C. ASHLEY ROYAL, District Judge.
On June 5, 2015, Plaintiff Producers Credit Corporation ("Plaintiff") filed a Complaint against Defendant Stuart Eugene McCleskey ("Defendant") seeking to recover the unpaid balance, accrued interest, and late charges due and outstanding under a promissory note (the "Note") executed by Defendant. Plaintiff also seeks attorney's fees pursuant to O.C.G.A. § 13-1-11. Defendant was served with process on June 10, 2015, but failed to answer or respond. At Plaintiff's request, the Clerk of Court entered a default against Defendant on July 7, 2015.
Now, Plaintiff moves the Court for entry of default judgment and petitions the Court for a writ of possession pursuant to O.C.G.A. § 44-14-230 et seq. Defendant has not appeared or filed a response, and the time for doing so has passed. For the reasons set forth below, Plaintiff's Motion for Entry of Default Judgment [Doc. 6] is
According to the Complaint, on May 1, 2014, Defendant made, executed, and delivered a promissory note in favor of Plaintiff in the original principal amount of $250,122.00. Under the terms and conditions of the Note, Defendant was to repay the note in consecutive monthly installments. The Note matured on February 10, 2015, at which point the principal sum owed and interest accrued thereon became due and payable. Defendant also agreed to pay reasonable attorney's fees and other expenses incurred by Plaintiff if placed with an attorney for collection.
Defendant defaulted under the terms of the note by failing to pay monthly installments to Plaintiff and failing to pay the entire balance due on or before the Note's maturity date.
Now, Plaintiff alleges Defendant is liable for the unpaid principal balance, accrued interest, and late charges due and outstanding in the amount of $261,551.98. Plaintiff seeks per diem interest in the amount of $50.18 per day after July 10, 2015, through the date of Judgment, as well as per diem late charges in the amount of $42.96 per day after July 10, 2015, through the date of Judgment. Plaintiff also demands attorney's fees in the amount of $25,535.79. Finally, Plaintiff petitions the Court for a writ of possession regarding the underlying collateral of the Note.
The entry of default judgment is appropriate "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend ... and that fact is made to appear by affidavit or otherwise."
However, the entry of default does not mandate the entry of a default judgment. Instead, the Court must find a sufficient basis in the pleadings for judgment to be entered.
In considering any motion for default judgment, the Court must examine (1) its jurisdiction, (2) liability, and (3) damages.
A party who claims breach of contract under Georgia law has the burden of establishing (1) the subject matter of the contract, (2) consideration, and (3) mutual assent by the parties to the contract terms.
In an action to recover amounts due on a promissory note, a plaintiff is entitled to judgment as a matter of law if the record shows that the promissory note was executed by a defendant who is in default, unless the defendant produces or points to evidence in the record that establishes an affirmative defense.
The Court finds the factual allegations in the Complaint and attached exhibits, deemed admitted by Defendant, establish Plaintiff has a right to recover amounts due under the promissory note.
No evidentiary hearing is necessary to determine Plaintiff's damages because "the amount of damages is liquidated or can be reduced to a sum certain."
Similarly, the Court may grant Plaintiff's request for attorney's fees without an evidentiary hearing because O.C.G.A. § 13-1-11 provides a statutory formula for their calculation. Pursuant to this statute, "[o]bligations to pay attorney's fees upon any note or other evidence of indebtedness ... shall be valid and enforceable and collectable as a part of such debt if such note or other evidence is collected by or through an attorney after maturity."
A party who seeks to collect attorney's fees allowed by O.C.G.A. § 13-1-11 must give the debtor written notice after maturity, and the notice must state the debtor has ten days to pay the principal and interest due without being liable for attorney's fees.
Here, the factual allegations in the Complaint demonstrate that the above requirements have been satisfied. Therefore, pursuant to the terms of the promissory note, Defendant is liable for attorney's fees in the amount of $25,535.79. These attorney's fees consist of fifteen percent (15%) of the first $500.00 of principal and interest set forth above and ten percent (10%) of the amount of principal and interest in excess of $500.00.
Additionally, Plaintiff filed a petition for writ of possession against Defendant in accordance with O.C.G.A. § 44-14-230 et seq. Defendant executed the Note and pledged the following collateral as security:
Under Georgia law, a Plaintiff may petition the Court for a writ of possession to recover personal property where there has been a violation of the terms of a security agreement.
Here, Plaintiff filed a complaint with the necessary statement of facts and an affidavit in accordance with O.C.G.A. § 44-14-231. Further, the Note provides a description of all the collateral, and Plaintiff provided the financing statements for the same collateral.
Plaintiff's Motion for Entry of Default Judgment [Doc. 6] is
The Clerk of Court is
