Wachovia Bank, Nat'l Ass'n v. L & H Investments, LLC

• Decision Date: 27 July 2010
• Docket Number: Case No. 1:09-cv-966-TFM
• Parties: WACHOVIA BANK, NATIONAL ASSOCIATION, Plaintiff, v. L & H INVESTMENTS, LLC, an Alabama limited liability company, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

728 F.Supp.2d 1307

WACHOVIA BANK, NATIONAL ASSOCIATION, Plaintiff,

v.L & H INVESTMENTS, LLC, an Alabama limited liability company, et al., Defendants.

Case No. 1:09-cv-966-TFM.

United States District Court,

M.D. Alabama,

Southern Division.

July 27, 2010.

Eric Lloyd Pruitt, Kimberly Paige J. Casey, William Patton Hahn, Baker Donelson Bearman Caldwell & Berkowitz P.C., Birmingham, AL, for Plaintiff.

Collier Hollan Espy, Jr., Collier H. Espy, Jr., P.C., Dothan, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

TERRY F. MOORER, United States Magistrate Judge.

This action is assigned to the undersigned magistrate judge to conduct all proceedings and order entry of judgment by consent of all the parties (Docs. 8-9, filed November 20, 2009) and 28 U.S.C. § 636(c). Pending before the Court is Plaintiff Wachovia Bank, National Association's Motion for Summary Judgment and supporting brief (Docs. 15-16, filed June 4, 2010). The motion is now ripe for review. Upon consideration of the motion, the Court finds it is due to be GRANTED in part and DENIED in part.

I. Jurisdiction

The district court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both.

II. Nature of the Case and Motion for Summary Judgment

The underlying facts of this case are necessarily viewed in favor of the nonmovant Defendants. Plaintiff, Wachovia Bank, National Association ("Wachovia" or "Plaintiff") is a national banking association with its principal place of business location in Charlotte, North Carolina. See Doc. 1. Wachovia initiated this lawsuit with a three count Complaint stating Defendants L & H Investments ("L & H"), W.G. Liddon ("Liddon"), and M.E. Hawker ("Hawker") defaulted on the terms of eight loan agreements. Id. The loans are summarized as follows:

(1) Loan I-On or about February 14, 2005, Wachovia made a loan to Defendants in the original principal amount of $271,750.00. The note matured on April 30, 2009 and was due and payable in full on that date. Defendants failed to repay the amount due.

(2) Loan II-On or about April 8, 2005, Wachovia made a loan to Defendants in the original principal amount of $455,000.00. The note matured onApril 30, 2009 and was due and payable in full on that date. Defendants failed to repay the amount due.

(3) Loan III-On or about March 10, 2005, Wachovia made a loan to Defendants in the original principal amount of $415,000.00. The note matured on April 30, 2009 and was due and payable in full on that date. Defendants failed to repay the amount due.

(4) Loan IV-On or about June 29, 2006, Wachovia made a loan to L & H in the original principal amount of $64,320.00. As a result of Defendants' failure to repay the amounts owed under Loans I, II, III, and VIII, Wachovia declared this note to be in default and accelerated the maturity of the loan pursuant to its Notice of Default and Demand for Payment on May 21, 2009. Defendants failed to repay this amount as well.

(5) Loan V-On or about November 17, 2006, Wachovia made a loan to L & H in the original principal amount of $60,000.00. Both Liddon and Hawker secured the L & H loan with an Unconditional Guarantee. As a result of Defendants' failure to repay the amounts owed under Loans I, II, III, and VIII, Wachovia declared this note to be in default and accelerated the maturity of the loan pursuant to its Notice of Default and Demand for Payment on May 21, 2009. Defendants failed to repay this amount as well.

(6) Loan VI-On or about February 23, 2007, Wachovia made a loan to L & H in the original principal amount of $59,200.00. Both Liddon and Hawker secured the L & H loan with an Unconditional Guarantee. As a result of Defendants' failure to repay the amounts owed under Loans I, II, III, and VIII, Wachovia declared this note to be in default and accelerated the maturity of the loan pursuant to its Notice of Default and Demand for Payment on May 21, 2009. Defendants failed to repay this amount as well.

(7) Loan VII-On or about June 27, 2007, Wachovia made a loan to Defendants in the original principal amount of $60,000.00. As a result of Defendants' failure to repay the amounts owed under Loans I, II, III, and VIII, Wachovia declared this note to be in default and accelerated the maturity of the loan pursuant to its Notice of Default and Demand for Payment on May 21, 2009. Defendants failed to repay this amount as well.

(8) Loan VIII-On or about September 13, 2004, Wachovia made a loan to L & H in the original principal amount of $59,000.00. Both Liddon and Hawker secured the L & H loan with an Unconditional Guarantee. The note matured on April 30, 2009 and was due and payable in full on that date. Defendants failed to repay the amount due.

See Doc. 1 at p. 3-14.

On June 4, 2010, Wachovia filed its motion for summary judgment. See Docs. 15-16. Wachovia asserts there are no material facts at issue thus making it entitled to judgment as a matter of law. Specifically, Wachovia states the Defendants failed to repay the amounts due and as a result of the alleged default, Defendants owe Wachovia $944,769.34 through June 3, 2010 not including attorney's fees and expenses. This number includes principal, interest accrued through June 3, 2010, and late fees. Adding in the fees and expenses, Defendants allegedly owe $1,015,586.41 under the terms of the Notesand Guaranty Agreements with additional interest accruing per diem.

On June 7, 2010, the Court issued a briefing schedule on the summary judgment motion wherein Defendants were given until June 28, 2010 to file their respective responses. To date, no response has been filed. Based on all the above, the motion for summary judgment is ripe for this Court's review.

III. Summary Judgment Standard

A party in a lawsuit may move a court to enter summary judgment before trial. Fed. R. Civ. P. 56(a) and (b). Summary judgment is appropriate when the moving party establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1294 (11th Cir.1998). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). At the summary judgment juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely "determine[s] whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505. Only disputes about the material facts will preclude the granting of summary judgment. Id. at 249, 106 S.Ct. 2505. A material fact is one "that might affect the outcome of the suit under governing law," and a dispute about a material fact is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; accord Greenberg v. Bell-South Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007); see also Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1277 (11th Cir.2005) (quoting Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1344-45 (11th Cir.2003)) ("In determining whether an issue of fact is 'genuine' for the purpose of defeating summary judgment, we ask whether the evidence is 'such that a reasonable jury could return a verdict for the nonmoving party.' "). Thus, the initial burden of proof rests on the movant. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; Gonzalez, 161 F.3d at 1294. This burden is satisfied when the movant shows that if the evidentiary record were reduced to admissible evidence at trial, it would be insufficient to permit the non-movant from carrying its burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. The admissibility of evidence is subject to the same standards and rules that govern admissibility of evidence at trial. Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1369 n. 5 (11th Cir.1982) (citing Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir.1980)).

Once the movant meets its burden under Rule 56, the non-movant must designate specific facts showing there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory assertions, unsupported by specific facts, presented in affidavits opposing the motion for summary judgment are likewise insufficient to defeat a proper motion for summary judgment. Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); see also Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) (conclusory assertions in absence of supporting evidence are insufficient to withstand summary judgment). "Speculation does not create a genuine issue of fact." Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.2005) (citation omitted) (emphasis in original). The party opposing summary judgment must respond by setting forth specific evidence in the record and articulating the precise manner in which that evidence supports his or her claim, andmay not rest upon the mere allegations or denials of the pleadings. Fed. R. Civ. P. 56(e); Johnson v. Board of Regents of University of Georgia, 263 F.3d 1234, 1264 (11th Cir.2001). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). Thus, to avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586, 106 S.Ct. at 1356 (citations omitted).

In determining whether a genuine issue for trial exists, the court must view all the evidence in the light most favorable to the nonmovant. McCormick v. City...