ALL POINTS CAPITAL CORP v. BOYD et al

Filing 58

ORDER granting 47 Motion for Summary Judgment. Signed by JUDGE RICHARD SMOAK on 10/21/2011. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ALL POINTS CAPITAL CORP.,
a foreign corporation,
Plaintiff,
vs.

CASE NO. 5:11-cv-116/RS-EMT

BOYD BROTHERS, INC., a Florida
corporation, JAMES A. BOYD, an
individual, and JAMES A. BOYD, JR.,
an individual,
Defendants,
_________________________________________/
ORDER
Before me are Plaintiff‟s Renewed Motion for Summary Judgment (Doc. 47) and
Defendants‟ Response in Opposition (Doc. 57).
Plaintiff challenges the remaining affirmative defenses raised in Defendants‟
Answer. (See Doc. 35) (dismissing all but the fifth and sixth affirmative defense).
Defendants contend that Plaintiff is barred from relief because the Guarantee
Agreements entered into by the individual defendants contained no signature page and
were never notarized. 1 At deposition, the individual defendants were shown the
Guarantee Agreements with the missing signature page and verified that the signatures
belonged to them. (See Doc. 47, Attach. 2) (See also Doc. 47, ¶¶5-8). Defendants do not

1

The notarization issue has already been resolved. (See Doc. 35, p.2).

dispute this account of events in their response. Thus, the undisputed facts now make
Defendants‟ fifth affirmative defense meritless.
Defendants‟ final defense is that the Cross-Collateral and Cross-Default
Agreements do not identify or reference any loan or agreement between Boyd Brothers
and RCA. (Doc. 9, p.2). This argument is unpersuasive. The terms are very clear. “All
presently existing and hereafter acquired Collateral in which you have or shall have a
security interest shall secure payment and performance of all of our liabilities and
obligations . . .” (Doc. 1, Attach. 1, Exhibit R). A security interest is valid if the
description of personal or real property “reasonably identifies what is described.” FLA.
STAT. § 679.1081(1). The test of sufficiency of a description “is that the description do
the job assigned to it: Make possible the identification of the collateral described.” Id.
Official Comment 2. A security agreement which purports to take an interest in “all
assets” or “all personal property” is not sufficient. 2 Id. Official Comment 2. Here, the
security agreement is specific enough -- it identifies the nature of this security interest as
other collateral.3
Finally, Defendants claim that the “disputed fact exists as to whether RCA
assigned the right, title and interest in the loan agreements to the Plaintiff.” (Doc. 56,
¶3). This assertion is not tied to any of their affirmative defenses and is of no moment at
this stage. An element of Plaintiff‟s case is that they have a valid and enforceable

2

A description of “all assets” or “all personal” property is, on the other hand, sufficient for a financing statement.
Plaintiff also contends that the individual defendants “admitted that „all collateral tied to any loan with RCA [the
assignor of the loans to Plaintiff] . . . is cross-collateralized‟ by the Agreements. . .” (Doc. 47, ¶9). Defendants to
not attack this assertion in their response.
3

contract. Defendants may, at trial, attack Plaintiff‟s case with their contention that RCA
did not assign the loan agreement.

IT IS ORDERED:
1. The Renewed Motion for Summary Judgment (Doc. 47) is GRANTED.
2. The fifth and sixth affirmative defenses are dismissed. No affirmative defenses
now remain.
3. This Order applies only to the individual defendants and not to the corporate
defendant for which the case is stayed for bankruptcy. When the stay is lifted,
upon motion, I may revisit the applicability of this Order to the corporate
defendant.

ORDERED on October 21, 2011.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE