Greenberg v. Bilotti

Filing 35

ORDER granting 25 Motion for Summary Judgment. Signed by Judge Beth Bloom on 2/9/2016. (ar2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-CIV-61730-Bloom/Valle
WILLIAM GREENBERG,
Plaintiff,
v.
MICHAEL BILOTTI,
Defendant.
______________________________________/
ORDER ON MOTION FOR SUMMARY JUDGMENT
This cause is before the Court upon Plaintiff William Greenberg’s Motion for Summary
Judgment, ECF No. [25] (the “Motion”).

The Court has reviewed the Motion, Defendant

Michael Bilotti’s Response, ECF No. [31], Plaintiff’s Reply, ECF No. [34], all related filings and
declarations, the record in this case, and is otherwise fully advised in the premises. For the
reasons stated below, the Motion is granted.
I. FACTS
On or about February 1, 2012, Defendant Michael Bilotti (“Defendant”) executed a
Replacement Promissory Note unto Plaintiff William Greenberg (“Plaintiff”) with an original
principal amount of $313,638.73 (the “Promissory Note” or “Note”). See Complaint at ¶ 9;
Plaintiff’s Concise Statement of Material Facts (“Pl. SOF”), ECF No. [26]1 at ¶ 1; see also

1
Local Rule 56.1 requires a summary judgment movant to submit a “Statement of Material
Facts” along with the original motion. See S.D. Fla. L.R. 56.1(a). The Statement must “[b]e
supported by specific references to pleadings, depositions, answers to interrogatories,
admissions, and affidavits on file with the Court. Id. at (a)(2). An opponent who fails to
controvert the movant’s Statement of Material Facts is advised accordingly:
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Promissory Note, ECF No. [1-1]. The Note provided a an eight percent (8%) per annum interest
rate, and a default interest rate of eighteen percent (18%) per annum. Pl. SOF at ¶ 3. Defendant
immediately defaulted on the Note, failing to pay the first installment, due on March 1, 2012, or
any installment thereafter. Id. at ¶ 4; see also Promissory Note at 1. On October 1, 2015, the
Promissory Note matured. See Promissory Note at 1. Defendant also failed to pay the value of
the note upon maturity. Pl. SOF at ¶ 4. When Plaintiff demanded payment in full, Defendant
apparently refused. Id. at ¶ 6.
Invoking this Court’s diversity jurisdiction under 28 U.S.C. § 1332, Plaintiff commenced
this three-count action asserting claims for promissory note (Count I), money lent (Count II) and
unjust enrichment (Count III). See Complaint, ECF No. [1]. Specifically, Plaintiff seeks the
principal amount of $313,638.73, per diem interest from March 1, 2012, through the present, as
well as attorneys’ fees and costs purportedly owed under the terms of the Promissory Note. Pl.
SOF at ¶¶ 8-9; see also Promissory Note at 2.
II. LEGAL STANDARD
A party may obtain 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.” Fed.

All material facts set forth in the movant’s statement filed and
supported as required above will be deemed admitted unless
controverted by the opposing party’s statement, provided that the
Court finds that the movant’s statement is supported by evidence in
the record.
Id. at (b). While Plaintiff has properly filed a Rule 56.1 Statement, Defendant has elected not to
respond to the same, thereby admitting the facts contained therein. See Joseph v. Napolitano,
839 F. Supp. 2d 1324, 1336 (S.D. Fla. 2012) (deeming facts admitted where party failed to
controvert under Local Rule 56.1); Maryland Cas. Co. v. Integration Concepts, Inc., No. 14-CV14231, 2015 WL 4747539, at *1 n.1 (S.D. Fla. June 24, 2015) (same); see also Fed. R. Civ. P.
56(e) (allowing the court to “consider [a] fact undisputed for purposes of the motion” where the
party “fails to properly address another party’s assertion of fact as required by Rule 56(c)”).
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R. Civ. P. 56(a). An issue is genuine if “a reasonable trier of fact could return judgment for the
non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243
(11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The Court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the non-moving party’s favor. See Davis v.
Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which a jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. Further, the Court does not
weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.
2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir.
1986)).
The moving party shoulders the initial burden of showing the absence of a genuine issue
of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once this burden is
satisfied, “the nonmoving party ‘must do more than simply show that there is some metaphysical
doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x 819, 825 (11th
Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). Instead, “the non-moving party ‘must make a
sufficient showing on each essential element of the case for which he has the burden of proof.’”
Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving
party must produce evidence, going beyond the pleadings, and by its own affidavits, or by
depositions, answers to interrogatories, and admissions on file, designating specific facts to
suggest that a reasonable jury could find in the non-moving party’s favor. Shiver, 549 F.3d at

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1343. Even “where the parties agree on the basic facts, but disagree about the factual inferences
that should be drawn from those facts,” summary judgment may be inappropriate. Warrior
Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
In resolving issues presented under Fed. R. Civ. P. 56, “the court may not weigh
conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary
judgment must be denied.” Carlin Commc’n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d
1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez, 2011 WL 5838233, at *1 (S.D. Fla.
Nov. 21, 2011) (“If a reasonable fact finder could draw more than one inference from the facts,
and that inference creates an issue of material fact, then the court must not grant summary
judgment.” (citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993))).
III. DISCUSSION
Plaintiff now moves for judgment on the Promissory Note, believing there to be no
justiciable issues of fact remaining. See Motion at ¶ 1. Indeed, “[s]uits to enforce promissory
notes ‘are among the most suitable classes of cases for summary judgment.’” United States v.
Newcombe, No. 8:08-CV-2225-T-27EAJ, 2009 WL 1759587, at *1 (M.D. Fla. June 18, 2009)
(quoting Lloyd v. Lawrence, 472 F.2d 313, 316 (5th Cir. 1973)).2 Plaintiff’s Motion also seeks
fees pursuant to the terms of the Note. See Motion at ¶ 6.
A.

Plaintiff is Entitled to Judgment as a Matter of Law

“A promissory note, if mature and regular on its face, is sufficient to establish a prima
facie case for enforcement.” Suntrust Bank v. Armsey, No. 09-80606-CIV, 2010 WL 4553766, at
*2 (S.D. Fla. Nov. 3, 2010); White v. Bachner, 632 So. 2d 94 (Fla. 3d DCA 1994) (“A
promissory note admitted into evidence is sufficient, without other extrinsic proof, to establish a

Decisions rendered by the former Fifth Circuit prior to October 1, 1981 are binding precedent
in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)).

2

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prima facie case in an action on the note.”). Thus, “[a] payee’s possession of an original
uncanceled promissory note raises a presumption of non-payment that shifts the burden of proof
to the payor to establish payment or another defense.” Cole Taylor Bank v. Shannon, 772 So. 2d
546, 550 (Fla. 1st DCA 2000) (citing Jacobs v. Becks, 355 So. 2d 1241 (Fla. 1st DCA 1978)).
“All attacks upon it, or the debt it represents, must be made by affirmative defenses on which a
defendant bears the burden of proof.” Armsey, 2010 WL 4553766 at *2 (citations omitted); Cole
Taylor Bank, 772 So. 2d at 550 (“Challenges to a promissory note, mature and regular on its
face, or to the debt it represents, must be made by affirmative defense.”). “[S]ummary judgment
is appropriate based on the evidence of the promissory note and if there is ‘no evidence of any
release, waiver, novation or discharge of the valid promissory note.” Armsey, 2010 WL 4553766
at *2 (quoting Wachovia Bank, National Association v. Horizon Wholesale Foods, LLC, No. 09–
0072–KD–B, 2009 WL 3526662, at * 3 (S.D. Ala. Oct.23, 2009)).
No dispute exists over the essential facts of this action, to wit, that Plaintiff is the proper
holder of the Note, that payment is required by Defendant under the terms of the Note, and that
Defendant has defaulted on the Note. Compare Motion with Defendant’s Response to Plaintiff’s
Motion (“Def. Resp.”), ECF No. [31]. Consequently, Defendant must establish that an
affirmative defense creates an issue of fact preventing judgment in this case. “A district court
should not grant summary judgment where genuine issues of material fact exist about an
affirmative defense.” Bryant v. Rich, 530 F.3d 1368, 1380 (11th Cir. 2008) (citing Fed. R. Civ.
P. 56(c)) (further citations omitted); Singleton v. Dep’t of Corr., 277 F. App’x 921, 923 (11th
Cir. 2008) (“Summary judgment is not appropriate where a genuine issue of material fact exists
about an affirmative defense.”).

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According to Defendant, Plaintiff has failed to negate Defendant’s affirmative defenses,
specifically: (1) that Plaintiff failed to provide notice as required by the Note; and (2) that
Plaintiff has failed to comply with the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq.
(“TILA”).3 See Def. Resp. at ¶ 3. The Court addresses these arguments in turn, finding that
neither has merit.
The Promissory Note at issue includes an acceleration clause, which provides:
Upon default in the payment of principal and/or interest when due,
then ten (10) days after written notice from the Holder to the
Maker hereof stating that such default has occurred, the whole sum
of principal and interest remaining unpaid shall, at the option of the
Holder, become immediately due and payable, unless the Maker
cures such default within such ten (10) day period after such
written notice.
Promissory Note at 2. The plain language of this acceleration clause permits Plaintiff to request
the full amount due shortly after default, provided that Defendant is given written notice and
afforded ten (10) days to remedy the default. Id. Defendant asserts that Plaintiff has failed to
give written notices in compliance with the acceleration clause. See Affirmative Defenses, ECF
No. [9] at ¶ 4; Def. Resp. at ¶ 3. However, Plaintiff was not obligated to provide notice because
Plaintiff never sought to accelerate the amount due. In fact, the Note matured over four months
ago, on October 1, 2015, and only now has Plaintiff demanded the amount due. Defendant fails
to direct the Court to any provision in the Note which required notice or demand prior to
commencing the instant action.

Stated simply, there was no attempt at acceleration and,

therefore, there was no notice required.4

3
Defendant commingles these defenses into one single affirmative defense. See Affirmative
Defenses, ECF No. [9].
4

Defendant points to the fact that Plaintiff filed this action prior to the Note’s maturity date. See
Def. Resp. at ¶ 3. While it may have been more prudent to wait until maturity to initiate this
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Defendant’s remaining affirmative defense, that Plaintiff has failed to comply with TILA
by failing to give disclosure and/or a right of rescission, as well as “other statutory
requirements,” is also unfounded. TILA’s purpose is “to assure a meaningful disclosure of credit
terms so that the consumer will be able to compare more readily the various credit terms
available to him and avoid the uninformed use of credit, and to protect the consumer against
inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a). “To that
end, the statute and its implementing regulations set forth the timing and content of certain
mandatory disclosures regarding finance charges, annual percentage rates of interest, total
payment schedule and the like.” Muro v. Hermanos Auto Wholesalers, Inc., 514 F. Supp. 2d
1343, 1348 (S.D. Fla. 2007) (citing 15 U.S.C. §§ 1331-32, 1368; 12 C.F.R. Part 226
(“Regulation Z”); and Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060 (11th Cir. 2004)).
This argument is a hollow one. First and foremost, Plaintiff does not seek to enforce the
Note under any provision found in TILA and, accordingly, a failure to provide required
disclosures will not prevent the enforcement of the Note. Contrary to Defendant’s belief,
Plaintiff is not required to prove at trial that they are exempt from disclosures which are not part
and parcel of the claims brought. Again, Defendant fails to cite to applicable law in support of
its contention that TILA, a seemingly unrelated statute,5 somehow prevents enforcement of the

litigation, Defendant cites no law requiring such delay. The issue is ultimately rendered moot by
the simple fact that the maturity date has now expired.
5
It is highly questionable as to whether TILA would even apply to the facts before the Court.
“TILA only applies to loan servicers that also act as the creditor in the transaction at issue.”
Danier v. Fed. Nat. Mortgage Ass’n, No. 12-62354-CIV, 2013 WL 462385, at *5 (S.D. Fla. Feb.
7, 2013) (citations omitted); 15 U.S.C. § 1602(g) (defining the term “creditor”). The Note is an
unsecured transaction between two individuals. See generally 15 U.S.C. § 1603(3) (noting that
TILA exempts transactions, “other than those in which a security interest is or will be acquired in
real property, or in personal property used or expected to be used as the principal dwelling of the
consumer and other than private education loans (as that term is defined in section 1650(a) of
this title), in which the total amount financed exceeds $50,000”).
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Note. Second, and equally as critical, TILA provides an independent cause of action; if Plaintiff
has violated TILA in some fashion, then Defendant may seek recourse through the appropriate
avenue, that is, an independent action.
In sum, Defendant fails to provide a cogent reason as to why judgment should not be
entered in Plaintiff’s favor. No issues of material fact exist and judgment in Plaintiff’s favor is
appropriate.
B.

Plaintiff’s Request for Attorneys’ Fees

“Generally speaking, each party to a lawsuit bears its own attorneys’ fees absent a
statutory provision or a contractual provision authorizing the award of same.” Overman v. Imico
Brickell, LLC, No. 08-21091-CIV, 2009 WL 68826, at *3 (S.D. Fla. Jan. 6, 2009) (citing Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975)). The Note’s choice of law
provision dictates that Florida law applies to the interpretation of the Note. See Promissory Note
at 2. “Under Florida law . . . attorneys’ fees may be awarded to a prevailing party pursuant to a
contractual agreement authorizing same.” Overman, 2009 WL 68826, at *3 (citing Price v.
Tyler, 890 So. 2d 246, 250 (Fla. 2004)). “The Court does not have discretion to decline to
enforce a contractual provision awarding attorneys’ fees in that such provisions are mandatory.”
Id. (citing Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005)). “A party is deemed a
‘prevailing party’ if that party succeeds on ‘any significant issue’ in the litigation which
‘achieves some of the benefit the parties sought.’” Id. (quoting Hensley v. Eckerhart, 461 U.S.
424, 433 (1983)).
Plaintiff seeks attorneys’ fees, costs, and expenses in accord with the terms of the
contract, the Promissory Note. See Motion at ¶ 6. As to fees, the Note provides that
Each Maker and endorser further agrees, jointly and severally, to
pay all principal and interest due hereunder, all costs of collection,
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including reasonable attorney’s fees and costs for appeal, in case
the principal of this Note or interest thereon is not paid on the
respective due dates, whether suit be brought or not.
Promissory Note at 2 (emphasis supplied).
Defendant does not challenge the contractual provision but, rather, asserts that Plaintiff’s
Affidavit as to Attorneys’ Fees and Costs “[does] not reflect any demand being sent to the
Defendant as required by the Note.” See Def. Resp. at ¶ 4. To no avail, Defendant, once again,
fails to direct the Court to which provision it relies on. The attorneys’ fees provision, reproduced
above, contains no demand provision, nor does any other portion of the Note, save for the
previously-discussed acceleration clause. As previously noted, the acceleration clause only
requires notice where the holder seeks to accelerate payment based upon a default, which did not
occur here. Accordingly, this argument does nothing to negate the fees request. Based on the
preceding determination, see supra Section III.A, it is evident that Plaintiff is the prevailing party
in this action. Pursuant to the unambiguous terms of the Note, Plaintiff is entitled to his
attorneys’ fees.
Plaintiff requests $4,280.00 in fees, comprised of 10.7 hours at a rate of $400.00 per
hour. See Affidavit as to Attorneys’ Fees and Costs, ECF No. [28] at ¶¶ 4-5. Additionally,
Plaintiff seeks $793.06 in costs, comprised of filing fees, service costs, PACER access,
photocopies, and postage. See id. at ¶ 6. Defendant fails to dispute these amounts. “A
reasonable hourly rate is the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.” Norman v.
Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Blum v.
Stenson, 465 U.S. 886, 895-96 n.11 (1984)). Plaintiff’s counsel is a shareholder of the firm and
there appears to be no reason to reduce the hourly rate requested. Thus, the Court finds the

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requested fee to be fair and reasonable. See, e.g., Valley v. Ocean Sky Limo, 82 F. Supp. 3d
1321, 1329 (S.D. Fla. 2015) (finding $400 per hour to be a fair and reasonable attorney’s fee);
Jackson v. Grupo Indus. Hotelero, S.A., No. 07-22046-CIV, 2010 WL 750301, at *3 (S.D. Fla.
Mar. 3, 2010) (determining the same).
IV. CONCLUSION
Based on the foregoing, Plaintiff is entitled to judgment as a matter of law, as well as fees
as dictated by the Promissory Note.6 It is, therefore, ORDERED AND ADJUDGED that
Plaintiff William Greenberg’s Motion for Summary Judgment, ECF No. [25], is GRANTED.
Pursuant to Rule 58(a) of the Federal Rules of Civil Procedure, final judgment will be entered by
separate order.
DONE AND ORDERED in Miami, Florida, this 9th day of February, 2016.

____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

6
Plaintiff fails to specify which Count of the alternatively-pled Complaint it seeks judgment on.
Notwithstanding this lack of specificity, all claims request the same relief. Pursuant to the
analysis contained herein, it is clear that Count I of the Complaint affords valid, proper, and
complete relief.
10