United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. COPANHAVER, JR SENIOR UNITED STATES DISTRICT JUDGE
is the plaintiff's motion for default judgment, filed
June 19, 2019, and supplemental affidavit in support, filed
July 19, 2019.
filed a request for entry of default and accompanying motion
for default judgment (ECF No. 42) against the defendant, Dana
Capital Group, Inc. (“Dana Capital”), for failure
to plead or otherwise defend. Therein, plaintiff sought entry
of default judgment against Dana Capital on Count I of the
plaintiff's amended complaint (Count I - Contract Defense
- Unconscionable Broker Agreement (Broker Dana Capital)),
which seeks equitable relief, including restitution. See ECF
No. 42 ¶ 2. On July 19, 2019, the clerk entered default
judgment against Dana Capital pursuant to Rule 55(b)(1) of
the Federal Rules of Civil Procedure.
plaintiff's motion for default judgment, she seeks (1)
$2, 950.00 in brokerage fees she paid to Dana Capital as set
forth in the amended complaint,  (2) an aggregate amount of
$9, 262.62, which consists of $7, 262.62 paid by the
plaintiff to settle a $15, 262.62 judgment lien and another
$2, 000.00 of attorneys' fees incurred by her in
ultimately settling that lien debt for which the broker was
supposed to have negotiated a settlement for $8, 000.00 that
was withheld by the lender for that purpose and eventually
paid to the judgment creditor, also set forth in the amended
complaint, and (3) $3, 000.00 in statutory attorneys'
fees. ECF No. 42 ¶ 7.
addition, plaintiff requests prejudgment interest “from
the date of contract to the date of judgment.” ECF No.
42 ¶ 7. She asks the court to apply an 8.99 percent
interest rate inasmuch as the mortgage loan agreement (the
“Note”) which she entered into with the lender
subjected the plaintiff to 8.99% monthly interest rate for
repayment purposes. This interest rate is inapplicable for
the purpose of determining prejudgment interest on the
unauthorized brokerage fees and out-of-pocket expenditures in
relation to the judgment lien.
award of prejudgment interest in a diversity case is governed
by state law. Hitachi Credit Am. Corp. v. Signet Bank, 166
F.3d 614, 633 (4th Cir. 1999). West Virginia Code section
56-6-31 is the applicable statute for determining the amount
of prejudgment interest. Under the statute, “the rate
of prejudgment interest is two percentage points above the
Fifth Federal Reserve District secondary discount rate in
effect on January 2, of the year in which the right to bring
the action has accrued.” W.Va. Code §
56-6-31(b)(1), (2). The right to bring action on the claims
against Dana Capital accrued on the date of the closing of
the Loan in issue - January 26, 2004. See Note, ECF No. 5-1;
Deed of Trust, ECF No. 5-2. On January 2, 2004, the interest
rate in effect was 2.5 percent. Aggregating that with two
percentage points results in an interest rate at 4.5 percent.
Accordingly, the court will use a 4.5 percent interest rate
to calculate prejudgment interest against Dana Capital.
plaintiff is entitled to attorneys' fees pursuant to
Section 46A-5-104 of the West Virginia Consumer Credit and
Protection Act, which provides:
In any claim brought under this chapter applying to illegal,
fraudulent or unconscionable conduct or any prohibited debt
collection practice, the court may award all or a portion of
the costs of litigation, including reasonable attorney fees,
court costs and fees, to the consumer. On a finding by the
court that a claim brought under this chapter applying to
illegal, fraudulent or unconscionable conduct or any
prohibited debt collection practice was brought in bad faith
and for the purposes of harassment, the court may award to
the defendant reasonable attorney fees.
Code § 46A-5-104. Inasmuch as Count I is based upon
allegations of unconscionable conduct of Dana Capital as well
as bad faith, plaintiff is entitled to such relief.
it is hereby ORDERED that default judgment be entered in
favor of the plaintiff against the defendant Dana Capital in
the following amount: unauthorized brokerage fees of $2,
950.00 and out-of-pocket expenditures of $9, 262.62,
aggregating $12, 212.62, together with prejudgment interest
thereon from January 26, 2004 through the date of judgment of
$8, 527.36, totaling $20, 739.98. It is further ORDERED that
plaintiff be awarded statutory attorney fees of $3, 000.00.
Clerk is directed to forward copies of this memorandum
opinion and order to all counsel of record and any
 In addition, plaintiff requests $1,
155.45 in broker fees. In support thereof, she relies upon a
supplemental affidavit and supporting exhibit to her motion
for default judgment, a HUD-1 Uniform Settlement Statement.
The exhibit, however, reflects that this sum was paid by the
lender to the broker, and is not shown to have been deducted
from the proceeds ...