Branch Banking and Trust Company v. Ned's Marine & Auto Center, Inc.
Filing
28
ORDER MODIFYING AND ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations, 10 Motion for Summary Judgment filed by Branch Banking and Trust Company; the Court does hereby MODIFY and ADOPT the findings and recommendations set forth in the report of the United States Magistrate Judge filed June 10, 2011. Plaintiffs Motion for Summary Judgment is GRANTED and judgment is entered in favor of Plaintiff in the amount of $960,089.98 plus additional accrued interest in the amount of $200.5673 per day from June 10,2011 through the date of judgment. Furthermore, Plaintiff is awarded attorney's fees in the amount of $32,586.55. Signed by District Judge Raymond A. Jackson and filed on 7/11/11. (jcow, )
|___ FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
JUL 11 2011
Newport News Division
CLERK. U.S. DISTINCT COURT
BRANCH BANKING AND TRUST COMPANY,
Plaintiff,
v.
CIVIL ACTION NO.: 4: lOcv 156
NED'S MARINE & AUTO CENTER, INC.,
Defendant.
ORDER
This matter is currently before the Court on Defendant's Objection and Plaintiffs
Limited Objection to the Magistrate Judge's Report and Recommendation. For the reasons set
forth below, the Magistrate Judge's Report and Recommendation is MODIFIED and
ADOPTED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Branch Banking and Trust Company ("Plaintiff") brought this action seeking
judgment on two promissory notes made payable to Plaintiff by Defendant Ned's Marine &
Auto Center, Inc. ("Defendant"). On March 18,2011, Plaintiff filed a Motion for Summary
Judgment against Defendant. On April 11, 2011, pursuant to 28 U.S.C. ยง 636(b)(l)(B), the Court
entered an order designating United States Magistrate Judge F. Bradford Stillman ("Magistrate
Judge Stillman") to conduct hearings and submit proposed findings of fact and, if applicable,
recommendations for the disposition of Plaintiffs Motion.
On June 10,2011, Magistrate Judge Stillman filed his Report and Recommendation
("Report"), in which he recommended that the Plaintiffs Motion for Summary Judgment be
GRANTED; and that the Court enter judgment in favor of Plaintiff in the amount of
$960,089.98 plus additional accrued interest in the amount of $200.5673 per day through the date
of judgment. The recommended judgment consists of the total principal owed on both
promissory notes, the accrued interest on both notes through the date of the Report, late fees, and
the appraisal fee. The Report also advised the parties of their right to file written objections to
the findings and recommendations of the Magistrate Judge. The clerk mailed both parties copies
of the Report. On June 23,2011, Plaintiff filed a Limited Objection to the Magistrate Judge's
Report on the grounds that the Magistrate Judge failed to include within the recommended
judgment the attorney's fees incurred. On June 24, 2011, Defendant filed an Objection to the
Magistrate Judge's Report arguing that the Magistrate Judge should not have included the
appraisal fee within the recommended judgment. This matter is now ripe for disposition by the
Court.
II. LEGAL STANDARD
When considering a party's objections to the findings and recommendations of the
Magistrate Judge, a district judge "must determine de novo any part of the magistrate judge's
disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Wimmer v.
Cook, 11A F.2d 68,73 (4th Cir. 1985) ("[A]ny individual findings of fact or recommendations
for disposition by [the Magistrate Judge], if objected to, are subject to final de novo
determination on such objections by a district judge, thus satisfying the requirements of Article
III."). Under de novo review, "the magistrate judge's report and recommendation carries no
presumptive weight, and the district court may accept, reject or modify the report, in whole or in
part, and may recommit the matter to the magistrate judge with instructions." Halloway v.
Bashara, 176 F.R.D. 207,209-10 (E.D. Va. 1997); Fed. R. Civ. P. 72(b)(3) ("The district judge
may accept, reject, or modify the recommended decision, receive further evidence, or recommit
the matter to the magistrate judge with instructions."). When conducting a "de novo"
determination, as that term is used in Rule 72, a district court judge must give "fresh
consideration" to portions of the magistrate judge's report and recommendation. United States v.
Raddatz, AM U.S. 667, 675 (1980).
III. DISCUSSION
A.
Plaintiffs Limited Objection
Plaintiff alleges that the Report is correct in all respects except that the Magistrate Judge
failed to account for the attorney's fees incurred when calculating the recommended judgment.
Plaintiff argues that the attorney's fees were never disputed among the parties and that Plaintiff is
rightfully entitled to such fees under the promissory notes. This Court has carefully and
independently reviewed the record in this case and Plaintiffs limited objection to the Report.
Having done so, the Court finds that the attorney's fees should have been incorporated into the
judgment. Each of the promissory notes at issue in this case provides: "If this Note is placed
with an attorney for collection, the undersigned agrees to pay, in addition to principal and
interest, all costs of collection, including but not limited to reasonable attorneys'fees." See PL's
Mem in Supp. of Mot. for Summ. J., Ex. 1, at 3 (emphasis added). Furthermore, at no point did
Defendant dispute that Plaintiff is entitled to attorney's fees or present any evidence to refute the
amount claimed by Plaintiff. Accordingly, the Court finds that the Magistrate Judge erred in
failing to account for Plaintiffs reasonable attorney's fees within the recommended judgment.
Thus, Magistrate Judge Stillman's Report is MODIFIED to include a judgment of attorney's
fees for Plaintiff in the amount of $32,586.55.
B.
Defendant's Objection
Defendant objects to the Magistrate Judge's finding that no material fact remains in
dispute with regards to the appraisal fee. Specifically, Defendant argues that although the deed
of trust is incorporated by reference into the two promissory notes, the terms of the deed of trust
apply only where the beneficiary institutes an action to enforce the deed of trust and not when the
beneficiary institutes an action for the payment of the promissory notes. Defendant argues that
because Plaintiff seeks payment under the promissory notes rather than foreclosure under the
deed of trust, the remedies provided under the deed of trust are not applicable. This Court has
carefully and independently reviewed the record in this case and Defendant's objection to the
Report. Having done so, the Court finds that there are no meritorious reasons to sustain
Defendant's objection.
As discussed above, both of the promissory notes at issue specifically provide that
Plaintiff may recover "all costs of collection." In support of its Motion for Summary Judgment,
Plaintiff attached a sworn declaration by Cheryl Harriman, Regional Credit Officer for Plaintiff,
attesting to the fact that appraisal is "an ordinary and necessary part of the process involved in
collecting" on the promissory notes. PL's Supplemental Mem in Supp. of Mot. for Sum. J.,
Supplemental Harriman Decl. J 17. Defendant has provided no evidence or affidavits to dispute
Harriman's assertion. Accordingly and as noted in Magistrate Judge Stillman's Report, the Court
finds that there is no genuine dispute as to any material fact regarding whether the appraisal fee
should be included within the judgment for Plaintiff. Thus, the Court finds that Defendant has
raised no grounds warranting this Court's departure from the recommendations as stated in
Magistrate Judge Stillman's Report.
IV. CONCLUSION
After careful review of the Magistrate Judge's Report and Recommendation, the Court
does hereby MODIFY and ADOPT the findings and recommendations set forth in the report of
the United States Magistrate Judge filed June 10, 2011. Plaintiffs Motion for Summary
Judgment is GRANTED and judgment is entered in favor of Plaintiff in the amount of
$960,089.98 plus additional accrued interest in the amount of $200.5673 per day from June 10,
2011 through the date of judgment. Furthermore, Plaintiff is awarded attorney's fees in the
amount of $32,586.55.
The Court DIRECTS the Clerk to send a copy of this Order to the counsel and parties of
record.
IT IS SO ORDERED.
Raymond ATirackson
United States District Judge
Norfolk, Virginia
July [j ,2011
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