Ameris Bank v. SB Partners, LLC et al, No. 6:2014cv00097 - Document 32 (S.D. Ga. 2016)
Court Description: ORDER granting 22 Motion for Summary Judgment. Judgment shall be entered in favor of Ameris Bank and against Shiver and this case is closed. Signed by Judge J. Randal Hall on 1/4/16. (cmr)
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Ameris Bank v. SB Partners, LLC et al Doc. 32 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION AMERIS BANK, as assignee of The Federal Deposit Insurance Corporation, receiver of Darby Bank and Trust Co., * * * * * Plaintiff, * v. * SB PARTNERS, LLC and ROY S. SHIVER, JR., CV 614-097 * * Defendants. * ORDER Currently before summary judgment. the (Doc. P l a i n t i f f ' s motion is Court 22.) is Plaintiff's motion for For the reasons discussed below, GRANTED. I. Background This case is based on two promissory notes and two personal guaranties. notes Bank.1 at Defendant SB Partners, LLC executed the promissory issue, It $1,350,382.00 which Ameris executed ("Note one Bank now owns, note 1455850") in and the in favor principal another in the of Darby amount of amount of 1 According to Ameris Bank, the Georgia Department of Banking and Finance closed Darby Bank in 2010 and appointed the Federal Deposit Insurance Corporation ("FDIC") as receiver. Subsequently, the FDIC sold Darby's assets, including the promissory notes and guaranties involved in this case, to Ameris Bank. (Doc. 23, Ex. 2 1 20.) Dockets.Justia.com $6,548,000.00 ("Note 1455910"). to pay interest, Both notes require SB Partners and both include language requiring SB Partners to pay fifteen percent of the principal and accrued interest as attorneys' fees if the lender uses an attorney to collect unpaid amounts. Defendant guaranties, in Shiver executed which he promised to the relevant personal pay limited amounts of the Ex. debt specified in Note 1455850 and Note 1455910. (Doc. 23, 6.) also include Similar provisions to the requiring notes, him to Shiver's pay fifteen percent principal and interest as attorneys' to collect the debt. SB Ameris Partners Bank demanded payment. of SB defaulted Partners After and neither on Shiver both of Defendant SB that the and relevant witnessed; (2) asserted documents three were notes, the and default and tendered payment, Partners never appeared, and the Court entered default judgment against it. appeared unpaid fees if an attorney is used Ameris Bank initiated this action. Shiver the (See id.) subsequently notified guaranties affirmative not properly (Doc. 18.) defenses: notarized (1) or that a third party entered into certain documents on behalf of SB Partners without Shiver's consent;2 and (3) that a non-party Shiver's lawyer detriment. negotiated (Doc. 12 an 11 inappropriate 4-6.) Ameris settlement to Bank now moves for summary judgment and asks the Court to order Shiver to pay the amounts he owes under the guaranties. 2 Although not relevant to this matter, Shiver was apparently a member of SB Partners, which explains this affirmative defense. II. Summary genuine judgment dispute entitled to 56(a). The favorable v. is to as Court to appropriate any judgment must the Zenith Radio "all as Legal Standard a 475 Four Parcels of Real Prop., moving by motion. party reference Celotex Before U.S. in fact of the if and law." facts in the 587 [its] favor." 941 F.2d 1428, no is R. Civ. light Elec. (1986), is movant the Fed. Matsushita 574, "there P. most Indus. Co. and must draw United States v. 1437 (11th Cir. 1991) (internal punctuation and citations omitted). The Court, matter view justifiable inferences (en banc) material non-moving party, Corp., only the opposition, has to Corp. Court can the initial materials v. on Catrett, evaluate burden file, 477 the of the U.S. showing basis 317, non-movant's 323 for the the (1986). response in it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. 1997) movant v. Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir. (per curiam) . cannot meet Coats & Clark, A mere conclusory statement that the nonthe Inc., burden at trial 929 F.2d 604, is 608 insufficient. (11th 1991). only if-the movant carries its initial burden, Clark If-and the non-movant may avoid summary judgment only by "demonstrate[ing] that there is indeed judgment." a material Id. issue of fact that precludes summary "Only if after introduction of the non-movant's evidence, parties the combined relevant to body the of evidence material fact presented is still by two that such the the movant would be entitled to a directed verdict at trial—that is, such that no reasonable jury could should the movant be permitted to on Fitzpatrick the 1116 are issues." (11th Cir. entitled 1993). to some to 263 F. App'x 753, In Shiver this notice the of non-movant— a full trial 2 Atlanta, F.3d 1112, although pro se litigants they must still establish Osahar v. (11th Cir. the that Postmaster 2008). Clerk the the without a material fact. 761 action, of City leniency, for prevail Additionally, there is a dispute as Gen., v. find motion of for Court summary gave judgment Defendant and informed him of the summary judgment rules, the right to file affidavits or other materials default. (Doc. in opposition, 25.) Therefore, Griffith v. Wainwright, curiam), are opposition 772 the the notice consequences of requirements of expired, F.2d 822, 825 The satisfied. has and for filing motion is and time the (11th Cir. 1985) materials now ripe (per in for consideration. Ill. As Local an Rule initial 56.1, against Shiver, matter, when Discussion under Ameris Southern Bank moved District for of summary Georgia judgment it served Shiver with a statement of material facts has that not 56.1, of responded Ozarks WL to v. Court Shiver's evidence material facts, those *4 to will uncontested. statements, statements at responded the were Kingsland 5928642, however, and contended uncontroverted the 2012 it Ga. not deemed Oct. motion consider does and Hospitality, (S.D. the are his (Doc. and the LLC, 5, No. presented will Local Rule See Bank 4:ll-cv-237, 2012). evidence. Court under Shiver admitted. To contradict Ameris however, 24.) Shiver some the Bank's has, evidence, extent that statement consider those of facts admitted. A. Shiver's liability Under must Georgia establish Credit Corp. *2 the a party existence v. McCleskey, (M.D. Ga. Oct. a plaintiff law, of No. 16, 2015). who the claims breach contract. 5:15-CV-214, of See 2015 WL contract Producers 6126831, at Once the contract is established, then must prove "(1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken." 705 S.E.2d (citation action 306 omitted) for plaintiff 305, breach produces Norton v. Budget Rent A Car Sys., (Ga. (internal of a the Ct. App. 2010) quotation promissory agreement, judgment as a matter of law [is] marks omitted) omitted). In or guaranty, once prima facie note "a (footnote Inc., established, right an a to and the burden shift[s] to [the debtors] to produce or point to evidence in the record which establishe[s] Bank, N.A. 541410, v. at SFPD *2 (N.D. (citation omitted) Here, showing Ameris Ameris Shiver's Bank's default, and default or an affirmative defense." II, Ga. LLC, Feb. No. 12, 1: ll-cv-04001-JEC, 2013) Bank has has not produced Shiver copies has produced liability. of the failed Shiver, any therefore, guaranties. Shiver In his breached answer, his Shiver guaranties to respond disputing admitted has his the So Ameris Bank has obligations raised to liability and evidence existence of the guaranties and his default. that WL (alterations in original) statement of facts that address his established 2013 (internal quotation marks omitted). signature, he Wells Fargo under three the affirmative defenses, but he has not pointed to any evidence supporting his defenses, and he brief. Ameris did not Bank, address however, the defenses concedes that in the his facts response support his claim that the guaranties were not witnessed or notarized. But that, Because Ameris Bank argues, the Court is aware notarized and witnessed, Bar, Ct. LLC v. App. failed DDR Se. 2015) because no was invalidate the contract. law requiring Shiver's defense fails. Springfield, LLC, (finding it of does not guarantors' not notarized a guaranty See Triple T- 769 S.E.2d 586, arguments and be that because the 590 (Ga. a guaranty guarantors did not initial every page meritless because the guarantors did not provide supporting authority and their signatures were plainly on the document) . guaranty lacks debt, the 589-90 his debtor, And Shiver does not contend that the signature the or that promisor, ("Under Georgia's or Statute of it fails the to identify the promisee. Frauds, See by the party being charged as the guarantor, the principal (citation debtor, omitted) Accordingly, Ameris the (internal Bank has and quotation that is signed and identifies the promisor, shown at a personal guaranty of a debt is not enforceable unless it is in writing, debt, id. the marks Shiver promisee." omitted)). breached the guaranty, and the Court GRANTS summary judgment on this issue. B. Damages Ameris Bank also argues that summary judgment is proper as to the amount due on the guaranties. Ameris Bank has produced evidence that the total combined principal owed on the notes is $5,343,826.78. (Doc. 23, Ex. 2 1 16.) In its brief, Bank seeks $3,343,826.78 in principal from Shiver. guaranties principal on Note contain language limiting his Indebtedness' as used in "The words this "Guarantor's Share Guaranty mean an amount all Indebtedness . . . ." accrued (Doc. unpaid 23, Ex. interest 6 at 2.) the of the not to ($250,000.00) of the principal amount of the Indebtedness .... includes on His guaranty exceed Two Hundred Fifty Thousand & 00/100 Dollars also Shiver's liability to a combined amount of $2,000,000.00. 1455850 provides: But Ameris [His share] on the Shiver's guaranty on Note 1455910 principal to Moreover, similarly Ameris the total total $1,750,000.00. Bank's principal Accordingly, limits the (See amount from finds amount 23, seeks the owes Ex. 6 at on the 5, 7.) $2,000,000.00 (See Shiver's on he only Shiver. that owed amount Doc. complaint Court principal the Doc. 1 liability notes is 1 of 61.) on the limited to $2,000,000.00. Regarding admitted—show liability, interest, that, Shiver the in is guaranties—and addition liable for to all the unpaid facts Shiver limited Bank employee, to prove the total Brodmann's affidavit represents that, amount principal interest. Bank has presented the affidavit of Patrick Brodmann, of as of April Ameris an Ameris interest 15, has owed. 2015, the unpaid interest on the notes amounts to $2,906,106.85 in accrued (Doc. 23, Ex. 2. 1 interest and $2,375.04 per day in interest. 16.) It also states that $825 in late fees remain outstanding. (Id.) Shiver contradictory has not evidence. challenged these Accordingly, amounts the Court or pointed GRANTS to summary judgment on this issue and ORDERS that Shiver pay the following amounts: $2,000,000.00 toward the combined principal amount; $2,906,106.85 in accrued interest; $2,375.04 per day in interest from April 15, 2015 until the date of judgment; and $825 in late fees. C. Attorneys' Pursuant to Bank also that attorneys' the requests indebtedness" fees guaranties attorneys' fees are to in the in LLC, of [the omitted). (citation or 13-1-11 "other of provides evidence of the principal collected through an attorney. 500 RES-GA SCL, LLC (Ga. Ct. App. 2015) omitted) send written notice, that attorneys' the fees entire amount at notes (internal To prevail under this statute, recover must Id. statute]." 776 S.E.2d 489, original) stating Section Ameris guaranty contract is an evidence of indebtedness within meaning Land, § 13-1-11, fifteen percent and interest owed if the debt is "And [a] O.C.G.A. fees. specified valid up and party and intends that the v. has due before being liable marks the party seeking to enforce debtor (alterations quotation after maturity, to Stonecrest to the debtor the ten for the provision days to on pay attorneys' the fees. 501. Following the statute, Shiver to pay, the guaranties in this in addition to court costs, case require attorneys' fees in the amount of fifteen percent of the principal and interest if an attorney attorneys intent to attorneys' is sent used to Shiver enforce the collect two the letters guaranties debt. Ameris Bank's expressing Ameris Bank's and the provisions on fees and informing Shiver that he could avoid the attorneys' fees by paying the full amount within ten days. (See Doc. 23, Ex. attorneys' 7.) fees Shiver or has his not challenged the notice. Accordingly, provision Ameris motion for summary judgment on this issue is GRANTED. ORDERS Shiver represents to pay: 2015 in attorneys' Bank's The Court fees, which fifteen percent of the unpaid principal and interest owed on the notes; 15, $1,237,490.05 on until $356.26 per day in attorneys' the date of judgment, which fees from April represents fifteen percent of the per diem interest; and appropriate court costs. D. Shiver's response brief As fails previously to respond attempt to raise Ameris Bank fraud actions his asks the Court transaction. these a Ameris in his Bank's few additional by a settled to and response with non-party, a fails concerns to he different expresses does that guarantor, about the underlying transaction, and fails to concern actions provide establish how the Court during that evidence of can properly at this time. IV. Conclusion For the reasons set forth above, Ameris Bank's motion But Shiver Shiver asserts investigate Darby Bank's however, brief, arguments. issues. attorney during the Shiver, issues redress his to improperly references of mentioned, (doc. 22). the Court GRANTS Plaintiff The Court directs the Clerk to ENTER JUDGMENT in favor of Ameris Bank against Shiver and ORDERS 10 that Shiver pay the unpaid principal, following interest, in interest from April 15, amounts: and late fees; and (5) fees $4,906,931.85 (2) $2,375.04 per day 2015 until the date of judgment; $1,237,490.05 in accrued attorneys' attorneys' (1) fees; (4) in (3) $356.26 per day in from April 15, 2015 until the date of judgment; appropriate court costs. The Clerk shall CLOSE this case and terminate all parties and deadlines. ORDER January, ENTERED at Augusta, Georgia t^Khp / " a day of 2016. HONORABl/E J. RANDAL HALL UNITED S5TATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 11
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