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Certusbank, N.A. v. Miller

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

May 5, 2015

CERTUSBANK, N.A. as successor by assignment to ATLANTIC SOUTHERN BANK, Plaintiff,
v.
DANIEL R. MILLER, Defendant.

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

On April 25, 2010, DVM Properties, LLC ("DVM") executed a promissory note in favor of Atlantic Southern Bank in the amount of $1, 057, 529.23 ("Note 1"). (Doc. 1-1). On the same date, Defendant Daniel R. Miller executed a guaranty whereby he unconditionally guaranteed "the payment and performance of each and every Debt, of every type, purpose and description that [DVM]... may now or at any time in the future owe [Atlantic Southern]." (Doc. 1-2 at 2). On April 25, 2010, DVM also executed a promissory note in favor of Atlantic Southern in the amount of $100, 000.00 ("Note 2"). (Doc. 1-3). Again, on the same date, Miller executed a guaranty whereby he unconditionally guaranteed "the payment and performance of each and every Debt, of every type, purpose and description that [DVM]... may now or at any time in the future owe [Atlantic Southern]." (Doc. 1-4 at 2). DVM defaulted on Notes 1 and 2 by failing to make payments when due. (Doc. 20-1 at ¶ 22). Notes 1 and 2 matured on May 5, 2011. (Docs. 20-1 at ¶ 21; 1-1). On April 11, 2012, the Plaintiff sent a notice of non-payment and demand for payment under Notes 1 and 2 to DVM and Miller. (Docs. 1-5; 20-1 at ¶ 24).

On May 1, 2012, the Plaintiff conducted four separate foreclosure sales (the "Foreclosure Sales") on certain real property ("Property") used to secure Notes 1 and 2. (Doc. 20-1 at ¶¶ 27-28). The Plaintiff's power of sale with respect to the Property was contained in four security deeds that secured DVM's indebtedness under Notes 1 and 2. (Docs. 20-1 at ¶¶ 27-28; 20-4; 20-5; 20-6; 20-7). The Foreclosure Sales brought $728, 700.00 in total aggregate sale proceeds. (Doc. 20-1 at ¶ 29). The Plaintiff filed a petition for confirmation of sale in the Superior Court of Bibb County. (Docs. 20-1 at ¶ 30; 25-4 at 1; 25-2). The Superior Court denied the Plaintiff's petition after finding that the "fair market value" of the Property was $846, 180.50. (Docs. 28-2 at 9; 31 at 3).

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. (Doc. 20-1 at ¶ 17). The Plaintiff seeks to recover the amount outstanding under Notes 1 and 2. Additionally, the Plaintiff seeks attorneys' fees.

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 other words, the moving party's evidence must be so credible that, if not controverted at trial, the party would be entitled to a directed verdict. Id.

"If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.'" Id. (quoting Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir. 1991)) (alteration in original). However, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, the Court "can only grant summary judgment if everything in the record demonstrates that no genuine issue of material fact exists.'" Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (quoting Tippens v. Celotex Corp., 805 F.2d 940, 952 (11th Cir. 1986)).

B. Defendant's Liability on Notes and Guaranties

Under Georgia law, "[w]here... the record shows that the promissory notes and guarantees were duly executed by the debtors and that they are in default, a prima facie right to judgment as a matter of law [is] established, and the burden shift[s] to [the defendant] to produce or point to evidence in the record which establishe[s] an affirmative defense." Secured Realty Inv. v. Bank of N. Ga., 314 Ga.App. 628, 629, 725 S.E.2d 336, 338 (2012); see also Collins v. Regions Bank, 282 Ga.App. 725, 726, 639 S.E.2d 626, 627 (2006). The Plaintiff has produced the notes and guaranties, as well as the affidavit of Ray Persenaire, Vice President and commercial asset manager for the Plaintiff, to show the Defendant and DVM are in default. (Docs. 1-1; 1-2; 1-3; 1-4; 20-1). The Defendant does not contest that he and DVM executed the notes and guaranties and are in default. Instead, the Defendant argues: (1) the Plaintiff failed to apply the "fair market value" of $846, 180.50 to his indebtedness; (2) the Plaintiff has incorrectly calculated the amount of interest and statutory attorneys' fees owed because of this failure; and (3) the Plaintiff has improperly added additional charges on Notes 1 and 2.

The Defendant first argues the covenant of good faith and fair dealing requires the Plaintiff to credit the Defendant's indebtedness with the Superior Court's determination of the fair market value of the Property, rather than the amount the Plaintiff actually received at the Foreclosure Sales. The Plaintiff responds that the Defendant explicitly agreed to remain unconditionally liable for DVM's indebtedness under the notes, the Plaintiff acted in good faith and in a manner consistent with the express terms of the loan documents and ...


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