Wells Fargo Bank, National Association v. Blount et al

Filing 38

OPINION. Signed by Honorable Judge Myron H. Thompson on 1/27/12. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor by
merger to Wachovia Bank,
National Association,
Plaintiff,
v.
WILLIAM B. BLOUNT,
Defendant.

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CIVIL ACTION NO.
2:11cv296-MHT

OPINION
Plaintiff Wells Fargo Bank filed this breach-ofcontract action against defendant William B. Blount,
alleging that Blount defaulted on a $ 300,000 loan.
Jurisdiction is proper under 28 U.S.C. § 1332 (diversity
of citizenship).

Currently before the court is Wells

Fargo’s motion for summary judgment.

For the reasons

that follow, that motion will be granted.

I.

SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate “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.”

Fed. R. Civ. P. 56(a).

The court must view the

admissible evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in its
favor.

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

However, once the

movant demonstrates the absence of a genuine issue of
material fact, the nonmoving party may avoid summary
judgment only by going “beyond the pleadings and ...
designat[ing] specific facts showing that there is a
genuine issue for trial.”

Hoffman v. Allied Corp., 912

F.2d 1379, 1382-83 (11th Cir. 1990).

2

II.

FACTS

On May 23, 2007, Wells Fargo loaned $ 300,000 to
William Blount.1

Blount’s obligations under that loan

were memorialized in a promissory note, which required
him

to

make

quarterly

payments

of

$

15,000,

plus

interest, and, in the case of default, to pay “reasonable
expenses actually incurred” by Wells Fargo “to enforce or
collect” on the loan.

Promissory Note 2 (Doc. No. 27-1).

Shortly thereafter, Blount defaulted.

Rather than

requiring the immediate payment of the money still owed,
Wells Fargo agreed to a loan modification, which the
parties signed on June 4, 2009.

That agreement required

Blount to satisfy the remaining balance on the original
loan, plus 8 % interest, by December 1, 2010.

It also

continued Blount’s obligation to Wells Fargo for its
actual costs of collection.

1. Another person signed the note with Blount.
Wells Fargo’s claim against this other person has been
settled, and he is no longer a party to this lawsuit.
3

Blount has since defaulted on his payment obligations
under the loan-modification agreement.

As of September

8, 2011, the amount Blount owed on the original note was
$

121,641.08,

which

consists

of

$

105,363.33

in

principal, $ 16,195.09 in accrued interest, and $ 82.66
in late charges.

Wells Fargo brought this action in

order to recover that amount, the interest that has
subsequently accrued, and its actual costs of collection,
including attorneys’ fees.

III.

DISCUSSION

Both the note and the modification agreement specify
that Alabama law applies to this dispute.

Alabama law

provides that a promissory note is “prima facie” evidence
of the holder’s “right to recover the face of the note,
interest, and upon proof of their value, its attorney’s
fees [if] ... the note [so] provided.”

Chilton Warehouse

& Mfg. Co. v. Lewis, 57 So. 100, 101 (Ala. Ct. App.
1911); see also Wells Fargo Bank, N.A. v. Vergos, 2012 WL

4

206169, at *2 (S.D. Ala. Jan. 24, 2012) (Butler, J.).
Here,

Wells

promissory

Fargo
note

has
and

submitted

more

modification

than

just

agreement:

the

those

documents are accompanied by an affidavit from Wells
Fargo Bank Assistant Vice President Michele Basile, who
attests to the existence of the loan, to the terms of its
repayment, and to Blount’s breach.

Nothing in the record

undermines those assertions, and the court can see no
independent reason to doubt the veracity of Basile’s
sworn statement.
In the face of this evidence of breach, Blount offers
no rebuttal; instead, he admits his “responsibility under
the note” and effectively concedes default.
Pl.’s Mot. for Summ. J. 4-5 (Doc. No. 29).

Resp. to

Wells Fargo

is therefore entitled to summary judgment on its breachof-contract claim.
The only remaining issue is the amount owed.

The

Basile affidavit establishes that amount as $ 121,641.08,
which consists of $ 105,363.33 in principal, $ 16,195.09

5

in accrued interest, and $ 82.66 in late charges.2

In

addition, the plain language of the parties’ agreements
entitles Wells Fargo to the reasonable costs (including
attorneys’ fees) actually spent recovering the principal
from Blount.
For his part, Blount has completely failed to provide
“specific facts showing that there is a genuine issue for
trial.”

Hoffman, 912 F.2d at 1383.

Instead, he has

offered only the ambiguous statement that the “actual
amount that may be due is still in dispute.”

Resp. to

Pl.’s Mot. for Summ. J. 5 (Doc. No. 29).

But Blount

fails to suggest an alternative amount due.

Put another

way,

there

is

no

evidence

(admissible

or

otherwise)

tending to show that the amount due is anything other
than the amount specified in Wells Fargo’s motion for
summary judgment and detailed in the Basile affidavit.
Blount’s “conclusory assertion[],”

offered without any

2. The interest is calculated as of September 8,
2011, and Wells Fargo would also be entitled to any
interest that has accrued since that date.
6

“supporting

evidence,”

is

therefore

withstand summary judgment.”

“insufficient

to

Holified v. Reno, 115 F.3d

1555, 1564 n.6 (11th Cir. 1997).
Perhaps recognizing that the mere announcement of a
disagreement fails to create a material issue of fact
that would preclude summary judgment, Blount requests
that the discovery deadline be extended so that he might
“perform additional discovery with respect to the records
of Wells Fargo.”
(Doc. No. 29).

Resp. to Pl.’s Mot. for Summ. J. 5

But that ship has sailed, and, even if it

were still at dock, Blount lacks a boarding pass.
In order to defeat a motion for summary judgment with
a request for additional discovery, the nonmovant must
show “by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition.” Fed. R. Civ. P. 56(d).3 Any such submission

3. It appears that Blount’s “specified reason” is
that he is currently incarcerated. Whatever force such
an argument might have for a pro se defendant, it has
none here.
Blount has been represented by counsel at
(continued...)
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must “set[] forth with particularity the facts the moving
party expects to discover and how those facts would
create

a

genuine

summary judgment.”

issue

of

material

fact

precluding

Harbert Int’l, Inc. v. James, 157

F.3d 1271, 1280 (11th Cir. 1998).
Not

only

has

Blount

failed

to

submit

a

single

affidavit or declaration in support of his request to
reopen discovery, he has failed to allege what facts he
anticipates
motion.

obtaining

were

this

court

to

grant

his

Instead, he asks to turn back the clock on this

litigation so that he might lead an unbounded fishing
expedition into Wells Fargo’s bank records.

There is no

basis to reopen discovery.

***

(...continued)
least since July 22, 2011, when he filed his answer to
Wells Fargo’s complaint. As far as the court can tell,
that attorney’s ability to conduct discovery on Blount’s
behalf was in no way limited by Blount’s incarceration.
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In order to defeat Wells Fargo’s motion for summary
judgment, which was supported by evidence that there was
no material fact in dispute, Blount had to identify a
genuine issue for trial.

This he failed to do.

Wells

Fargo is therefore entitled to summary judgment on its
breach-of-contract claim.
An appropriate judgment will be entered.
DONE, this the 27th day of January, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE