United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Plaintiff First Citizens Bank and Trust Company, Inc.'s ("Plaintiff") Motion for Default Judgment as to MJI, LLC  ("Motion").
On January 31, 2014, Plaintiff filed this action against Defendants MJI, LLC ("MJI") and Pollyann S. Campbell ("Campbell") (collectively the "Defendants"). Plaintiff alleges that MJI, whose sole member is Campbell, and Campbell received separate loans from Georgian Bank in exchange for separate promissory notes, secured by separate property. (Complaint ¶¶ 2-3, 7-8, 11-12, 16-17, 19-20).
MJI delivered a promissory note in the original amount of $75, 000 (the "MJI Note") to Georgian Bank. (Id. ¶ 7). The MJI Note obligated MJI to pay Georgian Bank, or its successors, all amounts due under the MJI Note, including principal, interest, and other charges, and costs and expenses to collect amounts due under the MJI Note, including court costs and including attorneys' fees in the amounts of fifteen percent of the remaining note principal ("MJI Indebtedness"). (Id. ¶¶ 8-9). Plaintiff alleges that Campbell executed a guaranty ("Guaranty") whereby she guaranteed MJI's payment and performance under the MJI Note. (Id. ¶ 10).
Campbell delivered a promissory note in the original amount of $88, 500 (the "Campbell Note") to Georgian Bank, which obligated Campbell to pay Georgian Bank or its successors all amounts due under the Campbell Note, including principal, interest, and other charges, and costs and expenses to collect amounts due under the Campbell Note, including court costs and including attorneys' fees in the amount of fifteen percent of the remaining note principal ("Campbell Indebtedness"). (Id. ¶¶ 16-18).
Plaintiff alleges that the Georgia Department of Banking and Finance closed Georgian Bank, and the Federal Deposit Insurance Corporation ("FDIC") was appointed as its receiver. (Id. ¶ 24). The FDIC and Plaintiff entered into a purchase agreement by which Plaintiff took possession and ownership of the MJI Note, Campbell Note, MJI Indebtedness, and Campbell Indebtedness. (Id. ¶ 26).
Plaintiff alleges that MJI breached its obligation under the MJI Note by failing to pay the note on or before its maturity date, and that Campbell has breached her obligation under the Guaranty by failing to pay the outstanding MJI Indebtedness as required by the Guaranty. (Id. ¶ 29-31). Plaintiff alleges that the MJI Indebtedness, as of January 30, 2014, totals $78, 299.72, exclusive of Plaintiff's attorneys' fees and collection costs. (Id. ¶ 33).
Plaintiff asserts claims for: (1) Breach of the MJI Note against MJI; (2) Breach of the Guaranty against Campbell; (3) Unjust Enrichment against Defendants based on the MJI Indebtedness; (4) Attorneys' Fees and Expenses pursuant to O.C.G.A. § 13-1-11 against Defendants under the MJI Note; (5) Breach of the Campbell Note against Campbell; (6) Unjust Enrichment against Campbell based on the Campbell Indebtedness; and (7) Attorneys' Fees and Expenses pursuant to O.C.G.A. § 13-1-11 against Campbell under the Campbell Note.
On February 10, 2014, Plaintiff filed its Return of Service, showing that on February 5, 2014, MJI was served with the Summons and Complaint by service on Campbell, MJI's sole member, and that Campbell also was served in her individual capacity. On February 28, 2014, Plaintiff filed its Motion for Clerks' Entry of Default Against Both Defendants  after Defendants failed to respond to the Complaint. On the same day, Campbell filed her Suggestion of Bankruptcy , in which Campbell states that this case is automatically stayed pursuant to 11 U.S.C. § 362 "as to all proceedings against Pollyann S. Campbell." (Suggestion of Bankruptcy at 1). On March 3, 2014, the Clerk entered default against both Defendants.
On April 15, 2014, Plaintiff filed its Motion. Plaintiff seeks default judgment on both liability and damages against MJI - but not Campbell - for MJI's failure to respond to the Complaint. (Motion at 1-2) Plaintiff requests judgment in the principal amount of $72, 015.07, plus accrued and unpaid interest through April 9, 2014 of $6, 941.97, late fees of $1, 551.14, and attorneys' fees and costs in the amount of $11, 843.55, for a total indebtedness of $92, 351.73. (Id. at 2-3; Exhibit B of the Motion [8-2] at 6). Plaintiff also requests additional interest from April 10, 2014, through the date of judgment at a per diem rate of $32.0067,  and post-judgment interest at the rate provided by Federal law. (Motion at 2-3). The Motion is supported by the sworn affidavits of Samuel B. Zeigler [8-1], an attorney for Plaintiff, and Richard B. Spink [8-2], a Senior Vice President for Plaintiff.
In addition to default judgment against MJI, Plaintiff requests a final judgment be entered against MJI pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. (Brief in Support of Motion [8-4] at 5-8). MJI did not respond to the Motion.
A. Motion for Default ...