or a lease of
specific goods, or his attorney at law, shall, after
maturity of the obligation by default or otherwise,
notify the maker, debtor, account debtor, endorser or
party sought to be held on said obligation that the
provisions relative to payment of attorneys’ fees in
addition to the “outstanding balance” shall be enforced
and that such maker, debtor, account debtor, endorser or
party sought to be held on said obligation has five days
from the mailing of such notice to pay the “outstanding
balance” without the attorneys’ fees. If such party shall
pay the “outstanding balance” in full before the
expiration of such time, then the obligation to pay the
attorneys’ fees shall be void, and no court shall enforce
such provisions.
N.C. Gen. Stat. § 6-21.2; see also Lee Cycle Ctr., Inc. v. Wilson
Cycle Ctr., Inc., 143 N.C. App. 1, 12, 545 S.E.2d 745, 752 (2001)
(“[S]ection 6-21.2 allows (1) the party owed the debt (2) to
recover attorney’s fees (3) after the debt has matured (4) provided
it is written in the note, conditional sale contract, or other
evidence of indebtedness.”).
12
This statute “represents a far-reaching exception to the wellestablished
rule
against
attorney’s
fees
obligations,
and
specifically approves of an obligation to pay reasonable attorneys’
fees found in any note or other evidence of indebtedness.”
Carter
v. Foster, 103 N.C. App. 110, 114, 404 S.E.2d 484, 487 (1991)
(internal quotation marks and citation omitted).
North Carolina
courts have described the statute as remedial in nature, such that
it “should be construed liberally; narrow constructions are to be
avoided.”
Coastal Prod. Credit Ass’n v. Goodson Farms, Inc., 70
N.C. App. 221, 227, 319 S.E.2d 650, 655 (1984) (citation omitted).
Generally, “[w]hen the trial court determines an award of attorney
fees is appropriate under [Section 6-21.2], the amount of attorney
fees awarded lies within the discretion of the trial court.”
Bombardier Capital, Inc. v. Lake Hickory Watercraft, Inc., 178 N.C.
App. 535, 541, 632 S.E.2d 192, 197 (2006).
Here, the SBA Note and Term Note both provide for “reasonable
attorney’s fees.”
3.)
(See Docket Entry 1-2 at 3; Docket Entry 1-6 at
Additionally, the Guaranties provide for attorney’s fees and
hold the Guarantors liable for all amounts due under the Notes.
(See Docket Entry 1-3 at 1, 3; Docket Entry 1-7 at 1.)
In
compliance with N.C. Gen. Stat. § 6-21.2(5), Plaintiff properly
notified Defendants of (1) their default under the Notes; (2) the
balances due and owing under the Notes; (3) Plaintiff’s intention
to recover reasonable attorney’s fees; and (4) Defendants’ ability
13
to avoid paying attorney’s fees by paying the Notes’ outstanding
balances within five days.
Entry 1, ¶ 21, 44.)
(Docket Entry 24-1; see also Docket
Because the Notes and Guaranties do not
specify a percentage of the outstanding balance Plaintiff would
collect in “reasonable attorneys’ fees” (see Docket Entries 1-2, 13, 1-6, 1-7), Section 6-21.2(2) authorizes Plaintiff to recover 15%
of the “outstanding balance” due on the Notes when Plaintiff
initiated this action.
See N.C. Gen. Stat. § 6-21.2(2)-(3).3
As of October 8, 2014, the date Plaintiff filed this action,
$788,336.08 remained owing on the SBA Note and $345,774.31 remained
owing on the Term Note.
(Docket Entry 24, ¶¶ 34, 51.)
Plaintiff
is entitled to recover $118,250.41 in reasonable attorney’s fees on
the SBA Note (15% of $788,336.08) and $51,866.15 in reasonable
attorney’s fees on the Term Note (15% of $345,774.31). (See Docket
3
Courts have questioned whether Section 6-21.2(2) mandates an
award of 15% of the “outstanding balance” as attorney’s fees or
whether the statute, instead, serves as a cap on such fees.
Monsanto Co. v. ARE-108 Alexander Rd., LLC, No. 1:10CV898, 2013 WL
3280265, at * 1 (M.D.N.C. Jun. 27, 2013) (unpublished). The North
Carolina Court of Appeals most recently addressed this issue in In
re 375,757.47,
N.C. App.
, 771 S.E.2d 800 (2015), concluding
that 15% of the outstanding balance represents the proper award of
attorney’s fees under Section 6-21.2(2). Id. at
, 771 S.E.2d at
808. Moreover, the North Carolina Court of Appeals has held that
even language in contract documents referring to attorney’s fees
“incurred” does not alter the applicability of the 15% figure. See
Trull v. Central Carolina Bank & Trust, 124 N.C. App., 486, 493-94,
478 S.E.2d 39, 44 (1996); see also Baker & Taylor, Inc. v. Griffin,
No. 3:12CV553-MOC, 2015 WL 1307293, at *1 (W.D.N.C. Mar. 23, 2015)
(unpublished) (following Trull on that point), appeal filed, No.
15-1433 (4th Cir. Apr. 23, 2015).
14
Entry 22 at 2-3.)4
Corporate Defendant and Guarantor Defendants
are each jointly and severally liable for the attorney’s fee award.
See RC Assocs. v. Regency Ventures, Inc., 111 N.C. App. 367, 374,
432 S.E.2d 394, 398 (1993) (holding that, where “[t]he language in
the guaranty contract is sufficient to put a guarantor on notice
that he will be liable for attorney’s fees if he fails to make the
guaranteed payment,” the guarantor and borrower are “jointly and
severally liable for the award of attorney’s fees [under section 621.2(2)]”).
III. CONCLUSION
Plaintiff has established, as a matter of law, Defendants’
liability
for
the
outstanding
balances
on
the
Notes,
and
Defendants’ liability for attorney’s fees under Section 6-21.2(2).
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary
Judgment (Docket Entry 22) is GRANTED.
IT
IS
FURTHER
ORDERED
that
Defendants
are
jointly
and
severally liable to Plaintiff on the SBA Note, for the sum of
$806,416.88 plus interest at the rate of $77.60 per day, from and
4
Plaintiff calculates attorney’s fees on the Term Note at
$51,901.85. (Docket Entry 22 at 3.) As of October 7, 2014, the
deficiency balance on the Term Note was $345,714.80 with interest
accruing at the rate of $59.51 per day. (Docket Entry 24, ¶ 51.)
On October 8, 2014, the deficiency balance on the Term Note was,
therefore, $345,774.31 ($345,714.80 plus $59.51), not $346,012.35
as Plaintiff calculated (see Docket Entry 22 at 3), making the
proper award of attorney’s fees on the Term Note $51,866.15 (i.e.,
15% of $345,774.31).
15
after
May
29,
2015,
until
date
of
entry
of
Judgment
and,
thereafter, at the legal rate until paid in full.
IT
IS
FURTHER
ORDERED
that
Defendants
are
jointly
and
severally liable to Plaintiff on the Term Note, for the sum of
$359,640.14 plus interest at the rate of $59.51 per day, from and
after
May
29,
2015,
until
date
of
entry
of
Judgment
and,
thereafter, at the legal rate until paid in full.
IT
IS
FURTHER
ORDERED
that
Defendants
are
jointly
and
severally liable to Plaintiff on the SBA Note and SBA Guarantee for
$118,250.41 in attorney’s fees.
IT
IS
FURTHER
ORDERED
that
Defendants
are
jointly and
severally liable to Plaintiff on the Term Note and Term Guaranty
for $51,866.15 in attorney’s fees.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November
18 , 2015
16
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