Bank of America, N.A. v. Petty Properties, LLC et al
MEMORANDUM OPINION granting 26 Motion for Summary Judgment. The case against Corwin Petty and Rachel Petty is reopened. Signed by Honorable Jimm Larry Hendren on January 15, 2013. (adw) Modified to change signature date on 1/16/2013 (adw).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
BANK OF AMERICA, N.A.
Civil No. 12-5033
PETTY PROPERTIES, LLC;
CORWIN D. PETTY; RACHEL PETTY;
CORWIN D. PETTY, M.D., P.A.;
NUEREFLECTIONS EQUIPMENT INC.
consideration plaintiff's Motion For Summary Judgment (document
#26), and from said motion, and the Stipulation Of Facts filed
jointly by all parties, the Court finds and orders as follows:
Plaintiff Bank of America, N.A. ("BOA") brought suit,
Properties") borrowed money from it, promising to repay that money
and giving BOA a security interest in personal property purchased
with the borrowed funds.
BOA further alleged that defendants Corwin Petty; Rachel
Petty; Corwin D. Petty, M.D., P.A.; and Nuereflections Equipment
Inc. ("Nuereflections") guaranteed payment of the debt of Petty
BOA further alleged that Petty Properties defaulted on its
obligations, and sought both a money judgment and an order of
delivery to replevy the personalty.
BOA also sought pre- and
post-judgment interest, attorney's fees and collection costs.
proceedings, and the case was administratively terminated as to
BOA now asserts that it is entitled to summary judgment
in personam as against Petty Properties, Corwin D. Petty, M.D.,
P.A., and Nuereflections, and in rem as against the personalty.
Pursuant to F.R.C.P. 56, upon motion the Court "shall
grant summary judgment 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."
In the case at bar, there is no dispute as to the
The parties submitted a Stipulation Of Facts
which establishes the following:
By documents executed on April 7, 2008, and April 17,
2008, Petty Properties promised to pay BOA $320,489.20, plus
interest, and granted BOA a security interest in the personalty
purchased with the borrowed funds (the "Collateral" as that term
is defined in the Complaint).
Repayment of the loan was guaranteed by Corwin D. Petty,
M.D., P.A., and Nuereflections.
BOA properly perfected its security interest in the
Petty Properties defaulted on its obligations, leaving
a balance due, as of March 28, 2012, of $245,549.36, inclusive of
costs and interest.
BOA's claims against Corwin Petty and Rachel Petty
should be dismissed without prejudice.
BOA should be granted joint and several judgment, in
personam as against Petty Properties, Corwin D. Petty, M.D., P.A.,
and Nuereflections, and in rem as against the Collateral, in the
sum of $245,549.36, plus interest at 13.8% per annum from March
28, 2012, to the date of judgment.
Based on the stipulated facts, the Court finds that
plaintiff's Motion For Summary Judgment should be granted, with
two modifications to the nature of the collateral subject to
First, the Collateral as defined in BOA's Complaint includes
"all patient lists, files and records."
The Court perceives no
basis to release this information to BOA, in light of the privacy
concerns attendant thereon, and in light of the fact that all of
Petty Properties' accounts and receivables are included in the
definition of Collateral.
Patient lists, files and records will
not, therefore, be included in the collateral subject to judgment.
Second, the Collateral also includes any right, title or
interest that Corwin Petty or Rachel Petty might have in the
books, records and data relating to the Collateral.
and Rachel Petty have sought the protection afforded them by the
Bankruptcy Code, and these proceedings -- as to them -- are being
reopened only to dismiss BOA's claims against them.
therefore considers it inappropriate to include their rights in
the definition of collateral subject to judgment.
IT IS THEREFORE ORDERED that plaintiff's Motion For Summary
Judgment (document #26) is granted.
IT IS FURTHER ORDERED that the case, as against Corwin Petty
and Rachel Petty, is reopened.
IT IS FURTHER ORDERED that judgment in accordance herewith
will be entered immediately.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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