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Certusbank, NA v. JSD — South Land Resources, LLC

United States District Court, M.D. Georgia, Macon Division

November 4, 2014

CERTUSBANK, NA, Plaintiff,
v.
JSD — SOUTH LAND RESOURCES, LLC, et al., Defendants.

ORDER

MARC T. TREADWELL, District Judge.

Before the Court is Plaintiff CertusBank, N.A.'s motion for summary judgment. (Doc. 20). For the following reasons, the motion is GRANTED.

I. BACKGROUND

A. Note 1

On May 18, 2011, Defendant JSD - South Land Resources, LLC a/k/a JSD Southland Resources LLC a/k/a JSD South Land Resources, LLC ("JSD") executed a promissory note in favor of Atlantic Southern Bank in the amount of $405, 250.00 ("Note 1"). (Doc. 10-1). On the same date, Defendants Southland Appraisals, Inc. ("Southland") and J. Sidney Dumas each executed a guaranty whereby they unconditionally guaranteed "the payment and performance of each and every Debt, of every type, purpose and description that [JSD]... may now or at any time in the future owe [Atlantic Southern]." (Docs. 10-2 at 2; 10-3 at 2). JSD defaulted on Note 1 by failing to make payments when due. On March 1, 2013, the Plaintiff sent a notice of non-payment and demand for payment under Note 1 to all the Defendants. (Docs. 10-4; 20-1, ¶ 15).

On April 2, 2013, the Plaintiff conducted a foreclosure sale on certain real property used to secure Note 1 pursuant to the power of sale contained in a July 27, 2006 security deed executed by JSD in favor of Atlantic Southern ("Note 1 security deed"). (Docs. 20-1, ¶¶ 17, 20; 20-1 at 16-23). The Plaintiff sold the Note 1 security deed property, a tract of land in Jasper County, Georgia, for $252, 000.00. (Doc. 20-1, ¶ 20). The Superior Court of Jasper County confirmed the Note 1 foreclosure sale on September 17, 2013. (Doc. 20-1 at 25-29). Note 1 matured on May 18, 2013. (Docs. 10-1; 20-1, ¶ 23).

B. Note 2

On March 7, 2011, JSD executed a promissory note in favor of Atlantic Southern in the amount of $665, 743.99 ("Note 2"). (Doc. 10-5). On the same date, Dumas executed a guaranty whereby he unconditionally guaranteed "the payment and performance of each and every Debt, of every type, purpose and description that [JSD]... may now or at any time in the future owe [Atlantic Southern]." (Doc. 10-6 at 2).[1] JSD defaulted on Note 2 by failing to make payments when due. On February 6, 2012, the Plaintiff sent a notice of non-payment and demand for payment under Note 2 to all the Defendants. (Docs. 10-7; 20-1, ¶ 34).

On March 6, 2012, the Plaintiff conducted a foreclosure sale on certain real property used to secure Note 2 pursuant to the power of sale contained in a July 27, 2007 security deed executed by JSD in favor of Atlantic Southern ("Note 2 security deed"). (Docs. 20-1, ¶¶ 36, 39; 20-1 at 42-49). The Plaintiff sold the Note 2 security deed property, a tract of land in Monroe County, Georgia, for $351, 750.00. (Doc. 20-1, ¶ 39). The Plaintiff did not obtain confirmation of the Note 2 foreclosure sale. Note 2 matured on March 7, 2013. (Docs. 10-5; 20-1, ¶ 42).

The Plaintiff is the holder of Notes 1 and 2 and the related loan documents by virtue of purchase and assignment from the Federal Deposit Insurance Corporation ("FDIC") as receiver for Atlantic Southern.[2] (Docs. 20-1, ¶¶ 12, 31; 20-1 at 10-14, 31-34; 32-1; 33; 33-1). The Plaintiff seeks to recover the amount outstanding under Note 1 against all the Defendants. The Plaintiff seeks to recover the amount outstanding under Note 2 only against Southland and Dumas ("the Guarantors"). Additionally, the Plaintiff seeks attorneys' fees only against the Guarantors.

II. DISCUSSION

A. Summary Judgment Standard

A court must 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). "A factual dispute is genuine only if a reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)). The burden rests with the moving party to prove that no genuine issue of material fact exists. Id. The party may support its assertion that a fact is undisputed by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A).

"If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment." Anthony v. Anthony, 642 F.Supp.2d 1366, 1371 (S.D. Fla. 2009) (citing Four Parcels of Real Prop., 941 F.2d at 1438). The moving party must carry its burden by presenting "credible evidence" affirmatively showing that, "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party." Four Parcels of Real Prop., 941 F.2d at 1438. In ...


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