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Branch Banking and Trust Co. v. Morgan

United States District Court, N.D. Georgia, Atlanta Division

February 15, 2017

JULIUS T. MORGAN, Defendant.


          RICHARD W. STORY United States District Judge

         This case comes before the Court on Plaintiff'S Motion for Summary Judgment [24]. After a review of the record, the Court enters the following Order.


         This case arises out of a loan made by Branch Banking and Trust Company (“BB&T” or “Plaintiff”) to Julius T. Morgan (“Plaintiff”) on March 11, 2008, with an original principal amount of $1, 643, 624.83. (Pl.'s Statement of Undisputed Material Facts (“SOMF”), Dkt. [24-1] ¶ 1.) Defendant signed a promissory note and executed a security deed and security agreement granting Plaintiff a security interest in certain real property. (Id. ¶ 2.) Under the terms of the promissory note, Defendant was to make 35 monthly payments of $11, 857.69 with a final payment due of all remaining principal and accrued interest on March 10, 2011. (Aff. of Trisha Wixson (“Aff.”), Ex. A, Dkt. [27], at 5.) Defendant made these payments through December 16, 2010. (Aff., Ex. G, Dkt. [24-2], at 92.)

         On January 10, 2011, Defendant executed the Forbearance Agreement. (Aff., Ex. C, Dkt. [27], at 19-26.) Under its terms, Defendant was to make current the interest due and then continue to make monthly interest-only payments with a final payment of all principal, accrued interest, bank fees, costs, and expenses due by June 10, 2011. (Id. ¶¶ 5(a)-5(d), at 20-21.) On July 7, 2011, Plaintiff and Defendant executed the First Amendment to Forbearance Agreement extending the final payment date to September 10, 2011. (Aff., Ex. D, Dkt. [27], at 28-29.) Defendant made monthly interest-only payments through August 8, 2011. (Aff., Ex. G., Dkt. [24-2], at 87.) He failed to make the final payment of all outstanding balances by the September 10, 2011 final payment date. (Id. at 86.)

         Plaintiff sent to Defendant a letter, dated November 7, 2011, informing Defendant that due to his failure to make the final payment, Plaintiff intended to hold a foreclosure proceeding to sell the property for which Plaintiff held a security deed. (Aff., Ex. E, Dkt. [27], at 31-34.) A foreclosure sale was held on at the Bibb County Courthouse on December 6, 2011. (SOMF, Dkt. [24-1] ¶ 18.) A Final Order Confirming Foreclosure Sale was entered by the Superior Court of Bibb County on July 10, 2013, confirming the sale for $1, 300, 000.00. (Aff., Ex. F, Dkt. [27], at 36-38)

         Plaintiff filed a deficiency action against Defendant in the Superior Court of Newton County. (SOMF, Dkt. [24-1] ¶ 26.) The Superior Court denied summary judgment on all issues. (Id. ¶ 27.) Plaintiff subsequently voluntarily dismissed the previous litigation and filed this suit. (Id. ¶ 28.)


         I. Legal 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 to judgment as a matter of law.” “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, answers 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)). Where the moving party makes such a showing, the burden shifts to the non-movant, who 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).

         The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249-50.

         Finally, 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. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those inferences that 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); see also Matsushita, 475 U.S. at 586 (once the moving party has met its burden under Rule 56(a), the nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts”).

         II. Discussion

         Plaintiff seeks to recover the outstanding principal balance of $221, 633.78, interest of $113, 405.94, and costs and fees of $23, 558.96. It also seeks to recover ongoing interest of $52.330198 per day for each day after June 10, 2016, through the date of judgment. Finally, Plaintiff seeks ...

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