HONORABLE NANCY HERSHEY LORD, UNITED STATES BANKRUPTCY JUDGE.
Before the Court is the motion (the "
The Court held an evidentiary hearing on the matter, at which counsel for the Debtor and counsel for the Creditor appeared and were heard, and testimony was taken. See June 11 Trial Tr., ECF No. 131; June 26 Trial Tr., ECF No. 122. Thereafter, the parties each submitted post-trial briefs in lieu of closing arguments, and the matter was subsequently taken under advisement. See ECF Nos. 126-27, 134.
For the reasons set forth below, the Motion is granted in part and denied in part, to the extent that the total allowed amount of the Claim as of the Petition Date is: $723,499.85.
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b) and 157(b)(1), and the Standing Orders of Reference in effect in the Eastern District of New York dated August 28, 1986, and as amended on December 5, 2012, but made effective nunc pro tunc as of June 23, 2011. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(J). This decision constitutes the Court's findings of fact and conclusions of law to the extent required pursuant to Rule 52 of the Federal Rules of Civil Procedure, as made applicable by Rule 7052 of the Federal Rules of Bankruptcy Procedure.
On January 19, 2017 (the "
On July 18, 2017, BHMPW filed its Claim in the Court's Claims Register, asserting a secured indebtedness in the sum of $782,351.67 as of the Petition Date. The Claim is broken down as follows:
Unpaid Principal Balance $700,000.00 Interest $105,000.00 Default Interest $97,766.67 Foreclosure Search $875.00 Foreclosure Attorneys' Fees $25,955.00 Foreclosure Costs $2,230.00 Other Fees (Inspection Fees) $525.00 Escrow Funds ($150,000.00) __________________________________________________ Total Amount of Claim Due as of Filing of Petition 1/19/17 $782,351.67
POC No. 3, Trial Ex. A; Trial Ex. 3.
On December 15, 2017, the Debtor filed
On January 12, 2018, BHMPW filed a response (the "
On January 16, 2018, the Debtor filed a reply (the "
On January 21, 2018, the Court entered a Contested Matter Scheduling Order with respect to the Motion and the responses thereto, ECF No. 92, as amended by Order entered May 17, 2018, ECF No. 115. On June 5, 2018, the parties each filed Pre-Trial Statements in connection therewith, Db.'s Pre-Trial Stmt., ECF No. 118; Cr.'s Pre-Trial Stmt., ECF No. 119. The facts of this case were developed at the evidentiary hearing held over the course of two days through the testimony of four witnesses, Gregory Carmichael, Monifa Benison, Luis Sepulveda, and Alan Waintraub, and certain exhibits admitted into evidence.
The Debtor is a New York limited liability company whose principal place of business is located at 111-20 200th Street, Saint Albans, New York 11412. The Debtor's operations consist primarily of owning and operating the Properties (as defined below), purchasing properties and managing buildings, and acting as a general renovation contractor.
As of the Petition Date, the Debtor owned a two-family residential property located at 403 Jefferson Avenue, Brooklyn, New York 11221 with a value of approximately $1,400,000 (the "
In 2015, Israel Sontag ("
Thereafter, on April 21, 2015, the Debtor executed a Promissory Note (the "
With respect to payments required thereunder, the Note provides, in relevant part:
Note, Trial Ex. C; Trial Ex. 1.
The Note provides that interest will accrue at the rate of 12% computed on a 30/360-day basis,
The Note further states that the Debtor may request in writing, a three-month extension of the stated maturity date, provided that the request is made at least 30 days prior to the maturity date and an event of default has not occurred at the time such request is made, in addition to certain other conditions.
The parties agree that, upon signing the Note and in connection with the closing on the Loan on April 21, 2015, an advance interest payment of $42,000 was retained by TBG from the $700,000 loan proceeds. Db.'s Pre-Trial Stmt. ¶ 7, ECF No. 118; Cr.'s Pre-Trial Stmt. ¶ 7, ECF No. 119. The $42,000 interest payment was paid, in advance, for the months of June, July, August, September, October, and November of 2015. Db.'s Pre-Trial Stmt. ¶ 8; Cr.'s Pre-Trial Stmt. ¶ 8.
At the April 21, 2015 closing, TBG also deducted: (i) a $14,000 origination fee; (ii) a $1,900 appraisal fee; and (iii) $2,978.52 for tax escrow, and had retained a $5,000 "deposit" fee paid by the Debtor prior to the closing date.
In this regard, the Closing Statement dated April 21, 2015 (the "
LOAN AMOUNT: $700,000 Less: 1. TBG Funding LLC ($14,000.00) (origination fee) 2. TBG Funding LLC ($1,900.00) (appraisal fee) 3. TBG Funding LLC ($N/A) (interim interest) 4. TBG Funding LLC ($N/A) (insurance reserve) 5. TBG Funding LLC ($42,000.00)* (interest reserve) 6. TBG Funding LLC ($N/A) (environmental fee) 7. TBG Funding LLC ($2,978.52) (tax escrow) Plus: 8. Deposit made by Borrower $5,000.00
See Loan Closing Stmt. Ex. A, Trial Ex. D (emphasis in original).
On or about November 23, 2015, TBG issued to the Debtor a Payment Statement, dated November 23, 2015, which stated that the total amount due by December 1, 2015 was: $9,503.05 (the "
Accordingly, on November 30, 2015, the Debtor delivered to TBG via overnight mail, a cashier's check dated November 30, 2015 in the sum of $9,503.05 made payable to TBG. Id. The parties concede that TBG accepted and applied the $9,503.05 Payment, and that there were no payments made between the $9,503.05 Payment and the $150,000 Payment. Db.'s Pre-Trial Stmt. ¶¶ 10-12, ECF No. 118; Cr.'s Pre-Trial Stmt. ¶¶ 10-12, ECF No. 119.
On December 20, 2015, TBG sent the Debtor a letter entitled "Beneficiary Demand for Payoff" (bearing bates stamp TBG_000363) (the "
Pursuant to an Assignment of Mortgage dated December 22, 2015 and an Allonge to Promissory Note dated December 23,
On January 28, 2016, BHMPW commenced an action in the Supreme Court of the State of New York, Bronx County, titled BHMPW Funding LLC v. GEK Realty and Home Improvement LLC, et al., Index No. 32083/2016E, seeking to foreclose the mortgage liens against the Properties (the "
At a hearing held on October 31, 2016 in the Foreclosure Action, Luis Sepulveda ("
On February 8, 2018, this Court approved the sale of the Pearsall Property authorizing the net proceeds thereof in the amount of $700,000 to be paid to BHMPW. On February 13, 2018, a closing was held on the sale of the Pearsall Property and the sum of $700,000 was paid to BHMPW. On April 30, 2018, a check in the sum of $16,486.35 was sent by the Debtor to BHMPW. Db.'s Pre-Trial Stmt. ¶¶ 23-25; Cr.'s Pre-Trial Stmt. ¶¶ 23-25.
A properly filed proof of claim is prima facie evidence of the validity and amount of the claim. Fed. R. Bankr. P. 3001(f); In re Fidelity Holding Co., Ltd., 837 F.2d 696 (5th Cir. 1988); In re Wells, 51 B.R. 563 (D. Colo. 1985); In re Nantucket Aircraft Maintenance Co., 54 B.R. 86 (Bankr. D. Mass. 1985) (citations omitted). In order for a claim to be prima facie valid, it must comply with the rules, including Rule 3001, and set forth the facts necessary to support the claim. See, e.g., In re Stoecker, 143 B.R. 879, 883 (N.D. Ill. 1992), aff'd in part, vacated in part, 5 F.3d 1022 (7th Cir. 1993); In re Cluff, 313 B.R. 323, 332 (Bankr. D. Utah 2004); In re Marino, 90 B.R. 25, 28 (Bankr. D. Conn. 1988); In re Svendsen, 34 B.R. 341 (Bankr. D.R.I. 1983) (citations omitted).
The party objecting to the claim has the burden of going forward and introducing evidence sufficient to rebut the presumption of validity. Raleigh v. Illinois Dep't of Revenue, 530 U.S. 15, 15, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000) ("[Rule 3001(f)] does not address the burden of proof" in an objection to claim proceeding and is, instead, an evidentiary presumption subject to rebuttal); see Litton Loan Servicing, LP v. Garvida (In re Garvida), 347 B.R. 697, 706-07 (9th Cir. BAP 2006); In re Hilliard, 68 C.B.C.2d 884, 2012 WL 4482584, 2012 Bankr. LEXIS 4466 (Bankr. D. Mont. Sept. 26, 2012); In re Cluff, 313 B.R. at 337. Such evidence must be sufficient to demonstrate a true dispute and must have probative force equal to the contents of the claim. In re Wells, 51 B.R. at 563; In re Unimet Corp., 74 B.R. 156 (Bankr. N.D. Ohio 1987). Once the objecting party introduces sufficient evidence, the burden of proof shifts to the claimant to prove the validity of its claim by a preponderance of evidence. Raleigh v. Illinois, 530 U.S. at 15, 120 S.Ct. 1951; see In
The parties' dispute concerning the validity and amount of the Claim essentially requires a determination as to the appropriate rate of interest chargeable on the Loan obligation; the manner in which certain payments should have been applied; and the propriety of various added fees.
The Debtor maintains that it was not in default on the Loan and that the applicable interest rate should be the contractual non-default rate of 12%. In support, the Debtor asserts that: it had provided written notice to TBG requesting to extend the maturity date under the Note and TBG had agreed to do so; TBG issued the November 2015 Payment Statement which stated that the amount owed to date was $9,503.05, which was due by December 1, 2015, which payment the Debtor timely made and TBG accepted and applied; and no written demand was ever made upon the Debtor prior to the commencement of the Foreclosure Action for any amounts alleged to be in default. The Debtor further argues that both the $9,503.05 Payment to TBG and the $150,000 Payment to BHMPW were each improperly applied in that said payments should have reduced the unpaid principal balance and, lastly, that the portions of the Claim seeking attorneys' fees and other costs relating to the Foreclosure Action should not be allowed as part of the Claim.
The Creditor's position is that because the Debtor failed to exercise the extension option under the Note, the Debtor was in default as of the maturity date of October 20, 2015, and that the appropriate interest rate that should apply is the default rate of 24% until the Loan is paid in full. The Creditor asserts that the Debtor made the $150,000 Payment pursuant to the agreed upon proposed Forbearance Agreement, which the Debtor failed to execute, and that the Creditor properly applied said payment in accordance with the terms thereof, i.e., towards any unpaid accrued interest first, then to the unpaid principal balance of $700,000. Finally, the Creditor contends that it met its burden of proof as to the entirety of the Claim, including the foreclosure-related attorneys' fees and other expenses, and that the Claim should be allowed in full.
The Court will address each issue in turn.
The Note provides an option to extend the stated maturity date of October 20, 2015 for an additional three months, provided that certain conditions are met. See Note, Trial Ex. C; Trial Ex. 1; see also n.4 supra.
On September 21, 2015, Sontag, the Debtor's broker, sent TBG a written notice by email stating that the Debtor was seeking to exercise its option to extend the maturity date under the Note. See Trial Ex. H. The same day, TBG acknowledged receipt of the notice and told Sontag that the new maturity date would be January 20, 2016, and additionally, that the Debtor needed to remit an interest reserve in the amount of $21,000 (representing 3 months' interest); an extension fee of $10,500; and a tax impound of $1,735 to meet the December tax requirements. See Trial Ex. I. There were various subsequent emails between Sontag and TBG requesting that the
BHMPW argues that because the Debtor failed to pay these additional sums, it did not exercise the extension option in accordance with the terms of the Note. While the Debtor does not dispute that these sums were not paid, Carmichael testified that he believed that the $9,503.05 Payment was for the extension, and his understanding was that the maturity date had therefore been extended. See, e.g., June 11 Trial Tr. 48, 146, 154-58, 172-73. However, the evidence fails to support a conclusion that the three-month extension had been effectuated. A review of the Note and the evidence presented at trial demonstrate that the Debtor did not properly exercise the option to extend the maturity date for an additional three months, to January 20, 2016, because it failed to submit the required monies in accordance with the terms of the extension provision in the Note.
Further, based on the evidence deduced at trial and the entire record, the Court finds and determines that interest on the Loan should not have begun to accrue at the default rate until January 1, 2016. This is so because, notwithstanding the stated maturity date of October 20, 2015 in the Note, TBG subsequently issued the November 2015 Payment Statement, which set forth the following:
LOAN & PROPERTY INFORMATION
Principal Balance $700,000.00
Reserve Balance ($2,333.33)
Impound Balance ($169.72)
Interest Rate 12.000%
Interest Paid in 2015 $44,333.33
Property Information 403 Jefferson Avenue, Brooklyn NY
2750 Pearsall Avenue, Bronx NY
PAYMENT INFORMATION Statement Date 11/23/2015 Payment Amount + $9,503.05 Past Due Payments + $0.00 Late Charges Due + $0.00 Unpaid Interest + $0.00 Unpaid Charges + $0.00 Deferred Charges + $0.00 _____________________________Total Amount Due =$9,503.05 Payment Due Date 12/1/2015
ACCOUNT ACTIVITY (10/23/2015 — 11/22/2015) Transaction Date 11/4/2015 Payment Due Date 11/1/2015 Description Payment — Thank You Transaction Amount $0.00 Balance Forward $700,000.00 Distribution: Interest $7,000.00 Principal $0.00 Late Chgs $0.00 Other $0.00 Trust ($7,000.00) Principal Balance $700,000.00
TBG Nov. 2015 Pmt. Stmt. and Copy of Nov. 2015 Check, Trial Ex. G. (emphasis in original).
The November 2015 Payment Statement dated as of November 23, 2015, does not reflect a demand for the full amount due under the Loan obligation, i.e., the entire unpaid principal and interest, if any. Clearly, the issuance of the November 2015 Payment Statement by TBG and the $9,503.05 Payment made by the Debtor, together with TBG's acceptance of said payment, is wholly inconsistent with the later assertions by BHMPW that the default occurred as of October 20, 2015. Unquestionably, in November 2015, TBG listed the non-default rate of interest of 12% and stated that as of November 23, 2015, the total amount due by December 1, 2015 was $9,503.05.
The Debtor asserts that it had not been provided with payoff statements despite numerous requests for the same. See, e.g., June 11 Trial Tr. 57, 71-76, 96-97, 105, 108-09, 172-73. For instance, Carmichael testified that, prior to making the $9,503.05 Payment, he requested an extension to receive a payoff statement in order to pay off the Loan:
June 11 Trial Tr. 57.
In December of 2015, the Debtor had again requested a payoff statement from TBG in an effort to sell the Properties to pay off the Loan:
Id. at 71.
Carmichael also testified at trial that the Creditor never issued a written notice of default to the Debtor at any point prior to the commencement of the Foreclosure Action. While the Creditor agrees that it never issued a written notice of default, it asserts that under the terms of the Note, it was not required to do so.
The Debtor argues that the Note is ambiguous concerning the requirement to provide notice. Db.'s Post-Trial Br. 14 n.14. To this end, the only provision under the Note that the Debtor relies on, states as follows: "
Rather, the section of the Note entitled "General Provisions" states the following with respect to notices and demands:
Note, Trial Ex. C; Trial Ex. 1.
Accordingly, when reading the Note as a whole, the insecurity provision contained therein cannot overcome the general provisions that do not require that any notice of default be given and, therefore, the Court finds the Note unambiguous in this regard.
According to the trial testimony of Waintraub and Sepulveda, the parties, by their respective counsel, had been in negotiations during the Foreclosure Action in order to settle the litigation. The parties agree that at a hearing held on October 31, 2016, in the Foreclosure Action, certain settlement terms were agreed upon and stated to the judge, and that the $150,000 Payment was handed to Waintraub by Sepulveda in court at said hearing. At trial, Waintraub stated that the terms of a forbearance agreement were put forth before the state court judge in open court, but that no record or transcript of said hearing exists. Waintraub explained that the state court "do[es] not have a record taken," but rather, that the judge "took notes." June 26 Trial Tr. 237-44, 250.
Waintraub further testified that the terms had been negotiated with Sepulveda over the phone, but that Waintraub did not actually put these terms in writing prior to the hearing:
Id. at 244-45.
The evidence produced at trial further demonstrates that the written Forbearance Agreement had not been produced prior to the October 31, 2016 hearing in the Foreclosure Action. In fact, Waintraub's email to Sepulveda is dated October 31, 2016 at 4:11 p.m., which is after the hearing, and the parties testified that this was the first time a written draft of the Forbearance Agreement was provided to Sepulveda.
Id. at 68-69.
Waintraub's email to Sepulveda, which was sent after the October 31, 2016 hearing, states as follows:
Trial Ex. N; Trial Ex. 9 (emphasis added).
The Forbearance Agreement provides, in relevant part, as follows:
Forbearance Agmt., Trial Ex. F (emphasis added).
It is undisputed that the Forbearance Agreement, which was provided to the Debtor after the October 31, 2016 hearing, was never executed. Id.; see also June 26 Trial Tr. 69. With respect to the application of the $150,000 Payment, Sepulveda testified as follows:
June 26 Trial Tr. 73-74.
When asked what BHMPW did with the $150,000 Payment, Waintraub testified that BHMPW deposited the check into its bank account pursuant to the terms of the Forbearance Agreement:
Id. at 156-57.
BHMPW contends that it properly applied the $150,000 Payment at its discretion in accordance with the terms of the Forbearance Agreement, which states in relevant part: "The Initial Payment shall be applied to the Total Debt at Lender's sole discretion." Forbearance Agmt. ¶ 6, Trial Ex. F. When asked about this provision at trial, Carmichael testified as follows:
June 11 Trial Tr. 178-79.
The evidence at trial clearly shows that, notwithstanding the fact that the Creditor had accepted and deposited the $150,000 Payment purportedly pursuant to the agreed upon terms of the Forbearance Agreement, the Creditor did not forbear. The reason for the Debtor's bankruptcy filing was, in fact, due to the imminent foreclosure sale of the Debtor's Properties by the Creditor. Moreover, Waintraub conceded at trial that "[t]he reason why they filed for bankruptcy is because the judgment of foreclosure and sale was going to be — was imminent that it was going to be granted," and that essentially the only thing remaining in the Foreclosure Action was to "schedule the auction." June 26 Trial Tr. 170.
Therefore, the Court finds that while the $9,503.05 Payment was properly applied, the $150,000 Payment was not. BHMPW relies on the Forbearance Agreement as the reason for its: (i) accepting and depositing the $150,000 Payment; (ii) applying it as a "bottom line" credit; and continuing the accrual of default interest thereafter. But, BHMPW cannot have it both ways. BHMPW cannot assert that it properly received and applied the $150,000 Payment pursuant to the terms of the Forbearance Agreement, when the Forbearance Agreement was never executed, effectuated or otherwise complied with.
Moreover, BHMPW's reliance on the Forbearance Agreement to support its assertions that the Debtor had agreed that the unpaid principal balance at the time was $700,000, accruing default interest at 24% as of October 20, 2015, and BHMPW properly applied the $150,000 Payment, is also flawed by the very terms contained therein. The Forbearance Agreement itself states: "This document shall not be binding evidence of a contract between the parties hereto until such time as a counterpart of this document has been executed by each of the Parties and a copy thereof is delivered to each party under this Agreement." Forbearance Agmt., Trial Ex. F (emphasis added).
Finally, notwithstanding the fact that the Forbearance Agreement was never executed, BHMPW never returned the $150,000 Payment to the Debtor. Rather than refunding the payment or even holding the $150,000 Payment in escrow, BHMPW retained and deposited the check. See, e.g., June 26 Trial Tr. 156-57.
Based upon the foregoing, the Court conducted and applied its own analysis and calculations, using the contractual 24% default interest rate and 30/360-day year under the Note, as follows:
Therefore, the total unpaid balance at the default interest rate as of October 31, 2016 was $841,867.68,
Unpaid Principal Balance: $700,000.00 Default Interest: $141,867.68 __________________________________________________________ Total Balance: $841,867.68 (as of 10/31/16)
In accordance with the Court's determination above, the $150,000 Payment made to and accepted by BHMPW on November 1, 2016, shall be applied first to the unpaid principal balance. Accordingly, the unpaid principal balance as of November 1, 2016 is reduced to: $550,000 and, together with the unpaid default interest of $141,867.68 as of October 31, 2016, results in the balance of principal and interest due in the amount of: $691,867.68, as follows:
New Unpaid Principal Balance: $550,000.00 ($700,000 — $150,000) Default Interest (through 10/31/16): $141,867.68 ____________________________________________________________________ Total Balance: $691,867.68 (as of 11/1/16)
With the unpaid principal balance reduced to $550,000, the per diem default interest from November 1, 2016 to the Petition Date calculates as follows:
Unpaid Principal Balance: $550,000 Default Interest (through 1/19/17): $170,834.35 ($141,867.68 + $28,966.67) __________________________________________________________________________________ Total Balance: $720,834.35 (as of Petition Date, 1/19/17)* * Excluding the asserted fees and costs relating to the foreclosure action.
Accordingly, the Court finds that the appropriate sum of the unpaid principal and interest (excluding for purposes of this discussion, the balance of the asserted claim for foreclosure-related fees and costs) through the Petition Date is:
The Creditor's Claim seeks attorneys' fees and other foreclosure-related costs, as follows:
Foreclosure Search $875.00
Foreclosure Attorneys' Fees $25,955.00
Foreclosure Costs $2,230.00
Other Fees (Inspection Fees) $525.00
__________________________________________
$29,585.008
See POC No. 3, Trial Ex. A; Trial Ex. 3.
With respect to the Creditor's entitlement to attorneys' fees and expenses, the Note provides the following:
Note, Trial Ex. C; Trial Ex. 1.
Upon reviewing the evidence presented, the Court finds that the Creditor has produced sufficient evidence warranting the payment of expenses in the sum of:
With respect to pre-petition attorneys' fees, Waintraub's invoice for professional services rendered as BHMPW's counsel in the Foreclosure Action (the "
As an initial matter, the Court recognizes that a request for a creditor's pre-petition attorneys' fees is not reviewed under the same strict requirements and standards applied to retained bankruptcy-related professionals pursuant to § 330 of the Bankruptcy Code. However, "[t]he law in this circuit is that no award for attorneys' fees is appropriate where the attorney failed to maintain contemporaneous time records." Nationstar Mortg. LLC v. Atanas, 285 F.Supp.3d 618, 623-24 (W.D.N.Y. 2018) (quoting Kottwitz v. Colvin, 114 F.Supp.3d 145, 150 (S.D.N.Y. 2015) (citing N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983))). This is considered "a strict rule from which attorneys may deviate only in the rarest of cases." Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010); Atanas, 285 F. Supp. 3d at 623; see BH99 Realty, LLC v. Qian Wen Li, No. 10-CV-0693 (FB) (JO), 2011 WL 1841530, at *7 (E.D.N.Y. Mar. 16, 2011) ("The absence of contemporaneous records precludes any fee award in all but the most extraordinary of circumstances."), report and recommendation adopted sub nom. BH99 Realty, LLC v. Qian Wen, No. 10-CV-693 (FB) (JO), 2011 WL 1838568 (E.D.N.Y. May 13, 2011).
The Waintraub Invoice is seriously deficient in various respects. Notably, the Waintraub Invoice does not include any contemporaneous time records; instead, each listed entry, whether for a range of dates or a specific date, is lumped with multiple activities. At trial, Waintraub testified that he does not keep contemporaneous time records:
June 26 Trial Tr. 108-09.
Moreover, neither Waintraub nor BHMPW provided any supporting documentation to supplement the Waintraub Invoice in the admitted absence of contemporaneous time records. Waintraub explained that instead of contemporaneous time records, at the end of the day, he has a "list on a scrap piece of paper," and includes an "approximate[]" amount of time that he spends on each matter that is "rounded off," and that he does not bill his clients monthly, but rather, "at the end of file." See id. at 108-15. When asked by the Court to clarify his testimony, Waintraub stated as follows:
Id. at 109-14.
Thus, in the conceded absence of contemporaneous time records or any further "supporting documentation" that "is detailed enough to satisfy the Second Circuit's requirement that attorneys' fees must be based on contemporaneous time records specifying relevant dates, time spent and work done," BHMPW's request for Waintraub's attorneys' fees as part of its Claim must be denied. See, e.g., Atanas, 285 F. Supp. 3d at 623 (citations omitted).
The portion of the Claim relating to foreclosure-related attorneys' fees and other expenses is allowed in the sum of:
Accordingly, the Court hereby finds and determines that the total allowed amount of the Creditor's Claim as of the Petition Date is:
For the foregoing reasons, and upon the entire record of this case and the proceedings had herein, the Motion is granted in part and denied in part, to the extent set forth herein.
The parties are directed to appear at a hearing before the Court for a determination as to the appropriate amount of post-petition interest, if any, to be applied in connection with the balance of the Claim.
A separate order consistent with this decision shall be issued herewith.
INTEREST CALCULATION METHOD. Interest on this Note is computed on a 30/360 simple Interest basis; that is, with the exception of odd days before the first full payment cycle, monthly interest is calculated by applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by a month of 30 days. Interest for the odd days before the first full month is calculated on the basis of the actual days and a 360-day year. All interest payable under this Note is computed using this method.
...
INTEREST AFTER DEFAULT. Upon an Event of Default, including failure to pay upon final maturity, the interest rate on this Note shall be increased to the lesser of twenty-four (24%) percent or the maximum rate permitted by applicable law." Note, Trial Ex. C; Trial Ex. 1.
Payoff Date 12/21/2015 Maturity Date 10/20/2015Next Payment Due 1/1/2016 Interest Rate 24.000%Interest Paid-To Date 12/1/2015 Principal Balance $700,000.00 Default Interest from 10/21/2015-12/21/2015 $14,466.74 Accrued Interest from 12/1/2015-12/21/2015 $4,900.00 Unpaid Late Charges $0.00 Accrued Late Charges $0.00 Unpaid Charges $0.00 Prepayment Penalty $0.00 Other Fees $0.00 Trust Balance $0.00 Payoff Amount $719,366.74
TBG Dec. 2015 Payoff Stmt., Trial Ex. L; Trial Ex. 15 (emphasis added).
Summons/complaint $400 Other court fees (LP, RJI, motion) $265 Referee's fees $250 Foreclosure search $875 Process service $740 Other foreclosure fees/mailings $575
