ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc. 10)
TIMOTHY S. BLACK, District Judge.
This civil action is before the Court on Plaintiff's motion for default judgment. (Doc. 10). Defendant did not respond.
I. PROCEDURAL HISTORY
Plaintiff filed a Complaint on September 1, 2016. (Doc. 1). Defendant was served with a copy of the summons and complaint on September 12, 2016. (Doc. 5). Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A), Defendant was required to file and serve his answer no later than October 3, 2016. To date, no responsive pleading has been filed or served. On November 4, 2016, the Clerk properly entered default. (Doc. 7). Subsequently, Plaintiff filed the instant motion for default judgment. (Doc. 10).
II. FACTUAL BACKGROUND
Plaintiff is the successor in assignment to a $6,100,000.00 loan made to nonparty HEG Cincinnati, LLC on or about May 17, 2006. The loan was secured by assigning the original lender a mortgage on real property located at 6920 Glenway Avenue, Cincinnati, Ohio 45211. (Doc. 1-2). The original lender was also provided a security interest in the personal property of HEG Cincinnnati, LLC, along with other items and things as fully described in a properly recorded UCC financing statement that has been entered into the record. (Doc. 1-5, at 5). Defendant assumed the loan on or about December 14, 2007, pursuant to an assumption and release agreement executed by the Defendant, the original borrower, Myron Vogel (assumptor principal), and Bank of America (which was the assigned lender at the time). (Doc. 1-8).
Defendant has defaulted on its obligations under the terms of the loan agreement. The terms of the agreement stipulate that the entire unpaid amount remaining on the loan became due and payable on the loan maturity date of June 11, 2016. (Doc. 10-2, at 2). As of August 1, 2016, $5,225,028.90 of the principal is unpaid and due. (Doc. 10-1, at 2). Adding interest and fees, Defendant's total obligation stood at $5,415,801.63 as of August 1, 2016. (Id.). The terms of the agreement set interest on the loan at 6.275% per annum and an additional default interest rate of 5% per annum; accordingly, Defendant's obligation under the agreement is increasing at a rate of $1636.45 per diem ($910.75 per diem based on the standard interest rate and $725.70 per diem based on the default interest rate).
III. STANDARD OF REVIEW
Applications for default judgment are governed by Fed. R. Civ. P. 55(b)(2). Following the clerk's entry of default pursuant to Fed. R. Civ. P. 55(a) and the party's application for default under Rule 55(b), "the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven." Morisaki v. Davenport, Allen & Malone, Inc., No. 2:09cv298, 2010 U.S. Dist. LEXIS 86241, at *1 (E.D. Cal. Aug. 23, 2010) (citing Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d 1319. 1323 (7th Cir. 1983)).
While liability may be shown by well-pleaded allegations, this Court is required to "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Osbeck v. Golfside Auto Sales, Inc., No. 07-14004, No. 07-14004, 2010 U.S. Dist. LEXIS 62027, at *5 (E.D. Mich. June. 23, 2010). To do so, the civil rules "require that the party moving for a default judgment must present some evidence of its damages." Mill's Pride, L.P. v. W.D. Miller Enter., No. 2:07cv990, 2010 U.S. Dist. LEXIS 36756, at *1 (S.D. Ohio Mar. 12, 2010).
IV. ANALYSIS
Defendant having defaulted, the factual allegations in the complaint, except those related to the amount of damages, are deemed true. Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995). To ascertain an uncertain sum of damages, Rule 55(b)(2) "allows but does not require the district court to conduct an evidentiary hearing." Vesligaj v. Peterson, 331 F. App'x 351, 354-55 (6th Cir. 2009). An evidentiary hearing is not required if the Court can determine the amount of damages by computation from the record before it. HICA Educ. Loan Corp. v. Jones, No. 4:12cv962, 2012 U.S. Dist. LEXIS 116166, at *1 (N.D. Ohio Aug. 16, 2012). The Court may rely on affidavits submitted on the issue of damages. Schilling v. Interim Healthcare of Upper Ohio Valley, Inc., No. 206-cv-487, 2007 U.S. Dist. LEXIS 3118, at *2 (S.D. Ohio Jan. 16, 2007).
Plaintiff has incurred $5,415,801.63 in damages under the loan agreement as of August 1, 2016. (Doc. 10-1, at 2). Although Plaintiff may be entitled to attorney's fees and litigation fees as a result of Defendant's default, the Court lacks sufficient information to award any such fees at this time. Plaintiff may make a further motion for additional fees containing proper evidentiary support.
Therefore, as established by the facts set forth in the Complaint, as well as by affidavit, Plaintiff is entitled to damages against the Defendant in the amount of $5,415,801.63, plus interest as established under the agreement.
V. CONCLUSION
Accordingly, for these reasons, Plaintiff's motion for default judgment (Doc. 10) is GRANTED. The Clerk shall enter Judgment by default in accordance with Rule 55(b)(1) of the Federal Rules of Civil Procedure, in favor of Plaintiff, U.S. Bank National Association, as Trustee, as Successor in Interest to Bank of America, National Association, as Trustee, Successor by Merger to LaSalle Bank National Association, as Trustee for the Registered Holders of CD 2006-CD3, Commercial Mortgage Pass-Through Certificates ("Plaintiff"), and against Defendant, Dillard's Realty Associates, LLC, as follows:
1) Fixing the amount due under the Note and the Mortgage at $5,415,801.63, with continuing per diem interest at the regular rate thereon in the amount of $910.75 from and after August 1, 2016, and continuing per diem interest thereon at the default rate in the amount of $725.70 per day from and after August 1, 2016, until the Mortgaged Property is sold at foreclosure sale; and
2) Foreclosing all right, title, lien and equity of redemption which said Defendant and all those claiming by, through or under it have or had in the real estate located at 6920 Glenway Avenue, Cincinnati, Ohio 45211, as more fully described in Exhibit "A" hereto (the "Mortgaged Premises"), together with the personalty, fixtures, furniture and other items and things pledged as collateral for the loan (the "Loan") at issue in this action, all as more specifically and fully identified in the Open-End Mortgage, Assignment of Rents and Security Agreement (the "Mortgage") dated as of May 17, 2006, and UCC Financing Statements at issue in this action (collectively, with the Mortgaged Premises, the "Mortgaged Property"), and ordering that the Mortgaged Property be sold at a public foreclosure sale pursuant to 28 U.S.C. § 2001 et seq., by the United States Marshal or a receiver appointed by this Court, on such terms and conditions as shall be advertised.
IT IS SO ORDERED.
Exhibit "A"
Legal Description
SITUATED IN SECTION 14, TOWN 2, FRACTIONAL RANGE 2, GREEN TOWNSHIP, HAMILTON COUNTY, OHIO:
AND BEING PART OF LOT 1, WESTERN WOODS SUBDIVISION, BLOCK "C" AS RECORDED IN PLAT BOOK 95, PAGE 4 AND 5 AND MORE PARTICULARLY DESCRIBED AS FOLLOWS;
COMMENCING AT THE MOST WESTERLY CORNER OF SAID LOT 1, SAID CORNER ALSO BEING A CORNER IN THE NORTHEASTERLY RIGHT-OF-WAY LINE OF GLENWAY AVENUE,
THENCE ALONG THE WESTERLY LINE OF SAID LOT 1 AND SAIS RIGHT-OF-WAY NORTH 46° 48' 30" EAST FOR A DISTANCE OF 10.00 FEET TO A SET 5/8" IRON PIN WITH CAP AND BEING THE REAL PLACE OF BEGINNING;
THENCE LEAVING SAID RIGHT-OF-WAY AND ALONG THE WESTERLY LINE OF SAID LOT 1 NORTH 46° 48' 30" EAST FOR A DISTANCE OF 135.00 FEET TO A SET 5/8" IRON PIN WITH CAP;
THENCE CONTINUING ALONG THE WESTERLY LINE OF SAID LOT I NORTH 3° 48' 00" EAST FOR A DISTANCE OF 9.00 FEET TO A SET 5/8" IIDN PIN CAP AT THE SOUTHWESTERLY CORNER OF A TRACT CONVEYED TO WESTERN WOODS MALL, INC AS RECORDED IN DEED BOOK 4348, PAGE 457 OF THE HAMILTON COUNTY, OHIO RECORDS;
THENCE LEAVING THE WESTERLY LINE OF SAID LOT 1 SOUTH 85° 50' 00" EAST FOR A DISTANCE OF 179.14 FEET TO A SET MAG NAIL;
THENCE NORTH 4° 10' 00" EAST FOR A DISTANCE OF 360.00 FEET TO A SET MAG NAIL;
THENCE SOUTH 85° 50' 00" EAST FORA DISTANCE OF 300.05 FEET TO A SET CROSS NOTCH;
THENCE SOUTH 4° 12' 13" WEST FOR A DISTANCE OF 400.00 FEET TO A POINT REFERENCED BY A FOUND 5/8" IRON PIN WITH CAP 0.94 FEET NORTH AND 0.08 FEET WEST;
THENCE NORTH 85° 50' 00" WEST FOR A DISTANCE OF 453.05 FEET TO A SET MAG NAIL;
THENCE SOUTH 46° 48' 30" WEST FOR A DISTANCE OF 129.69 FEET TO A CORNER IN THE NORTHEASTERLY RIGHT-OF-WAY LINE OF GLENWAY AVE.
THENCE ALONG SAID RIGHT-OF-WAY NORTH 43° 11' 30" WEST FOR A DISTANCE OF 40.00 FEET TO THE PLACE OF BEGINNING.
CONTAINING 3.0309 ACRES OF LAND AND BEING SUBJECT TO ALL LEGAL HIGHWAYS, EASEMENTS AND RESTRICTIONS OF RECORED. THE ABOVE DESCRIBED TRACT BEING ALL OF THAT TRACT AS CONVEYED TO WESTERN WOODS MALL, INC. IN OFFICIAL RECORD VOLUME 7549, PAGE 1331 OF THE HAMILTON COUNTY, OHIO RECORDS. THIS DESCRIPTION IS BASED ON AN ACTUAL FIELD SURVEY PERFORMED BY THE AMERICAN LAND SURVEYS, INC. ON SEPTEMBER 24, 1998 UNDER THE SUPERVISION OF WILLIAM J. ELLISON, OHIO REGISTRATION NO. 7612 AND THE BEARING SYSTEM IS BASED ON WESTERN WOODS SUBDIVISION, BLOCK "C" AS RECORDED IN PLAT BOOK 95, PAGES 4 AND 5 OF THE HAMILTOB COUNTY, OHIO RECORDS.
TOGETHER WITH THE RIGHTS TO ENCROACH ONTO ADJOING PROPERTY AND AN EASEMENT TO REPAIR AND MAINTAIN CERTAIN APPURTENANCES AND STRUCTURES WHICH ENCROACH OVER AND UPON THE ADJOINING PROPERTY AS SET FORTH IN ENCROACHMENT AGREEMENT BETWEEN WESTERN WOODS MALL, INC., AGENT AND WESTERN WOODS MALL, INC., AGENT, DATED JULY 9, 1998, RECORDED AS DOCUMENT NO. 98-210817 AND OFFICIAL RECORD 7800 PAGE 1953, HAMILTON COUNTY RECORDS.
TOGETHER WITH EASEMENT RIGHTS SET FORTH IN THE DECLARATION OF RECIPROCAL EASEMENTS AND AGREEMENTS, RECORDED AS DOCUMENT NO. 98-210823 AND OFFICIAL RECORD 7800 PAGE 1973, HAMILTON COUNTY RECORDS; AS AMENDED BY SCRIVENER'S AFFIDAVIT RECORDED AS DOCUMENT OFFICIAL RECORD 10243, PAGE 999, AFORESAID RECORDS; AS AMENDED BY AMENDMENT TO DECLARATION OF RECIPROCAL EASEMENTS AND AGREEMENT RECORDED IN OFFICIAL RECORD OR 10213, PAGE 996 AFORESAID RECORDS; AS SUBSEQUENTLY AMENDED BY ASSIGNMENT AND ASSUMPTION OF DECLARATION OF RECIPROCAL EASEMENTS AND AGREEMENT, ENTERED INTO BY AND BETWEEN COLONY PARK OF WESTERN WOODS MALL, LLC (ASSIGNOR) AND HEG CINCINNATI, L.L.C. (ASSIGNEE), DATED MAY __, 2006, RECORDED MAY __, 2006, IN INSTRUMENT NUMBER _______________, AFORESAID RECORDS.
TOGETHER WITH THE RIGHTS CONTAINED IN THAT CERTAIN BI-PARTY AGREEMENT EVIDENCED OF RECORD IN THAT CERTAIN MEMORANDUM OF BI-PARTY AGREEMENT RECORDED AS DOCUMENT NO. 98-210827 AND OFFICIAL RECORD 7800, PAGE 1998; AS SUBSEQUENTLY AMENDED BY ASSIGNMENT AND ASSUMPTION AGREEMENT DATED AS OF MAY __, 2006, RECORDED MAY __, 2006, IN INSTRUMENT NUMBER ___________, AFORESAID RECORDS.
