Branch Banking and Trust Company v. EBR Investments LLC et al
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 5/29/15. (SAC )
2015 May-29 PM 03:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BRANCH BANKING AND TRUST
EBR INVESTMENTS LLC, et al.,
CIVIL ACTION NO.
Before the court is a motion for summary judgment filed by
plaintiff Branch Banking and Trust Company (“BB&T”) on March 27,
2015 (Doc. 44) in its above entitled action to enforce a promissory
note against its maker, defendant EBR Investments LLC (“EBR”) and
Assurance Corporation (“SRD”).1 In their response to plaintiff’s
motion, defendants do not dispute the essential elements of BB&T’s
claims, but rather rely on a declaration by Dudley to support two
predecessor Colonial Bank2 promised (1) to renew the loan until
This court has previously observed, “[i]t is undisputed by
the parties that EBR executed and delivered to plaintiff Branch
Banking and Trust (“BB&T”) a promissory note with guarantees by
Dudley and SRD.” (Doc. 34 at 1).
“Colonial failed, and on August 14, 2009, the FDIC assumed
control of its assets and liabilities. The FDIC sold many of
Colonial's assets and liabilities to BB&T.” Branch Banking &
Trust Co. v. Nichols, 2015 WL 1877666, at *4 (Ala. Apr. 24,
certain condominium units were sold and (2) to setoff amounts
realized from the sale of condominium units before collecting on
the note or guarantees. (Doc. 13 and Doc. 48 at 1-2 and Doc. 48-1
at 3-4). In addition to filing a reply to defendants’ response,
BB&T filed a separate motion to strike certain portions of Dudley’s
declaration attached to defendants’ response. (Doc. 52). Having
been fully briefed by the parties, both motions are now under
For the reasons voiced below, BB&T’s motion for final summary
judgment will be granted and BB&T's motion to strike will be denied
“[V]iewing all facts in the light most favorable to the
nonmoving party and drawing all reasonable inferences in favor of
that party as well . . . [s]ummary judgment is appropriate where
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.” McCullum v.
Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir.
In this case, as stated consistently by the court, defendants
do not dispute the essential elements of BB&T’s action to enforce
the promissory note and guarantees. Rather, defendants rely on
Dudley’s declaration to create a genuine issue of material fact.
representative of BB&T reaffirmed the agreement” between Colonial
Bank and EBR to renew the loan until certain condominiums were sold
and to setoff the sale amounts before collecting from EBR and its
declaration. Assuming that the facts asserted in the declaration
are true, BB&T is still entitled to judgment as a matter of law.
As this court previously stated when dismissing defendant’s
counterclaim based on virtually identical allegations to those in
Dudley’s declaration, the Alabama statute of frauds extends the
general writing and subscription requirements to “[e]very agreement
or commitment to lend money, delay or forebear repayment thereof or
to modify the provisions of such an agreement or commitment except
for consumer loans with a principal amount financed less than
$25,000.” Ala. Code § 8-9-2(7) (emphasis added); (Doc. 34 at 4-6).
Even where a party admits to the existence and substance of an oral
contract, “a party cannot create an estoppel bar to raising the
Statute of Frauds merely because a party admits, either judicially
or extrajudicially, the existence of or the substance of an oral
Bancorporation, Inc., 852 So. 2d 691, 696 (Ala. 2002).
In this case, the Alabama statute of frauds bars defendants’
reliance on the oral agreement by which plaintiff allegedly was to
delay, forebear, or modify the undisputed written and subscribed
declaration in the light most favorable to defendants as to the
existence and substance of the purported oral agreement, the
alleged representations by BB&T and its predecessor Colonial Bank
cannot create an affirmative defense, or estoppel bar, to thwart or
delay summary judgment. Rather, BB&T conclusively demonstrates that
it is the owner and holder of the subject promissory note executed
by EBR with a scheduled maturity date of July 5, 2014 and that EBR
has failed to pay all amounts due in the amount of $3,372,999.49 as
of July 17, 2014, plus a per diem rate of interest of $392.85
demonstrates the existence of guarantees by Dudley and SRD, default
by EBR, and nonpayment by Dudley and SRD in the same amount. (Doc.
1 and Doc. 44-1). Further, these guarantees expressly state that
they are an “unconditional and irrevocable guaranty of payment”
(Doc. 41-1 at 13 and 19), and therefore BB&T as “a creditor may
pursue his remedy against the guarantor even without first going
against the borrower.” Pilalas v. Baldwin Cnty. Sav. & Loan Ass'n,
549 So. 2d 92, 94 (Ala. 1989). In the absence of any genuine issue
of material fact as to these essential elements of BB&T’s claims
and defendants’ purported affirmative defenses, BB&T is entitled to
Although defendants’ answer they respond “Denied.” and
assert BB&T was not “entitled to any of the relief it seeks”
(Doc. 13 at 3), “a party opposing a properly supported motion for
summary judgment may not rest upon mere allegation or denials of
his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).
judgment as a matter of law on the promissory note and guarantees.
For the reasons detailed above, the court will by separate
order grant plaintiff’s motion for final summary judgment thereby
mooting plaintiff’s motion to strike.
While in BB&T’s complaint it requests an award of “court costs
and attorney’s fees” (Doc. 1 at 5-7), ostensibly based on the note
and guarantee provisions stating that borrower/guarantor will pay
“reasonable attorneys’ fees and costs” (Doc. 1 at 14, 18, 24), it
omits this request from what it labels as its “motion for final
summary judgment” (Doc 44) and offers no proof of attorneys fees.
Therefore, the court considers BB&T’s request for attorneys fees as
waived or abandoned.
A separate final judgment will be entered.
DONE this 29th day of May, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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