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Fifth Third Bank v. Revelation Energy, LLC

United States District Court, S.D. West Virginia, Huntington Division

May 14, 2019

FIFTH THIRD BANK, an Ohio Banking Corporation, Plaintiff,
v.
REVELATION ENERGY, LLC, a Limited Liability Company, and REVELATION ENERGY HOLDINGS, LLC, a Limited Liability Company, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the remainder of Plaintiff Fifth Third Bank's (“Fifth Third”) Motion for Summary Judgment (ECF No. 32), which the Court previously granted, in part, to the extent that Defendants, Revelation Energy, LLC (“Revelation”) and Revelation Energy Holdings, LLC (“REH”), are jointly and severably liable to Plaintiff for damages incurred from their breach of contract (ECF No. 59). Additionally, the Court considers Plaintiff's Motion to Supplement Record on Summary Judgment (ECF No. 49) and Plaintiff's Motion to Strike Jury Trial Demand (ECF No. 56). For the following reasons, the Court GRANTS the remainder of Plaintiff's Motion for Summary Judgment, (ECF No. 32), to the extent that it requests damages under the Forbearance Agreement, in the amount of $7, 324, 543.24, GRANTS, in part, Plaintiff's Motion to Supplement Record on Summary Judgment (ECF No. 49), insofar that the record is supplemented with Plaintiff's submission and that Plaintiff is entitled to prejudgment interest in the amount of $18, 285.64, and DENIES, in part and without prejudice, the request for attorney's fees and costs, and DENIES, as moot, Plaintiff's Motion to Strike Jury Trial Demand (ECF No. 56). Should Plaintiff wish to address the Court's findings on attorney's fees and costs, it may file a renewed motion no later than May 22, 2019, with Defendant's response due by May 29, 2019.

         I. BACKGROUND

         The Court incorporates the “Background” section of the prior Order. ECF No. 59, pp. 2-3.

         II. STANDARD OF REVIEW

         A party moving for summary judgment must show there is no genuine issue of any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The Court shall not “weigh the evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). However, the Court shall draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The nonmoving party must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.

         III. DISCUSSION

         Plaintiff requests damages as calculated under the Forbearance Agreement and claims it is entitled to prejudgment interest, attorney's fees, and costs. Supp. Brief on Damages, p. 2, ECF No. 60 (amending Mot. Summ. J., ECF No. 32); Mot. Supp. Record, ECF No. 49 (moving for prejudgment interest, attorney's fees, and costs).

         A. Choice of Law

         “When exercising diversity jurisdiction, a federal district court must apply the choice-of-law rules of the state in which it sits.” Cavcon, Inc. v. Endress ± Hauser, Inc., 557 F.Supp.2d 706, 719 (S.D. W.Va. 2008) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). Generally, West Virginia courts will uphold a choice of law provision in a contract. However, “[a] choice of law provision in a contract will not be given effect when the contract bears no substantial relationship with the jurisdiction whose laws the parties have chosen to govern the agreement, or when the application of that law would offend the public policy of this state.” General Electric Company v. Keyser, 275 S.E.2d 289, Syl. Pt. 1 ( W.Va. 1981). Here, the parties do not contest the choice of law provision in the Forbearance Agreement. As such, it is interpreted under Ohio law. Forbearance Agreement, ¶ 37, ECF No. 33-6.

         B. Damages

         As the Court previously held, Fifth Third is entitled to damages under either the Forbearance Agreement or the underlying Loan Documents. ECF No. 59, p. 5 (citing Cochran v. Ollis Creek Coal Co., 206 S.E.2d 410, Syl. Pt. 2 ( W.Va. 1974)). Fifth Third requests damages under the Forbearance Agreement in the amount of $7, 340, 456.31. Supp. Brief on Damages, p. 1. Though Defendants do not contest the calculation, the Court finds Plaintiff's arithmetic fundamentally flawed. Defs.' Response, ECF No. 61.

         To account for the amount it has requested, Plaintiff provides the sworn declaration of Mr. David Garcia, a Vice President and Special Assets Relationship Manager with Fifth Third Bank. Garcia Declaration, ECF No. 60-1. While Mr. Garcia properly applies an annual percentage rate of 4% to the combined principal, (Forbearance Agreement, ¶ 16(a)(i)), he calculates a per diem rate based on a parallel universe where the Earth's orbit around the Sun is a closer one than our reality, causing a calendar year five days shorter than the one we experience. Garcia Declaration, ¶ 6. After incorrectly calculating this per diem rate, Mr. Garcia again errs by padding the number of days in each period for the applicable per diem rate. He does so by double counting days where a payment was made on the principal balance, using those as both the last day in each preceding period and the first day of each succeeding period. This explains why Mr. Garcia posits there are 847 days where interest accrued, when the relevant period, January 1, 2017 through April 18, 2019, only has 838 days.

         Instead, the Court takes judicial notice that there are, in fact, 365 days in the three most recent calendar years. Furthermore, the Court begins each new per diem rate period on the date a principal payment was made.[1] In all, this equals an accrued interest of $628, 028.50 under the Forbearance Agreement, plus the remaining principal of $6, 452, 684.94, the outstanding interest from the Loan Documents totaling $205, 141.03, and the outstanding late charges from the Loan ...


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