United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
before the Court is Plaintiff 1st Source Bank's
(“1st Source”) Motion For Attorneys' Fees,
Costs, and Expenses [DE 112] in response to the Court's
granting summary judgment [DE 110] on its claim for breach of
contract against Defendants Joaquim Salles Leite Neto
(“Neto”) and Wells Fargo Bank Northwest, National
Association, in its capacity as Owner Trustee (“Wells
Fargo”) (collectively, “Defendants”). For
the reasons that follow, the Court finds that the attorney
fees and costs sought by 1st Source in the amount of $149,
784.43 are reasonable and allowable, and that the principal,
interest, late fees, and charges of $2, 537, 362.52 (plus
interest accruing until the entry of final judgment) are
consistent with the terms of the documents executed and
breached by Defendants.
granting 1st Source's motion for summary judgment on
January 25, 2018 [DE 110 (as incorporated herein)], the Court
found that Wells Fargo admittedly executed and defaulted
under the terms of the Note [DE 79-7] and the Loan &
Security Agreement [DE 79-8] which 1st Source was entitled to
enforce. The Court also determined that Neto had admittedly
signed a personal Guarantee for that loan which
unconditionally guaranteed to 1st Source his payment of the
Note in full when due [DE 79-9]. Despite this personal
liability, Neto did not pay the obligations owed to 1st
Source. Given the breach, the Court held that 1st Source was
entitled to receive the total amount of principal, interest,
late fees, and other charges, pursuant to the terms of the
documents. Moreover, the Court concluded that 1st
Source was entitled to an award of attorney fees, expenses,
and costs incurred in this litigation, consistent with
section 1 of the Note, section 5(b) of the Loan &
Security Agreement, and section 2 of the Guarantee [DE 79-9].
As a result, the Court provided 1st Source an opportunity to
establish the amount of fees and expenses owed.
support of an award for such damages, 1st Source has filed
(1) the affidavit of Alice J. Springer (a named partner of
the law firm Barnes & Thornburg LLP, who has represented
1st Source throughout this matter), which explains the type
of legal work performed and the education/experience of those
performing it [DE 112-1 at 1-7]; (2) Exhibits A and B to Ms.
Springer's affidavit, which consist of itemized fees and
expenses, accompanied by descriptions of the work
performed/expenses incurred, identification of the billing
personnel, and disclosure of the time billed/amounts charged
[DE 112-1 at 8-69]; and (3) an affidavit of Richard Rozenboom
(1st Source's Vice President and Senior Work-Out Officer,
who has personal knowledge of the amounts owed under the loan
documents as of February 20, 2018) [DE 112-2]. Defendants
have not filed any response to the motion.
uncontested that Indiana law provides the basis for deciding
whether fees can be awarded in a breach of contract action.
Indiana adheres to the American rule, under which, in the
absence of a statutory provision or an agreement providing
for fees, each party is required to pay its own attorney
fees. See Osler Inst., Inc. v. Forde, 386 F.3d 816,
818 (7th Cir. 2004) (citing Willie's Construction Co.
v. Baker, 596 N.E.2d 958 (Ind.Ct.App. 1992)); see
also Reuille v. E.E. Brandenberger Const., Inc., 888
N.E.2d 770, 771 (Ind. 2008) (“Parties to litigation
generally pay their own attorney fees, but may certainly
agree by contract to do otherwise.”) (citation
omitted). However, when a contract exists allowing for the
recovery of attorney fees, the provision will be enforced
according to its terms unless it violates public policy.
Id. (citing Harrison v. Thomas, 761 N.E.2d
816 (Ind. 2002)). The overriding concern in determining
whether a fee-shifting provision should be upheld is whether
enforcement makes the prevailing party whole. Walton v.
Claybridge Homeowners Ass'n, Inc., 825 N.E.2d 818,
825 (Ind.Ct.App. 2005).
case, the Note is subject to the terms of the Loan &
Security Agreement [DE 79-7 at 1]; which, in turn, states:
Customer also shall pay to Bank . . . any fees, costs,
expenses, penalties, or interest incurred by Bank in
connection with this Agreement, any Note or any of the
Collateral, including without limitation, fees, costs, or
expense of . . . and (vi) all attorneys' and other
professionals retained by Bank in connection with any of the
foregoing, or any exercise of other remedies upon occurrence
of default . . . .
[DE 79-8 at 2].
The Guarantee also states that Neto unconditionally
the payment in full when due . . . of all amounts payable by
the Borrower to the Lender, including, but not limited to,
any and all reasonable counsel fees and other expenses . . .
under the Loan Agreement and the other operative documents.
[DE 79-9 at 3].
have not asserted that the fees and expenses incurred by 1st
Source, as detailed in Ms. Springer's affidavit and the
itemized bills, are not allowable under the terms of the loan
documents and Guarantee. The fee-shifting provisions are
broad and encompass the time and expenses related to
litigating this case and enforcing 1st Source's rights
under the terms of the contracts executed by Defendants.
Thus, in order to make 1st ...