The Provident Bank v. Gulf Coast Charters, LLC et al

Filing 36

ORDER denying 29 The Provident Bank's Motion for Final Summary Judgment. Signed by Judge Sheri Polster Chappell on 9/4/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THE PROVIDENT BANK,
Plaintiff,
v.

Case No: 2:13-cv-872-FtM-38DNF

GULF COAST CHARTERS, LLC and
ROBERT W. BROWN,
Defendants.
/
ORDER1
This matter comes before the Court on Plaintiff The Provident Bank's Motion for
Final Summary Judgment (Doc. #29) filed on July 2, 2014. Defendants Gulf Coast
Charters, LLC and Robert W. Brown filed a response in opposition on July 22, 2014.
(Doc. #35). This matter is now ripe for review.
Facts
On or about July 12, 2007, Defendant Gulf Coast Charters, LLC received a loan
from Elite Financial Group, Inc. through a promissory note to purchase a 2004 Cavileer
48’ Motor Yacht (“Vessel”); twin 1001 HP engines; and all equipment and accessories
attached in the amount of $712,000.00. (Doc. #29-1). Defendant Robert W. Brown
guaranteed this loan. (Doc. #29-2). Thereafter, on July 17, 2007, Elite Financial Group,

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Inc. assigned all of its rights, title, and interest in the promissory note and guaranty
agreement to Plaintiff The Provident Bank. (Doc. #29-4).
Gulf Coast and Brown defaulted on the loan by failing to make the installment
payments that were due. (Doc. #29-3, at ¶5). And as a result, The Provident Bank
initiated this action to recover the debt Gulf Coast and Brown owe it. (Doc. #1). Also,
due to the default, among other remedies, The Provident Bank had the right to
repossess the Vessel. (Doc. #29-1, at 3; Doc. #29-5, at ¶22). The Provident Bank
notified Gulf Coast and Brown of its plan to repossess the Vessel, (Doc. #29-7), and
hired National Liquidators to repossess and sell the Vessel.
On or about June 21, 2014, The Provident Bank began advertising the Vessel on
websites worldwide. (Doc. #29-6, at ¶11). As a result, there were 21 different offers to
purchase the Vessel from six different buyers. (Doc. #29-6, at ¶12). These offers ranged
from $185,000.00 to $310,000.00. (Doc. #29-6, at ¶12). Then on July 30, 2013, after an
inspection, the Vessel was sold for $300,000.00 to a third party. (Doc. #29-8).
Standard
Summary judgment is appropriate only when the Court is satisfied that “there is
no genuine issue as to any material fact” and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). An issue is genuine if there is sufficient evidence
such that a reasonable jury could return a verdict for either party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, an issue is material if it may affect the
outcome of the suit under governing law. Id.
The moving party bears the burden of showing the absence of any genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether

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the moving party has met this initial burden, the Court must review the record and all
reasonable inferences drawn from the record in the light most favorable to the nonmoving party. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). Once the
Court determines that the moving party has met its burden, the burden shifts and the
non-moving party must present specific facts showing that there is a genuine issue for
trial that precludes summary judgment. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). “The evidence presented cannot consist of conclusory
allegations, legal conclusions or evidence which would be inadmissible at trial.” Demyan
v. Sun Life Assurance Co. of Canada, 148 F. Supp. 2d 1316, 1320 (S.D. Fla. 2001)
(citing Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)). Failure to show sufficient
evidence of any essential element is fatal to the claim and the Court should grant the
summary judgment. Celotex, 477 U.S. at 322-23. Conversely, if reasonable minds could
find a genuine issue of material fact then summary judgment should be denied.
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992). “If a
reasonable fact finder evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of material fact, then the court
should not grant summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315
(11th Cir. 2007).
Discussion
Upon consideration of the record, the Court finds there are material disputes. It is
unclear from the record whether the Vessel was sold in a commercially reasonable
manner. The parties staunchly disagree on this issue. (Doc. #29-6; cf. Doc. #35, at ¶¶1,
13). Gulf Coast and Brown presented evidence that shows there were higher bids for

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the Vessel, but a lower bid was accepted by The Provident Bank without explanation.
(See Doc. #29-6, at 9). Furthermore, the parties dispute the value of the Vessel. The
Provident Bank asserts the Vessel was sold at a price that met or exceeded its fair
market value, whereas Gulf Coast and Brown assert the value of the Vessel was
between $450,000 and $500,000. (Doc. #29-6, at 13; cf. Doc. #35, at ¶12). The
differences in these valuations are significant; especially if the Vessel was not sold in a
commercially reasonable manner. Also, the listed repossession costs are not fully
explained. (See Doc. #29-8, at 2). Thus even assuming the Vessel was sold in a
commercially reasonable manner, it is unclear whether Gulf Coast and Brown are
responsible for all of the listed repossession costs; and thus it is unclear what amount
Gulf Coast and Brown owe The Provident Bank. (Doc. #35, at ¶7). Due to these
material disputes, the motion for summary judgment is due to be denied.
Accordingly, it is now
ORDERED:
The Provident Bank's Motion for Final Summary Judgment (Doc. #29) is
DENIED.
DONE and ORDERED in Fort Myers, Florida this 4th day of September, 2014.

Copies: All Parties of Record

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