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Bank of West v. Mayan Construction, Inc.

United States District Court, D. New Mexico

January 3, 2019

BANK OF THE WEST, Plaintiff,
v.
MAYAN CONSTRUCTION, INC., Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR DEFAULT JUDGMENT ON DAMAGES FOR SUM CERTAIN AND FOR ATTORNEY FEES AND COSTS

         THIS 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 Judgment.

         Accordingly, Plaintiff's motion is hereby GRANTED.

         BACKGROUND

         This 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.

         The 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 interest).

See Docs. 17 and 20 (supporting the supplemental pleadings Docs. 16 and 19); Doc. 18 (fees).

         I. Unpaid Debt

         The 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.

         II. Interest

         Because 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.

         Plaintiff 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).

         Therefore, 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.

         III. Attorney Fees, ...


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