Montgomery Bank, N.A. v. Riverbend Golf & Country Club, Inc. et al

Filing 56

OPINION AND ORDER granting 50 Montgomery Bank N.A.'s Motion for Summary Judgment and Default Judgment. Plaintiff is granted the relief sought in Count I of the Complaint. The Final Judgment of Foreclosure and Order of Sale will be entered by separate order. The Clerk shall enter judgment as set forth in the Opinion and Order, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 7/13/2018. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MONTGOMERY BANK, N.A.,
Plaintiff,
v.

Case No:

2:17-cv-459-FtM-99CM

RIVERBEND GOLF & COUNTRY
CLUB, INC., PIKE CREEK TURF
FARMS, INC., LEE COUNTY,
SOUTHERN
GULF
EQUIPMENT
RENTAL & SALES, INC., and
RIVERBEND
HOMEOWNERS
ASSOCIATION OF LEE COUNTY,
INC.,
Defendants.

OPINION AND ORDER
This matter comes before the Court on Montgomery Bank N.A.’s
(“Montgomery

Bank”)

Motion

for

Summary

Judgment (Doc. #50) filed on June 5, 2018.

Judgment

and

Default

Montgomery Bank moves

for Summary Judgment against the only two defendants who filed
answers in this case - Riverbend Golf & Country Club (“Riverbend”)
and Lee County.

Riverbend and Lee County have stipulated to the

entry of Summary Judgment as set forth in plaintiff’s motion.
(Docs. ##52, 53.)

Plaintiff moves for default judgment against

Pike Creek Turf Farms, Inc. (“Pike”), Southern Gulf Equipment
Rental

&

Sales,

Inc.

(“Southern”),

and

Riverbend

Homeowners

Association of Lee County, Inc. (“Homeowners”) (collectively the

“Default Defendants”).

No response has been filed by the Default

Defendants and the time to do so has expired.
I.

Summary Judgment

This is an action to foreclose a mortgage lien on commercial
property located at 6270 and 6450 River Club Court, North Fort
Myers, Florida (the “Property”). 1

Defendant Riverbend Golf &

Country Club, Inc. owns the Property.
controlled by Thomas and Kerry Hoolihan.

Riverbend is owned and
(Doc. #1, ¶ 3.)

The

Hoolihans signed a series of Notes, pledging the Property to secure
repayment of the Notes.

(Id., ¶ 11, Doc. #1-1.)

Specifically, on

or about September 6, 2007, the Hoolihan’s executed and delivered
to Montgomery Bank a promissory note (the “Note”) in the original
principal amount of $1,100,000.

(Id., ¶ 12.)

The Note was

modified periodically to extend the maturity date of the Loan.
(Id., ¶ 14; Doc. #1-2.)

The Loan is secured by a mortgage executed

by Riverbend and Vision One Management Group, Inc., dated September
6, 2007, as subsequently modified, which encumbers the Property.
(Id., ¶ 15; Doc. #1-3.)

Mortgage modification agreements were

executed in conjunction with certain renewal promissory notes.
(Id., ¶ 16; Doc. #1-4.)

The Note, Mortgage, and modifications

will be referred to herein as the “Loan Documents.”

1

A legal description of the Property is attached as Exhibit
1 to the Complaint (Doc. #1-1) and the Motion for Summary and
Default Judgment (Doc. #50-1).

The Hoolihans defaulted under the Loan Documents by failing
to remit payment in full on or before July 30, 2015, its maturity
date.

Following default, Montgomery Bank sued the Hoolihans,

Riverbend, and Vision to foreclose on its mortgage.

That case was

brought in this Court as Montgomery Bank, N.A. v. Hoolihan, et
al., Case No. 2:16-cv-173.
mediated

settlement

In that action, the parties reached a

agreement

(the

“Settlement

Agreement”)

in

which the Hoolihans agreed to pay Montgomery Bank a sum certain by
July 18, 2017.

The Settlement Agreement is attached to the Motion

for Summary and Default Judgment as Exhibit 2.

(Doc. #50-2.)

Under the Settlement Agreement, the Hoolihans, Riverbend, and
Vision stipulated to final judgment of foreclosure, to be entered
only if Borrowers did not pay Montgomery Bank a sum certain by
July 18, 2017.

As part of that settlement, and in return for a

waiver of all claims and defenses from the borrowers, Montgomery
Bank waived its right to a deficiency judgment under the Notes and
the personal guarantees of the Hoolihans, Riverbend, and Vision.
The Hoolihans, Riverbend, and Vision agreed to cooperate with
Montgomery Bank in the event of a post-settlement default and
subsequent foreclosure.

Because this Court granted Bank’s motion

to dismiss but would not agree to retain jurisdiction to enforce
the settlement should the payment not be made, the 2016 foreclosure
case was dismissed and closed.

Borrowers did not pay Montgomery

Bank as required under the settlement and this lawsuit followed.

Plaintiff filed a one-count Complaint for mortgage foreclosure.
(Doc. #1.)
Following Montgomery Bank’s filing of the Motion for Summary
Judgment, defendant Riverbend stipulated to the entry of summary
judgment consistent with plaintiff’s Motion with the proviso that
the sale date of the Property be no sooner than September 1, 2018,
and that the equity of redemption may be exercised at any time
prior to the filing of a certificate of sale.

(Doc. #52.)

A

Supplemental Stipulation to Entry of the Final Judgment was filed
on June 28, 2018 (Doc. #53), wherein defendants Riverbend and Lee
County stipulated to the entry of a final judgment of foreclosure
as requested in plaintiff’s Motion for Summary Judgment.
#53.)

(Doc.

The parties also attached a proposed final judgment of

foreclosure and order of sale to be entered by the Court.

(Doc.

#53-1.)
The Court finds that a final foreclosure on the Property is
appropriate.

The parties seek an appointment of a special master

to conduct the foreclosure sale.

The desired Special Master filed

a Declaration (Doc. #50-8) indicating no relationship to the case
that would prevent his appointment.

The Court will appoint Daniel

Feinman.
II.

Default Judgment

Montgomery Bank seeks a final default judgment against the
remaining defendants who failed to respond in this case - Pike

Creek Turf Farms, Inc., Southern Gulf Equipment Rental & Sales,
Inc., and Riverbend Homeowners Association of Lee County, Inc.
(“Default Defendants”).

The Court finds that an evidentiary

hearing is not required and will render a decision based on the
documents submitted.
“A defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus
established.

A default judgment is unassailable on the merits,

but only so far as it is supported by well-pleaded allegations.

A

default defendant may, on appeal, challenge the sufficiency of the
complaint, even if he may not challenge the sufficiency of the
proof.”

Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561

F.3d 1298, 1307 (11th Cir. 2009) (internal citations omitted).
The Complaint alleges that the Default Defendants may claim
some interest in the Property; however, the Default Defendants’
interest, if any, is inferior and subordinate to the lien of the
Bank’s Mortgage.

(Doc. #1, ¶¶ 24, 26-27.)

After service of process and finding no response to the
Complaint, plaintiff moved for and was granted a Clerk’s default,
entered September 21, 2017.
plaintiff
judgment.

has

met

all

(Doc. #27.)

necessary

The Court finds that

prerequisites

for

a

default

The Court further finds that the allegations in the

Complaint are deemed admitted, and sufficiently pled to support a

default judgment in favor of the plaintiff to the extent that any
lien or interest the Default Defendants may claim on the Property
is deemed junior to that of Montgomery Bank.
Accordingly, it is now
ORDERED:
1.

Montgomery Bank N.A.’s Motion for Summary Judgment and

Default Judgment (Doc. #50) is GRANTED and plaintiff is granted
the relief sought in Count I of the Complaint.
2.

The

Court

appoints

Daniel

Feinman,

Esq.

as

special

master to conduct the foreclosure sale.
3.

The Final Judgment of Foreclosure will be entered by

separate order.

The Clerk shall enter judgment in favor of

Montgomery Bank as to Count I against all defendants, and pursuant
to the Final Judgment of Foreclosure.

The Clerk is further

directed to terminate all deadlines and motions, and to close the
file.
DONE AND ORDERED at Fort Myers, Florida, this _13th_ day of
July, 2018.

Copies: Parties of record