Whitney Bank v. Swearingen
MEMORANDUM OPINION AND ORDER, granting plaintiff's 53 supplementary motion for summary judgment, finding that the balance owed by Mr. Swearingen under the Note in question through October 31, 2012, including attorney's fees incurred in at tempting to recover the debt, is $105,752.91. The court notes that Mr. Swearingen's counterclaim (Doc. 43 ) remains pending. Discovery and the time allowed for dispositive motions are currently set to expire on 11/30/12. Final judgment will be entered once all claims are resolved. Signed by Judge Callie V. S. Granade on 11/28/2012. (copy to deft) (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
THOMAS C. SWEARINGEN,
CIVIL ACTION NO. 12-00198-CG-C
MEMORANDUM OPINION AND ORDER
This matter is before the court on plaintiff’s supplementary motion for
summary judgment (Doc. 53). After review of the pleadings and in light of
defendant’s failure to respond, the court finds that plaintiff’s motion is due to be
This case arises out of a Commercial Mortgage Note (“Note”) in the amount of
$149,668.50, executed by Thomas C. Swearingen in favor of Whitney Bank on
February 19, 2012. (Doc. 13-2). The Note was secured by a Deed of Trust granting
Whitney Bank a security interest in Lots 1, 2 and 4 of Mr. Swearingen’s property in
Sevier County, Tennessee. (Doc. 13-3, Doc. 13-5, ¶ 8). On March 14, 2012, Whitney
Bank conducted a foreclosure sale on the subject real property. (Doc. 13-5, ¶¶ 8-10).
Upon motion by Whitney Bank for summary judgment (Doc. 13), the court found
that the foreclosure was properly conducted according to the laws of Tennessee and
did not violate Mr. Swearingen’s Constitutional Due Process rights. (Doc. 50).
However, this court found that their remained a question of fact regarding the
precise balance owed under the Note in question.
Subsequently, Whitney Bank filed the current supplemental motion for
summary judgment which sets forth accounting of the amounts owed under the
Note with supporting affidavits. The supplemental motion asserts that the balance
owed through October 31, 2012, including atttorney’s fees incurred in attempting to
recover the debt, is $105,752.91. (Doc. 53).
Defendant was ordered to respond to plaintiff’s supplemental motion for
summary judgment on or before November 19, 2012. (Doc. 54). To date the court
has received no response from defendant.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall
be granted: “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” The trial court’s function is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rest on the mere allegations or
denials of the [non-moving] party’s pleading, but .... must set forth specific facts
showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e) “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and
“In opposing a motion for summary judgment, a ‘party may not rely on his
pleadings to avoid judgment against him.’” Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v. Resolution Trust
Corp., 516 U.S. 817 (1995) (citing Ryan v. Int’l Union of Operating Eng’rs., Local
675, 794 F.2d 641, 643 (11th Cir. 1986)). Moreover, “[t]here is no burden upon the
district court to distill every potential argument that could be made based upon the
materials before it on summary judgment. Rather, the onus is upon the parties to
formulate arguments; grounds alleged in the complaint [or answer] but not relied
upon in summary judgment are deemed abandoned.” Id. at 599 (citations omitted).
There being no opposition to plaintiff’s motion, the court, after review of the
pleadings, finds the motion is due to be granted.
For the reasons stated above, plaintiff’s supplementary motion for summary
judgment (Doc. 53), is GRANTED and the court finds that the balance owed by Mr.
Swearingen under the Note in question through October 31, 2012, including
attorney’s fees incurred in attempting to recover the debt, is $105,752.91.
The court notes that Mr. Swearingen’s counterclaim (Doc. 43) remains
pending. The parties are reminded that under the Scheduling Order entered in this
case (Doc. 34), discovery and the time allowed for dispositive motions are currently
set to expire on November 30, 2012. Final judgment will be entered once all claims
DONE and ORDERED this 28th day of November, 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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