BRANCH BANKING AND TRUST COMPANY v. RTC PROPERTIES LLC et al

Filing 24

ORDER granting 15 Motion for Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 02/26/2014 (jcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
BRANCH
BANKING
COMPANY,

AND

TRUST *
*

Plaintiff,
*
vs.

CASE NO. 4:13-CV-75 (CDL)
*

RTC PROPERTIES, LLC and RICHARD
E. THOMAS, SR.,
*
Defendants.

*
O R D E R

Plaintiff
predecessor

in

Branch

interest

(“RTC Properties”).
Thomas,

Sr.

Banking

Trust

money

to

Company’s
RTC

(“BB&T”)

Properties,

LLC

That loan was guaranteed by Richard E.

(“Thomas”)

(“Property”).

loaned

and

and

secured

by

certain

real

estate

The promissory note, security deed, and guarantee

were all assigned to BB&T.

Defendants RTC Properties and Thomas

defaulted

BB&T

on

the

loan.

brought

this

action

against

Defendants to recover the amounts owed under the promissory note
and guarantee and to take possession and title to the Property
pursuant

to

the

security

deed.

Contending

that

no

genuine

factual disputes exist and that it is entitled to judgment as a
matter of law, Plaintiff has filed a motion for summary judgment
(ECF

No.

15).

Thomas

responded

to

the

motion

by

filing

a

collection of documents without an accompanying brief (ECF No.

19) and later filed an untimely brief with exhibits and unsworn
statements (ECF No. 20).1
admissible

portions

of

Even if the Court were to consider the
these

filings,

the

Court

nevertheless

finds that no genuine issues of material fact exist and that
BB&T is entitled to summary judgment.2
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P. 56(a).

In determining whether a

genuine

Fed. R.

dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

1

Id.

Thomas filed these responses on behalf of himself, pro se, but he
also improperly filed them on behalf of RTC Properties, LLC.
See
Winzer v. EHCA Dunwoody, LLC, 277 Ga. App. 710, 714, 627 S.E.2d 426,
430 (2006) (finding that a limited liability company “can appear in
court only through an attorney and not through an agent not admitted
to the practice of law”).
2
Accordingly, BB&T’s motion to strike these responses (ECF No. 21) is
terminated as moot.

2

FACTUAL BACKGROUND
In

September

Properties.

2008,

Colonial

Bank

made

a

loan

to

RTC

As part of that transaction, the following closing

documents were executed: a Security Deed recorded in Muscogee
County and executed by Thomas on behalf of and as sole member of
RTC Properties, Pl.’s Mot. for Summ. J. [hereinafter Mot.] Ex.
A, Security Deed, ECF No. 15-1; a Commercial Promissory Note and
Security

Agreement

executed

by

Thomas

on

behalf

of

RTC

Properties, Mot. Ex. B., Colonial Note with Allonge, ECF No. 152; and a Personal Guarantee executed by Thomas in his personal
capacity, guaranteeing full and prompt payment of all existing
and

future

debts,

liabilities,

and

obligations

owed

by

RTC

Properties to Colonial Bank, Mot. Ex. D, Colonial Guarantee, ECF
No. 15-4.
The Security Deed states that it is binding on “Grantor and
Lender

and

receivers,

their

respective

administrators,

legatees, and devisees.”

successors,

personal

assigns,

trustees,

representatives,

Security Deed ¶ 28.

heirs,

Also, it provides

that “Grantor shall allow Lender or its agents to examine and
inspect the Property and . . . . shall provide any assistance
required by Lender for these purposes,” id. ¶ 15, and that in
the event of default, such as when “Grantor, Borrower or any
guarantor of the Obligations . . . fails to pay any of the
Obligations to Lender when due,” the Lender may “enter upon and

3

take

possession

of

the

Property

without

applying

for

obtaining the appointment of a receiver,” id. ¶¶ 18-19.

or
The

Security Deed also obligates RTC Properties to pay attorneys’
fees in the amount of 15% of the principal and interest owed.
Id. ¶ 25.

The Personal Guarantee executed by Thomas provides

that it “shall inure to the benefit of the Beneficiary and its
successors and assigns, including every holder of any of the
indebtedness

here

guaranteed”

in

an

“[u]nlimited”

amount.

Colonial Guarantee 1.
In

August

2009,

Colonial

Bank

failed,

and

the

Federal

Deposit Insurance Corporation took over as receiver.

Mot. Ex.

L, Purchase and Assumption Agreement, ECF No. 15-12.

Effective

August 14, 2009, the FDIC generally assigned all loan documents
recorded

in

Muscogee

issue, to BB&T.
The

General

County,

including

the

Security

Deed

at

Mot. Ex. F, General Assignment, ECF No. 15-6.

Assignment

was

executed

on

December

4,

2009

by

Teresa Griswold on behalf of the FDIC as its attorney-in-fact
and was recorded in Muscogee County.
3.

In addition, Thomas executed a Commercial Promissory Note

directly

to

BB&T

on

behalf

Properties in October 2009.
3.

Id. at 2, ECF No. 15-6 at

of

and

as

sole

member

of

RTC

Mot. Ex. C, BB&T Note, ECF No. 15-

That same day, Thomas executed an identical guarantee in his

personal capacity, guaranteeing “full and prompt payment” of all
existing and future “debts, obligations, and liabilities” owed

4

by RTC Properties to BB&T in an “[u]nlimited” amount.

Mot. Ex.

E, BB&T Guarantee, ECF No. 15-5.
On November 16, 2012, BB&T sent Defendants notice that they
were

in

default.

Mot.

Ex.

H,

Demand

Letters/Foreclosure

Notices, ECF No. 15-8; Mot. Ex. I, Stanton Aff. ¶¶ 13-15, ECF
No. 15-9.

On November 26, 2012, the FDIC specifically assigned

the Security Deed, the Colonial Note, and the Colonial Guarantee
to

BB&T,

effective

August

Assignment, ECF No. 15-7.

14,

2009.

Mot.

Ex.

G,

Specific

The Specific Assignment was executed

by Tamara A. Stidham on behalf of the FDIC as its attorney-infact and recorded in Muscogee County.
3.

That

same

day,

the

FDIC

Id. at 2, ECF No. 15-7 at

also

reflected

the

specific

assignment of the Colonial Note in an allonge endorsed to BB&T
executed by Stidham as its attorney-in-fact.

Colonial Note with

Allonge 1, ECF No. 15-2 at 2.
In

January

inspection

2013,

conducted

foreclosure.

BB&T
on

had

the

a

Phase

Property

in

I

environmental

preparation

Mot. Ex. J, Turbe Aff. ¶ 3, ECF No. 15-10.

for
Based

on the results, a Phase II environmental inspection was needed.
Id. ¶ 4.

Defendants refused and continue to refuse to allow

BB&T’s inspectors to access the Property for this purpose.

Id.

¶¶ 5-8.
As

of

October

15,

2013,

BB&T

is

owed

$99,300.00

in

principal; $10,211.36 in interest continuing to accrue at $13.10

5

per diem; $15,349.06 in fees and expenses including appraisal
fees,

environmental

assessment

fees,

force

placed

insurance

fees, and review fees; and collection costs including attorneys’
fees of 15% of the principal and interest owed pursuant to the
loan documents.

Stanton Aff. ¶ 16.
DISCUSSION

Thomas has failed to point to any evidence in the record
that creates a genuine factual dispute regarding the assignment
of

Defendants’

loan

and

accompanying

documents

to

BB&T,

Defendants’ obligations to BB&T, Defendants’ default on their
obligations to BB&T, BB&T’s right to judgment for the amount it
claims it is owed, and BB&T’s right to title and possession of
the

Property.

Instead,

Thomas

attempts

to

create

disputed

issues of material fact with unsworn statements unsupported by
citations

to

the

record.

Thomas

attempts

to

dispute

the

validity of the General Assignment, the Specific Assignment, and
the Allonge.

First, Thomas points out an error in the General

Assignment

listing

a

different

attorney-in-fact

(Heidi

Gillespie) in the notary public’s acknowledgement, but correctly
listing Griswold on the signature line as the attorney-in-fact
who

executed

the

document.

General

Assignment

2.

This

discrepancy alone is not material, however, as Thomas fails to
dispute that Griswold had the authority to validly execute the
document.

See

id.

Attach.

B,

6

Aug.

2009

Limited

Power

of

Attorney 1-2, ECF No. 15-6 at 7-8 (granting Griswold, Gillespie,
and a number of others limited power of attorney from August 14,
2009 to August 14, 2010).

Second, Thomas quarrels with the fact

that Stidham executed an allonge to the Colonial Bank Note with
an effective date of the original promissory note.

See Colonial

Note with Allonge 1 (“Executed: November 26, 2012[;] Effective
Date: August 14, 2009[.]”).

Thomas cites to no evidence to

dispute that Stidham was granted such authority pursuant to a
limited power of attorney.

See Specific Assignment Attach. C,

Sept. 2011 Limited Power of Attorney 1-2, ECF No. 15-7 at 8-9
(granting
August

Stidham

14,

2011

and
to

others

August

limited

14,

2013

power
to

of

execute

attorney

from

documents

on

behalf of the FDIC to transfer “loans formerly held by Colonial
Bank to [BB&T] pursuant to that certain Purchase and Assumption
Agreement, dated as of August 14, 2009[,]” including “allonges
to promissory notes”).
Thomas

also

makes

allegations

about

an

attempted

foreclosure in August 2011, which is irrelevant to any of the
issues presented by BB&T’s motion for summary judgment.

Lastly,

Thomas makes general conclusory allegations that are unsupported
by any evidence in the present record.
Defendants have simply failed to create a genuine factual
dispute.

It is undisputed that BB&T is entitled to enforce the

Security Deed, the Colonial Note, and Colonial Guarantee against

7

the

Defendants

pursuant

to

the

Purchase

and

Assumption

Agreement, the General Assignment, and the Specific Assignment,
which effectively assigned Defendants’ legal obligations and the
accompanying loan documents to BB&T.

See O.C.G.A. § 11-3-203(b)

(“Transfer of an instrument . . . vests in the transferee any
right of the transferor to enforce the instrument, including any
right as a holder in due course . . . .”); O.C.G.A. § 11-3-301
(“‘Person

entitled

to

enforce’

an

instrument

means

.

.

.

a

nonholder in possession of the instrument who has the rights of
a holder . . . .”); see also Kensington Partners, LLC v. Beal
Bank Nevada, 311 Ga. App. 196, 197, 714 S.E.2d 491, 494 (2011)
(“[A] transfer of the underlying principal obligation operates
as an assignment of the guaranty.”) (internal quotation marks
omitted).

It is also undisputed that the Allonge resulted in

the assignment of the Colonial Note to BB&T.

See O.C.G.A. § 11-

3-204 cmt. 1 (“An indorsement on an allonge is valid even though
there

is

sufficient

indorsement.”).
Properties

executed

In
a

space

on

addition
promissory

the

to

instrument

these

note

for

assignments,

directly

to

BB&T,

an
RTC
and

Thomas executed a personal guarantee directly to BB&T.
“It is well established that a plaintiff seeking to enforce
a promissory note establishes a prima facie case by producing
the note and showing that it was executed.”

Newton v. Sibley,

273 Ga. App. 343, 343, 615 S.E.2d 185, 186 (2005).

8

“Once that

prima facie case has been made, the plaintiff is entitled to
judgment as a matter of law unless the defendant can establish a
defense.”

Id.

BB&T has produced the Colonial Note and the BB&T

Note executed by RTC Properties, which obligate RTC Properties
to pay the principal, interest, fees, and costs of collection
including attorneys’ fees.

Colonial Note 1-2; BB&T Note 1-2.

BB&T has also produced the Colonial Guarantee and BB&T Guarantee
executed by Thomas guaranteeing payment of those obligations of
RTC Properties.

Colonial Guarantee 1; BB&T Guarantee 1.

Defendants have pointed to no evidence to dispute that they
are in default and owe the claimed amounts.

Nor have Defendants

demonstrated that they have an affirmative defense to assert or
that a factual dispute exists as to any such defense.

BB&T has

thus established that it is entitled to summary judgment.

See

Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (“[M]ere conclusions and unsupported factual allegations
are legally insufficient to defeat a summary judgment motion.”).
Accordingly, Defendants are liable to BB&T for $99,300.00 in
principal,

$10,211.36

in

interest

as

of

October

15,

2013

continuing to accrue at $13.10 per diem; $15,349.06 in fees and
expenses;

and

collection

costs

including

attorneys’

fees

of

$16,426.70 as of October 15, 2013.
BB&T is also entitled to immediate possession of and access
to the Property pursuant to the Security Deed.

9

Based on its

terms, “Grantor shall allow Lender . . . to examine and inspect
the Property and . . . . shall provide any assistance required
by Lender for these purposes.”
event

of

default,

including

Security Deed ¶ 15.

when

“Grantor,

Borrower

In the
or

any

guarantor of the Obligations . . . fails to pay any of the
Obligations to Lender when due,” the Lender may “enter upon and
take

possession

of

the

Property

without

obtaining the appointment of a receiver.”

applying

for

Id. ¶¶ 18-19.

or
In

accordance with the terms of the Security Deed, BB&T is entitled
to take possession of the Property.
CONCLUSION
For the reasons explained above, BB&T’s Motion for Summary
Judgment

(ECF

No.

15)

is

granted.

Final

judgment

shall

be

entered in favor of Plaintiff Branch Banking and Trust Company
against Defendants RTC Properties, LLC and Richard E. Thomas,
Sr., jointly and individually, in the amount of $143,305.83.3
The Court also orders that BB&T shall have immediate access to
and possession of the Property.
IT IS SO ORDERED, this 26th day of February, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

3

This figure reflects the additional interest of 134 days since
October 15, 2013 and the additional attorneys’ fees of 15% of that
interest now owing.

10