Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

Case No. 24-60736-CIV-SMITH/HUNT

IN ADMIRALTY

BANK OF AMERICA, N.A.,

a national banking association,

Plaintiff,

vs.

BURRELL DIVERSIFIED INVESTMENTS, LLC,

a Delaware Limited Liability Company;

DYLAN LUCY, a 2020 66-foot Zeelander

motor Yacht, Official Number 1294109,

her parts, appliances, equipment,

substitutions, etc., in rem,

Defendants.

_______________________________________/

REPORT AND RECOMMENDATION

THIS CAUSE is before this Court on Plaintiff’s Verified Motion for Attorney’s Fees,

Additional Interest and Additional Custodia Legis Expenses, [and] for Entry of Final

Deficiency Judgment. ECF No. 61. The Honorable Rodney Smith referred Plaintiff’s

Motion to the undersigned for a report and recommendation. ECF No. 62; see also 28

U.S.C. § 636; S.D. Fla. L.R., Mag. R. 1. Upon thorough review of Plaintiff’s Motion, the

case file, and applicable law, the undersigned respectfully RECOMMENDS Plaintiff’s

Motion be GRANTED IN PART and DENIED IN PART as set forth below.

On April 14, 2025, the Court previously entered its Order Granting Plaintiff Bank of

America’s (“Plaintiff” or “The Bank”) Renewed Motion for Default Judgment Against Dylan

Lucy Official No. 1294109 and Burrell Diversified Investments LLC (“BDI”), ECF No. 43,

and corresponding Final Judgment, ECF No. 44, against BDI for $3,709,483.31, not

including per diem contract rate interest from after January 30, 2025, attorney’s fees,

court costs, and additional custodial costs.

In the Final Judgment, the Court awarded $101,361.85 for custodia legis costs.

The Court retained jurisdiction to, among other things, issue a deficiency judgment

against BDI if such circumstances arise; enter a separate or supplemental judgment for

the additional sums incurred post judgment; and to enter any other orders necessary or

proper to enforce not only the Final Judgment, but also any deficiency judgment entered

by this and/or any separate final judgment at for any additional sums; and to enter any

other order or judgment addressing any motion for an award of the reasonable attorney’s

fees and costs incurred by Plaintiff in enforcing its legal rights and remedies under the

Loan Documents. ECF No. 44. The Court explicitly found that Plaintiff is entitled to

recover its reasonable attorney’s fees and costs incurred in connection with this action.

Id.

Plaintiff now asks this Court for an additional award of $119,440.52 in attorney’s

fees, $205,159.50 for additional custodia legis expenses for the substitute custodian, and

a $225,000.00 commission to the custodian for marketing the U.S. Marshal Sale. It also

asks for $46,309.94 in per diem contractual interest accruing from January 31, 2025,

through the date of the entry of the Final Judgment on April 14, 2026 (representing 74

days at the per diem rate of $625.81 identified in the Final Judgment); and $47,722.65 in

statutory post-judgment interest on the amount set forth in the Final Judgment (for the

time period from April 15, 2025, to the date of the Clerk’s Confirmation of Sale of the

Vessel on August 12, 2025)), for a total additional award of $643,632.61.

Plaintiff additionally asks this Court to find that the fair market value of the Dylan

Lucy Official No. 1294109 (the “Vessel”) was the $2,250,000.00 the Vessel sold for at the

U.S. Marshal Sale on July 18, 2025.

The undersigned addresses each request in order below.

I. Attorney’s Fees

Plaintiff seeks $119,440.52 in attorney’s fees pursuant to both a Loan Agreement

and the Preferred Ship Mortgage, both of which contain clauses entitling Plaintiff to such

fees. Plaintiff avers that the amount of time expended by the attorneys in this matter has

been reasonable and appropriate in light of the complexity of the litigation, and the

amounts due. It notes that this litigation has been ongoing for over a year and has involved

various issues with intervening third parties. The Court has previously determined that

Plaintiff “is entitled to recover its reasonable attorney’s fees and costs incurred in

connection with this action, pursuant to (1) the Loan Documents . . . attached to the

Verified Complaint, and (2) Florida Statutes § 57.041.” ECF No. 44 at 10.

This Court uses the lodestar method to calculate reasonable attorney’s fees,

multiplying a reasonable hourly rate by the number of hours reasonably expended.

Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). A

reasonable hourly rate for attorney’s fees is determined by evaluating “the prevailing

market rate in the relevant legal community for similar services by lawyers of reasonably

comparable skills, experience, and reputation.” Id. (citing Blum v. Stenson, 465 U.S. 886,

895 (1984)); see also ACLU v. Barnes, 168 F.3d 423, 438 (11th Cir. 1999) (“The significant

disparity in their experience should be reflected in the rates awarded.”); Brown v. Sch. Bd.

of Broward Cty., No. 08-61592-CIV-DIMITROULEAS, 2010 WL 3282584, at *3 (S.D. Fla.

June 30, 2010) (reducing the requested hourly rate).

The movant bears the burden of proving the requested rate is consistent with

prevailing market rates. Norman, 836 F.2d at 1299. In addition to evidence presented by

the movant, a court “is itself an expert on the question and may consider its own

knowledge and experience concerning reasonable and proper fees and may form an

independent judgment either with or without the aid of witnesses as to value.” Id. at 1303

(quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)) (internal quotation marks

omitted). Thus, even when the submitted evidence is deficient, a court has the power to

make a fee award without the need of further pleadings or an evidentiary hearing. Id.

Moreover, “[a]n evidentiary hearing is unnecessary for issues about which the

district court possesses sufficient expertise: ‘Such matters might include the

reasonableness of the fee, the reasonableness of the hours, and [the] significance of the

outcome.’” Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242, 1245 (11th Cir. 2003)

(quoting Norman, 826 F.2d at 1304). The primary issues here are the reasonableness of

counsel’s hourly rate and the reasonableness of the number of hours expended, matters

over which this Court possesses sufficient expertise.

Plaintiff seeks attorney’s fees based upon professional services rendered. Plaintiff

requests hourly rates for three attorneys who claim to have worked on this case for a total

of 426.1 hours.1

1 Although the billing records show a total of 499.10 hours incurred, Plaintiff has deducted

73 hours of their own accord. ECF No. 61-3 at 5.

a. Reasonable Hourly Rate

When “determining what is a ‘reasonable’ hourly rate and what number of

compensable hours is ‘reasonable,’” this Court must consider twelve factors. Meyrowitz

v. Brendel, No. 16-81793-CIV-MARRA, 2018 WL 4440492, at *3 (S.D. Fla. Sept. 17,

2018). These factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions;

(3) the skill requisite to perform the legal service properly; (4) the preclusion

of employment by the attorney due to acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or contingent; (7) time limitations

imposed by the client or the circumstances; (8) the amount involved and the

results obtained; (9) the experience, reputation, and ability of the attorneys;

(10) the “undesirability” of the case; (11) the nature and length of the

professional relationship with the client; and (12) awards in similar cases.

The reasonable hourly rate is defined as the prevailing market rate in the

relevant legal community for similar services by lawyers of reasonably

comparable skills, experience, and reputation. The fee applicant bears the

burden of establishing the claimed market rate. The Court may use its own

experience in assessing the reasonableness of attorney’s fees.

Id. (internal quotations and citations omitted).

This Court has considered the attorneys’ affidavits and the twelve factors.

Because of their practice, reputation, and legal experience, counsel request the following

hourly rates:

• Baris J. Okcular, a partner at Liebler, Gonzalez and Portuondo, requests

compensation for 195.7 hours at a rate of $300.00 per hour.

• Reid A. Schaeffer, also a partner at Liebler, Gonzalez and Portuondo, requests

compensation for 31.4 hours at a rate of $300.00 per hour

• Nicole Zimmerman, a Senior Attorney at Liebler, Gonzalez and Portuondo,

requests compensation for 199 hours at a rate of $290.00 per hour.

Plaintiff provided relevant uncontested caselaw regarding comparable fee awards

which indicate the proposed rates meet, or are slightly below, the rates previously

awarded in the Southern District. See, e.g., Vice City Marina, LLC v. Philippians, LLC,

No. 20-23800-CIV-SCOLA/TORRES, 2021 WL 1739294, at *4 (S.D. Fla. Mar. 18, 2021)

(awarding comparable rates in a maritime default judgment case), report and

recommendation adopted, No. 20-23800-CIV-SCOLA/TORRES, 2021 WL 1739029 (S.D.

Fla. May 3, 2021) (collecting cases). Accordingly, the requested hourly rates should be

approved.

b. Hours Reasonably Expended

Upon determination of the hourly rate, a court must determine the reasonable

number of hours expended in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). Inquiry into the reasonable number of hours focuses on an attorney’s exercise of

“billing judgment,” such as the attorney’s exclusion of 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.” Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301)

(internal quotation marks omitted) (emphasis omitted). Fee applicants must exclude

hours that were not “reasonably expended” or that are determined to be “excessive,

redundant, or otherwise unnecessary” from their fee calculations. Hensley, 461 U.S. at

434.

Examining the docket, it appears Plaintiff is alleging that counsel spent 426.1

hours, or almost eleven forty-hour weeks, on what appears to be a relatively

straightforward mortgage repossession ending in a default judgment. The undersigned

finds Hermosilla v. Coca-Cola Co. to be instructive when considering the hours requested

in the instant action. No. 10-21418-CIV-TORRES, 2011 WL 9364952, at *1 (S.D. Fla.

July 15, 2011), aff’d, 492 F. App’x 73 (11th Cir. 2012). Faced with a request for high hourly

rates billed by multiple attorneys in a fee-shifting context, the Hermosilla court—

Magistrate Judge Torres—noted that:

[O]ne can drive from point A to point B in a Ferrari, a BMW, or a Ford Fusion.

Which car one chooses is ordinarily a matter of personal style coupled with

financial freedom. The successful personal injury or criminal defense

lawyer may choose the Ferrari. The average corporate defense lawyer will

wisely choose the BMW. But a successful attorney fee applicant can only

choose the Ford Fusion. It is quite reliable, consistent, and effective for the

task at hand, and will not break the bank. And because of that only the cost

of a Ford Fusion is compensable under an attorneys’ fee statute based on

the American Rule that governs federal litigation.

Id. at *10. The undersigned agrees that in a fee-shifting context, resources must be

allocated reasonably, rather than as in those cases where a well-heeled litigant

“knowingly contracts for . . . premium services in exchange for premium hourly rates[, or]

bargains for an army of lawyers.” Hermosilla, 2011 WL 9364952, at *10.

“If the court concludes that the number of claimed hours is excessive, it may

engage in ‘an across-the-board cut,’ so long as it provides adequate explanation for the

decrease.” Galdames v. N & D Inv. Corp., 432 F. App’x 801, 806 (11th Cir. 2001). Courts

need not become “green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011).

The essential goal for the court is to “do rough justice, not to achieve auditing perfection.”

Id.

Examining the docket reveals that the case had mostly resolved by default

judgment within two months of its filing. BDI never made an appearance in the case, and

the Clerk entered default against both BDI and the vessel just over two months after the

case was filed. Plaintiff initially moved for default judgment three months after filing, but

that attempt was denied as noncompliant under Local Rule 7.1(a)(2) because Plaintiff

failed to provide the Court with a proposed order.

Although the case did require negotiations with other claimants, the undersigned

cannot see how a case that essentially resolved two months after it was filed could justify

the more than ten full weeks of work – more than is required of many trials – documented

in Plaintiff’s almost 300 pages of billing records. Still, given the nature of the case and

value of the vessel, and some thorny settlements worked out with other claimants, it is in

the undersigned’s experience not necessarily unreasonable for one partner to have put

half of that amount of work to it. Therefore, the undersigned finds a 50 percent across-

the-board cut in hours appropriate, resulting in 213.1 hours compensable at the partner’s

rate. See Gomez v. Rendiles, No. 24-22083-CIV-SMITH/HUNT, 2025 WL 3282530, at *4

(S.D. Fla. Aug. 28, 2025), report and recommendation adopted, No. 24-22083-CIV-

SMITH/HUNT, 2025 WL 3282532 (S.D. Fla. Sept. 9, 2025). Such a cut rewards Plaintiff

for what must have been a significant amount of work on the case while also fulfilling the

Court's obligation to ensure the fees shifted to the opposing party are reasonable.

c. Lodestar Amount and Adjustment

“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable, but that

presumption may be overcome in those rare circumstances in which the lodestar does

not adequately take into account a factor that may properly be considered in determining

a reasonable fee.” Perdue v. Kenny A., 559 U.S. 542, 554 (2010). The Supreme Court

has specifically identified three circumstances that may justify a deviation from the

lodestar amount: 1) “where the method used in determining the hourly rate employed in

the lodestar calculation does not adequately measure the attorney’s true market value,

as demonstrated in part during the litigation”; 2) “if the attorney’s performance includes

an extraordinary outlay of expenses and the litigation is exceptionally protracted”; and 3)

when there are “extraordinary circumstances in which an attorney’s performance involves

exceptional delay in the payment of fees.” Id. at 554–56.

In this case, the undersigned finds no reason to depart from the lodestar

calculation. Therefore, Plaintiff should be compensated for 213.1 hours of work, at a rate

of $300.00 per hour, for a total of $63,930.00.

II. Custodia Legis Expenses and Custodial Fees

Bank of America alleges that it paid a total of $531,521.35 for the substitute

custodian, for all custodia legis expenses, the commission for U.S. Marshal Sale, and

necessaries for the vessel at issue. The Court previously awarded $101,361.85 for

custodia legis costs in the Final Judgment. ECF No. 44. The Bank now requests

$205,159.50 for additional custodia legis expenses for the substitute custodian, and a

$225,000.00 commission to the custodian for marketing the U.S. Marshal Sale.

The Vessel, a 66-foot yacht, was under arrest from May 25, 2024, to August 12,

2025, the date of the Clerk’s confirmation of sale, a period of 444 days. During her arrest,

charges amounted to $308.16 per day for storage/moorage, $50.00 per day in custodial

charges, and other expenses and extensive repair to ready her for the U.S. Marshal’s

auction. The undersigned has reviewed the Exhibits documenting these expenses, ECF

No. 61-3 at 285–92, and compared them to the amounts already deemed reasonable and

awarded by this Court, ECF No. 42-1 at 114-20, 44. The undersigned finds that the

currently requested storage/moorage and custodial fees are directly comparable to those

already approved, as well as to other similar awards. See, e.g., Staats v. M/Y

PERSEVERANCE II, No. 16-62095-CIV-BLOOM, 2017 WL 7796314, at *2 (S.D. Fla. May

17, 2017) (approving a custodial charge of $250.00 per day and the dockage and

electricity fee of $333.00).

However, there are some expenses listed that do not appear to be in line with those

already approved. Between July 14, 2025, and July 24, 2025, the Vessel incurred

$50,383.95 in expenses for “Cable Marine repairs” as well as $1,750.00 for “Marine Tech,”

$270.00 for packing and storing personal property on the ship, and $805.00 for a “sea

tow.” Although not explained, it is reasonable to believe these expenses were in

preparation for the July 18, 2025 sale.

“Custodia legis expenses are paid from the fund within the court's control only to

the extent that they are reasonable.” Julien v. M/Y Pacific II, No. 09-22457-CIV-

MORENO/TORRES, 2010 WL 11647170, at *5 (S.D. Fla. July 2, 2010). Indeed, “the

Court must . . . use its ‘broad equitable powers’ to ensure that the expenses are

reasonable, and that justice is served.” Robbie’s of Key West v. M/V Komedy III, No. 19-

10193-CIV-MOORE, 2020 WL 13389894, at *3 (S.D. Fla. Nov. 4, 2020) (cleaned up).

The Local Admiralty Rules provide in relevant part as follows:

Limitations on the Handling, Repairing and Subsequent Movement of

Vessels or Property. Subsequent to the arrest or attachment of a vessel

or property, and except as provided in Local Admiralty Rule E(10)(a), no

person may handle cargo, conduct repairs, or move a vessel without prior

order of Court.

S.D. Fla. Adm. R. E(10)(b).

Thus, absent an emergency, see S.D. Fla. Adm. R. E(11)(a), movants were

generally supposed to seek the Court’s permission prior to engaging, towing, or repairing

the Vessel. This Court has reviewed the docket and finds no Order granting permission

for such activities.2 As such, $53,208.95 of the requested amount should not be awarded.

Plaintiff should therefore be awarded only $151,950.55 ($205,159.50 - $53,208.95) in

additional custodia legis expenses.

As for the $225,000.00 commission to the custodian for marketing the U.S.

Marshal Sale, Plaintiff has documented the commission via invoice. ECF No. 61-3 at

294. Plaintiff avers that Paragraph 29 of the Default Final Judgment authorizes the

collection of expenses related to marketing and advertising the Vessel. ECF No. 44.

Although the Court appointed the substitute custodian, ECF Nos. 10, 11, and

authorized certain expenses, it is questionable at best that the Court contemplated an

award of a 10 percent commission to the substitute custodian. The undersigned notes

that Plaintiff sought no express approval of such an agreement. Plaintiff never submitted

a contract evidencing a 10 percent commission, and the Court never approved such a

rate. The amount requested dwarfs the U.S. Marshal’s commission and is significantly

higher than the more common 6 percent commission more often requested by said

custodian and approved in this district. See, e.g., Asaulenko v. M/V ATLANTICA, No. 04-

61257-CIV-KLEIN, 2005 WL 8155329, at *3 (S.D. Fla. Mar. 18, 2005) (approving a 6

percent sales commission); Century Bank. v. M/V SUMMER 69, No. 23-61616-CIV-

SINGHAL/MCCABE, 2026 WL 2170457, at *1 (S.D. Fla. May 22, 2026) (noting National

2 To be sure, the Court did order that “[t]he U.S. Marshal’s fees, poundage and expenses,

including any and all costs incurred in keeping the Vessel while under arrest and

substitute custodian fees, and all expenses incurred in advertising and arranging the sale

of the Vessel, shall be deemed administrative expenses of the U.S. Marshal.” ECF No.

44 at 8. However, the Court nonetheless required “confirmation of these expenses by the

Court,” before they could be counted as costs of custodia legis. Id. The undersigned does

not read this as a blanket permission freeing Plaintiff of their obligation under the Local

Rules.

Liquidators’ 6 percent commission). Plaintiff also cites no case law for the higher amounts

requested, and the undersigned has likewise found none that would justify such an award

absent express approval. Again, the Court must “ensure that the expenses are

reasonable, and that justice is served.” Robbie's of Key West, 2020 WL 13389894 at *3

Plaintiff should therefore be awarded only a 6 percent commission, or $135,000.00, as a

reasonable commission to the custodian.

Accordingly, Plaintiff is entitled to $286,950.55 ($135,000.00 + $151,950.55 in

additional custodia legis and custodial commission expenses.

III. Interest

Finally, Plaintiff requests $46,309.94 in per diem contractual interest accruing from

January 31, 2025, through the date of the entry of the Final Judgment on April 14, 2026,

as well as $47,722.65 in statutory post-judgment interest from April 15, 2025, to the date

of the Clerk’s Confirmation of Sale of the Vessel on August 12, 2025. The undersigned

finds such an award was contemplated in the original final judgment, and therefore

Plaintiff’s request should be granted, and Plaintiff should be awarded total accrued

interest of $94,032.59.

IV. Final Deficiency Judgment

On July 18, 2025, the Vessel sold at auction for $2,250,000.00. ECF No. 52.

Plaintiff now asks that Defendant be credited the amount from the sale of the Vessel,

$2,250,000.00, that this Court deduct any amounts owed under the Final Judgment (as

increased by any Order on this Report and Recommendation), and then enter a final

deficiency judgment against Plaintiff for any remainder.

The undersigned notes that this amount is significantly higher than valuation of the

vessel by Plaintiff’s surveyor. ECF No. 61-6 at 3. Plaintiff nonetheless acknowledges

“generally, the sale price is an automatic determination of the amount to be deducted from

the debt when determining the amount of the deficiency.” Wilmington Tr. Co. v. M/V Miss

B. Haven V, 760 F. Supp. 2d 364, 366 (S.D.N.Y. 2010) (citing Heller v. O/S Sonny V, 595

F.2d 968, 971 (5th Cir. 1979)). The Court should therefore credit the Defendant BDI

$2,250,000.00 for the sale amount of the Vessel toward the amounts due.

Per the Court’s Final Judgment, the amount due to Plaintiff is $3,709,483.31. The

undersigned here recommends that amount be increased by $444,913.14 ($286,950.55

+ $94,032.59 + $63,930.00) for the reasons stated above, for a total Final Judgment

award of $4,154,396.45. “Section 954 [of the Ship’s Mortgage Act] provides jurisdiction

for an in personam deficiency judgment against the mortgagor, should the value of

the vessel fall short of the mortgage.” Dietrich v. Key Bank, N.A., 693 F. Supp. 1112, 1114

(S.D. Fla. 1988), aff'd, 72 F.3d 1509 (11th Cir. 1996). This Court has already determined

that “[i]f the proceeds of the sale of the Vessel, after deduction of the expenses and other

charges . . . do not satisfy the Final Judgment, Plaintiff, Bank of America, may seek a

deficiency judgment against Defendant BDI.” ECF No. 44 at 9. The Court should

therefore enter a Final Deficiency Judgment against BDI in the amount of $1,904,396.45

($2,250,000.00 - $4,154,396.45).

RECOMMENDATION

Accordingly, it is hereby RECOMMENDED that:

The Court should increase Plaintiff’s Final Judgment by $444,913.14, resulting in

an amended award total of $4,154,396.45, due to additional custodia legis expenses,

attorney’s fees and other permitted expenditures.

The Court should find that the value of the vessel is $2,250,000.00, and Defendant

should be credited that amount from the sale of the vessel.

The Court should enter an amended Final Deficiency Judgment in the amount of

$1,904,396.45. In accordance with Federal Rule of Civil Procedure 58, a Final Deficiency

Judgment in favor of Plaintiff/Judgment Creditor, Bank of America, N.A., should be

entered separately.

The Court should reserve and retain jurisdiction over the parties and this cause to

award Bank of America post-judgment interest pursuant to 28 U.S.C. §1961 from August

12, 2025, forward against the Defendant, Vessel and BDI, until the amounts due and

owing Bank of America under the Final Judgment and any subsequent Order are satisfied

in full.

The Court should reserve and retain jurisdiction over the parties and this cause to

award Bank of America additional reasonable attorney’s fees and costs that Bank of

America may incur in enforcing the Loan Documents and/or attempting to collect upon

the final judgments, as entered and/or amended hereby or due to any pending motions in

this cause.

Within seven (7) days after being served with a copy of this Report and

Recommendation, any party may serve and file written objections to any of the above

findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.

§ 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely

object waives the right to challenge on appeal the District Court’s order based on

unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1 (2018); see Thomas v. Arn, 474 U.S. 140 (1985).

DONE AND SUBMITTED at Fort Lauderdale, Florida this 14th day of August 2026.

PATRICK M. HUNT

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Honorable Rodney Smith

All Counsel of Record

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