United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY United States District Judge
case comes before the Court on Plaintiff'S Motion for
Summary Judgment . After a review of the record, the
Court enters the following Order.
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.
, at 5.) Defendant made these payments through December
16, 2010. (Aff., Ex. G, Dkt. [24-2], at 92.)
January 10, 2011, Defendant executed the Forbearance
Agreement. (Aff., Ex. C, Dkt. , 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. , 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.)
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. , 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. , at 36-38)
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.)
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
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.
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”).
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 ...