United States District Court, M.D. Georgia, Macon Division
CERTUS BANK, N.A., as successor in interest to ATLANTIC SOUTHERN BANK, Plaintiff,
CDS DEVELOPMENT ASSOCIATES, LLC, EUGENE C. DUNWOODY, JR., and JACK JENKINS, Defendants.
HUGH LAWSON, Senior District Judge.
This case is before the Court on Plaintiff's Motion for Summary Judgment. (Doc. 19). After reviewing the pleadings, briefs, affidavits, and other evidentiary materials presented, and determining that there is no genuine dispute of the material facts, the Court finds that Plaintiff is entitled to judgment as a matter of law and grants Plaintiff's motion.
I. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 requires that summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled the judgment as a matter of law." Fed.R.Civ.P. 56(a). "The moving party bears the initial responsibility of informing the... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (internal quotations omitted)). Where the moving party makes such a showing, the burden shifts to the non-movant, who then must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 257 (1986).
In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Trial Guar. Ins. Corp. , 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those inferences which are reasonable. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson , 477 U.S. at 249-50 (internal citations omitted).
Defendants do not contest Plaintiff's Statement of Material Facts and admit that the facts as alleged are true. The Court accordingly adopts Plaintiff's statement of facts as follows:
On or about May 22, 2010, Defendant CDS Development Associates, LLC ("CDS") executed and delivered to Atlantic Southern a Commercial Loan Agreement (the "Loan Agreement"). The Loan Agreement was executed on that same date on behalf of CDS by its member Southern Land Development Associates, LLC ("Southern Land") by Ronald B. Conners in his capacity as managing member of Southern Land. CDS also provided a Promissory Note in favor of Atlantic Southern executed by Conners in the principal amount of $291, 349.60. Defendants Eugene C. Dunwoody, Jr. and Jack W. Jenkins both guaranteed the loan pursuant to a Guaranty in which each Defendant absolutely and unconditionally guaranteed to Atlantic Southern full and prompt payment when due of all amounts owed by CDS to Atlantic Southern under the Loan Agreement, the Note, and any and all documents, instruments, and agreements executed in connection therewith (collectively, the "Loan Documents").
CertusBank is the current holder of the Loan Documents by virtue of purchase and assignment from the Federal Deposit Insurance Corporation as Receiver for Atlantic Southern.
The Note matured on May 22, 2011. On or about October 5, 2012, Plaintiff's counsel sent notice of nonpayment and demand for payment under the Loan Documents to Defendants. In the demand letter, Plaintiff provided notice to Defendants pursuant to O.C.G.A. § 13-1-11 that the provisions of the Note providing for payment of attorneys' fees would be enforced if the amount due and owing under the Note were not paid within ten (10) days of receipt thereof.
As of April 18, 2014, the net amount due under the Note is calculated as follows:
Principal: $121, 764.81 Interest To Nov 05, 2013: $16, 874.25 Late Charges: $447.25 Foreclosure Bid Amount ($33, 075.00) Interest 162 Days @ 20.46 11/6/13 to 4/17/14 $3, 314.52 Appraisal Expense $9, 850.00 Property Inspections $1, 100.94 Property Tax Expenses $28, 710.84 Statutory Legal Fees at 15% $20, 795.86 ____________ Net Amount Due: $169, 783.47
Interest continues to accrue at the per diem rate of $20.46 as of April 18, 2014. Plaintiff filed this lawsuit in pursuit of ...