United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Fifth Third Bank's Renewed
Motion for Attorneys' Fees. ECF No. 65. For the foregoing
reasons, the Court GRANTS the motion and
ORDERS Plaintiff to submit its calculation
of attorneys' fees and costs no later than June
20, 2019. Defendants may file a response no
later than June 27, 2019. Once the Court has
determined the amount of fees and costs recoverable, an
amended judgment order shall be filed.
fully set out in the Court's April 18, 2019 Memorandum
Opinion and Order, (ECF No. 59), the present matter arises
from multiple defaults by Defendants on two loans and a
subsequent forbearance agreement. Apr. 18, 2019 Memo. Op.
& Order, at 2-3, ECF No. 59. In return for
Plaintiff's agreement to forbear its rights under the
Loan Documents, Defendants stipulated to owing a principal
amount of $7, 662, 684.94, agreed to a new repayment plan to
include accruing interest, and consented to bear the costs
and attorneys' fees reasonably required to enforce the
Forbearance Agreement. Forbearance Agreement, at
2-3, 8, ECF No. 33-6. This agreement selected Ohio law as
governing. Id. at 12.
April 18, 2019, this Court granted summary judgment in favor
of Plaintiff, finding no legal excuse for Defendants
continued defaults. Plaintiff was permitted to calculate the
outstanding principal and accrued interest under either the
Forbearance Agreement or the underlying Loan Documents.
Apr. 18, 2019 Mem. Op. & Order, at 1. In
relevant part, the Court found Plaintiff was under no
obligation to negotiate further repayment terms after
Defendants' most recent default. Id. at 5.
Ultimately, Plaintiff sought relief under the Forbearance
Agreement. Pl.'s Supp. Brief, at 1, ECF No. 60.
Plaintiff now moves for attorneys' fees. Renewed Mot.
Att'y Fees, ECF No. 65.
the “American Rule, ” parties generally bear
their own costs in litigation. In contract actions, Ohio
court's allow for exceptions to this rule when “(1)
a statute creates the duty to pay fees, (2) the losing party
acted in bad faith, or (3) the parties contract to shift
fees.” The Scotts Co. v. Cent. Garden & Pet
Co., 256 F.Supp.2d 734, 748 (S.D. Ohio 2003) (citing
McConnell v. Hunt Sports Enterprises, 725 N.E.2d
1193 (Ohio Ct. App. 1999)). However, “contracts for the
payment of attorney fees upon default of a debt obligation
are void and unenforceable” as a matter of public
policy. Wilborn v. Bank One Corp., 906 N.E.2d 396,
401 (Ohio 2009). The primary concern is that borrowers in
contracts of adhesion have unequal bargaining power, and thus
no meaningful choice as to their terms. Id.
spite of this public policy concern, the Ohio legislature has
provided statutory carveouts for the enforcement of
attorneys' fees in certain contracts of indebtedness.
When a commitment to pay such fees arises in connection with
the enforcement of any written evidence of indebtedness-
other than for personal, family, or household purposes-those
fee-shifting clauses can be exempted from the general
policy-based prohibition. Ohio Rev. Code Ann. § 1319.02.
To qualify under this statute, the contract in question must
be judicially enforced, in excess of $100, 000.00, and only
obligate a reasonable amount of fees. Id.
contends the public policy concerns are not invoked in the
instant case, proposing the Ohio Supreme Court's holding
in Wilborn v. Bank One Corporation illustrates this.
Renewed Mot. Att'y Fees, at 2 (citing 906 N.E.2d
396, 401 (Ohio 2009)). Alternatively, Plaintiff claims the
statutory exception under Ohio Revised Code § 1319.02
applies. Id. at 3. Since the latter statement is
certainly true,  the Court analyzes the instant case-with
relative ease-under this statute.
Forbearance Agreement enshrined a commercial debt in excess
of $100, 000.00 and permitted the recovery of attorneys'
fees in any action brought to enforce this agreement.
Forbearance Agreement, at 3, 8. Defendants counter
that Plaintiffs suit was not “reasonably required,
” as mandated by the Forbearance Agreement, because
Plaintiff “simply refused to work with
[Defendants].” Defs.' Resp., at 2, ECF No.
66. However, as this Court has explained prior, Plaintiff was
under no obligation extend repayment terms ad
infinitum. Plaintiff received a judgment in its favor,
(ECF No. 63), and is thus entitled to attorney's fees.
All that is left is to determine a reasonable amount of fees.
these reasons, the Court GRANTS Plaintiff
's Renewed Motion for Attorneys' Fees, (ECF No. 65),
and ORDERS Plaintiff to submit its
calculation of attorneys' fees and costs no later
than June 20, 2019. Defendants may file a response
no later than June 27, 2019 The Court