Tlz Properties v. KILBURN-YOUNG ASSET MANAGEMENT

• Decision Date: 30 September 1996
• Docket Number: No. 95-357-CIV-ORL-22.,95-357-CIV-ORL-22.
• Citation: 937 F. Supp. 1573
• Parties: TLZ PROPERTIES, et al., Plaintiffs, v. KILBURN-YOUNG ASSET MANAGEMENT CORP. and the Cadle Company, Defendants.
• Court: U.S. District Court — Middle District of Florida

937 F. Supp. 1573

TLZ PROPERTIES, et al., Plaintiffs, v. KILBURN-YOUNG ASSET MANAGEMENT CORP. and the Cadle Company, Defendants.

No. 95-357-CIV-ORL-22.

United States District Court, M.D. Florida, Orlando Division.

September 30, 1996.

COPYRIGHT MATERIAL OMITTED

Richard H. Adams, Jr., Adams & Spears, P.A., Orlando, FL, for TLZ Properties, John H. Teague, John C. Lion, Richard T. Zukoski.

Gloria O. North, North & Stein, P.A., Boca Raton, FL, E. Givens Goodspeed, Law Office of E. Givens Goodspeed, Orlando, FL, for Kilburn-Young Asset Management Corp.

Keith A. Graham, Marchena and Graham, P.A., Orlando, FL, for The Cadle Co.

MEMORANDUM DECISION AND ORDER

CONWAY, District Judge.

This cause comes before the Court on Defendant The Cadle Company's Dispositive Motion for Summary Judgment Against Plaintiffs on Plaintiffs' Amended Complaint and Motion for Final Judgment on Counts II and III of the Cadle Company's Counterclaims (Doc. 52); and TLZ's opposition to the Motion. The Court also disposes of other pending motions.

I. Background Facts

On April 11, 1985, TLZ Properties ("TLZ")¹ borrowed $2.5 million from Freedom Savings and Loan Association to improve the subject commercial property. The mortgage agreement included personal guarantees on the loan by partners of TLZ.²

The Resolution Trust Company ("RTC") was subsequently appointed as receiver for the assets of Freedom Savings and Loan, and the TLZ mortgage was transferred to RTC. The RTC modified and extended the loan on February 28, 1991. Doc. 62 at XXXXXX-XX. As of July 1, 1991, Defendant Kilburn-Young Asset Management Corporation ("Kilburn-Young") began managing the TLZ mortgage agreement on behalf of the RTC. Doc. 62 at 100324.

TLZ subsequently defaulted on the mortgage agreement. TLZ alleges that on June 30, 1993 it entered into a verbal agreement with Kilburn-Young, whereby TLZ would perform certain tasks, and in exchange Kilburn-Young would accept the deed of the subject property in lieu of foreclosing on the mortgage, and also release the borrowers from all liabilities on the underlying mortgage. TLZ claims that it performed its obligations under this alleged agreement, that it then tendered a deed to Kilburn-Young, but that Kilburn-Young did not accept the deed in lieu of foreclosure.

Approximately one year later, RTC sold the TLZ mortgage agreement to Defendant The Cadle Company ("Cadle"). TLZ allegedly tendered a deed in lieu of foreclosure to Cadle, which also refused to accept such tender. The Plaintiffs are suing Kilburn-Young and Cadle for breaching the alleged verbal agreement by not accepting a deed in lieu of foreclosure and releasing the borrowers from all liabilities on the underlying mortgage. TLZ seeks specific performance based on the alleged verbal deed in lieu of foreclosure agreement, specifically for Cadle to accept a conveyance of real property and to release TLZ and its principals from their liability on the note and guarantees held by Cadle. Cadle has asserted three counterclaims against TLZ, including one to foreclose the mortgage; the second against TLZ on the Note; and the third against TLZ's principals individually on the Guarantee. TLZ's asserts several affirmative defenses including estoppel, waiver and unclean hands.

II. Cadle's Motion for Summary Judgment

Cadle seeks summary judgment on TLZ's Amended Complaint and final judgment on Counts II and III of Cadle's Counterclaims. Cadle contends that, based on the depositions of the principals and counsel of TLZ, there is no genuine issue of material fact as to TLZ's claim for specific performance or Cadle's counterclaims for enforcement of the Note and Guarantee. Cadle argues that no deed in lieu of foreclosure agreement ever existed; that there is no dispute as to the amounts owed on the unpaid note and guarantee; and that TLZ's principals admit to executing and defaulting on the note and guarantee. TLZ argues that summary judgment is unwarranted both because the summary judgment motion is premature, under Federal Rule of Civil Procedure 56(f) and because factual issues remain as to whether an agreement for deed in lieu of foreclosure existed.

a. Summary judgment standard

A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The party seeking summary judgment bears the initial burden of identifying for the district court those portions of the record `which it believes demonstrate the absence of a genuine issue of material fact.'" Cohen v. United American Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir.1996) (quoting Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1396 (11th Cir.1994)). There is no genuine issue for trial unless the non-moving party establishes, through the record presented to the court, that it is able to prove evidence sufficient for a jury to return a verdict in its favor. Cohen, 83 F.3d at 1349. The Court considers the evidence and all inferences drawn therefrom in the light most favorable to the nonmoving party. Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993).

b. Analysis of the alleged agreement

In this case, Cadle seeks summary judgment on TLZ's allegation that a verbal agreement existed for deed in lieu of foreclosure and seeks final judgment on its counterclaims to enforce the Note and Guarantee. TLZ's Amended Answer to the Counterclaims admits execution of the note, mortgage, guarantee, and related loan documents. Doc. 46, ¶¶ 9, 13, 14, 23. Teague admits in his deposition that there is no dispute the loan was in default and the last payment TLZ made on the loan was on December 31, 1991. Doc. 56 at 27-28, Ex. 1. TLZ does not dispute that it was in default in its opposition to the summary judgment motion.

TLZ alleges that it reached a verbal agreement on June 30, 1996 for Kilburn-Young to accept a deed in lieu of foreclosure. The correspondence identified by TLZ that led up to the verbal agreement consists of an August 21, 1992 letter from TLZ's counsel and a February 24, 1993 letter from Kilburn Young's Senior Asset Manager.

In the letter of August 21, 1992, TLZ's counsel "invited discussion of deed back to RTC in satisfaction of all obligations." Doc. 62 at 100055. In its response dated February 24, 1993, Kilburn-Young informed TLZ that

In order for Kilburn Young to consider recommending to the RTC that they accept a Deed in Lieu of Foreclosure, we will need the following items from the Borrowers and/or Guarantors.... In addition, we will need to complete an Environmental Audit of the property.... This will need to be completed before we can recommend to the RTC that they accept a Deed in Lieu.... I await receiving the above four items and the Environmental Audit in order to consider your proposal for the Deed in Lieu.

Doc. 62 at 100483, February 24, 1993 Letter to Guy T. Rizzo from Sue A. McCallum.

The letter of June 30, 1993, from Kilburn-Young's attorney, Givens Goodspeed, Esq., confirmed a conversation that transpired between Mr. Goodspeed and TLZ's counsel Guy Rizzo:

It is my understanding that your clients would like to make a proposal to RTC by which RTC would accept a "Deed in Lieu," and waive any potential deficiency. We discussed by telephone a number of issues which would arise if your clients want to submit such a proposal.

Doc. 62 at 100007, June 30, 1993 Letter to Guy T. Rizzo from E. Givens Goodspeed. Mr. Goodspeed further explained that

First, any such proposal must be submitted in writing to Marla R. Falls, Asset Specialist, Kilburn Young Asset Management Corp.... RTC will require a current financial statement from the Borrower and its principals.

To consider a Deed in Lieu, RTC needs to be satisfied that there are no liens on the property, other than the mortgage now held by RTC. In addition, we must come to some agreement whereby the rents currently being received by your clients are placed into escrow. You should submit a current rent roll, with copies of any leases in effect, as well as a list of the current rents being received. You asked about payment for the expenses of upkeep and maintenance of the properties. You should submit approximately 6 months of operating reports so that these expenses can be ascertained.

You are aware that there are potential environmental problems with the property. A Phase II Environmental Study is necessary to ascertain the extent of these problems. To consider acceptance of a Deed in Lieu, RTC would require that your clients pay the expenses of obtaining a Phase II Environmental Study, which is estimated to cost from $10,000.00 to $15,000.00. If your clients did pay the expenses of that report, they would be entitled to a copy of the study. Furthermore, the current projection of costs for remediation of the property is between $35,000.00 and $55,000.00. The Phase II Study will confirm the expected costs. RTC would require that your clients pay the costs for remediation of the property....

If your clients are interested in making such a proposal, the sooner the better. Please call should you have any questions.

Id. at 100007.

By letter dated July 13, 1993, TLZ's counsel responded by submitting TLZ's "proposal," which included TLZ's version of the "deed in lieu" agreement TLZ sought. In the July 13 letter, Mr. Rizzo stated, "Please contact me upon your review of this so that we may finalize said matter." Doc. 62 at 100000, July 13, 1993 Letter to Marla R. Falls from Guy T. Rizzo.

RTC's counsel, Mr. Goodspeed, replied on July 27, 1993 that he had reviewed TLZ proposed agreement and that the "proposed agreement did meet the spirit of what I told you would be necessary in my letter to you dated June 30, 1993. However, RTC feels that it would be premature at this point...