JOHN E. STEELE, District Judge.
This matter comes before the Court on plaintiff and defendants Peter J. Radno and Peter R. Radno's Stipulation and Joint Motion for Entry of Final Judgment of Foreclosure (Doc. #29) and Joint Motion for Appointment of Master to Conduct Foreclosure Sale (Doc. #30), and plaintiff's Motion for Default Judgment of Foreclosure (Doc. #31) filed on June 11, 2014. Plaintiff and the individual defendants have stipulated to the entry of judgment, and plaintiff seeks a default judgment against the remaining defendants.
On March 17, 2014, plaintiff PNC Bank National Association PNC Bank), the holder and owner of loan documents, filed a Verified Complaint (Doc. #1) against Radno Investment Holdings, LLC (Radno Investment), Radno, Inc. (Radno Inc.), Peter J. Radno, Peter P. Radno (collectively Radnos), and White Lake Commons Association, Inc. (White Lake) seeking to foreclose a mortgage and based on the default under a promissory note and several personal guaranties.
Plaintiff seeks a final default judgment against Radno Investment Holdings, LLC, Radno Inc., and White Lake Commons Association, Inc. No response has been filed and the time to respond has expired. The Court finds that an evidentiary hearing is not required and will render a decision based on the documents submitted. After service of process and finding no appearance or response, plaintiff moved for and was granted a Clerk's Entry of Default (Doc. #18) against White Lake and a Clerk's Entry of Default (Doc. #28) against Radno Investment and Radno Inc. (
"A defendant, by his default, admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established. [] A default judgment is unassailable on the merits, but only so far as it is supported by well-pleaded allegations. [ ] A default defendant may, on appeal, challenge the sufficiency of the complaint, even if he may not challenge the sufficiency of the proof."
Deeming all facts in the Complaint as admitted, in 2007 the Community Bank of Naples, N.A. loaned $2,550,000 to Radno Investment secured by a note with a maturity date of May 21, 2012. The Note was executed in conjunction with a Business Loan Agreement and secured by a recorded mortgage on a property in Collier County, Florida, commercial guaranties executed by the Radnos, and an Assignment of Rents. In 2008, the Community Bank of Naples, N.A. merged into RBC Bank (USA). In 2011, Radno Investment and RBC Bank (USA) modified the terms of the Business Loan Agreement, including to extend the maturity date to September 1, 2016, and also entered into an interest rate swap transaction. Effective 2012, RBC Bank (USA) merged into PNC Bank, and PNC Bank succeeded to all rights and obligations of RBC Bank (USA). The "loan documents" collectively consist of the mortgage, note, assignment of rents, swap agreement, and guaranties.
Radno Investment defaulted under the terms of the loan documents by failing to make payments when due. Plaintiff provided notice of the default, and accelerated the loan. As of February 25, 2014, Radno Investment is indebted to PNC Bank in the amount of $2,150,626.08, plus accrued interest in the amount of $157,302.44, accruing at a rate of $1,075.31 per diem, late fees of $11,113.46, plus attorney's fees and costs. As of March 10, 2014, Radno Investment owes $80,009.76, plus accrued interest, under the swap agreement.
In Count I, plaintiff seeks a declaration that it holds the senior lien on the property, to sell the property, and to foreclose on the mortgage. In Count II, plaintiff seeks to foreclose its security interest in any collected rents on the mortgaged property and for the appointment of a Receiver. In Count III, brought against Radno Investment only, plaintiff seeks judgment for the amounts owing due to the breach of the note. Counts IV, V, and VI are brought against the Radnos and Radno Inc. only for the breach of the commercial guaranties. In Count VII, plaintiff seeks judgment for the amounts due under the swap agreement.
The Court finds that the allegations are sufficiently pled to support a default judgment against Radno Investment and Radno Inc. for the amounts owing, plus interest. The Court further finds that a default judgment is appropriate against White Lake to the extent that any lien or interest it may have on the property is deemed junior to that of plaintiff. (Doc. #1, ¶ 12.) The Court will issue a separate Final Judgment of Foreclosure.
Plaintiff filed an Affidavit of Attorney's Fees and Taxable Costs (Doc. #31-1, Exh. 1) setting forth the number of hours expended as well as the hourly rate for counsel who worked on the case for a total of $16,932.50. The Promissory Note provides that the borrower will be liable for "reasonable attorneys' fees", "legal expenses", and court costs, and counsel has shown that fees were actually incurred.
Plaintiff suggests that review of the amounts for reasonableness is not required because the amounts do not exceed 10% of the principal sum in the Promissory Note (Doc. #1-2, Exh. 2). Florida Statute § 687.06 may not apply because no percentage is provided in the applicable instrument,
Fla. Stat. § 702.065(2). Because the amount of attorney fees sought do not exceed 3 percent or 10 percent of the original principal amount, the Court need not inquire further as to the reasonableness of the fees sought.
Plaintiff and the Radnos have stipulated to the entry of final judgment for the amounts owing under the loan documents, plus the attorney's fees and costs addressed above. All amounts are as of June 1, 2014, and the parties have stipulated that the amount of deficiency judgment will be the lesser of the difference between the amounts owing and the sale price of the property at the foreclosure sale or its fair market value on the date of the foreclosure sale. The parties also stipulate to the appointment of a master to conduct the sale of the property at a future date and time. The Court will grant the motion and a separate Final Judgment of Foreclosure.
Plaintiff and the Radnos seek the appointment of a special master to conduct the sale of property at issue in this case and subject to the Final Judgment of Foreclosure. The parties have agreed to the appointment of Philip J. von Kahle to conduct the foreclosure sale. In support, the Declaration of Philip J. von Kahle (Doc. #30-1, Exh. 1) provides that Mr. von Kahle has no relationship to the parties, the court, or the attorneys such that disqualification would be required. Mr. von Kahle's resume is also provided (Doc. #30-2, Exh. A) in support of his qualifications. The Court will grant the motion and appoint a master to conduct the sale in lieu of the U.S. Marshal.
The proposed Final Judgment of Foreclosure will be amended to correct the location of any public sale to occur in Collier County, Florida, where the property is located, and for delivery of any cash, certified check, or cashier's check payable to the Clerk of Court to be made by no later than 4:00 p.m. on the following day. The total in paragraph 2 will also be corrected due to a mathematical error by the parties.
Accordingly, it is hereby
1. Plaintiff's Motion for Default Judgment of Foreclosure (Doc. #31) is
2. Plaintiff and defendants Peter J. Radno and Peter R. Radno's Stipulation and Joint Motion for Entry of Final Judgment of Foreclosure (Doc. #29) is
3. A Final Judgment of Foreclosure will issue upon receipt of the original Note. The Clerk shall enter judgment in favor of plaintiff and against defendants pursuant to this Opinion and Order and by attaching a copy of the Final Judgment of Foreclosure to the Civil Judgment once issued.
4. Plaintiff and defendants Peter J. Radno and Peter R. Radno's Joint Motion for Appointment of Master to Conduct Foreclosure Sale (Doc. #30) is
5. The Clerk shall add Mr. Philip J. von Kahle to the docket as a Special Master (sm:pty) to receive copies of further filings and Orders, and send a copy of this Order and the Final Judgment of Foreclosure to the Special Master.
6. The Clerk is further directed to terminate all deadlines and motions, and close the file.