Sterling Savings Bank v. Turf Corporation et al

Filing 42

MEMORANDUM DECISION AND ORDER granting #30 Plaintiff's Motion for Partial Summary Judgment; denying #36 Sterling's Motion to Strike. Sterling shall submit a proposed judgment by 8/6/2012. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STERLING SAVINGS BANK, a
Washington state-chartered bank

Case No. 1:11-CV-00524-BLW

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.

THE TURF CORPORATION, an Idaho
corporation; THE TURF COMPANY,
LLC, an Idaho limited liability company;
PLEASURE TURF, LLC, an Idaho
limited liability company; THE TURF
COMPANY OF NEVADA, INC., a
Nevada corporation; and L. DARWIN
McKAY, an individual,
Defendants.

INTRODUCTION
Before the Court is Plaintiff Sterling Savings Bank’s Motion for Partial Summary
Judgment (Dkt. 30) and Sterling’s Motion to Strike (Dkt. 36) against the Defendants, The
Turf Corporation, The Turf Company, LLC, Pleasure Turf, LLC and The Turf Company
of Nevada, Inc. (the “Turf Defendants” or “Turf”). For the reasons set forth below, the
Court will grant Sterling’s summary judgment motion and deny the motion to strike
Turf’s response to summary judgment as untimely.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiff Sterling Savings Bank made four loans totaling over $3.8 million to the
Turf Defendants. Peterson Aff. at Exs. A, I, O, & Q, Dkt. 30-2. Sterling alleges that the
Turf Defendants failed to repay the loans as agreed and have been in default since 2010.
Id. at ¶¶ 28-29. Sterling and Turf executed two different forbearance agreements that
postponed legal action in return for Turf’s promise to cure their defaults. Id. ¶ 29. But,
according to Sterling, Turf breached the forbearance agreement as well, failing to cure
their default on the four notes. Id. ¶¶ 30-32. Turf does not dispute Sterling’s
allegations.1
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “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). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . ..”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
1

Turf’s response was untimely, and therefore Sterling has moved to strike Turf’s
response brief. While Turf admits that it mistakenly filed its response late, the Court
would prefer to decide the summary judgment motion on its merits rather than strike
Turf’s response. Sterling’s motion to strike Turf’s response brief is therefore denied.

MEMORANDUM DECISION AND ORDER - 2

existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The Court must be “guided by the substantive evidentiary standards that apply to
the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing
evidence, the question on summary judgment is whether a reasonable jury could conclude
that clear and convincing evidence supports the claim. Id.
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

MEMORANDUM DECISION AND ORDER - 3

This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond
the pleadings and show “by her affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine dispute of material fact exists.
Celotex, 477 U.S. at 324.
ANALYSIS
Sterling has submitted the loan documents, the forbearance agreements, and the
Affidavit of Glen Peterson, which includes the details of Turf’s default on the four notes
and breaches of the forbearance agreements. It also specifies the exact amount Turf
owes, including interest and fees. Mr. Peterson submitted a second affidavit stating that
the fees charged included appraisal fees, legal counsel fees, and title fees as allowed
under the loan documents and forbearance agreements. Second Peterson Aff. ¶¶ 6-7.
Here, the undisputed record shows that the Turf Defendants breached their
contractual obligations to Sterling under the parties' agreements, including the promissory
notes and forbearance agreements. Sterling is entitled to enforce its rights under the
promissory notes, just as any party may enforce a right which arises due to a breach of
contract. Sirius LC v. Erickson, 156 P.3d 539, 542 (2007). Because Turf does not
dispute that it is in default, the Court will grant Sterling’s motion for summary judgment.

MEMORANDUM DECISION AND ORDER - 4

ORDER
IT IS ORDERED that:
1. Plaintiff Sterling Savings Bank’s Motion for Partial Summary Judgment (Dkt. 30)
is GRANTED. Sterling shall submit a proposed judgment by August 6, 2012.
2. Sterling’s Motion to Strike (Dkt. 36) is DENIED.

DATED: July 31, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 5