First Citizens Bank & Trust Co. v. The Oil Screw Little Lady

963 F. Supp. 506, 1997 U.S. Dist. LEXIS 6557, 1997 WL 241795
CourtDistrict Court, E.D. North Carolina
DecidedApril 24, 1997
DocketNo. 4:95-CV-132-H2
StatusPublished

This text of 963 F. Supp. 506 (First Citizens Bank & Trust Co. v. The Oil Screw Little Lady) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Citizens Bank & Trust Co. v. The Oil Screw Little Lady, 963 F. Supp. 506, 1997 U.S. Dist. LEXIS 6557, 1997 WL 241795 (E.D.N.C. 1997).

Opinion

ORDER

MALCOLM J. HOWARD, District Judge.

This matter is before the court on plaintiffs motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment pursuant to Rule 56. Defendants have not responded and the time for response has expired. This matter is ripe for ruling.

STATEMENT OF THE CASE

This action was commenced by plaintiff to recover monies owed it by defendants and is properly before this court pursuant to the court’s admiralty and maritime jurisdiction. 28 U.S.C. § 1333(1); 46 U.S.C. § 31325(e). On April 25, 1995, Michael Leon Cook and Karen E. Cook, executed a promissory note to plaintiff in the amount of $36,000. The loan was secured by a First Preferred Ship’s Mortgage on the vessel LITTLE LADY. The Preferred Ship’s Mortgage was recorded in the office of the Marine Documentation Officer for the Port of Norfolk, Virginia, on April 27, 1995. On January 22, 1996, plaintiff filed with the court a copy of the current certificate of ownership/abstract of title from the United States Coast Guard for the vessel LITTLE LADY showing said mortgage pursuant to Local Rule 90.00.

Defendants made the scheduled payments through August 1, 1995. Beginning in September, and continuing until the present action was filed, defendants paid nothing on their indebtedness. Plaintiff made a demand for payment from defendants, however defendants advised plaintiff that they could no longer meet their obligations on the note. Subsequently, defendant Michael Cook voluntarily relinquished the keys and possession of the LITTLE LADY to plaintiff.

On December 13, 1995, the court allowed plaintiffs motion for issuance of an admiralty warrant of arrest. The vessel was thereafter arrested and seized by the United States Marshal on December 21, 1995. On February 13, 1996, the court entered an entry of default pursuant to Rule 55 of the Federal Rules of Civil Procedure against the LITTLE LADY, Michael Cook, Karen Cook, and [508]*508any person, firm or entity that could have claimed a lien on the vessel.

On February 16, 1996, the court entered an interlocutory order of sale authorizing the U.S. Marshal to sell the LITTLE LADY following the appropriate newspaper publication. On March 11, 1996, the United States Marshal sold the LITTLE LADY at a public auction, together with her engines, tackle, electronics, apparel, etc. for $25,000 to Steve Weeks, an attorney representing plaintiff, as the highest and only bidder. The balance owing on defendants’ mortgage to plaintiff at the time the interlocutory order of sale was entered was $33,351.21, together with interest at the rate of $11.66805 per day. On June 6, 1996, the court entered an order confirming the sale after being satisfied that the sale was properly conducted in all respects.

Thereafter, plaintiff moved for judgment on the pleadings, or alternatively for summary judgment. Filed on the same day as the motion was an affidavit from plaintiff’s attorney detailing the attorneys’ fees incurred by plaintiff in this action. A second affidavit by J. Bruce Caldwell, a vice-president of plaintiff, was filed itemizing the total sum due plaintiff, including attorneys’ fees, incidental expenses and a deficiency judgment, which amounts to $19,812.12.

DISCUSSION

Plaintiff’s motion for judgment on the pleadings was accompanied by affidavits and thus, the court will treat the motion as one for summary judgment pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Summary judgment is authorized by Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The inferences to be drawn from the underlying facts are to be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). However, entry of summary judgment is appropriate if the nonmovant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.” Celótex Corp. v. Catrett, AH U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, (1986).

1. Deficiency Judgment

The Ship Mortgage Act (“the Act”), 46 U.S.C. § 31325(b)(1), allows a mortgagee upon default to enforce its preferred mortgage1 through a civil action in rem against the vessel. The Act further permits an action for a deficiency judgment against the mortgagor or guarantors. Title 46 U.S.C. § 31325(b)(2)(A) provides that upon default under a preferred mortgage, the mortgagee may enforce its claim in “a civil action in personam in admiralty against the mortgagor, maker, comaker or guarantor for the amount of the outstanding indebtedness or any deficiency in full payment of that indebtedness.”

There is no dispute that defendant Cook mortgaged his vessel, the LITTLE LADY to plaintiff in the amount of $36,000; that defendant defaulted on that loan; and that there remains a deficiency balance after sale, including interest of $1,135.83 from March 11, 1996, to February 19, 1997, totalling $11,-' 178.91. See Caldwell Aff. ¶9. Under 46 U.S.C. § 31325(b)(2)(A) as well as the mortgage agreement between the parties,2 plaintiff is entitled to a deficiency balance. Therefore, plaintiff’s motion for summary judgment on the deficiency balance is GRANTED.

II. Attorneys’ Fees and Incidental Costs

Plaintiff also requests attorneys’ fees and incidental costs which it incurred in the arrest, seizure, caretaking, and sale of the LITTLE LADY. The terms of the mortgage provide that plaintiff is entitled to recover the payment of reasonable attorneys’ fees [509]*509and “any other expenses, losses, charges, damages incurred or advances made by Mortgagee in the protection of its rights or cause by Owner’s default hereunder.” Weeks Aff., Ex. C. Article II, ¶ 4.

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Bluebook (online)
963 F. Supp. 506, 1997 U.S. Dist. LEXIS 6557, 1997 WL 241795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-citizens-bank-trust-co-v-the-oil-screw-little-lady-nced-1997.