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Pnc Bank, Na, Successor To National City Bank, Successor In v. Ohcmc-Oswego

June 4, 2012

PNC BANK, NA, SUCCESSOR TO NATIONAL CITY BANK, SUCCESSOR IN INTEREST TO MIDAMERICA BANK, FSB, PLAINTIFF,
v.
OHCMC-OSWEGO, LLC, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

PNC Bank (PNC) has sued OHCMC-Oswego (OHCMC) on a promissory note. PNC also sued Camille Hoffman, an OHCMC officer, on her guaranty of the note, but the Court granted Hoffman's motion to dismiss the claim against her for improper venue. PNC Bank, NA v. OHMC-Oswego, LLC, No. 11 C 301, slip op. (N.D. Ill. June 20, 2011). The Court previously granted summary judgment for PNC on two issues: the unpaid balance of the loan, and interest. PNC Bank, NA v. OHMC-Oswego, LLC, No. 11 C 301, 2012 WL 88257 (N.D. Ill. Jan. 11, 2012). PNC has now moved for summary judgment on the issues of late fees and attorney's fees. For the reasons stated below, the Court grants the motion in part and directs entry of final judgment in PNC's favor.

Background

On September 30, 2005, PNC loaned $12,350,000 to OHCMC, an Illinois limited liability company. On the same day, the parties executed a promissory note reflecting the loan amount and a mortgage on a parcel of real estate in Oswego, Illinois to secure OHCMC's obligations. The promissory note included the following terms:

Upon the occurrence of an Event of Default as defined in Section 19 of the Mortgage, the interest shall be calculated on the balance of the principal due herein at a rate equal to six (6%) percent in excess of the Interest Rate. Further, [PNC] Bank reserves the right to assess a late charge equal to five percent (5%) of any payment that is received by the Bank on or after the fifteenth day of the month in which it is due, which five percent (5%) shall be due and payable with the next payment. Pl. Ex. 1 at 2.

After any Event of Default, if the holder of this Note employs counsel for advice with respect to enforcing this Note, or to intervene, file a petition, answer, motion or other pleading in any suit or proceeding relating to this Note, or to attempt to collect this Note from or to enforce this Note against the Borrower, then in any such events, all of the reasonable attorneys' fees arising from such services and any expenses, costs and charges relating thereto, shall be an additional liability owing hereunder by the Borrower to the holder of this Note payable on demand. Id. at 3.

PNC and OHCMC later entered into five modifications extending the promissory note, the latest of which established a maturity date of November 1, 2010. OHCMC has admitted throughout this litigation that it failed to pay all amounts due under the note. In response to PNC's previous motion for summary judgment, OHCMC did not contest that it owed $10,689,446.12 in principal and $268,083.62 in interest, and the Court accordingly granted summary judgment in PNC's favor regarding those amounts. PNC Bank, 2012 WL 88257, at *3. OHCMC did, however, contest PNC's claim that it was owed $563,135.30 in late fees and $16,131.50 in attorney's fees and costs. The Court declined to grant summary judgment on these points, concluding that PNC had not provided sufficient documentation to establish their accuracy. Id. at *4. PNC now moves for summary judgment on these issues.

Discussion

Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). To determine whether a genuine issue of material fact exists, the Court must view the record in the light most favorable to the nonmoving party and draw reasonable inferences in that party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); AA Sales & Assocs., Inc. v. Coni-Seal, Inc., 550 F. 3d 605, 609 (7th Cir. 2008). A genuine issue of material fact exists only if "the evidence is such that a reasonable [finder of fact] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

As the Court explains below, OHCMC does not contest that it owes PNC's stated amount in late fees or that it owes PNC some amount for attorney's fees. OHCMC contends only that PNC's claimed $29,592.70 in attorney's fees should be reduced by a total of $10,729. OHCMC argues that the Court should not award PNC attorney's fees based on certain redacted billing entries; for PNC's negotiation and drafting of a loan extension; or for PNC's unsuccessful opposition to OHCMC's motions to dismiss Camille Hoffman and to strike material from PNC's earlier summary judgment motion.

A. Late fees

OHCMC has abandoned its argument that PNC has not provided sufficiently detailed documentation in support of its claim for late fees. As it did with the issues of principal and interest in response to PNC's earlier motion for summary judgment, OHCMC has not even mentioned the late fees in its response to PNC's present motion. It disputes only one item in PNC's Local Rule 56.1 statement of undisputed facts: the total amount of attorney's fees. It has not provided a Local Rule 56.1 statement or any other evidence of its own.

The Court concludes that OHCMC has admitted its liability to PNC on the issue of late fees. As PNC points out, OHCMC has admitted to the following statement: "PNC is entitled to late fees in an amount greater than $563,135.30." Pl.'s L.R. 56.1 Stmt. ΒΆ 22 (emphasis added); Def.'s Resp. to Pl.'s L.R. 56.1 Stmt. at 1. PNC, however, has not provided any argument for what it may be owed over and above that amount. The Court therefore ...


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