Synovus Bank v. Hyche

• Decision Date: 09 July 2014
• Docket Number: Case No.: 2:12-CV-3649-VEH
• Court: U.S. District Court — Northern District of Alabama
• Parties: SYNOVUS BANK, Plaintiff, v. HILDA HYCHE, an individual, Defendant.

SYNOVUS BANK, Plaintiff, v. HILDA HYCHE, an individual, Defendant.

Case No.: 2:12-CV-3649-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: July 9, 2014

MEMORANDUM OPINION AND ORDER

This civil action was filed on October 19, 2012, by the plaintiff, Synovus Bank, against defendants Tarrie H. Hyche and Hilda Hyche. (Doc. 1). Against both defendants, the complaint alleged counts for breach of promissory notes (Counts I and II) and alternatively for unjust enrichment (Counts IV). These counts arise out of two loans made by the plaintiff to both defendants. Counts III and V of the complaint were alleged only against Tarrie Hyche, and concerned a third loan made only to him.

On November 16, 2012, Tarrie Hyche filed a notice of bankruptcy. (Doc. 7.) Pursuant to 11 U.S.C. § 362, this action was then automatically stayed against him, pending the outcome of the bankruptcy proceedings. On November 21, 2012, TarrieHyche filed a "Notice of Filing Removal"¹ which Tarrie Hyche stated "[constituted] the removal of this cause of action from the United States District Court . . . to the United States Bankruptcy Court . . .." (Doc. 9 at 1).

On December 4, 2012, Hilda Hyche filed a document entitled "Notice of Filing Answer and Counterclaim in Bankruptcy Court." (Doc. 12). A document entitled "Hilda Hyche's Answer to Synovus Bank's Complaint and Counterclaim," was attached to that document. (Doc. 12 at 3-20). The caption of that document states that it is to be filed in "The United States Bankruptcy Court for the Northern District of Alabama, Western Division." (Doc. 12 at 3). However, there is no indication that it was filed in that court. In that document, Hilda Hyche alleges counterclaims against Synovus for "Improper/Intentional/Wanton/Reckless/Negligent Loan Original/Handling/Administration" (Count I), suppression (Count II), promissory estoppel (Count III), equitable estoppel (Count IV), breach of contract (Count V), and breach of duty of good faith and fair dealing (Count VI). Other than being filed in as an attachment to document 12, the counterclaim has not been officially filed in to the record in this action. However, the parties treat the document as if it is filed in this case and as if it adequately alleges counterclaims against the plaintiff. (Doc. 27 at 15,n. 4).

On December 26, 2012, the court severed the plaintiff's claims against Tarrie Hyche and dismissed those claims without prejudice. (Doc. 15 at 5). Those claims included Counts I, II, and IV, to the extent brought against Tarrie Hyche, and Counts III and V in their entirety. Counts I, II, and IV remain as to defendant Hilda Hyche alone.

The case comes before the court on the plaintiff's motion for summary judgment. (Doc. 27). For the reasons stated herein, the motion will be GRANTED in part and DENIED in part, and this matter will be set for trial.

I. STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion andidentifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burdenof proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial.Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

II. FACTS

Synovus made two commercial loans to Tarrie and Hilda Hyche, jointly and severally.² The most recent promissory note³ regarding loan one is dated December 19, 2011. (Doc. 1-1 at 2). In this document, the Hyches, jointly and severally, agree to pay to Synovus the principal amount of $301,100.00. (Doc. 1-1 at 2). The maturity date of the loan was December 19, 2012. (Doc. 1-1 at 2). The note also provided that:

- the borrowers agreed "to pay interest on the outstanding principal balance from December 19, 2011[,] at the rate of 5.0% per year until the [interest] rate changes" (doc. 1-1 at 2);

- the new rate, called the "index rate" in the promissory note, would be 1.0 % above "Lender's prime, which is the rate used by Lender to set interest rates at which loans are made to various customers. Loan may be made at, above[,] or below said prime rate" (doc. 1-1 at 2);- the rate could change as often as "monthly," but would change "when the index rate changes" (doc. 1-1 at 2);

- the rate would never be below 5.0% (doc. 1-1 at 2);

- after the maturity date of the loan, the borrowers would continue to pay the same variable rate of interest "on the unpaid balance of the note owing after maturity, and until paid in full" (doc. 1-1 at 2);

- the borrowers would pay late fees "on the portion of any payment not made within 10 days after it is due equal to 5% of the unpaid amount with a minimum of $100" (doc. 1-1 at 2);

- accrued interest would be paid monthly "beginning January 19, 2012" (doc. 1-1 at 2);

- the principal would be paid back by the maturity date of December 19, 2012 (doc. 1-1 at 2);

- the borrowers agreed "to pay all costs of collection, replevin or any other similar type of cost if [they] are in default. In addition, if [Synovus] hire[s] an attorney to collect this note, [the Borrowers] also agree to pay any fee [Synovus] incur[s] with such attorney plus court costs . . ." (Doc. 1-1 at 3); and

- the note was secured by a real estate mortgage "on land only located at 278 Double Springs, AL 35553 Winston Co." (Doc. 1-1 at 2; doc. 28-1 at 6-7, 26-32).

The defendant does not dispute the fact that she entered into this agreement, nor does she dispute the terms of same. (Doc. 27 at 4-5; doc. 30 at 2).

The most recent promissory note⁴ regarding loan two is also dated December 19, 2011. (Doc. 1-2 at 2). In this document, the Hyches, jointly and severally, agree to pay to Synovus the principal amount of $200,991.06. (Doc. 1-2 at 2). The maturity date of the loan was December 19, 2012. (Doc. 1-2 at 2). It also provided that:

- the borrowers agreed "to pay interest on the outstanding principal balance from December 19, 2011[,] at the rate of 5.0% per year until the [interest] rate changes" (doc. 1-2 at 2);

- the new rate, called the "index rate" in the promissory note, would be 1.0 % above "Lender's prime, which is the rate used by Lender to set interest rates at which loans are made to various customers. Loan may be made at, above[,] or below said prime rate" (doc. 1-2 at 2);

- the rate could change as often as "daily," but would change "when the

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