Branch Banking and Trust Company v. Pebble Creek Plaza Pad, LLC
2:12-cv-01736
D. Nev.Feb 8, 2017Background
- Pebble Creek Plaza Pad, LLC executed a $2,897,000 promissory note (2007) secured by Arizona real property; individual defendants provided a personal guarantee.
- FDIC became receiver for Colonial Bank (2009) and assigned the loan and guarantee to Branch Banking and Trust Company (2011).
- Pebble Creek defaulted; judicial foreclosure sale occurred (April 23, 2012) and Branch Banking later sued for deficiency, breach of guarantee, and breach of covenant (filed Oct. 3, 2012).
- Court granted Branch Banking summary judgment (June 23, 2015); parties stipulated fair market value and court entered a deficiency judgment of $741,134.78 (July 11, 2016).
- Branch Banking moved for attorney’s fees ($160,489.32) and non-taxable costs ($9,896.95) under the fee provisions in the note and guaranty.
- Defendants opposed, arguing billing problems and seeking reduction or denial of fees; court reviewed billing records and found fees and costs reasonable and recoverable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees under contract | Note and guarantee expressly authorize reasonable attorneys' fees and collection costs | No denial of entitlement alleged; disputes only reasonableness/amount | Entitlement found: contractual fee provisions apply; fees recoverable under Nevada law |
| Choice of law for fee award | Diversity case — Nevada law governs fee award analysis | Not disputed | Nevada law applies to determine fee award |
| Reasonableness of requested fees ($160,489.32) | Counsel is experienced; litigation complex with novel defenses; detailed billing provided complying with LR 54-16 | Billing contains duplicative, vague, block entries; seeks reductions (citing cases with percentage reductions) | Court reviewed records, found few minor issues but overall reasonable; awarded full $160,489.32 |
| Recoverability of non-taxable costs ($9,896.95) | Note and guaranty permit recovery of "all other costs and expenses of collection and enforcement" | Not argued to be unrecoverable | Court found requested non-taxable costs recoverable and reasonable; awarded $9,896.95 |
Key Cases Cited
- Kona Enterprises, Inc. v. Estate of Bishop, 299 F.3d 877 (9th Cir. 2000) (state law governs contractual fee requests in diversity cases)
- In re: USA Commer. Mortg. Co., 802 F. Supp. 2d 1147 (D. Nev. 2011) (Nevada law applies to fee awards on state-law claims)
- Albios v. Horizon Communities, Inc., 132 P.3d 1022 (Nev. 2006) (fees are recoverable when authorized by statute, rule, or contract)
- Horgan v. Felton, 170 P.3d 982 (Nev. 2007) (same: contractual or statutory authorization required for fee awards)
- Brunzell v. Golden Gate Nat. Bank, 455 P.2d 31 (Nev. 1969) (Nevada multi-factor reasonableness test for attorney fees)