BRANCH BANKING AND TRUST COMPANY v. GREENBRIAR ESTATES LP et al

Filing 20

ORDER granting 19 Motion for Summary Judgment. Ordered by U.S. District Judge HUGH LAWSON on 2/7/2014. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
BRANCH BANKING AND
TRUST COMPANY,
Plaintiff,
Civil Action No. 7:13-CV-12 (HL)
v.
GREENBRIAR ESTATES, LP,
HUGH W. ROBERTS, and
ALAN G. PAULK SR.,
Defendants.

ORDER
This case is before the Court on Plaintiff’s Motion for Summary Judgment
(Doc. 19). For the reasons discussed below, the motion is granted.
I.

SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 requires that summary judgment be

granted “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). “The moving party bears ‘the initial responsibility of informing the . . . court
of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548

(1986) (internal quotations omitted)). Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go beyond the pleadings
and present affirmative evidence to show that a genuine issue of material fact
does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505
(1986).
In resolving a motion for summary judgment, the court must view all
evidence and draw all reasonable inferences in the light most favorable to the
non-moving party. Patton v. Trial Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). But, the court is bound only to draw those inferences which are
reasonable. “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Allen v.
Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986)).“If
the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted).
Defendants did not file a response to Plaintiff’s motion. The Court “cannot
base the entry of summary judgment on the mere fact that the motion was
unopposed, but, rather, must consider the merits of the motion.” United States v.
One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d

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1099, 1011 (11th Cir. 2004). However, the Court “need not sua sponte review all
of the evidentiary materials on file at the time the motions is granted, but must
ensure that the motion itself is supported by evidentiary materials.” Id.
II.

FACTS
A.

Local Rule 56

In accordance with Local Rule 56, Plaintiff filed a statement of material
facts to which it contends there is no genuine dispute. (Doc. 19-2). As required
by Local Rule 56, each fact statement is supported by a specific citation to the
record. See M.D. Ga. L.R. 56.
Local Rule 56 requires the respondent to respond to each of the movant’s
numbered material facts. “All material facts contained in the moving party’s
statement which are not specifically controverted by specific citation to the record
shall be deemed to have been admitted, unless otherwise inappropriate.” M.D.
Ga. L.R. 56. Defendants did not file any response to the statement of material
facts. Therefore, in accordance with Local Rule 56, the facts contained in
Plaintiff’s statement are deemed admitted.
Even though Plaintiff’s submitted facts are deemed admitted, Plaintiff
“continues to shoulder the initial burden of production in demonstrating the
absence of any genuine issue of material fact, and the court must satisfy itself
that the burden has been satisfactorily discharged.” Reese v. Herbert, 527 F.3d

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1253, 1268 (11th Cir. 2008). The Court must “review the movant’s citations to the
record to determine if there is, indeed, no genuine issue of material fact.” Id. at
1269 (quotation and internal quotation marks omitted). The Court has so
reviewed the record, and viewed in the light most favorable to Defendants, finds
the facts for purposes of summary judgment to be as follows.
Defendant Greenbriar Estates, LP (“Greenbriar”) executed and delivered to
First Liberty Bank, predecessor to Plaintiff, a promissory note dated February 25,
2000 in the principal amount of $425,000 (the “Note”). Greenbriar subsequently
executed and delivered to Plaintiff Note Modification Agreements dated March
23, 2001, April 18, 2002, August 14, 2002, April 23, 2003, April 14, 2004, April
22, 2005, May 1, 2006, May 11, 2007, May 19, 2008, October 19, 2009,
February 12, 2010, and June 4, 2010. These Note Modification Agreements
extended the maturity date of the Note and reflected the changing principal
balance owed on the Note. Under the last Note Modification Agreement, the
principal amount of the Note was $179,800. The Note was due to mature on
June 10, 2011.
Defendant Hugh W. Roberts and Defendant Alan G. Paulk Sr. each
executed a Guaranty Agreement dated February 25, 2000, by which they
guaranteed repayment of any and all debts then owing or thereafter incurred by
Greenbriar to Plaintiff. Roberts and Paulk subsequently executed additional

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Guaranty Agreements dated June 4, 2010, by which they again guaranteed
repayment of all indebtedness then existing or thereafter arising from Greenbriar
to Plaintiff.
Defendants did not pay the indebtedness due under the Note when it
matured on June 10, 2011, and the Note went into default. Plaintiff delivered
notices to Defendants dated October 26, 2012, November 16, 2012, and January
4, 2013 demanding immediate payment of all principal and interest owing on the
Note. Defendants were notified that the provisions of the Note regarding payment
of attorney’s fees would be enforced if the full amount of principal and interest
due on the Note was not paid within 10 days from Defendants’ receipt of the
notices.1 Defendants made no payments in response to the notices.
Plaintiff now moves for summary judgment against all of the Defendants.
Plaintiff seeks payment of the principal balance, interest, bank fees, and
attorney’s fees. According to Plaintiff, as of December 4, 2013, the following
amounts are due on the Note: $179,800 in principal; $25,407.99 in accrued
interest; $7,558.46 in bank fees; $20,545.80 in attorney’s fees; $26.2208 in per
diem interest for each day after December 4, 2013; and $2.62208 in per diem
attorney’s fees for each day after December 4, 2013.

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The Note provides that Defendants shall be liable for all costs of collection and attorney’s fees if the
Note is placed with an attorney for collection.

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III.

ANALYSIS
“A plaintiff seeking to enforce a promissory note establishes a prima facie

case by producing the note and showing that it was executed. 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.” Core LaVista, LLC v. Cumming,
308 Ga. App. 791, 795, 709 S.E.2d 336, 340 (2011) (quotation omitted); Smith v.
Gordon, 266 Ga. App. 814, 814, 598 S.E.2d 92, 93 (2004) (“A creditor in
possession of a valid and signed promissory note has a prima facie right to
repayment, unless the debtor can establish a valid defense.”); Gentile v. Bower,
222 Ga. App. 736, 738, 477 S.E.2d 130, 133 (1996) (“In an action on a
promissory note, a claimant may establish a prima facie right to judgment as a
matter of law by producing the promissory note and showing that it was
executed.”) Similarly, a party seeking to enforce a guaranty agreement
establishes a prima facie case by showing that the note and guaranty agreement
were executed and that the maker of the note defaulted thereunder. Shropshire
v. Alostar Bank of Commerce, 314 Ga. App. 310, 315, 724 S.E.2d 33, 38-39
(2012).
The Court finds that Plaintiff has established a prima facie case of liability.
Plaintiff has produced the executed Note and Guaranty Agreements and has
produced evidence demonstrating that Defendants are in default. Defendants

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have presented no evidence to rebut Plaintiff’s showing that they are currently in
default. Thus, the burden of production shifts to Defendants to produce or point
to evidence in the record which establishes an affirmative defense. Big Sandy
Partnership, LLC v. Branch Banking & Trust Co., 313 Ga. App. 871, 872, 723
S.E.2d 82, 84 (2012). Defendants cannot rest on allegations in their pleadings to
establish their affirmative defenses, but rather must come forward with or point to
specific facts in the record to establish the affirmative defenses. Id. (citing
Southeast Reducing Co. v. Wasserman, 229 Ga. App. 1, 4-5, 493 S.E.2d 201
(1997)).
As noted above, Defendants did not file a response to Plaintiff’s summary
judgment motion. They have not pointed to any specific facts in the record which
would establish any affirmative defense to Plaintiff’s claim. Even if the Court were
to consider the defense raised in Defendants’ answer, Plaintiff would still be
entitled to judgment in its favor. Defendants stated in their answer that they are
not in default because Plaintiff had accepted late and irregular payments during
the life of the loan, thereby changing the terms of the loan. But as correctly
pointed out by Plaintiff, a commitment to lend money must be in writing, and any
proposed modification of a written agreement subject to the statute of frauds also
must be in writing to be effective. O.C.G.A. § 13-5-30(7); Brooks v. Gwinnett
Cmty. Bank, 311 Ga. App. 806, 717 S.E.2d 647 (2011). Defendants have

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produced no written modification of the Note. Therefore, this affirmative defense
fails.2
Because Plaintiff has established its prima facie case and Defendants
have no valid defenses, summary judgment in Plaintiff’s favor is appropriate. The
Court must now determine the amounts due under the Note. Defendants have
not disputed the amounts due, other than to deny that they are liable for them.
Based on the evidence in the record, the Court finds that Plaintiff is entitled to
judgment in its favor as follows:
Greenbriar, Roberts, and Paulk are jointly and severally liable to Plaintiff
on the Note. As of December 4, 2013, Defendants owed $179,800 in principal,
$25,407.99 in interest, and $7,558.46 in bank fees. Interest continues to accrue
at a per diem rate of $26.2208 for each day after December 4, 2013. Per diem
interest at the rate of $26.2208 from December 4, 2013 to the date of this Order,
February 7, 2014, amounts to $1,730.57. Therefore, Defendants Greenbriar,
Roberts, and Paulk are jointly and severally liable to Plaintiff for principal,
interest, and fees on the Note in the amount of $214,497.02.
Plaintiff is also entitled to its collection costs, including attorney’s fees.
Under O.C.G.A. § 13-1-11, Plaintiff is entitled to 15 percent of the first $500 of

2

The Court will not consider the second defense mentioned in Plaintiff’s motion. Plaintiff states that
during his deposition, Roberts testified that Plaintiff was obligated to continue renewing the Note so that
the Defendants could pay it incrementally. However, this defense was not raised in Defendants’ answer
and was not advanced by Defendants in response to the summary judgment motion.

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principal and interest owed (which is $75) plus 10 percent of the remaining
principal and interest owed (which is $20,643.86) for a total award of attorney’s
fees of $20,718.86.3
IV.

CONCLUSION
Plaintiff’s Motion for Summary Judgment (Doc. 19) is granted.
The Clerk of Court is directed to enter judgment in favor of Plaintiff and

against Defendants Greenbriar Estates, LP, Hugh W. Roberts, and Alan G.
Paulk, Sr. jointly and severally, in the amount of:
1.

$179,800 in unpaid principal;

2.

$7,558.46 in bank fees;

3.

$27,138.56 in interest;

4.

$20,718.86 in attorney’s fees; and

5.

Post-judgment interest at the statutory rate.

SO ORDERED, this the 7th day of February, 2014.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
mbh

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This calculation takes into consideration the per diem interest accrued from December 4, 2013 to the
date of this Order.

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