Branch Banking and Trust Company v. Kozak
Filing
38
OPINION AND ORDER GRANTING Plaintiff's 33 Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr. on 6/5/2018. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BRANCH BANKING AND TRUST
COMPANY,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:16-CV-2819-TWT
JOSEPH KOZAK,
Defendant.
OPINION AND ORDER
This is an action to recover on a promissory note. It is before the Court on
the Plaintiff Branch Banking and Trust Company’s Motion for Summary
Judgment [Doc. 33]. For the reasons set forth below, the Plaintiff Branch
Banking and Trust Company’s Motion for Summary Judgment [Doc. 33] is
GRANTED.
I. Background
On March 31, 2003, FK Dunwoody, LLC (“FK Dunwoody”) executed and
delivered a promissory note (the “Original Note”) to the Plaintiff Branch
Banking and Trust Company (“BB&T”) in exchange for a loan of $383,000 (the
“Loan”).1 The Defendant Joseph Kozak and Joseph Faught were members and
1
Pl.’s Statement of Material Facts ¶¶ 1-2.
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managers of FK Dunwoody.2 Kozak, Faught, and their wives personally
guaranteed the Original Note.3 FK Dunwoody and BB&T entered into multiple
Note Modification Agreements that extended the maturity date of the Original
Note.4 In 2010, Kozak and Faught agreed to execute a new promissory note for
the same Loan.5 However, this time they signed the note as principal obligors
along with FK Dunwoody, instead of as guarantors of the Loan.6 On September
23, 2010, Kozak, both in his individual capacity and in his capacity as member
and manager of FK Dunwoody, executed and delivered to BB&T a promissory
note (the “Second Note”) in the amount of $276,353.56.7 Likewise, Faught, both
in his individual capacity and in his capacity as member and manager of FK
Dunwoody, executed and delivered an identical promissory note to BB&T.8 The
2
Id. ¶¶ 6-7.
3
Id. ¶ 3.
4
Id. ¶ 4.
5
Id. ¶ 5. Kozak disputes this fact, and argues that the Second Note
“makes no reference to any prior notes or loan entered into between the parties.”
See Def.’s Response to Pl.’s Statement of Material Facts. However, Kozak
admitted during his deposition testimony that the Second Note was a
restructuring of the Original Note and intended to memorialize the remaining
balance of the same Loan. See Kozak Dep. at 38-40. Given this, no genuine
dispute exists as to this fact.
6
7
Id. ¶ 6; Schramm Decl. [Doc. 33-3], Ex. 3 at 25-28.
8
33.
Pl.’s Statement of Material Facts ¶ 5.
Pl.’s Statement of Material Facts ¶ 7; Schramm Decl., Ex. 4 at 30-
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principal amount of $276,353.56 in the Second Note reflected the thenoutstanding principal balance owed on the Loan.9
The Second Note provides that “the undersigned, jointly and severally, if
more than one, promises to pay to [BB&T] . . . the sum of” $276,353.56.10 The
Second Note further states that “[i]f more than one party shall execute this
Note, the term ‘undersigned’ as used herein shall mean all the parties signing
this Note and each of them, and all such parties shall be jointly and severally
obligated hereunder.”11 Kozak, Faught, and FK Dunwoody each also agreed that
any release of liability by BB&T as to one of them would not discharge the
liability of the others.12 The Second Note provides that “[t]he holder hereof, from
time to time, shall have the unlimited right to release any person who might be
liable hereon, and such release shall not affect or discharge the liability of any
other person who is or might be liable hereon.”13
Kozak, Faught, and FK Dunwoody defaulted on the Second Note by
failing to repay the Loan in full by the maturity date of January 5, 2011.14 On
9
Pl.’s Statement of Material Facts ¶ 8.
10
Id. ¶ 9; Schramm Decl., Ex. 3 at 25.
11
Pl.’s Statement of Material Facts ¶ 10; Schramm Decl., Ex. 3 at 27.
12
Pl.’s Statement of Material Facts ¶ 11; Schramm Decl., Ex. 3 at 27.
13
Schramm Decl., Ex. 3 at 27.
14
Pl.’s Statement of Material Facts ¶ 13. Kozak disputes this fact,
arguing that the Second Note was not valid since BB&T never disbursed the
funds referenced in the note and because it lacked consideration. See Def.’s
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May 24, 2011, Faught made a payment of $75,000 to resolve his individual
obligation to BB&T.15 BB&T did not accept this payment in satisfaction of the
Loan or intend for it to release Kozak from his obligations under the Second
Note.16 On July 19, 2016, BB&T provided Notice of Default by letter to Kozak
as a result of his failure to repay the Loan in full upon maturity of the Second
Note.17 The Notice of Default provided Kozak with ten days from its receipt to
pay all outstanding amounts owed under the Loan without incurring liability for
BB&T’s attorneys’ fees.18 Kozak did not pay the Loan in full in this ten-day
period.19 On August 3, 2016, BB&T filed this lawsuit. The Court administratively closed this case on January 26, 2017, due to a Chapter 7 bankruptcy filing
by Kozak.20 On January 25, 2018, the Court granted BB&T’s Motion to Reopen
Case after the U.S. Bankruptcy Court for the Northern District of Georgia
Response to Pl.’s Statement of Material Facts ¶ 13. However, as discussed
below, these arguments fail to create an issue of material facts as to the Second
Note’s validity.
15
Pl.’s Statement of Material Facts ¶ 15; Schramm Decl. ¶ 14; Kozak
Dep., Ex. 7 ¶ 5, at 155.
16
Pl.’s Statement of Material Facts ¶ 16; Schramm Decl. ¶ 15.
17
Pl.’s Statement of Material Facts ¶ 20; Schramm Decl., Ex. 6.
18
Pl.’s Statement of Material Facts ¶ 21; Schramm Decl., Ex. 6.
19
Pl.’s Statement of Material Facts ¶ 22. Kozak denies this fact,
arguing that he never received the funds referenced in the Second Note. See
Def.’s Response to Pl.’s Statement of Material Facts ¶ 22. However, as discussed
below, Kozak has failed to show that a genuine dispute exists as to this fact.
20
See [Doc. 23].
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entered an order dismissing Kozak’s bankruptcy.21 BB&T now moves for
summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions,
and affidavits submitted by the parties show no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law.22 The
court should view the evidence and any inferences that may be drawn in the
light most favorable to the nonmovant.23 The party seeking summary judgment
must first identify grounds to show the absence of a genuine issue of material
fact.24 The burden then shifts to the non-movant, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of
material fact exists.25 “A mere ‘scintilla’ of evidence supporting the opposing
party’s position will not suffice; there must be a sufficient showing that the jury
could reasonably find for that party.”26
21
See [Doc. 24] and [Doc. 25].
22
FED. R. CIV. P. 56(a).
23
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
24
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
25
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
26
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
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III. Discussion
BB&T argues that it is entitled to judgment as a matter of law because
there is no genuine dispute of material fact as to Kozak’s liability under the
Second Note, BB&T’s right to attorneys’ fees under O.C.G.A. § 13-1-11(a)(2), or
Kozak’s affirmative defenses.27 Kozak responds that BB&T has failed to show
that the Second Note related to the Loan, that BB&T failed to show that it ever
disbursed the funds referenced in the Second Note to Kozak, and that the
Second Note lacked consideration. The Court concludes that BB&T is entitled
to summary judgment as to each of these issues.
A. Liability on the Second Note
BB&T first argues that there is no genuine issue of material fact as to
Kozak’s liability on the Second Note. It argues that it has established a prima
facie case for breach of the Second Note, and that Kozak has failed to establish
an affirmative defense.28 “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.”29 “In a suit to enforce a promissory note, a plaintiff
establishes a prima facie case by producing the note and showing that it was
27
Pl.’s Mot. for Summ. J., at 8-9.
28
Id. at 9, 11-13.
29
City of Bremen v. Regions Bank, 274 Ga. 733, 739 (2002).
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executed.”30 “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.”31
“A debtor cannot defeat this prima facie right of repayment by denying the debt
for general reasons; it must assert a valid affirmative defense, such as estoppel
or illegality.”32 Kozak makes three arguments in response. First, Kozak argues
that BB&T has failed to provide any evidence that it disbursed the $276,353.56
referenced in the Second Note to him.33 Second, he argues that BB&T has failed
to provide evidence that the Second Note is “in anyway connected to or was an
extension of any prior notes entered into between the parties in this matter.”34
Third, Kozak contends that BB&T failed to prove that “any consideration was
30
(2014).
L.D.F. Family Farm, Inc. v. Charterbank, 326 Ga. App. 361, 363
Id. (quoting Myers v. First Citizens Bank & Trust Co., 324 Ga. App.
293, 295 (2013)).
31
City of Bremen, 274 Ga. at 739; see also First Citizens Bank &
Trust Co. v. Hwy 81 Venture, LLC, No. 1:10-cv-02126-JEC, 2012 WL 779894, at
32
*2 (N.D. Ga. Mar. 6, 2012) (“A debtor’s denial of the debt for general reasons is
insufficient to overcome this prima facie right to repayment. Only a valid
affirmative defense, such as estoppel, illegality, accord and satisfaction, failure
of consideration, and the like will suffice.”).
33
Def.’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 3.
34
Id.
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given to the Defendant for entering into” the Second Note.35 However, the Court
finds each of these arguments unpersuasive.36
In his first two arguments, Kozak contends that BB&T failed to show that
the Second Note was related to the Original Note, or that it disbursed the
amount recited in the Second Note. However, these arguments fail for two main
reasons. First, these arguments are not valid affirmative defenses, but instead
are “general reasons” for denying the debt.37 BB&T has established a prima facie
case for enforcement of the Second Note by producing the note and showing that
it was executed by Kozak.38 Under Georgia law, such arguments cannot rebut
BB&T’s prima facie showing of a valid promissory note.
Nonetheless, these arguments would still fail. There is no genuine dispute
that the Second Note related to the same antecedent Loan memorialized in the
Original Note. The Second Note was a restructuring of Kozak’s obligations
under the original Loan. Kozak admitted this in his deposition testimony, and
BB&T has provided corroborating evidence. This evidence shows that in 2003,
BB&T lent FK Dunwoody $383,000, which was reflected in the Original Note.39
35
Id.
36
Kozak has not asserted any of the affirmative defenses that were
raised in his Answer, including payment, release, or accord and satisfaction. The
Court thus deems these affirmative defenses to be waived.
37
See City of Bremen, 274 Ga. at 739.
38
See Schramm Decl., Ex. 3.
39
Kozak Dep. at 33.
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Kozak stated during his deposition that the Second Note was a restructuring of
the Original Note, and was not related to a new loan.40 Kozak further admitted
that the principal amount recited in the Second Note, $276,353.56, was the
amount outstanding on the Loan as of September 23, 2010, the date that he
executed the Second Note.41 Therefore, BB&T did not disburse any new funds
to Kozak, Faught, or FK Dunwoody because the Second Note was only a
restructuring of their already existing obligations. Kozak further admits that
the Second Note, the Original Note, and the various modifications over the years
to the Original Note all relate to the same Loan of $383,000.42 Therefore,
Kozak’s arguments fail to dispute BB&T’s prima facie showing of a right to
repayment under the Second Note.
Kozak then argues that the Second Note is unenforceable since it lacked
consideration.43 However, Kozak did in fact receive consideration for the Second
Note. A negotiable instrument such as a promissory note “is presumed to be
based on a valid and sufficient consideration.”44 The Second Note extended the
maturity date on the Loan and reduced the interest rate. The Original Note
40
Id. at 39; see also Schramm Decl. ¶¶ 8, 11.
41
Kozak Dep. at 44-46; Schramm Decl. ¶ 11.
42
Kozak Dep. at 98-99; Schramm Decl. ¶ 8.
43
Def.’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 4.
44
Smith v. Thigpen, 298 Ga. App. 572, 573 (2009).
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matured on August 5, 2010.45 The Second Note extended the maturity date until
January 5, 2011.46 The Second Note also lowered the interest rate to the Bank’s
Prime Rate plus 2.500% per annum, with a minimum rate of 6.500%.47 This was
lower than the interest rate in the Original Note, which was the Bank’s Prime
Rate plus 4.500% per annum, with a minimum rate of 8.750%.48 These
alterations in the promissory note’s terms constitute valid consideration.49
Furthermore, no consideration was necessary for execution of the Second
Note because it related to an antecedent debt. “No new consideration need be
given for an instrument if the instrument is given in payment of, or as security
for, an antecedent obligation of any kind.”50 “An instrument given in ‘payment
45
A Note Modification Agreement dated June 25, 2010, provided for
this maturity date. See [Doc. 34] at 305.
46
See Schramm Decl., Ex. 3 at 25.
47
Id.
48
See [Doc. 34] at 305.
See, e.g., Feely v. First Am. Bank of Ga., N.A., 206 Ga. App. 53, 58
(1992) (concluding that adequate consideration was provided when the debtor
“gained additional time to attempt to split the loan obligation into two,
longer-term obligations” and “obtained per force the forbearance of the bank as
to the prosecution of any claim based on the $50,000 line of credit corporate
obligation”); Graphic Prep, Inc. v. Graphcom, Inc., 206 Ga. App. 689, 691 (1992)
(“As consideration for the execution of a note and guaranty, appellee gave
Graphic Prep additional time in which to pay off the indebtedness. We conclude
that this forbearance from commencement of collection efforts constituted a
benefit to Graphic Prep as well as the Zehs who are the sole principals of
Graphic Prep.”).
49
50
Smith, 298 Ga. App. at 573.
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of, or as security for, an antecedent claim against any person, whether or not the
claim is due[ ]’ is given for value.”51 Thus, since it is given for “value,” it is given
for consideration.52 Here, Kozak admitted that the principal amount of the
Second Note reflected the amount owed on the antecedent obligation. BB&T
therefore need not demonstrate that it gave new consideration for the Second
Note. Given these concessions by Kozak, along with evidence provided by BB&T,
no dispute of material fact exists as his liability on the Second Note.
B. Damages
Next, BB&T argues that it is entitled to summary judgment as to the
amount of money owed under the Second Note. BB&T contends that, as of
March 29, 2018, the following amounts are owed on the Second Note: (1) a
principal balance in the amount of $197,645.00; (2) accrued interest in the
amount of $96,648.95; (3) per diem interest in the amount of $39.80 from March
29, 2018, until the date of this Order; and (4) pre-charge off fees in the amount
of $372.04.53 Kozak provides no response. These amounts are supported by
evidence offered by BB&T.54 Based on the record, the Court finds that BB&T has
provided “sufficient evidence regarding [BB&T’s] calculation of damages to allow
51
Id.
52
Id.
53
Pl.’s Mot. for Summ. J., at 7-8, 10. The “pre-charge off fees” refer
to fees owed by Kozak to BB&T relating to his delinquency on the Loan, and not
attorneys’ fees. See Schramm Decl. ¶ 26, Ex. 8 at 46.
54
See Schramm Decl. ¶ 26, Ex. 8 at 46.
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the Court to calculate the amount of the loss to a reasonable degree of certainty.”55 Therefore, the Court finds that there is no dispute of material fact, and
BB&T is entitled to summary judgment as to damages in the amounts listed
above.
C. Attorneys’ Fees
Finally, BB&T argues that it is entitled to attorneys’ fees as a matter of
law. According to BB&T, it is entitled to an award of “reasonable attorneys’ fees”
pursuant to both the terms of the Second Note and O.C.G.A. § 13-1-11.
“[A]ttorney fees sought under OCGA § 13–1–11 are mandatory where the
statute’s conditions have been clearly satisfied.”56 In order to enforce this
attorneys’ fees provision, a lender must first notify a guarantor that it plans on
enforcing the provision, and the guarantor then has ten days to pay off the
principal and interest without incurring attorneys’ fees.57 Once this condition
has been satisfied, payment of attorneys’ fees becomes “mandatory.”58 BB&T
notified Kozak of its intention to seek attorneys’ fees in the Notice of Default,
Branch Banking and Trust Co. v. Meng, No. 1:13-CV-4179-TCB,
2014 WL 11460362, at *3 (N.D. Ga. Nov. 6, 2014), aff’d in part, remanded in
part, 598 F. App'x 900 (11th Cir. 2015).
55
56
Austin v. Bank of Am., N.A., 293 Ga. 42, 51 (2013).
57
O.C.G.A. § 13-1-11(a)(3).
58
Austin, 293 Ga. at 51.
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and gave Kozak the required ten days to be able to pay off the principal and
interest.59 Kozak did not do so. As such, BB&T is entitled to attorneys’ fees.
The Second Note provides for “reasonable attorneys’ fees,”60 which §
13-1-11 states “shall be construed to mean 15 percent of the first $500.00 of
principal and interest owing on such note or other evidence of indebtedness and
10 percent of the amount of principal and interest owing thereon in excess of
$500.00.”61 Thus, as of March 29, 2018, BB&T is owed attorneys’ fees equal to
$29,454.40 (($197,645.00 principal + $96,648.95 interest - $500) x .10 + $500.00
x .15), plus per diem interest in the amount of $3.98 from March 29, 2018 until
the date of this Order ($82.17 per diem damages interest x .10).
IV. Conclusion
For the reasons stated above, the Plaintiff’s Motion for Summary
Judgment [Doc. 33] is GRANTED.
SO ORDERED, this 5 day of June, 2018.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
59
Kozak Dep. at 55-56; Schramm Decl., Ex. 6 at 38-39.
60
Schramm Decl., Ex. 3 at 27.
61
O.C.G.A. § 13-1-11(a)(2).
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