United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT ON DAMAGES FOR SUM CERTAIN AND FOR ATTORNEY
FEES AND COSTS
MATTER comes before the Court upon Plaintiff's Renewed
Motion for Default Judgment, filed July 16, 2018
(Doc. 14). Having reviewed Plaintiff's
submissions, the Court finds that Plaintiff is entitled to
the relief requested in its Renewed Motion for Default
Plaintiff's motion is hereby GRANTED.
case began as an effort by Plaintiff (or the
“Bank”) to collect a debt owed on a commercial
credit card extended by the Bank to Defendant Mayan
Construction, Inc. (“Debtor”). Plaintiff filed a
Complaint for Judgment on Commercial Credit Agreement
(“Agreement”) on November 21, 2017 under this
Court's diversity jurisdiction, alleging that it had
extended to Defendant (“Debtor” in the complaint)
a commercial credit card with a maximum credit limit of $100,
000. The Agreement between the parties required regular
monthly payments to the Bank for all charges made on that
card; however, the Bank did not receive a payment under the
Agreement for payment due on July 20, 2017 or thereafter. At
that time, the Bank gave notice to Defendant for all
outstanding balances under the Agreement to be paid in full
by September 20, 2017. Ex. 2 to Compl. As of January 31,
2018, the balance of the Agreement was $104, 354.88,
including accrued interest through January 31, 2018, plus
interest thereafter at the rate of 18% per annum, plus late
fees, attorney fees, taxes, and expenses.
Court granted Plaintiff's motion for default judgment on
liability, but deferred ruling on the damages issue, finding
that Plaintiff had not adequately pled a “sum
certain” under Rule 55(b) but allowing Plaintiff to
supplement the record. This Plaintiff has now done by filing
two “supplemental” pleadings: the first, to
respond by the Court's deadline to receive supplemental
information on damages and the second to include updated
information that was not available by that deadline.
See Docs. 16, 19. Plaintiff has also filed several
affidavits supporting the supplemental pleadings and which
provide sufficient information for the Court to conclude that
Plaintiff is entitled to the sum certain requested as
represented in the following categories:
Total Amount of Debt: $104, 354.88 Attorney fees, taxes and
expenses: $3, 936.35 Interest: 18% per annum date until date
of entry of judgment (prejudgment interest); and 18% per
annum from date of judgment until paid in full (post judgment
See Docs. 17 and 20 (supporting the supplemental
pleadings Docs. 16 and 19); Doc. 18 (fees).
total amount due for unpaid credit card charges and finance
charges: $104.354.88. Doc. 20, ¶¶19-20 and Doc.
20-1 (Statements of Cardholder Activity). The Court finds
that the documentation provided by Plaintiff supports a
finding that $104, 354.88 represents a sum certain for the
unpaid debt based on the cardholder agreement because the
terms of the Agreement and the voluminous statements of
cardholder activity leaves no dispute as to the amount due.
this is a diversity case, state law applies as to prejudgment
interest, which is being sought by Plaintiff. See
Strickland Tower Maintenance, Inc. v. AT&T Communication,
Inc., 128 F.3d 1422, 1429 (10th Cir. 1997). The interest
requested by Plaintiff-both prejudgment and post judgment-is
envisioned in the Agreement.
seeks prejudgment interest at a rate of 18% per annum until
judgment is entered. The Agreement “authorizes the Bank
to impose Finance Charges, or prejudgment interest, for the
use of credit under the Agreement.” See Doc.
16 at 2, ¶3; see also Doc. 1-1 at 15,
¶8(b) (allowing Bank to impose Finance Charge of 18%).
The Agreement also allows the Bank to collect 18% of
post-judgment interest per annum until the debt is paid in
full. Doc. 17, ¶20; Doc. 20, ¶20. (20); Doc. 1-1 at
15, ¶8; Doc. 1-1 at 18, ¶17 (allowing Bank to
increase rate of interest to a fixed rate of 18% per annum in
case of default).
Plaintiff is entitled to prejudgment and post judgment
interest at a rate of 18% per annum according to provisions
in the Agreement allowing for collection of these amounts.
Attorney Fees, ...