Bank of America, N.A. v. Crofton et al

Filing 45

ORDER: Plaintiff Bank of America, N.A.'s Motion for Final Summary Judgment 43 is GRANTED. The Clerk is directed to enter Judgment in favor of Plaintiff Bank of America, N.A., and against Defendants in the total amount of $3,464,623.45 plus interest that continues to accrue daily. Thereafter, the Clerk shall CLOSE THIS CASE. Plaintiff has until and including June 25, 2015, to file any motions for attorneys' fees and costs. Signed by Judge Virginia M. Hernandez Covington on 6/11/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BANK OF AMERICA, N.A.,
Plaintiff,
v.

Case No.: 8:14-cv-1558-T-33AEP

KEVIN D. CROFTON, individually
and as co-trustee of THE KEVIN
D. CROFTON BUSINESS TRUST,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Bank of America, N.A.’s Motion for Final Summary Judgment
(Doc. # 43), which was filed on May 4, 2015. Defendants Kevin
D. Crofton, individually and as co-trustee of the Kevin D.
Crofton Business Trust, had until June 3, 2015, to file a
response in opposition to the Motion. Defendants failed to
timely file a response. Therefore, on June 4, 2015, this Court
entered an Order granting Defendants until June 8, 2015, to
file their response and noting that failure to do so would
result

in

this

Court

considering

Plaintiff’s

Motion

as

unopposed. (Doc. # 44).
Despite being given a chance to do so, Defendants failed
to respond, and the Court, accordingly, considers Plaintiff’s

Motion as an unopposed Motion. However, this Court is not
permitted to grant the Motion solely because such Motion is
unopposed. Minhngoc P. Tran v. Boeing Co., 190 F. App’x 929,
932 (11th Cir. 2006)(“district court cannot grant summary
judgment just because the motion was unopposed, but must at
least

review

all

the

evidentiary

materials

submitted

in

support of the motion for summary judgment to ensure the
motion is supported”).
Here, the Court grants the Motion based upon its review
of the entire record, viewing the evidence in the light most
favorable to Defendants as the non-movants, and based upon
its finding that Plaintiff is entitled to judgment as a matter
of law.
I.

Factual Background
A. The Crofton & Sons, Inc. Line of Credit and Crofton
& Sons Loan Agreement
In

August

of

2013,

non-party

Crofton

&

Sons,

Inc.

executed and delivered to Plaintiff a Loan Agreement for a
line of credit in the amount of $1,500,000.00 (the “Crofton
& Sons Line of Credit”). (Doc. # 1-1). Thereafter, in June of
2013, Crofton & Sons executed and delivered to Plaintiff a
Loan Agreement in the total principal amount of $1,910,000.00
(the “Crofton & Sons Loan Agreement”), which was comprised of

2

a fixed rate term loan amount of $435,000.00 (“Facility No.
1”)

and

a

variable

rate

term

loan

in

the

amount

of

$1,475,000.00 (“Facility No. 2”). (Doc. # 1-2). Kevin D.
Crofton executed the Crofton & Sons Line of Credit and the
Crofton & Sons Loan Agreement in his capacity as President of
Crofton & Sons. (Doc. # 1-1; Doc. # 1-2; Doc. # 16 at ¶ 10).
Both the Crofton & Sons Line of Credit and Crofton &
Sons

Loan

Agreement

are

secured

by

a

Continuing

and

Unconditional Guaranty dated April 26, 2013, executed by
Kevin D. Crofton, in his individual capacity (the “April 2013
Crofton Guaranty”), which guarantees any and all indebtedness
of Crofton & Sons to Plaintiff. (Doc. # 1-3; Doc. # 16 at ¶
11). The Crofton & Sons Line of Credit and Crofton & Sons
Loan

Agreement

are

also

secured

by

a

Continuing

and

Unconditional Guaranty dated April 26, 2013, executed by
Kevin D. Crofton, in his capacity as co-trustee of the Kevin
D. Crofton Business Trust (the “April 2013 Crofton Trust
Guaranty”), which guarantees any and all indebtedness of
Crofton & Sons to Plaintiff. (Doc. # 1-4; Doc. # 16 at ¶ 12).
The Crofton & Sons Loan Agreement for Facility No. 1 is
also secured by a Mortgage, Assignment of Rents and Security
Agreement, and Fixture Filing dated June 3, 2013, (the “First
Crofton

&

Sons

Mortgage”),

which

3

grants

a

mortgage

to

Plaintiff for the property identified therein owned by and in
possession of Crofton & Sons. (Doc. # 1-5; Doc. # 16 at ¶
13).
The Crofton & Sons Loan Agreement for Facility No. 2 is
secured by a Mortgage, Assignment of Rents and Security
Agreement, and Fixture Filing dated June 3, 2013 (the “Second
Crofton

&

Sons

Mortgage”),

which

grants

a

mortgage

to

Plaintiff for the property identified therein owned by and in
possession of Crofton & Sons. (Doc. # 1-6; Doc. # 16 at ¶
14).
According to Plaintiff, it is the owner and holder of
the Crofton & Sons Line of Credit, the Crofton & Sons Loan
Agreement, the April 2013 Crofton Guaranty, the April 2013
Crofton Trust Guaranty, the First Crofton & Sons Mortgage,
and the Second Crofton & Sons Mortgage (collectively, the
“Crofton & Sons Loan Documents”). (Doc. # 43-1 at ¶ 9).
Defendants

have

not

produced

evidence

to

dispute

this

assertion.
On April 26, 2014, Crofton & Sons failed to make payments
due under the terms of the Crofton & Sons Line of Credit and
all payments due thereafter. (Id. at ¶ 10). Further, on June
1, 2014, Crofton & Sons failed to make payments due under the
terms of the Crofton & Sons Loan Agreement for Facility No.

4

1 and all payments due thereafter. (Id. at ¶ 11). Also, on
May 1, 2014, Crofton & Sons failed to make payments due under
the terms of the Crofton & Sons Loan Agreement for Facility
No. 2 and all payments due thereafter. (Id. at ¶ 12).
As a result, Plaintiff declared the full amounts due
under the Crofton & Sons Line of Credit and the Crofton &
Sons

Loan

Agreement

and

demanded

payment

from

Kevin

D.

Crofton, individually, and the Kevin D. Crofton Business
Trust, pursuant to their guaranty obligations under the April
2013

Crofton

Guaranty

and

the

April

2013

Crofton

Trust

Guaranty. (Doc. # 43-1 at ¶ 13; Doc. # 43-2). However, Kevin
D. Crofton, individually, and the Kevin D. Crofton Business
Trust, acting through Kevin D. Crofton, failed to pay the
amounts due to Plaintiff. (Doc. # 43-1 at ¶ 14).
B. The Crofton Trust Loan Agreement
On June 3, 2013, Kevin D. Crofton, in his capacity as
co-trustee of the Kevin D. Crofton Business Trust, executed
and delivered to Plaintiff a Loan Agreement in the principal
amount of $1,135,000.00 (the “Crofton Trust Loan Agreement”).
(Doc. # 1-7; Doc. # 16 at ¶ 16). Kevin D. Crofton delivered
a Trust Authority Letter to Plaintiff dated June 3, 2013,
representing his authorization to enter into the Crofton
Trust Loan Agreement and his agreement to be bound thereby as

5

co-trustee of the Kevin D. Crofton Business Trust. (Doc. # 18; Doc. # 16 at ¶ 17).
The

Crofton

Trust

Loan

Agreement

is

secured

by

a

Mortgage, Assignment of Rents and Security Agreement, and
Fixture

Filing

dated

June

3,

2013

(the

“Crofton

Trust

Mortgage”), which grants a mortgage to Plaintiff for the
property identified therein owned by and in possession of the
Kevin D. Crofton Business Trust. (Doc. # 1-9; Doc. # 16 at ¶
18). As further security for the amounts owed under the
Crofton Trust Loan Agreement, Kevin D. Crofton executed a
Continuing and Unconditional Guaranty dated June 3, 2013, in
his individual capacity (the “June 2013 Crofton Guaranty”),
which guaranteed any and all indebtedness of the Kevin D.
Crofton Business Trust to Plaintiff. (Doc. # 1-10; Doc. # 16
at ¶ 19).
According to Plaintiff, it is the owner and holder of
the Crofton Trust Loan Agreement, the Crofton Trust Mortgage
and

the

June

2013

Crofton

Guaranty

(collectively,

the

“Crofton Trust Loan Documents”). (Doc. # 43-1 at ¶ 22).
Defendants do not provide evidence to refute this contention.
On May 1, 2014, the Kevin D. Crofton Business Trust
failed to make payments due under the terms of the Crofton
Trust Loan Agreement and all payments due thereafter. (Id. at

6

¶ 23). Therefore, Plaintiff declared the full amounts due
under the Crofton Trust Loan Agreement and demanded payment
from Kevin D. Crofton in his individual capacity and in his
capacity as co-trustee of the Kevin D. Crofton Business Trust.
(Id. at ¶ 24). However, Kevin D. Crofton, individually and in
his capacity as co-trustee of the Kevin D. Crofton Business
Trust, failed to cure the default. (Id. at ¶ 25).
II.

Procedural Background
On

June

26,

2014,

Plaintiff

initiated

this

action

against (1) Kevin D. Crofton, individually; (2) Kevin D.
Crofton, as co-trustee of the Kevin D. Crofton Business Trust;
and (3) Howard A. Gordon, as co-trustee of the Kevin D.
Crofton Business Trust and set forth the following counts:
Count I – Breach of April 2013 Guaranty Against Kevin D.
Crofton
Count II – Breach of April 2013 Crofton Trust Guaranty
Against Kevin D. Crofton and Howard A. Gordon as CoTrustees of the Kevin D. Crofton Business Trust
Count III – Breach of Crofton Trust Loan Agreement
Against Kevin D. Crofton and Howard A. Gordon as CoTrustees of the Kevin D. Crofton Business Trust
Count IV – Breach of June 2013 Crofton Guaranty Against
Kevin D. Crofton
(Doc. # 1).
Plaintiff

filed

a

Notice

of

Voluntary

Dismissal

of

Defendant, Howard A. Gordon, as co-trustee of the Kevin D.

7

Crofton Business Trust, Without Prejudice on September 5,
2014. (Doc. # 20). The Court dismissed Howard A. Gordon as a
party in this matter on September 5, 2014. (Doc. # 21). On
May 4, 2015, Plaintiff filed the present Motion for Final
Summary Judgment. (Doc. # 43). Defendants failed to respond
after being given the opportunity to do so, and as result,
the Court considers the Motion as an unopposed Motion.
III.

Legal Standard
Summary judgment is appropriate “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.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

8

1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). 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, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856

9

(11th Cir. 1988)). However, if the non-movant’s response
consists

of

conclusional

nothing

“more

allegations,”

than

summary

a

repetition

judgment

is

of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
IV.

Analysis
A.

Count I & Count II

The elements of a breach of contract are: “(1) a valid
contract; (2) a material breach; and (3) damages.”

Abbott

Labs., Inc. v. Gen. Elec. Capital, 765 So. 2d 737, 740 (Fla.
5th DCA 2000). Defendants admit the existence and validity of
the Crofton & Sons Line of Credit and the Crofton & Sons Loan
Agreement. (Doc. # 16 at ¶¶ 8-10).
Plaintiff demonstrates that Crofton & Sons breached a
material term of the Crofton & Sons Line of Credit by failing
to make payment on April 26, 2014, and by failing to make any
payments thereafter. (Doc. # 43-1 at ¶ 10). Furthermore,
Plaintiff has established that Crofton & Sons breached a
material term of the Crofton & Sons Loan Agreement for: “(1)
Facility No. 1 by failing to make payment on June 1, 2014,
and by failing to make any payments thereafter, and (2)
Facility No. 2 by failing to make payment on May 1, 2014, and
by failing to make any payments thereafter.” (Doc. # 43 at

10

9)(internal citations omitted). Defendants have not provided
evidence

that

would

allow

a

factfinder

to

disbelieve

Plaintiff’s allegations.
Pursuant to both the Crofton & Sons Line of Credit and
the Crofton & Sons Loan Agreement, the failure to make payment
is an “Event of Default.” (Doc. # 1-1 at ¶ 10.1; Doc. # 1-2
at ¶ 10.1). Furthermore, the April 2013 Guaranties both
include promises to pay Plaintiff in the event that Crofton
& Sons does not pay Plaintiff: “the undersigned (‘Guarantor’)
hereby
promptly

unconditionally
to

Bank

of

guarantees
America,

and

N.A.

.

promises
.

.

any

to

pay

and

all

Indebtedness of Crofton & Sons, Inc. (‘Borrower’) to Bank
when due. . . .” (Doc. # 1-3 at ¶ 1; Doc. # 1-4 at ¶ 1).
Indebtedness is defined by the April 2013 Guaranties as “any
and all debts, liabilities, and obligations of [Crofton &
Sons] to Bank, now or hereafter existing. . . .” (Id. at ¶
2(d)).
Therefore, according to Plaintiff, the above-referenced
defaults

“triggered”

(1)

Kevin

D.

Crofton’s

individual

obligation to pay pursuant to the April 2013 Crofton Guaranty
and (2) the Kevin D. Crofton Business Trust’s obligation to
pay

pursuant

to

the

April

2013

11

Crofton

Trust

Guaranty

(collectively, the “April 2013 Guaranties”). (Doc. # 43 at
10).
As set forth in Kahama VI, LLC v. HJH LLC, No. 8:11-CV2029-T-30TBM, 2013 WL 1760254, at *3 (M.D. Fla. Apr. 24,
2013):
“A guaranty is a collateral promise to answer for
the debt or obligation of another.” F.D.I.C. v.
Univ. Anclote, Inc., 764 F.2d 804, 806 (11th Cir.
1985). “In Florida, the elements of an action for
breach of a guaranty arise from a debtor's default
and the guarantor's subsequent failure to pay.”
Bank First v. Guillem, 2009 WL 1930190, at *5 (M.D.
Fla. 2009). The rules governing contracts apply
generally to guaranty contracts. Lockheed Martin
Corp. v. Galaxis USA, Ltd., 222 F. Supp. 2d 1315,
1325 (M.D. Fla. 2002). Thus, the three elements of
breach of contract in Florida, (1) valid contract,
(2) a material breach, and (3) damages, are the
relevant elements of a guaranty.
As Crofton & Sons failed to make payments, both Kevin D.
Crofton and the Kevin D. Crofton Business Trust are obligated
to make payment pursuant to the April 2013 Guaranties. See
Unisys Fin. Corp. v. AMP Servs., Inc., 593 So. 2d 232, 233
(Fla. 5th DCA 1991)(finding that corporation’s failure to
make payments triggered obligation under guaranty agreement
to pay and failure to do so entitled creditor to judgment
against guarantor). Accordingly, the Court grants summary

12

judgment in favor of Plaintiff and against Defendants as to
Counts I and II.
Therefore, pursuant to the default under the Crofton &
Sons Line of Credit, Kevin D. Crofton, in his individual
capacity and as co-trustee of the Kevin D. Crofton Business
Trust, owes Plaintiff the principal amount of $619,717.50,
plus interest in the amount of $15,058.48 through May 4, 2015,
for a total of $634,775.98, exclusive of attorneys’ fees1 and
costs incurred in this matter. Furthermore, as a result of
the default under the Crofton & Sons Loan Agreement for
Facility No. 1, Kevin D. Crofton, in his individual capacity
and as co-trustee of the Kevin D. Crofton Business Trust,
owes Plaintiff the principal amount of $343,557.80, plus
interest in the amount of $19,067.46 through May 4, 2015, for
a total of $362,625.26, exclusive of attorneys’ fees and costs
incurred in this matter. Finally, as a consequence of the
default under the Crofton & Sons Loan Agreement for Facility
No. 2, Kevin D. Crofton, in his individual capacity and as
co-trustee of the Kevin D. Crofton Business Trust, owes

1

The Crofton & Sons Line of Credit and the Crofton & Sons
Loan Agreement permit Plaintiff to recover all damages
available including costs, interest, and attorneys’ fees.
(Doc. # 1-1 at ¶¶ 4.1(c), 5.5, 11.6; Doc. # 1-2 at ¶¶ 1.3,
2.4, 4.1(d), 5.6, 11.6).

13

Plaintiff

the

principal

amount

of

$1,438,077.00,

plus

interest in the amount of $35,946.34 through May 4, 2015, for
a total of $1,474,023.34, exclusive of attorneys’ fees and
costs incurred in this matter.
B.

Count III & Count IV

Defendants admit that the Kevin D. Crofton Business
Trust executed the Crofton Trust Loan Agreement and that the
Crofton Trust Loan Agreement is a valid agreement. (Doc. # 16
at ¶ 16). According to Plaintiff, Kevin D. Crofton, in his
capacity as co-trustee of the Kevin D. Crofton Business Trust,
breached a material term of the Crofton Trust Loan Agreement
by failing to make payment on May 1, 2014, and by failing to
make

any

payments

thereafter.

(Doc.

#

43-1

at

¶

23).

Defendants have failed to come forward with evidence to refute
Plaintiff’s assertions.
The Crofton Trust Loan Agreement provides that failure
to make payment is an “Event of Default.” (Doc. # 1-7 at ¶
9.1). Thus, the above-described default prompted Kevin D.
Crofton’s obligations individually and as co-trustee of the
Kevin D. Crofton Business Trust to pay pursuant to the June
2013 Crofton Guaranty. (Doc. # 1-10; Doc. # 16 at ¶ 19).
Specifically,

the

June

2013

14

Guaranty

states

that

“the

undersigned (‘Guarantor’) hereby unconditionally guarantees
and promises to pay promptly to Bank of America, N.A. . . .
any and all Indebtedness of [the Crofton Trust] (‘Borrower’)
to Bank when due. . . .” (Doc. # 1-10 at ¶ 1). Indebtedness
is defined by the June 2013 Crofton Guaranty as “any and all
debts, liabilities, and obligations of [the Crofton Trust] to
Bank, now or hereafter existing. . . .” (Id. at ¶ 2(e)).
Accordingly, Kevin D. Crofton owes Plaintiff the amounts
that are due and owing under the Crofton Trust Loan Documents.
See Anderson v. Trade Winds Enters., Corp., 241 So. 2d 174
(Fla. 4th DCA 1970)(“One who undertakes an absolute guarantee
of payment by another becomes liable immediately upon default
in payment by the other.”). Thus, the Court grants summary
judgment in favor of Plaintiff and against Defendants as to
Counts III and IV.
Therefore, Kevin D. Crofton, in his individual capacity
and as co-trustee of the Kevin D. Crofton Business Trust,
owes Plaintiff the principal amount of $920,400.91, plus
interest in the amount of $61,053.26 through May 4, 2015,
plus late charges in the amount of $11,744.70, for a total of
$993,198.87, exclusive of attorneys’ fees2 and costs.

2

The Crofton Trust Loan Agreement specifically permits
Plaintiff to recover all damages available including costs,

15

V.

Conclusion
Although,

in

their

Answer,

Defendants

denied

key

allegations related to defaults under the loan documents and
responsibility

for

payment

pursuant

to

the

guaranty

agreements, Defendants have not produced any documents or
evidence to support their denials. (See Doc. # 16); see
LaBrache v. Am. Mar. Officers Pension Plan, 45 F. Supp. 2d
1335,

1337

(M.D.

Fla.

1999)(“Although

factual

disputes

preclude summary judgment, the mere possibility that factual
disputes

may

overcome

a

exist,

without

convincing

more,

is

not

sufficient

presentation

by

the

party

to

seeking

summary judgment.”)(internal quotation marks omitted).
Therefore, for the reasons set forth above, this Court
grants Plaintiff’s Motion, and as a result, the Clerk shall
enter judgment in favor of Plaintiff and against Defendants
in the total amount of $3,464,623.45 plus interest that
continues

to

accrue

daily.

This

amount

consists

of

the

following: (1) $634,775.98 for the Crofton & Sons Line of
Credit; (2) $362,625.26 for Facility No. 1 of the Crofton &
Sons Loan Agreement; (3) $1,474,023.34 for Facility No. 2 of

interest, and attorneys’ fees. (Doc. # 1-7 at ¶¶ 1.3, 2.1(c),
4.6, 10.6).

16

the Crofton & Sons Loan Agreement; and (4) $993,198.87 for
the Crofton Trust Loan Agreement.
Furthermore, the Court finds that Plaintiff is entitled
to attorneys’ fees for its prosecution of the instant action.
To the extent Plaintiff, as the prevailing party, seeks
attorneys’ fees and costs in this matter, it has until June
25, 2015, to file an appropriate motion requesting such
relief.3
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

Bank

of

America,

N.A.’s

Motion

for

Final

Summary Judgment (Doc. # 43) is GRANTED.
(2)

The Clerk is directed to enter Judgment in favor of
Plaintiff Bank of America, N.A., and against Defendants
in the total amount of $3,464,623.45 plus interest that
continues to accrue daily. Thereafter, the Clerk shall
CLOSE THIS CASE.

(3)

Plaintiff has until and including June 25, 2015, to file
any motions for attorneys’ fees and costs.

3

The Court will address Plaintiff’s entitlement to attorneys’
fees and costs regardless of whether, at the time Plaintiff’s
counsel submits further documents in support of their fee and
cost request, this case has been closed by the Clerk.

17

DONE and ORDERED in Chambers in Tampa, Florida, this
11th day of June, 2015.

Copies:

All Counsel of Record

18