Ameris Bank v. Russack
Filing
78
ORDER granting in part and denying in part 56 Motion for Summary Judgment; denying 63 Motion for oral argument. Signed by Judge J. Randal Hall on 3/31/16. (cmr)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
AMERIS BANK, as assignee of
the Federal Deposit Insurance
Corporation, receiver for
Darby Bank and Trust Co.,
*
*
*
*
*
Plaintiff,
*
v.
*
CV 614-002
*
IRA RUSSACK,
*
*
Defendant.
*
ORDER
Plaintiff
Ameris
Bank
("Ameris")
seeks
enforcement
of
five
personal guaranties allegedly executed by Defendant Ira Russack.
The
Court DENIES
63.)
and GRANTS
Mr.
Russack's
IN PART
summary judgment
(doc.
motion
and DENIES
56)
for oral
argument
(doc.
IN PART Ameris7 s motion for
because Mr.
Russack denies
signing
four of the five personal guaranties,
and a jury must determine
whether
is
he
did.
Summary
judgment
appropriate
only
with
respect to the limited guaranty that Mr. Russack admits signing
but contests on other,
I.
inadequate bases.
FACTUAL BACKGROUND
In late 2003, Mr. Russack formed a business with R. Richard
Yates
to
engage
in
real
estate
acquisition,
management, and sale in Florida and South Georgia.
development,
(Doc. 62-1,
"Russack Decl.,"
1f 3.)
In 2004,
Mr. Russack purchased tracts
for development in Florida and Georgia and became interested in
modular
homes
manufactured
(uCrossroads"),
a
by
financially
Crossroads
troubled
Homes,
company
owned
Inc.
by
Terry
Kelly.
Crossroads had a
secured
by
the
modular
(Russack Decl. f 9.)
properties
were
LLC
to
purchased
home
danger
Crossroads
credit with Darby Bank
("GTOT")
in
of
and
three
residences.
in
foreclosure,
Mr.
Yates
formed
late 2004 to provide adequate capital
afloat.
property
factory
("Darby")
Because Crossroads was delinquent and the
in
G.T.O.T.
keep
line of
(Yates
Bluffton,
Aff.
South
1f
12.)
GTOT
Carolina
from
also
Darby.
(Doc. 57, f 4.)
GTOT currently has
Note
2620,
"First
Credit
balance
Loan,"
$3,750,000;
$1,960,327;
as
of
loans
45.)
June
4250
(2)
(3)
(4)
Note
0240,
to
Loan,"
and
"Crossroads
2-3;
doc.
Note
5870,
"GTOT
Loan,"
Loan,"
and
(5)
56, pp.
(1)
0220
Note
Town
balance $125,312;
62, pp.
in default:
consolidate
"Olde
0230,
6620,
(Doc.
created
"Lizella
Note
Note
balance $308,428.
1, p.
$962,689,
Note
Line";
five outstanding loans
balance
balance
Note 6270,
5-7;
doc.
56-
GTOT owes a total of $6,712,063.75 under the loans
30,
listed
2015.
above,
(Doc.
Notes
57,
6270
1f
19.)
and
The
6620,
fourth and fifth
are
referred
to
collectively as the "2008 Loans."
The
Georgia
closed Darby
Deposit
The
on
Department
November
Insurance
of
12,
Corporation
FDIC-R assigned all
Banking
2010,
and
and
appointed
("FDIC-R")
rights
Finance
the
Federal
receiver.
as
and assets
("GDBF")
(Id.)
Darby to
Ameris.
of
(Id. 17.)
Ameris alleges Mr.
subjecting
defaulted
him
loans,
March 16, 2004,
5870
dated
to
Russack signed five guaranty agreements
personal
as
liability
follows:
(1)
21,
all
five
of
GTOT's
an unlimited guaranty dated
and signed in Macon, Georgia in relation to Note
("First Unlimited Guaranty");
April
for
2005,
allegedly
(2)
two unlimited guaranties
sent
and
received
from
Mr.
Russack by mail in relation to renewal of the First Loan and the
Lizella
Loan
("Second
and
Third
limited guaranty dated August
Florida
in
Guaranty");
relation
and
(4)
a
to
26,
Unlimited
2004,
Note
Guaranties");
a
signed in Tallahassee,
0230
("Crossroads
limited guaranty dated August
and signed in Tallahassee in relation to Note 0240
Limited Guaranty").
(3)
Limited
26,
2004,
,("Olde Town
(Doc. no. 56-1, Exs. 2, 3, 6, 11, 13.)
The unlimited guaranties obligate Mr.
Russack for 100% of
the balance for both the loan referenced in the guaranty and any
future loans made by Darby to GTOT.
(Id.
Exs.
2,
3,
6.)
The
limited guaranties obligate Mr. Russack for only ten percent of
the
balance for the specified loan,
also
expressly
Russack
may
state
have
they
under
are
any
but the
cumulative
other
limited guaranties
to
obligations
guaranties
in
Mr.
existence,
including unlimited guaranties covering 100% of the balances on
future loans.
In
his
(Id.,
Exs.
11,
declaration,
Mr.
Crossroads Limited Guaranty,
the
$1.96
million
13.)
Russack
admits
to
signing
obligating him for ten percent of
loan balance.
(Russack Decl.
f
15.)
Mr.
Russack has denied signing the four remaining guarantees.
If 16.)
the
(Id.
At his deposition on April 15, 2015, Mr. Russack denied
signing the First Unlimited Guaranty on March 16,
office of James Emory Company in Macon,
setting foot in Macon,
Georgia.
(Doc.
Georgia,
62-3,
2004,
at
the
and denied ever
"Russack Dep.," pp.
11-16.)
Ms.
Bobbie
Reddell,
the
notary
public
to
the
alleged
signing and an employee of James Emory Company in Macon,
recollection of ever meeting Mr. Russack.
Dep.," pp. 9-13.)
no
recollection
Macon on that
Garner,
would
Ms. Kim Lewis,
of
day.
the
(Doc.
62-11,
documents,
been
executed
62-10,
"Reddell
a witness to the guaranty, has
transaction or meeting
a former Darby officer,
have
(Doc.
has no
"Lewis Dep.,"
Mr.
Russack
pp.
4-6.)
in
Mr.
testified the unlimited guaranty
contemporaneously
with
the
loan
but the loan documents were executed in Tallahassee,
Florida and not Macon.
As
April
to
the
21,
"Garner Dep.," pp. 44-45.)
Second and Third Unlimited Guaranties
2005,
existence.
(Doc. 62-5,
Mr.
Russack
(Russack Dep.,
denies
p.15.)
any
Mr.
executed on
knowledge
of
Russack maintains
their
that,
had he known of an unlimited guaranty purporting to subject him
to an unlimited amount of GTOT's debt,
he would not have signed
the
Mr.
document.
(Russack
Dep.
21.)
Yates
testified
by
affidavit that GTOT would not have agreed to any loan unless Mr.
Russack's
guaranty
was
limited
to
ten
percent.
(Doc.
17-1,
"Yates Aff.," p. 23.)
Mr. Russack also denies signing the Olde
Town Limited Guaranty.
(Russack Decl. K 16.)
II.
Summary
genuine
56(a).
the
judgment
dispute
entitled
to
SUMMARY JUDGMENT
as
judgment
is
to
as
appropriate
any
material
a matter
of
STANDARD
only
fact
if
and
law."
*there
the
Fed.
is
no
movant
is
R.
Civ.
P.
Facts are "material" if they could affect the outcome of
suit
under
Liberty Lobby,
the
Inc.,
governing
477 U.S.
substantive
242,
248
law.
(1986).
Anderson
v.
The Court must
view the facts in the light most favorable to the non-moving
party,
U.S.
in
Matsushita Elec.
574,
[its]
587
(1986),
favor."
Indus.
Co.
v.
Zenith Radio Corp.,
475
and must draw "all justifiable inferences
United States v. Four Parcels of Real Prop.,
941
F.2d
1428,
1437
(11th
Cir.
1991)
(en
banc)
(internal
punctuation and citations omitted).
The
Court,
moving
by
motion.
How
to
proof
1115
party
reference
Celotex
carry
at
this
proof at
Cir.
trial,
to
the
initial
materials
Corp.
trial.
(11th
has
v.
burden
Catrett,
depends
Fitzpatrick v.
1993) .
on
When
burden
file,
477
on
the
U.S.
who
of
basis
317,
bears
non-movant
323
the
City of Atlanta,
the
showing
2
has
the
for
the
(1986) .
burden
of
F.3d 1112,
the
burden
of
the movant may carry the initial burden in one
of two ways—by negating an essential element of the non-movant's
case
or by showing that
there
is
no evidence
necessary to the non-movant's case.
Inc. , 929 F.2d 604,
v.
S.H.
U.S.
323).
response
in
Before
the
opposition,
movant has met
issues
its
of
144
Court
it
must
material
fact
law.
F.3d 248,
1997)
(11th Cir.
1991)
(1970)
can
and
Clark,
Coats & Clark,
and Celotex Corp. , 477
the
consider
that
Jones v.
it
is
City of
(per curiam) .
929 F.2d at 608.
fact
non-movant7s
whether
the
showing that there are no
statement that the non-movant cannot meet
insufficient.
a
(explaining Adickes
evaluate
first
initial burden of
judgment as a matter of
254
See Clark v.
(11th Cir.
Kress & Co. , 398 U.S.
at
genuine
606-08
to prove
entitled
Columbus,
to
120
A mere conclusory
the burden at trial
is
If—and only if—the movant
carries
its
initial burden,
non-movant may avoid summary judgment only by
that
there
is
indeed
summary judgment."
proof at trial,
a
Id.
material
issue
of
"demonstrat[ing]
fact
that
precludes
When the non-movant bears the burden of
the non-movant must tailor its response to
method by which the
the
movant carried its
initial burden.
If
the
the
movant presents evidence affirmatively negating a material fact,
the
non-movant
withstand
a
"must
directed
fact sought to be
respond
verdict
negated."
with
motion
evidence
at
trial
Fitzpatrick,
shows an absence of evidence on a
non-movant
must
show
that
the
on
the
2 F.3d at
the movant
either
sufficient
record
to
material
1116.
material
contains
fact,
If
the
evidence
that was "overlooked or ignored" by the movant or "come forward
with
additional
verdict
motion
deficiency."
burden by
evidence
at
Id.
sufficient
trial
at
based
1117.
on
The
withstand
the
relying on the pleadings or by
F.2d 1032, 1033-34 (11th Cir.
III.
Disputed
Judgment
Issues
on All
a
alleged
non-movant
allegations contained in the complaint.
A.
to
directed
evidentiary
cannot
carry
its
repeating conclusory
See Morris v. Ross, 663
1981).
DISCUSSION
of Material Fact Preclude Summary
Three Unlimited Guaranties and the
Olde Town Limited Guaranty.
Because
Mr.
Russack adamantly denies
signing
four of
the
guaranties, a jury must determine whether he did.
Under Georgia
law,1 a signature is "presumed to be authentic and authorized
unless the action is to enforce the
signer
and
the
signer
is
dead
or
liability of
incompetent
the purported
at
trial of the issue of validity of the signature."
3-308.
trial
This
where
presumption
"the
of
purported
signature
and produces
denial
of
execution
there
exist
authenticity
maker
other
irregularities
denies
evidence
in support
of
on
may
the
the
be
separate
face
of
time
of
O.C.G.A § 11-
both
defense
the
rebutted
knowledge
from
of
the
and
sworn
forgery,
the
at
and
negotiable
instrument that would place a reasonable person on notice under
a
reasonable
commercial
standard."
v. Parker,
486 S.E.2d 402,
405
v.
405
(Ga.
Floyd,
S.E.2d
265
Southtrust
(Ga. Ct. App.
App.
1991)).
Bank of
1997)
Georgia
(citing Fabe
However,
at
the
summary judgment stage, only a sworn denial of execution by the
obligor is required to create a genuine issue of material fact
for trial.
Ct.
App.
See Lee v.
2012)
SunTrust Bank,
(denying
summary
722 S.E.2d 884,
judgment
where
885
(Ga.
plaintiff
submitted affidavit denying execution of instrument).
Here,
Mr.
that he signed,
Russack
unequivocally
denies
the First Unlimited Guaranty.
knowledge
of,
(Russack Dep.
or
11-
xThe guaranties specify that Georgia law applies and neither
parties disputes that it applies.
16.)
Mr. Russack adamantly denies
March
16,
Decl.
1f 27.)
2004,
the
date
and
being in Macon,
location
For further support,
of
Mr.
Georgia on
execution.
(Russack
Russack has presented
deposition testimony of a notary and a witness to the March 16,
2004 signing,
both of whom do not recall the transaction and do
not recall ever meeting Mr.
Russack.
(Reddell Dep.
9-13;
Lewis
Dep. 4 -6 .)
Ms.
the
Reddell testified the
ordinary,"
and
she
cannot
driver's
license
(Reddell
Dep.
13.)
recall
whether
or
other
form
Ms.
signer's
9,
signing "would have been out of
Lewis
likewise
of
she
the
identification.
denied
customary practice to verify the identity of signers,
she was unable to discern whether Mr.
checked
it
was
and stated
Russack signed the First
Unlimited Guaranty or whether another individual signed for Mr.
Russack.
officer,
(Lewis
9.)
Mr.
Garner,
a
former
Darby
loan
testified the guaranty would likely have been executed
simultaneously
executed
Dep.
with
the
in Tallahassee
other
and not
loan
documents,
in Macon.
but
(Doc.
those
62-5,
were
"Garner
Dep.," pp. 44-45.)
Ameris points out that Mr. Russack denied in his deposition
signing the Second and Third Unlimited Guaranties and Olde Town
Guaranty.2
(Doc. 56, p. 14.)
excerpt containing Mr.
Guaranty,
but
However,
not
knowledge,
Russack's
the
Russack
Mr.
he
did
remaining
not
sign
create
judgment.
a
See Lee,
of
the
three.
by
any
First Unlimited
(See
affidavit
of
these
doc.
that,
four
56-17.)
to
his
guaranties.
While a sworn denial is not sufficient to
rebut the presumption at
to
denial
testified
(Russack Decl. f 16.)
law
The parties filed the deposition
trial,
genuine
it
issue
is
of
sufficient under Georgia
material
fact
at
summary
722 S.E.2d at 885.
Ameris argues this testimony is a sham designed to defeat
summary judgment because Mr.
request
for
admission
and
Russack previously answered in a
in
an
interrogatory
that
he
was
without sufficient knowledge to admit or deny whether he signed
these four guaranties.
(Doc. 56, p. 13; PL's Ex. I, Nos. 3-6.)
The sham affidavit rule allows a court to disregard an affidavit
as
a
sham
deposition
Assocs.,
when
it
testimony
Inc.
v. U.S.
contradicts,
on
a
material
Indus.,
Inc.,
without
fact.
explanation,
Van
736 F.2d 656,
T.
657
prior
Junkins
&
(11th Cir.
2 Oddly, Mr. Russack's counsel fails to discuss the validity of
the second and third unlimited guaranties in the briefs and even seems
to admit their execution despite Mr. Russack's
deposition testimony
to the contrary.
(Doc. 62, p. 7.) ("Despite Russack having allegedly
already executed a guaranty covering the First Loan, Darby Bank
requested that he execute the Second Unlimited Guaranty in April 2005
together with a renewal of the First Loan, and that he execute the
Third Unlimited Guaranty in conjunction with a renewal of the Lizella
loan, which he did.")
10
1984) .
The sham affidavit rule is applied sparingly, Latimer v.
Roaring Toyz,
Inc.,
601
F.3d 1224,
1237
(11th Cir.
2010),
and
only when u[t]he earlier deposition testimony . . . consist[s]
of
clear
answers
of
existence
to
genuine
any
Celotex Corp.,
omitted).
and
disregarded.
Cir.
the
1532
material
(11th Cir.
inconsistency
deposition
Tippens v.
of
which
Celotex Corp.,
fact,"
1986)
must
before
negate
Lane
v.
(quotations
exist
the
the
between
affidavit
805 F.2d 949,
can
954
an
be
(11th
1986) .
Here,
is
inherent
questions
issue
782 F.2d 1526,
An
affidavit
unambiguous
no
request
and
the sham affidavit rule does not apply because there
inherent
for
inconsistency
affidavit
testimony.
guaranties
deposition,
the
admission when compared with
stated he could not
four
between
he
at
Mr.
Russack,
recall at that
issue.
denied
In his
executing
interrogatory
the
in
later deposition
his
interrogatory,
time
whether he
later
affidavit
the
would
exist
discovery responses
only
that he
if
he
signed the
and
guaranties.
discovery in the case refreshed his recollection.
conflict
admitted
and
at
his
Perhaps
Such a direct
in
signed the guaranties,
the
written
only to
say
the opposite during his deposition and in his affidavit.
In addition,
Junkins
&
the sham affidavit rule as espoused in Van T.
Assocs. ,
Inc. ,
736
11
F.2d
at
657,
only
applies
to
affidavits
not
that
deposition
after
an
attempt
to
change
testimony
that
interrogatory
prior
deposition
testimony,
detailed
information
provides
response
claiming
no
recollection.
Ameris has failed to point out any decision applying the rule in
this
context,
The
rule
and for good reason.
recognizes
judgment
that
would
summary
judgment
the
diminution
inevitably
by
testimony elicited during a
Cir. 1969)
follow
submitting
Perma Research & Dev.
Co.
v.
doc.
in
56,
pp.
14-16.)
of
summary
utility
if
parties
affidavits
could defeat
that
contradict
lengthy in-person deposition.
Singer Co.,
410 F.2d 572,
See
578
(2d
(disregarding contradictory affidavit submitted after
four days of deposition); Tippens,
affidavit
so
matter of
law) .
the
(See
suspect
sworn denial
of
untruthfulness
Obviously,
of
805 F.2d at 953
as
to
(finding sham
be
disregard
as
this is not a concern here because
execution occurred
during
the
deposition,
which gave opposing counsel a full opportunity to ask follow-up
questions
the
and explore
recollection
the
that
ways
was
in which Mr.
so
hazy
at
Russack refreshed
the
time
of
his
interrogatory and request for admission responses.
In sum,
the sham affidavit rule does not apply,
and summary
judgment is inappropriate under Georgia law because Mr. Russack
has
denied
in
sworn
statements
guaranties.
12
that
he
signed
the
four
B.
It
is
Undisputed
that
Mr.
Russack
Signed
the
Crossroads Limited Guaranty, and Georgia Law Requires
Rejection of His Arguments Regarding Consideration,
Mutual Assent, and Fraud, Entitling Ameris to Summary
Judgment on this Guaranty.
Mr.
Russack
admits
he
signed
the
Crossroads
Limited
Guaranty for ten percent of the $1.96 million loan balance,
but
he nevertheless attempts to avoid liability by alleging failure
of
consideration,
assent.
fraud
in
the
inducement,
and
lack
of
mutual
All three arguments fail as a matter of Georgia law.
Mr.
Russack
consideration
borrower.
argues
because
The
the
argument
contract under seal,
the
guaranty
benefits
ignores
only
the
fails
for
flowed
guaranty's
created by the word "seal"
lack
GTOT
to
of
as
status
as
a
appearing after
Mr. Russack's signature and the proclamation that "this guaranty
is given under seal and it is intended that this guaranty is and
shall
constitute
and
according to law."
Office
Holdings,
have
(Doc.
LLC,
695
the
effect
56-1,
p.
S.E.2d
of
65.)
82,
a
sealed
instrument
See Perkins v. M & M
84
(Ga.
Ct.
App.
2010)
(requiring recital of intention to seal and word "seal" printed
by signatures).
is
sufficient
Inc. , 497
as
Accordingly, any nominal consideration recited
a
matter of
S.E.2d 402,
405
law.
(Ga.
Ct.
Autrey v.
App.
UAP/GA AG Chem,
1998).
The
guaranty
recites nominal consideration of five dollars to be given to Mr.
Russack,
which is sufficient as a matter of law even if five
13
dollars never actually changed hands.
Jolles v. Wittenberg,
S.E.2d 203,
Furthermore,
in
citing
Code,
205
(Ga. Ct. App.
Georgia
overlooks
case
law
1979).
predating
the merger of
the
Mr.
Uniform
253
Russack,
Commercial
sureties and guarantees
and that
the loan flowing to GTOT serves as adequate consideration to Mr.
Russack for his limited guaranty.
See Helton v. Jasper Banking
00^,715 S.E.2d 765, 767 (Ga. Ct. App. 2011).
Turning
his
attention
to
consideration for this guaranty,
whether
Mr.
Darby
received
any
Russack argues it did not
because he had already signed an unlimited guaranty covering all
future GTOT loans with Darby.
was thus redundant,
served no purpose,
benefit to the bank.
certainly
does
The Crossroads Limited Guaranty
Of course,
serve
a
useful
and offered no additional
the Crossroads Limited Guaranty
purpose
here
if
Mr.
succeeds in convincing a jury that he never signed the
Second,
and
Third
Unlimited
Guaranties.
limited guaranty served to protect
In
the bank
in
Russack
First,
addition,
the
the
event Mr.
Russack exercised his right to revoke the unlimited guaranties.
(See doc.
56-1,
Ex. 2.)
("This Guaranty will continue to bind
Guarantor for all indebtedness incurred by Borrower or committed
by Lender prior
revocation,
or
to receipt of Guarantor's written
including any extensions,
modification
of
the
renewals,
indebtedness.")
14
Thus,
notice of
substitutions,
consideration
exists
because
obligation,
Mr.
Russack
separate
from
was
his
incurring
an
obligations
independent
under
the
legal
unlimited
guaranties.
Mr.
Russack7s
fraud
argument
is
also
without
merit.
He
contends the bank unfairly confused and misled him by having him
sign
the
Crossroads
executed
the
Crossroads
could
Limited
unlimited
loan
have
Limited
guaranties
balance,
avoided
Guaranty,
his
which
Guaranty
a
fact
he
confusion
provides
when
he
covering
now
by
that
had
100%
denies.
reading
of
Mr.
the
"Guarantor's
already
the
Russack
Crossroads
liability
will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other unterminated guaranties."
1.,
does
Ex.
not
11.)
Failure to read the plain language of
constitute
fraud.
Parrish v.
Jackson W.
(Doc. 56a contract
Jones,
P.C.,
629 S.E.2d 468, 471 (Ga. Ct. App. 2006).
Undeterred,
Mr.
Russack argues Darby had a duty to remind
him the unlimited guaranties applied to future loans such that
they also covered the Crossroads loan.
relationship
There is no confidential
between a bank and its customer
that would
give
rise to such a duty to remind Mr. Russack of the prior unlimited
guaranties.
Ct.
App.
Li11iston v. Regions Bank, 653 S.E.2d 306, 309 (Ga.
2007);
O.C.G.A.
§ 23-2-53.
In
addition,
fraud by
concealment only applies to a fact unknown by the claimant and
15
not easily discoverable.
(Ga. Ct. App.
1995)
Hanlon v. Thornton,
462 S.E.2d 154,
157
(person claiming fraudulent concealment must
show the "defect could not have been discovered by the buyer in
the exercise of
here
if
a
unlimited
due diligence").
jury determines
guaranties.
If
Mr.
a
Clearly,
Russack
jury
that does not apply
did,
finds
in
that
fact,
he
did
sign
the
not,
the
current argument regarding fraud is moot.
Mr.
Russack also argues there was no mutual assent due to
his confusion concerning whether his
the
liability was
loan balance or only ten percent.
plain language of
Russack he was
the
(Doc.
62,
for 100% of
p.
18.)
The
Crossroads Limited Guaranty informed Mr.
liable for
ten percent of
the
loan balance,
in
addition to any liability under any other existing guaranties.
Messrs.
Russack and Yates testify to a different understanding,
but that understanding conflicts with the plain language of the
guaranty.
(See Yates Aff. 1f 39; doc. 62, pp. 6-7.)
By affixing
his signature to a document with unambiguous language as to his
liability,
Mr.
Russack
manifested
mutual
assent
to
that
agreement.
The
Crossroads
Limited
Guaranty
provides
entitled to recover all costs and expenses,
that
parties
executed
this
guaranty
16
in
is
including attorneys'
fees, incurred in connection with enforcing its terms.
the
Ameris
2004,
Because
recovery
of
attorneys'
fees is governed by the version of O.C.G.A.
existing at that time,
before the 2011 amendments.
§ 13-1-11
This version
of the statute provides, in pertinent part, as follows:
Obligations
other
to
evidence
pay
of
attorney's
fees
indebtedness,
upon
in
any note
addition
to
or
the
rate of interest specified therein, shall be valid and
enforceable and collectable as a part of such debt if
such
note
or
other
evidence
of
indebtedness
is
collected by or through an attorney after maturity,
subject to the following provisions ... If such note
or other evidence of indebtedness provides for the
payment
of
reasonable
attorney's
fees
without
specifying any specific percent, such provision 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
O.C.G.A.
Ameris
§ 13-1-11.
is
percent
entitled
of
Mr.
Under the plain language of
to
an
Russack's
award
of
this statute,
$19,628.27,
obligation
under
which
the
is
guaranty
ten
in
addition to fifteen percent of the first $500.
Under the statute, Ameris is entitled to attorneys'
Russack
is
petition
amount.
liable
for a
(Doc.
for
the
debt,
and
there
is
reasonableness determination of
68,
pp.
21-23;
Doc.
70,
p.
no
fees if
right
to
the fixed fee
8.)
Mr.
Russack
argues the guaranty trumps the statutory mandate by providing
for the recovery of all attorney's fees rather than reasonable
attorneys'
fees.
The Georgia Court of Appeals has addressed
this very argument and correctly found it lacking.
17
Best v. CB
Decatur
Thus,
Court,
Ameris
LLC,
is
750
S.E.2d
entitled
to
716,
720
attorneys'
(Ga.
fees
Ct.
in
App.
the
2013) .
amount
of
$19,628.27
IV.
For
the
reasons
set
CONCLUSION
forth
above,
the
Court
DENIES
Mr.
Russack's motion for oral argument (doc. 63.) and GRANTS IN PART
and DENIES
IN PART Ameris's
motion
for
summary judgment
(doc.
56) .
SO ORDERED this J^V day of March,
2016,
at Augusta,
Georgia.
HONORABL2 J.
RANDAL HALL
UNITED SPATES DISTRICT JUDGE
DISTRICT OF GEORGIA
18
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