UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

1ST SOURCE BANK, 

 Plaintiff/Counter-defendant, 

 v. 

JOAQUIM SALLES LEITE NETO, et 

al., 

 Defendants/Counter-plaintiffs. 

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Case No. 3:15-CV-261-JD 

OPINION AND ORDER

 Now 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. 

I. Background 

 In 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 
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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.1 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. 

In 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. 

 

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 The Court determined that as of January 26, 2017, the total amount of principal, interest, late 

fees, and other charges due was $2,306,807.20, with interest continuing to accrue at $529.32 per 

day. 1st Source has provided undisputed updated figures and supporting documentation 

reflecting that as of February 20, 2018, the following amounts are due (exclusive of attorney 

fees): Principal: $2,057,600.52; Interest: $431,985.28; Late Fees: $37,127.28; and Non-Legal 

Expenses: $10,649.44; with interest continuing to accrue at a per diem rate of $575.25 until final 

judgment is entered [DE 112 at 4-6; DE 112-2]. 
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II. Discussion

 It is 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). 

In this 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 guarantees: 

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. 
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[DE 79-9 at 3]. 

 Defendants 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 Source whole, its fees and 

expenses incurred in connection with the breached contracts ought to be reimbursed by 

Defendants. 

However, as the fee applicant, 1st Source bears the burden of “produc[ing] satisfactory 

evidence—in addition to the attorney’s own affidavit[]—that the requested rates are in line with 

those prevailing in the community.” Pickett v. Sheridan Health Care Center, 664 F.3d 632, 640 

(7th Cir. 2011) (citations omitted) (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). If the 

fee applicant satisfies this burden, the burden shifts to the other party to offer evidence that sets 

forth “a good reason why a lower rate is essential.” Id. (citations omitted). However, if the fee 

applicant does not satisfy its burden, the district court has the authority to make its own 

determination of a reasonable rate. Id. (citing Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 409 

(7th Cir. 1999)). To then calculate reasonable fees, courts use the lodestar method, which is “the 

number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” 

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Hall v. Forest River, Inc., No. 3:04-

CV-259-RLM, 2008 WL 1774216, at *1 (N.D. Ind. Apr. 15, 2008); Barker v. City of W. 

Lafayette, 878 N.E.2d 230, 232-33 (Ind. Ct. App. 2007). There is a strong presumption that the 

lodestar calculation yields a reasonable attorney fee award. Pickett, 664 F.3d at 639. The fee 

applicant must also document its hours and hourly rates. Hensley, 461 U.S. at 437. Counsel is, 
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“not required to record in great detail how each minute of his time was expended. But at least 

counsel should identify the general subject matter of his expenditures.” Id. at 437, n.12. 

In the supporting affidavit and itemized accounting of fees [DE 112-1], counsel has 

indicated that two partners primarily litigated this case, while an additional two attorneys assisted 

with specific tasks. All four attorneys billed at a flat rate of $350.00 per hour. Because 1st Source 

applied a portion of the insurance proceeds to legal fees incurred before November 30, 2015, 

counsel seek only to recover fees incurred after December 1, 2015. Those attorney fees total 

$145,145.00, or approximately 415 billable hours. In addition, 1st Source incurred $4,639.43 in 

other litigation costs, as identified in Ms. Springer’s affidavit [DE 112-1 at 6]. 

The best evidence of an attorney’s market rate is his or her actual billing rate for similar 

work. Pickett, 664 F.3d at 639–40. Here, counsel confirms that the rates billed were the 

attorneys’ standard hourly rates for the services which were provided. In addition, 1st Source 

paid the invoices submitted by Barnes & Thornburg LLP, which is further evidence of the 

reasonableness of the fee request. See Broaddus v. Shields, 665 F.3d 846, 860 (7th Cir. 2011) 

(holding “one of the best indicators of commercial reasonableness is a willingness to pay the fees 

without guaranteed reimbursement.”) (citing Matthews v. Wis. Energy Corp., 642 F.3d 565, 573 

(7th Cir. 2011)). Moreover, Defendants have not suggested that the hourly rate, the number of 

hours billed, or the nature of the charges are unreasonable. Nor have Defendants contested the 

manner in which the fees and expenses were calculated. And a challenger’s failure to present any 

evidence challenging the fee applicant’s request “is essentially a concession that the attorney’s 

billing rate is reasonable and should be awarded.” People Who Care v. Rockford Board of 

Education, School District 205, 90 F.3d 1307, 1313 (7th Cir. 1996). Accordingly, the Court finds 

that 1st Source has met its burden in proving that its rates and the amount of hours billed are 
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reasonable for the services rendered in successfully litigating this contested action (complicated 

by the collateral’s being confiscated by Brazilian authorities) and securing a judgment of over 

two and a half million dollars. 

III. Conclusion 

 For the reasons stated, the Court GRANTS 1st Source’s uncontested Motion For 

Attorneys’ Fees, Costs, and Expenses [DE 112]. This Court enters a final judgment in favor of 

1st Source Bank and against Defendants in the updated amount of $2,537,362.52 (plus interest at 

a per diem rate of $575.25 from February 21, 2018 to the date of judgment), plus attorney fees, 

costs, and expenses in the amount of $149,784.43. 

 SO ORDERED. 

 ENTERED: June 13, 2018 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court