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 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WHITNEY BANK, a Mississippi 

state chartered bank,

)

)

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)

)

)

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Plaintiffs,

vs. CIVIL ACTION NO. 15-0002-CG-M

PULLUM-CECILIO, LLC., et al.,

Defendants.

ORDER

This matter is before the Court on the motion for summary judgment 

filed by Plaintiff, Whitney Bank (“Whitney Bank”) (Doc. 13), as well as 

Defendants’ response in opposition thereto (Doc. 16), and Whitney Bank’s 

supplemental response (Doc. 20). For the reasons stated below, the motion for 

summary judgment is GRANTED. Also before the Court is Whitney Bank’s 

motion for reasonable attorneys’ fees (Doc. 13), for the reasons stated below, 

that motion is GRANTED, in part, and DENIED, in part. 

BACKGROUND 

This case arises from an unpaid promissory note and a financial 

institution’s attempts to collect the debt from both the borrower and its 

guarantors. Plaintiff Whitney Bank brought this action against defendants, 

Pullum-Cecilio, LLC., (“Pullum-Cecilio”), Bart R. Pullum (“B. Pullum”), 

Rebecca A. Pullum (“R. Pullum”), Shan Cecilio (“S. Cecilio”) and the now 

deceased, Frank Cecilio (“F. Cecilio”), alleging state-law causes of action for 

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breach of contract regarding their repayment obligations under a Renewal 

Promissory Note (“the Note”). Federal jurisdiction was properly predicated on 

28 U.S.C. § 1332, as the Complaint sufficiently alleged complete diversity of 

citizenship between Whitney Bank and each defendant, and that the amount 

in controversy exceeds the $75,000 jurisdictional threshold. 

On April 28, 2015, Pullum-Cecilio filed for voluntary Chapter 11 

bankruptcy in the United States Bankruptcy Court for the Northern District 

of Florida, Pensacola Division, as Case No. 15-30477 (Doc. 21), which 

automatically stayed this case as to Pullum-Cecilio. (Doc. 22). Furthermore, 

during the planning meeting on March 30, 2015, parties advised the Court of 

the death of Frank Cecilio. (Doc. 15). Whitney Bank’s motion for summary 

judgment only involves S. Cecilio, R. Pullum and B. Pullum, (the 

“Defendants”). (Doc. 13). 

THE AGREEMENTS 

On November 20, 2013, Defendant Pullum-Cecilio executed and 

delivered to Hancock Bank, (now known as “Whitney Bank”), a Renewal 

Promissory Note in the principal amount of $864,679.68 (Buntin aff., Doc. 13-

2, Exh. A, ¶ 1). The Renewal Note specified that interest would accrue at 

eight percent per annum on the outstanding principal balance due. Monthly 

payments of $9370.00 would commence on December 15, 2013. (Id. at ¶ 3).

The Renewal Note required all unpaid principal, interest and expenses 

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outstanding to be paid in full as of December 14, 2014.1 (Id.) Interest accrued 

on the Renewal Note at eight percent (8%) per annum on the outstanding 

principal balance due. (Id. at ¶ 4). In case of default, “interest shall accrue 

and Maker will pay interest at the rate of eighteen (18%) percent per annum

on the outstanding principal balance due.” (Id.). 

The Renewal Note was secured by collateral, including mortgages on 

multiple pieces of real estate in Santa Rosa County, Florida. (Id. at ¶ 2). The

Renewal Note stated that the Maker, Pullum-Cecilio, waived “demand, 

presentment, protects, notice of non-payment, notice of protest and any and 

all lack of diligence or delay in collection or the filing of suit hereon which 

may occur.” (Id. at ¶ 9.1). The Renewal Notice also contained a costs of 

collection provision, which stated in the event of default, threatened event of 

default, or the Renewal Promissory Note “is collected in whole or in part 

through legal proceedings of any nature,” then, “added to the unpaid 

principal balance hereof all costs of collection, including, but not limited to, 

reasonable attorneys’ fees” (Id. at ¶ 10). The Renewal Note’s choice of law 

provision provided that the governing law, venue and jurisdiction is 

Alabama. (Id. at ¶ 14). 

The record also establishes that Rebecca Pullum and Shan Cecilio 

signed Guaranties on November 18, 2013 backing Pullum-Cecilio’s Renewal 

Note. (Buntin aff., Doc. 13-2, Exhs. D – E). On November 20, 2013, Bart R. 

 1 The Renewal Note was a “balloon payment mortgage,” meaning the note would not fully 

amoritize over the loan period, but rather the entire sum would be due at the end of the 

agreed period.

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Pullum also signed a Guaranty Agreement guaranteeing Pullum-Cecilio’s 

Renewal Note. (Buntin aff., Doc. 13-2, Exh. C) Each Guaranty Agreement 

had an identical provision that stated:

Guarantor hereby absolutely and unconditionally 

guarantees to Lender the due, regular and punctual payment 

of the Obligations, including, without limitation, any sum or 

sums of money now owed to Lender in connection with the 

Renewal Promissory Note and Mortgage referred therein...

Buntin aff. Doc. 13-2 Exhs. C at ¶ 1; D at ¶ 1; and E at ¶ 1. Each Guaranty 

Agreement provided, “Guarantor agrees that Lender shall not be required to 

pursue or foreclose the Mortgage before making a claim or asserting a cause 

of action against Guarantor under this Agreement.” (See Buntin aff. Doc. 13-

2 Exhs. C at ¶4; D at ¶4; and E at ¶4). Additionally, the Guaranties agreed to 

pay “reasonable attorneys’ fees arising from” the agreement. (Id. at ¶19). The 

Guaranties are likewise governed by Alabama law. (Id. at ¶15). 

THE BREACH 

By the terms of the Renewal Note, Pullum-Cecilio was to repay the 

$864,679.68 in principal plus any accrued interest to Whitney Bank on 

December 14, 2014. (Buntin aff., Doc. 13-2, Exh. A at 1). However, PullumCecilio failed to repay the principal and interest on that date. (Buntin aff. at 

3). The omission constituted default under the Renewal Note. (Id., Exh. A at 

2 (listing as an even of default “in the payment of interest or accrued late 

charges thereon as and when the same become due and payable in 

accordance with the terms”)). The Renewal Note provided that such a default 

triggered accrual of interest at the 18% per annum default rate (per diem 

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amount of $411.91) on the outstanding principal balance. (Id. at 1-2). Plaintiff 

further claims attorneys’ fees and costs incurred in collecting money owed 

pursuant to the Renewal Note, in the amount of $5,874.84 billed hours, plus 

an additional $797.50 of unbilled time. Plaintiffs’ attorney further contends 

“that 15% of the outstanding balance as of December 29, 2014, or 

$126,202.88, is a fair, reasonable and necessary attorneys’ fee to collect this 

outstanding indebtedness, reduce it to judgment and enforce the judgment.” 

(Christian aff., Doc. 13-3, at 4). 

Pullum-Cecilio’s default on the Renewal Note implicates the 

Guarantors and their respective agreements to “absolutely and 

unconditionally” guaranteed payment to Whitney Bank of all obligations 

owed by Pullum-Cecilio (specifically, promissory notes, interest, fees, 

attorneys’ fees, and costs of collection). Whitney Bank also made an 

uncontested showing that none of the individual defendants made payments 

to Pullum-Cecilio’s indebtedness to Whitney Bank under the Renewal Note. 

(Buntin aff. at 3 – 4). 

I. SUMMARY JUDGMENT STANDARD

The Court may grant summary judgment “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” FED. R. CIV. P. 56(a). The substantive law 

applicable to the case determines what is material. Lofton v. Sec’y of Dep’t of 

Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004), cert. den., 534 

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U.S. 1081 (2005). If the nonmoving party fails to make “a sufficient showing 

on an essential element of her case with respect to which she has the burden 

of proof,” the moving party is entitled to summary judgment. Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). 

In evaluating the movant’s arguments, the court must view all 

evidence and resolve all doubts in the light most favorable to the nonmovant. 

Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If 

reasonable minds might differ on the inferences arising from undisputed 

facts, then [the court] should deny summary judgment.” Hinesville Bank v. 

Pony Express Courier Corp., 868 F.2d 1532, 1535 (11th Cir. 1989) (citation 

omitted). The basic issue before the court then is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether 

it is so one-sided that one party must prevail as a matter of law.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). The mere existence of any 

factual dispute will not automatically necessitate denial of a motion for 

summary judgment; rather, only factual disputes that are material preclude 

entry of summary judgment. Lofton, 358 F.3d at 809.

II. ANALYSIS

a. Governing law 

As an initial matter it is important to note the controlling law in this 

case. This case is before the Court due to diversity jurisdiction and the Court 

must apply the laws of the state in which the federal court sits. See Manuel 

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v. Convergys Corp., 430 F.3d 1132, 1139 (11th Cir. 2005) (citing Klaxon Co. v. 

Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Alabama courts follow the 

traditional conflict-of-law principles of lex loci contractus and lex loci delicti. 

Lifestar Response of Ala., Inc. v. Admiral Ins. Co., 17 So.3d 200, 213 (Ala.

2009). In Alabama, the laws of the state where the contract was made govern 

contract claims, unless the contracting parties chose a particular state's laws 

to govern their agreement. Cherry, Bekaert & Holland v. Brown, 582 So.2d 

502, 506 (Ala. 1991). In this action, the contracts were made in Alabama and 

the parties chose the State of Alabama (Buntin aff. Exhs. A at ¶ 14; C at ¶ 15; 

D at ¶ 15; E at ¶15.). Therefore, the laws of the State of Alabama apply.

Under Alabama law, loan documents are governed under contract law. 

See Penick v. Most Worshipful Prince Hall Grand Lodge F & A M of 

Alabama, Inc., 46 So.3d 416, 428 (Ala. 2010) (construing terms of a mortgage, 

notes and modification agreement). In that regard, “[i]f the terms within a 

contract are plain and unambiguous, the construction of the contract and its 

legal effect become questions of law for the court and, when appropriate, may 

be decided by a summary judgment.” Diamond v. Bank of Alabama, 43 So.3d 

552, 563 (Ala. 2009) (construing terms of a promissory note, guaranty, line of 

credit and letter of credit and finding documents underlying loan transaction 

were not ambiguous) (citations omitted). See Peppertree Apartments, Ltd. v. 

Peppertree Apartments, 631 So.2d 873, 878 (Ala.1993) (“The intention of the 

parties controls when a court construes the terms of a promissory note, and 

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that intention is to be derived from the provisions of the contract, if the 

language is plain and unambiguous.”). In this case the Defendants do not 

argue that the terms of the Renewal Promissory Note are ambiguous. 

Furthermore, when Pullum-Cecilio defaulted on the Renewal Note, the 

individual Guarantors became liable. 

In order to prevail on its breach of guaranty agreement claim, Whitney 

Bank must establish the (1) existence of each of the individual guaranties, (2) 

default on the underlying Note by Pullum-Cecilio, and (3) nonpayment by the 

guarantors. See Branch Banking and Trust Co. v. Broaderip, 2011 WL 

3511774, 3 (S.D. Ala. Aug. 11, 2011) (“Every suit on a guaranty agreement 

requires proof of the existence of the guaranty contract, default on the 

underlying contract by the debtor, and nonpayment of the amount due from 

the guarantor under the terms of the guaranty.”) quoting Delro Industries, 

Inc. v. Evans, 514 So.2d 976, 979 (Ala. 1987); see also, Vision Bank v. 

Algernon Land Co., LLC, 2011 WL 1380062, *7–8 (S.D. Ala. Apr. 12, 2011); 

Sharer v. Bend Millwork Sys., Inc., 600 So.2d 223, 225–26 (Ala. 1992).

The guaranty at issue is a continuing guaranty. Generally, an 

additional element of notice of Pullum-Cecilio's default to the guarantor(s)

must also be proven. However, here the guarantors, B. Pullum, R. Pullum 

and S. Cecilio, waived “[p]resentment, protest, demand, and notice of protest 

and demand of any collateral, and of the exercise of possessory remedies or 

foreclosure on any and all collateral received by Lender.” (Buntin aff. Exhs. 

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C, D, and E at ¶6). In that regard, “[t]he language of the guaranty is 

controlling in determining whether the holder of the guaranty is under a duty 

to notify the guarantor of a default by the principal, and notice need not be 

given when the terms of the guaranty expressly dispense with the need for 

it.” Wells Fargo Bank v. Richard D. Horne, LLC, 2010 WL 5376341, *3 at n.1 

(S.D. Ala. Dec. 27, 2010); see also RBC Bank v. CMI Electronics, Inc., 2010 

WL 2719096, *2 (M.D. Ala. Jul. 8, 2010) (“[i]n the case of a continuing 

guaranty, it is also necessary to prove that the guarantor received notice of 

the debtor's default, unless that right has been waived by the terms of the 

guaranty contract.”). Therefore, due to the clear waiver by each guarantor, 

Whitney Bank did not need to provide notice of the default.

Moreover, when a contract is “one of absolute guaranty,” as in this 

case, “the failure of the principal to pay the debt within the time provided in 

the principal contract fixed the liability of the guarantors, without regard to 

the question of the principal's solvency or insolvency, and the plaintiff was 

under no duty to the guarantors to pursue its remedy against the principal as 

a prerequisite to its right to recover against the guarantors.” Ehl v. J.R. 

Watkins Medical Co., 112 So. 426, 426 (Ala. 1927); In re Southern Cinemas, 

Inc., 256 B.R. 520, 527 (Bkrtcy. M.D. Fla. 2000) (holding under Alabama law 

that “[i]n order to be entitled to enforce the obligation of the contract of 

guaranty, the creditor must show that the guaranteed debt or obligation is 

due.”).

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As detailed above, the record reveals that Pullum-Cecilio executed a 

Renewal Promissory Note with Whitney Bank. The Guarantors, B. Pullum, 

R. Pullum, and S. Cecilio, absolutely and unconditionally guaranteed the 

payment of indebtedness owed by Pullum-Cecilio under the Renewal Note. 

When Pullum-Cecilio defaulted, these Guarantors became liable to Whitney 

Bank. There is no evidence that the contract is invalid, nor do the Defendants 

contest the validity of the note. 

b. Defendants argument in opposition to summary judgment 

In response to Whitney Bank’s motion for summary judgment, 

Defendants do not contest the validity of the contracts themselves, but rather 

argue that the motion is premature. Defendants invoke Federal Rule of Civil 

Procedure 56(d), which provides that “[i]f a nomovant shows by affidavit or 

declaration that, for specified reasons, it cannot present facts essential to 

justify its opposition, the court may ... defer considering the motion or deny 

it.” FED. R. CIV. P. 56(d)(1). In an affidavit filed pursuant to Rule 56(d), 

Defendants’ counsel served opposing counsel with a production request and 

had yet to receive the requested documents as of April 2, 2015, the date of the

filing. (See Peterson aff., Doc. 16). Included in the production request was 

Defendants’ request for information specific to the issues raised in 

Defendants’ affirmative defenses. Defendants’ counsel avers that “[w]ithout 

the requested discovery, the Defendants are not able to fully address the 

merits the Motion for Summary Judgment filed by Plaintiff.” (Peterson aff. at 

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2). 

“The law in this circuit is clear: the party opposing a motion for 

summary judgment should be permitted an adequate opportunity to complete 

discovery prior to consideration of the motion.” Jones v. City of Columbus, 

Ga., 120 F.3d 248, 253 (11th Cir. 1997) (citations omitted). That said, it is not 

a prerequisite that all discovery be completed before summary judgment is 

entertained. See Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 

1313, 1316 (11th Cir. 1990) (“The district court is not required to await the 

completion of discovery before ruling on a motion for summary judgment.”). 

In fact, the Eleventh Circuit has counseled that “we expect that district 

judges will be open” to Rule 56 motions filed “at an early stage of the 

litigation if the moving party clearly apprises the court that a prompt 

decision will likely avoid significant unnecessary discovery.” Cordoba v. 

Dillard's, Inc., 419 F.3d 1169, 1188 (11th Cir. 2005); see also Reflectone, Inc. 

v. Farrand Optical Co., 862 F.2d 841, 843–44 (11th Cir. 1989) (declining to 

adopt per se rule prohibiting entry of summary judgment before discovery). 

The rule’s text underscores the point by providing that, unless a different 

time is fixed by court order or local rule, “a party may file a motion for 

summary judgment at any time until 30 days after the close of all 

discovery.” Rule 56(b), Fed. R. Civ. P. (emphasis added).

The burden to show entitlement to relief under Rule 56(d) rests with 

the Defendants. See, e.g., Virgilio v. Ryland Group, Inc., 680 F.3d 1329, 1338 

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(11th Cir.2012) (“Because the burden on a party resisting summary judgment

is not a heavy one, one must conclusively justify his entitlement to the shelter 

of [Rule 56(d)] by presenting specific facts explaining the inability to make a 

substantive response.”) (citation omitted); Sterk v. Redbox Automated Retail, 

LLC., 770 F.3d 618, 628 (7th Cir. 2014) (“The Rule places the burden on the 

non-movant that believes additional discovery is required to state the reasons 

why the party cannot adequately respond to the summary judgment motion 

without further discovery.”) (citation and internal quotation marks omitted). 

On this record, the Court finds that Defendants have not met this burden and 

further discovery would not change the outcome of this case. 

Defendants claim that additional discovery might bolster their five 

affirmative defenses. Those defenses are (i) waiver and estoppel, (ii) failure to 

mitigate, (iii) real property exceeding the amount owed and alleged Equal 

Credit Opportunity Act violations as to (iv) Shan Cecilio and (v) Rebecca 

Pullum. (See Doc. 6 at 4 – 5). However, the Renewal Note and the respective 

Guaranty Agreements bar all of these defenses. 

1. Failure to Mitigate 

Defendants’ answer claims as an affirmative defense that Whitney 

Bank failed to mitigate its damages by foreclosing on the property at issue 

and establish a deficiency claim. Defendants suggest that further discovery 

may bolster this defense, however, the Court is unconvinced. 

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Alabama courts recognize a duty to mitigate in the breach of contract 

context. See, e.g., Neumiller Farms, Inc. v. Cornett, 368 So.2d 272 (Ala. 1979) 

(“Generally, the damages recoverable by a non-breaching party will be 

measured as though that party had made a reasonable effort to avoid the 

foreseeable adverse consequences of the breach.”) But the concept of 

mitigation in the breach-of-contract context has rigid, well-defined 

boundaries. For example, “the rule does not require an aggrieved party to 

sacrifice a substantive right or forego an advantageous opportunity for the 

benefit of the breaching party.”Neumiller Farms, 368 So.2d at 276. Nor may 

a breaching party utilize the mitigation doctrine to shift the risk of harm to 

the non-breaching party. See, e.g., Gradco, Inc. v. St. Clair Cnty. Bd. of Educ.,

477 So.2d 365, 368 (Ala. 1985) (“A party is obligated to mitigate damages only 

if they are reasonably foreseeable and the effort to avoid them will not entail 

undue risk.”); American Savings Bank, F.A. v. United States, 98 Fed. Cl. 291, 

312 (Fed. Cl. 2011) (“The non-breaching party is only required to take 

reasonable steps to mitigate damages,” and need not take actions that “do not 

limit the harm [but] merely shift it around”). 

The fundamental problem with the failure to mitigate affirmative 

defense is it would effectively blot out the clear and unambiguous terms of 

the contract. Each Guaranty Agreement explicitly stated, “Guarantor agrees 

that Lender shall not be required to pursue or foreclose the Mortgage before 

making a claim or asserting a cause of action against Guarantor under this 

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agreement.” (Buntin aff. Exhs. C, D, E at ¶4). The Defendants cannot add 

new and advantageous terms to the agreement after the breach. See, e.g., In 

re Kellett Aircraft Corp., 186 F.2d 197, 198–99 (3rd Cir. 1950)(“[t]he rule of 

mitigation of damages may not be invoked by a contract breaker ... merely for 

the purpose of showing that the injured person might have taken steps which 

... would have been more advantageous to the defaulter.”). Thus, the Court 

finds that Whitney Bank did not have a duty to mitigate by foreclosing on the 

property. 

2. Waiver, Estoppel and the Value of Property

Defendants also claim as an affirmative defense, “Plaintiffs claims are 

barred by the doctrines of waiver and estoppel.” (Doc. 6 at 4). Relatedly, 

Defendants also allege that the “value of the real property exceeds the 

amount of debt owed Plaintiff,” and “[p]laintiff is estopped from seeking 

deficiency judgment against Defendants.” (Doc. 6 at 4). Again, the terms of 

the Renewal Note and the Guaranty Agreements render these arguments

futile. The Guaranty was “absolute and unconditional....Guarantor waives 

any and all defenses of Borrower as any defense for Guarantor, other than 

the defense of payment in full.” (Buntin aff. Exhs. C, D, E at ¶4).

3. Equal Credit Reporting Act

Finally, as to the alleged violations of the Equal Credit Reporting Act, 

15 U.S.C. § 1691 et. seq., the Court is again not persuaded that further 

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discovery will change the outcome. The Guaranty Agreement contained a 

paragraph-long provision in which each Guarantor: 

[C]ompletely and fully releases, remises, acquits and 

discharges forever Lender...of and from any and all claims, 

demands, actions, causes of action, suits, costs, damages, 

expenses and liability of every kind, character or description, 

either direct or consequential, at law or in equity, which it 

may have note, may have had at the time, heretofore, or may 

have at any time hereafter, arising from, resulting from, or in 

any manner growing out of or incidental to the Renewal 

Promissory Note.

(Buntin. Exhs. C, D, E at ¶24). This provision disallows any possible 

counterclaims Shan Cecilio and Rebecca Pullum may have against Whitney 

Bank. In signing the agreement Guarantors represented and warranted “to 

Lender and covenants that Guarantor has full power and unrestricted right 

to enter this Agreement, to incur the obligations provided for herein, and to 

execute and deliver the same to Lender, and that when executed and 

delivered, this Agreement will constituted a valid and legally binding 

obligation of Guarantor, enforceable in accordance with its terms.” (Buntin 

aff. Exhs. C, D, E ¶10). Alabama law provides “[w]hen interpreting a 

contract, a court should give the terms of the contract their clear and plain 

meaning and should presume that the parties intended to do what the terms 

of the agreement clearly state.” Brewbaker Motors, Inc. v. Belser, 776 So.2d 

110, 112 (Ala. 2000). Additionally, [the Alabama Supreme Court] will 

interpret the terms of a contract to give ‘effect to all terms used.’ Sullivan, 

Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 

(Ala.1995). See also Bd. of Water & Sewer Comm'rs of Mobile v. Bill Harbert 

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Constr. Co., 870 So.2d 699, 710 (Ala. 2003) (“The law is settled that this 

Court is bound to construe contracts so as to give meaning to all provisions 

whenever possible.”). Giving meaning to all of the provisions in the contract, 

B. Pullum, S. Cecilio, and R. Pullum, all stated they had full power to enter 

the agreement, were bound by the terms and completely released Whitney 

Bank of any claims arising out of the Renewal Promissory Note or the prior 

notes. No amount of discovery will change the terms of the original 

agreement. 

Thus, the Court finds that Defendants did not meet the burden to show 

that additional discovery would allow them to adequately respond to the 

motion for summary judgment. The Court denies Defendants’ relief under 

Rule 56(d) and finds that there is an adequate record on which to decide the 

motion for summary judgment. 

Even casting the facts in a light most favorable to the nonmovants, the 

Renewal Note and the Guaranty Agreements are clear. The Court cannot and 

will not rewrite the terms of the agreement that the nonmovants breached. 

There is no dispute over the contract itself and the Court must construe the 

terms as written. Therefore, as the record supports, Whitney Bank 

established (1) existence of each of the individual guaranties as to R. Pullum, 

B. Pullum and S. Cecilio; that (2) Pullum-Cecilio defaulted on the underlying 

note and (3) nonpayment by the Guarantors. See Branch Banking and Trust 

Co. v. Broaderip, 2011 WL 3511774, 3 (S.D. Ala. Aug. 11, 2011) (“Every suit 

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on a guaranty agreement requires proof of the existence of the guaranty 

contract, default on the underlying contract by the debtor, and nonpayment 

of the amount due from the guarantor under the terms of the guaranty.”)

Accordingly, because there is no genuine issue as to any material fact 

in this case, Whitney Bank is entitled to a judgment as a matter of law in 

accordance with Fed. R. Civ. P. 56(c). 

c. Damages Calculation 

Whitney Bank states that as of December 29, 2014, the deficiency 

balance on the loan was $823,803.42 with accrued interest in the amount of 

$14,399.15 (with a post-default rate $411.91 per diem), for a total principal 

and interest of $838,202.57, plus costs of $2,900 for the appraisal fee, and 

$250.00 late fee for a total amount due of $841,352.57 as of December 29, 

2015. (Doc. 1; Doc. 16). 

The Court finds that damages are due to Whitney Bank in the amount 

of $823,803.42, the deficiency balance due at the time of default; plus interest 

accrued at the time of default, $14,399.15; plus the $2900.00 appraisal fee 

and $250.00 late fee; plus interest accrued from the time of default December 

29, 2014 to June 15, 2015, in the amount of $69,612.79 (169 days x $411.91 

per day), for a total of $910,965.36. 

The Court also finds that post-judgment interest in this case should be 

awarded at the federal rate prescribed by 28 U.S.C. § 1961 (a), rather than 

the contractual default rate of 18%. Under federal law, “[i]nterest shall be 

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allowed on any money judgment in a civil case recovered in district court.” 28 

U.S.C. § 1961(a). The statute further provides that interest “shall be 

calculated from the date of the entry of the judgment, at a rate equal to the 

weekly average 1-year constant maturity Treasury yield, as published by the 

Board of Governors of the Federal Reserve System, for the calendar week 

preceding[ ] the date of judgment.” Id. Where, as here, the applicable 

contracts do not contain express provision for post-judgment interest to 

accrue at a rate different than set forth in § 1961 (a), the statutory rate 

governs, as a matter of law. See, e.g., Vision Bank v. Garrett Investments, 

LLC., 2012 WL 628915, *4 (S.D. Ala. Feb. 27, 2012)(“Because the Note does 

not contain an express provision for a post-judgment interest rate, [the Bank] 

is entitled to post-judgment interest only to the extent provided by § 1961 

(a).”) 

According to the most current weekly average of the Federal Reserve 

Statistical Release H.15, dated June 15, 2015 and found at 

www.federalreserve.gov/releases/h15/current, the average 1-year constant 

maturity Treasury yield for the week ending June 12, 2015 was .28%. As 

such, post-judgment interest shall accrue at the statutory rate of .28% from

this date forward. 

III. ATTORNEYS FEES & EXPENSES

In addition to the unpaid principal, interest and default interest, 

Whitney Bank seeks an award of attorney’s fees and costs. “Alabama follows 

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the American rule, whereby attorney fees may be recovered if they are 

provided for by statute or by contract ...” Jones v. Regions Bank, 25 So.3d 

427, 441 (Ala. 2009) (citations omitted); see also Battle v. City of 

Birmingham, 656 So.2d 344, 347 (Ala. 1995) (same). The law is clear that 

“provisions regarding reasonable attorney's fees are terms of the contracts 

susceptible to breach.” Army Aviation Center Fed. Credit Union v. Poston,

460 So.2d 139, 141 (Ala. 1984). Here, the Renewal Note provides:

In the event Lender engages an attorney to render 

services or advice incident to an Event of Default or 

threatened Event of Default, or in the event this Renewal 

Promissory Note is collected in whole or in part through legal 

proceedings of any nature, then and in such case there shall 

be added to the unpaid principal balance hereof all costs of 

collection, including, but not limited to, reasonable attorneys’ 

fees. 

(Buntin Aff., Exh. 13-2, at 10). The Guaranty Agreement expressly places the 

individual Defendants on the hook for attorneys’ fees owed by Pullum-Cecilio, 

L.L.C. under the Renewal Note. See Doc. 13, Exhs. C, D, E at 7) As such, 

reasonable attorneys fees is an acceptable component of damages available to 

Whitney Bank in this case. 

1. The $126,202.88 fee request is improper

On summary judgment, Whitney Bank’s counsel claims that he is “of 

the opinion that 15% of the outstanding balance of December 14, 2014, or 

$126,202.88, is a fair, reasonable, and necessary attorneys’ fee to collect this 

outstanding indebtedness, reduce it to judgment and enforce the judgment.” 

(Doc. 13-3, Exh. 2 at 3). Yet, there is no evidence that counsel’s retainer 

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agreement provides for a computation of fees based on a percentage of the 

principal amount of the loan. Whitney Bank’s counsel states that the fee 

arrangement is a “hybrid arrangement” whereby “Whitney advances hourly 

fees on submitted Invoices, which are then offset against collection of 

attorneys’ fees awarded by the Court.” (Id.) 

Plaintiff’s contention that a 15% fee would be reasonable under 

Alabama law, and its submission of plaintiff’s counsel statement in support of 

the same, is unpersuasive. This District has repeatedly rejected hypothetical 

percentage-based fee awards. See, e.g., PNCEF, LLC V. Hendricks BLDG. 

Supply LLC, 740 F. Supp.2d 1287 (S.D. Ala. 2010); Whitney Bank v. Point 

Clear Development, LLC, 2012 WL 2277597 (S.D. Ala. June 18, 2012). 

Furthermore, the Renewal Note provides that Pullum-Cecilio pay “added to 

the unpaid principal balance hereof all costs of collection, including, but not 

limited to, reasonable attorneys’ fees.” (Buntin Aff., Exh. 13-2, at 10). The 

plain reading of the contract language of “reasonable attorneys’ fees and 

costs” means the actual fees and not a hypothetical, percentage based award 

of $126,202.88. Whitney Bank does not owe its lawyers $126,202.88 for the 

work performed on this case. 

Attorneys’ fees must be reasonable. See, e.g., Willow Lake Residential 

Ass’n, Inc. v. Juliano, 80 So.3d 226, 241 (Ala. Civ. App. 2010)(“Alabama law 

reads into every agreement allowing for the recovery of attorney’s fees a 

reasonableness limitation.”). Therefore, as a matter of law and contract, 

Case 1:15-cv-00002-CG-M Document 25 Filed 06/15/15 Page 20 of 29
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Whitney Bank may only recover its actual, reasonable attorneys fees. The 

Court will neither rewrite the Renewal Note to insert language obligating the 

borrower to pay 15% of the outstanding principal as an attorneys’ fee, nor 

speculate that Whitney Bank’s lawyers agree to represent the Bank on a 

contingency basis for a fee of 15% of the principal amount collected. 

Therefore, the request for 15% of the outstanding principal as an attorneys’ 

fee is denied.

2. The Actual Award of Attorneys fees is proper 

The Court now turns to the issue of whether actual attorneys’ fees are 

warranted in this case. “Alabama follows the American rule, whereby 

attorney fees may be recovered if they are provided for by statute or by 

contract....” Jones v. Regions Bank, 25 So.3d 427, 441 (Ala. 2009) (citations 

omitted). See also Battle v. City of Birmingham, 656 So.2d 344, 347 (Ala. 

1995) (same). The law is clear that “provisions regarding reasonable 

attorney's fees are terms of the contracts susceptible to breach.” Army 

Aviation Center Fed. Credit Union v. Poston, 460 So.2d 139, 141 (Ala.1984). 

See also Ierna v. Arthur Murray Int'l., Inc., 833 F.2d 1472, 1476 (11th Cir.

1987) (“When the parties contractually provide for attorneys' fees, the award 

is an integral part of the merits of the case [ ]”). Under Alabama law, such

attorney's fees are recoverable; however, recovery is subject to Alabama's 

imposition of a reasonableness constraint on all fee-shifting contracts, as a 

matter of public policy. See, e.g., Willow Lake Residential Ass'n., Inc. v. 

Case 1:15-cv-00002-CG-M Document 25 Filed 06/15/15 Page 21 of 29
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Juliano, 80 So.3d 226, 241 (Ala. Civ. App. 2010) (“Alabama law reads into 

every agreement allowing for the recovery of attorney's fees a reasonableness 

limitation[ ]”); PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F.Supp.2d 

1287, 1294 (S.D. Ala. 2010) (rejecting claim for attorney's fees in amount of 

15% of fund to be collected, where plaintiff made no showing of its actual 

attorney's fee incurred in enforcing contract). Thus, Whitney Bank is entitled 

to recover only its reasonable attorneys' fees and costs incurred in collecting 

on Pullum-Cecilio’s debt.

The calculation of reasonable attorney's fees is clearly within the 

sound discretion of the court. Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 

1187 (11th Cir. 1983); Kiker v. Probate Court of Mobile Cnty., 67 So.3d 865, 

867 (Ala. 2010). In assessing the reasonableness of attorney's fee requests, 

courts generally apply the “lodestar” method to obtain an objective estimate 

of the value of an attorney's services. Norman v. Housing Auth. of City of 

Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); Dillard v. City of 

Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000) (explaining that the 

lodestar “is the number of hours (tempered by billing judgment) spent in the 

legal work on the case, multiplied by a reasonable market rate in the local 

area”). The value of an attorney's services is calculated by multiplying the 

hours that the attorney reasonably worked by a reasonable rate of pay, 

defined as “the prevailing market rate in the legal community for similar 

services by lawyers of reasonably comparable skills, experience, and 

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reputation.” Blum v. Stenson, 465 U.S. 886, 895–96 n. 11 (1984). The party 

moving for fees bears the burden of establishing the “reasonableness” of the 

hourly rate and number of hours expended via specific evidence supporting 

the hours and rates claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); 

American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th 

Cir.1999). The court may utilize its own “knowledge and expertise” to come to

an independent judgment regarding the reasonableness of requested 

attorney's fees. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994).

When seeking attorney's fees, the prevailing party must not request 

fees for hours that are “excessive, redundant, or otherwise unnecessary;” or 

request fees for unsuccessful claims. Hensley, 461 U.S. at 434–35. When a 

request for attorney's fees is unreasonably high, the court may “conduct an 

hour-by-hour analysis or it may reduce the requested hours with an acrossthe-board cut.” Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 

2008). Likewise, where the rates or hours claimed seem excessive or lack the 

appropriate documentation, a court may calculate the award based on its own 

experience, knowledge, and observations. See, e.g., Norman, 836 F.2d at 

1299. Notably, “[t]he court, either trial or appellate, is itself an expert on the 

question and may consider its own knowledge and experience concerning 

reasonableness and proper fees and may form an independent judgment with 

or without the aid of witnesses.” Id. at 1303 (citations omitted).

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Further, the lodestar figure established by the Court may be adjusted 

by consideration of various factors including:

(1) the nature and value of the subject matter of the 

employment; (2) the learning, skill, and labor requisite to its 

proper discharge; (3) the time consumed; (4) the professional 

experience and reputation of the attorney; (5) the weight of 

his responsibilities; (6) the measure of success achieved; (7) 

the reasonable expenses incurred; (8) whether a fee is fixed 

or contingent; (9) the nature and length of a professional 

relationship; (10) the fee customarily charged in the locality 

for similar legal services; (11) the likelihood that a particular 

employment may preclude other employment; and (12) the 

time limitations imposed by the client or by the 

circumstances.

Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988). See also 

e.g. Pharmacia Corp. v. McGowan, 915 So.2d 549, 552–554 (Ala. 2004); Lolley 

v. Citizens Bank, 494 So.2d 19 (Ala. 1986). These criteria are for purposes of 

evaluating whether an attorney fee is reasonable but they are not an 

exhaustive list of specific criteria that must all be met. Beal Bank, SSB v. 

Schilleci, 896 So.2d 395, 403 (Ala. 2004).

a. Reasonable Rate 

A plaintiff has the burden of supplying the Court with specific and 

detailed evidence from which the Court can determine the reasonable hourly 

rate for the work performed. Barnes, 168 F.3d at 427 (citing Norman, 836 

F.2d at 1303). The Eleventh Circuit has instructed that a reasonable hourly 

rate is “the prevailing market rate in the relevant legal community for 

similar services by lawyers of reasonably comparable skills, experience, and 

reputation.” Norman, 836 F.2d at 1299. In this case, the relevant legal 

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community is Mobile, Alabama. See Barnes, 168 F.3d at 437 (providing that 

“the ‘relevant market’ for purposes of determining the reasonable hourly rate 

for an attorney's services is the place where the case is filed.” (citations 

omitted)). The Court, which is familiar with the prevailing rates in the local 

market (Mobile, Alabama), may act as its own expert and rely on its 

“knowledge and experience” to determine the reasonableness and propriety of 

the requested fees. Loranger, 10 F.3d at 781.

The rates requested include rates for time counsel ($275/ hour for 35 

years of experience and $235/hour for unknown years of experience) 

expended, for a total of 19.54 hours on this case. Specifically, Plaintiff seeks 

$275.00 per hour for 16.64 hours of work by Alan Christian (35 years of 

experience) and $235.00 per hour for partner Rick La Trace for 2.9 hours of 

work (years of experience unknown). The Court, utilizing its own expertise in 

this market as well as a review of prior fee awards, has determined hourly 

rates and time that it deems reasonable and appropriate for the work 

performed in this case. See, e.g., PNC Bank, N.A. v. Pounds Wrecking, Inc., 

2014 WL 4655435, *5 (S.D. Ala. Sept. 17, 2014); Vision Bank v. FP Mgmt., 

LLC, 2012 WL 222951, *3 (S.D. Ala. Jan. 25, 2012); Vision Bank v. Anderson,

2011 WL 2142786, *3 (S.D. Ala. May 31, 2011); Mitchell Co., Inc. v. Campus,

2009 WL 2567889, *1 and *17–18 (S.D. Ala. Aug. 18, 2009); Wells Fargo 

Bank, N.A. v. Williamson, 2011 WL 382799, *4 (S.D. Ala. Feb. 3, 2011).

Regarding the requested $275/hour rate and $235/hour rate for 

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partners Alan Christian and Rick La Trace, the Court finds that this rate 

does not exceed rates which have been found reasonable in this Court. See, 

e.g., Ceres Envtl. Servs., Inc. v. Colonel McCrary Trucking, LLC, 2011 WL 

1883009, at *5 (S.D. Ala. May 17, 2011) aff'd, 476 F. App'x 198 (11th Cir. 

2012) (applying an hourly rate of $275 for an attorney with over 25 years of 

litigation experience). As such, the Court finds the requested rates for 

Christian and La Trace are due to be granted, as they are reasonable partner 

rates previously awarded by this Court. The Court awards attorneys 

Christian the rate of $275/hour and La Trace the rate of $235/hour.

b. Reasonable Hours expended 

In determining whether the number of hours expended are reasonable, 

the Court should not include any hours that are “excessive, redundant, or 

otherwise unnecessary.” Norman, 836 F.2d at 1301. When awarding an 

attorney's fee, the “[c]ourts are not authorized to be generous with the money 

of others, and it is as much the duty of courts to see that excessive fees and 

expenses are not awarded as it is to see that an adequate amount is 

awarded.” Barnes, 168 F.3d at 428. The Court will not permit a party to 

recover fees for hours that are excessive, redundant, or unnecessary, i.e.,

hours “that would be unreasonable to bill to a client and therefore to one's 

adversary irrespective of the skill, reputation or experience of counsel.” 

Norman, 836 F.2d at 1301 (emphasis omitted). While there is no per se rule of 

proportionality, City of Riverside v. Rivera, 477 U.S. 561, 574 (1986), the 

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Supreme Court has made clear that such could still be considered a factor in 

determining the reasonableness of a fee request. “The amount of damages a 

plaintiff recovers is certainly relevant to the amount of attorney's fees to be 

awarded under § 1988.... It is, however, only one of many factors that a court 

should consider in calculating an award of attorney's fees.” Id. (citation 

omitted). In sum, “[i]f fee applicants do not exercise billing judgment, courts 

are obligated to do it for them, to cut the amount of hours for which payment 

is sought, pruning out those that are excessive, redundant, or otherwise 

unnecessary.” Barnes, 168 F.3d at 428.

In conjunction with the motion, Whitney Bank’s counsel submitted 

billing records through February 2015. (Christian aff. Exh. A). Counsel for 

Whitney Bank’s billing records (Christian aff. Exh. A) indicate that the 

individuals worked on this case billed a total of 19.54 hours. (Id.) Specifically, 

the billing records indicate that Mr. La Trace worked on the file 2.9 hours 

and Mr. Christian, 16.64 hours. Upon closer inspection of the invoices, the 

Court finds that the work was reasonable. Therefore, the Court finds that 

19.54 hours billed is reasonable in this case. The lodestar amount is 

$5,257.50 and the Court agrees with this calculation as an attorneys’ fee in 

this case. The requested costs and expenses of $617.34 are adequately 

documented and are also approved as reasonable. Adding attorney's fees and 

costs to the loan balance previously found to be due and owing, the proper 

amount of the judgment to be entered against defendants is $915,192.56.

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Counsel for Whitney Bank also claims that an additional 20 hours is 

needed for the “hearing and subsequent entry of judgment” and

“approximately 100 hours with respect to execution on the judgment, postjudgment discovery of assets, collection and other related activities.” 

(Christian aff. Exh. A at 2). However, Counsel cites no case law supporting 

the award of future attorneys’ fees and the Court does not consider that 

request at this time. 

IV. TOTAL DAMAGES AWARD 

In sum, Plaintiff established based on uncontroverted facts that it is 

entitled to entry of judgment in its favor as a matter of law on its claims for 

breach of the Renewal Note by defendant Pullum-Cecilio and breach of the 

individual guaranties signed by Rebecca Pullum, Shan Cecilio, and Bart 

Pullum. Damages have been proven in the following categories and amounts: 

(i) unpaid principal in the sum of $823,803.42, as 

documented by paragraph 7 of the Buntin affidavit 

(ii) prejudgment interest in the sum of $14,399.15 for the

period of December 15, 2013 to December 29, 2014, on the

total outstanding principal of $823,803.42, per the Buntin 

affidavit on paragraph 7. 

(iii) Prejudgment interest in the sum of $69,612.79 for the 

period of December 29, 2014 through the date of entry of 

this Order and Judgment, calculated at the contractual 

default interest rate of 18% ($411.91 per diem) on the 

total outstanding principal of $823,803.42 ($411.91 x 169

days) 

(iv) Reasonable attorneys fees and costs of $5,874.84.

(v) The appraisal fee of $2900.00 and the late fee of $250.00.

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Bringing the total amount of damages due to $916,840.20.

CONCLUSION 

For all of the foregoing reasons, it is ordered as follows:

1. Plaintiff’s Motion for Summary Judgment (Doc. 13) is 

granted, and Plaintiff’s motion for attorneys’ fees (Doc. 13) 

is granted, in part, and denied, in part. 

2. Judgment will be entered in Plaintiff’s favor and against all 

remaining defendants, jointly and severally, in the total 

amount of $916,840.20.

3. Post-judgment interest will accrue on this sum at the 

statutory rate of 0.28%; 

4. A separate judgment will enter; and 

5. This Order and the accompanying Judgment having resolved 

all issues against all parties herein, the Clerk’s Office is 

directed to close this file for statistical and administrative 

purposes. 

DONE and ORDERED this 15th day of June, 2015. 

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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