BMO Harris Bank N.A. v. Yousif
OPINION AND ORDER GRANTING PLAINTIFFS 6 MOTION FOR SUMMARY JUDGMENT. Signed by District Judge Bernard A. Friedman. (JCur)
Case 2:22-cv-11542-BAF-KGA ECF No. 7, PageID.306 Filed 01/18/23 Page 1 of 5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
BMO HARRIS BANK, N.A.,
Civil Action No. 22-cv-11542
HON. BERNARD A. FRIEDMAN
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
BMO Harris Bank, N.A. commenced this diversity breach of contract action
against Milad Yousif after he declined to honor a series of personal guaranties to pay
the debts of Prime Logistics, Inc., a ground freight transportation company.
Before the Court is BMO’s motion for summary judgment. (ECF No. 6).
Yousif never responded. The Court will decide the motion without oral argument
pursuant to E.D. Mich. LR 7.1(f)(2). For the following reasons, the Court shall grant
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Beginning in June 2016, Prime executed a series of “Loan and Security
Agreements” with BMO to fund the purchase of seven tractor-trailers. (ECF No. 62, PageID.136-40, ¶¶ 4-5, 8-9, 12-13, 16-17, 20-21, 24-25, 28-29, PageID.242-66).
Yousif personally guaranteed Prime’s obligations under the loan documents in the
event the company defaulted. (Id., PageID.141, ¶¶ 36-38, PageID.234-40). The
parties modified the payment schedule for the vehicles in November 2019, April
2020, and March 2021. (Id., PageID.136-40, ¶¶ 6, 10, 14, 18, 22, 26, 30, 34-35). By
May 2021, Prime defaulted on its loan obligations by neglecting to make its
minimum monthly repayments. (Id., PageID.136-40, ¶¶ 7, 11, 15, 19, 23, 27, 31).
And Yousif failed to cure the default under his personal guaranties. (Id., PageID.141,
After BMO repossessed the vehicles, the bank retained a global asset
management firm to advertise their sale and liquidate them. (Id., PageID.141, ¶ 40).
BMO offset Yousif’s outstanding debt obligations with the net sale proceeds. (Id.,
PageID.141, ¶ 39). BMO claims $327,734.71 in remaining damages, as well as costs
and attorney fees. (Id., PageID.142, ¶ 46, PageID.297-303; ECF No. 6, PageID.13233).
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BMO filed this lawsuit against Yousif for breaching his personal guaranties
on behalf of Prime. (ECF No. 1). On July 31, 2022, BMO served Yousif at a
residence located in Rochester, Michigan. (ECF No. 4, PageID.114). The process
server noted that Yousif’s wife accepted service of the summons and complaint on
his behalf. (Id.).
On August 1, 2022, Yousif executed a sworn affidavit
acknowledging his liability under the personal guaranties, but disputing the amount
he purportedly owes the bank. (ECF No. 5, PageID.116). Yousif forwarded the
affidavit to BMO, who then filed a copy of it on the docket. (ECF No. 5).
BMO now moves for summary judgment on the issue of liability and
damages. (ECF No. 6). The bank mailed a copy of the motion on December 7, 2022
(through first class mail) to the same address where Yousif’s wife previously
accepted service of process.1 (ECF No. 6-3, PageID.304). Yousif did not respond
and the time to do so has since elapsed. E.D. Mich. LR 7.1(e)(2)(A).
A moving party is entitled to summary judgment where the “materials in the
record” do not establish the presence of a genuine dispute as to any material fact.
Fed. R. Civ. P. 56(c). All the evidence, along with all reasonable inferences, must
That address matches the street address and zip code that Yousif listed on several
of his personal guaranties. (ECF No. 1-10, PageID.103-05).
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be viewed in the light most favorable to the nonmoving party. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991), the United States
Sixth Circuit Court of Appeals held that the party moving for summary judgment:
must always bear [the] initial burden regardless if an adverse
party fails to respond. In other words, a district court cannot
grant summary judgment in favor of a movant simply because
the adverse party has not responded. The court is required, at a
minimum, to examine the movant’s motion for summary
judgment to ensure that he has discharged that burden.
See also Delphi Auto. Sys., LLC v. United Plastics, Inc., 418 F. App’x 374, 380-81
(6th Cir. 2011). The Advisory Committee notes to Fed. R. Civ. P. 56(e)’s 1963
amendment confirm that “[w]here the evidentiary matter in support of the motion
does not establish the absence of a genuine issue, summary judgment must be denied
even if no opposing evidentiary matter is presented.” (Emphasis added); see also
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2727.2 (4th ed. Apr. 2022 Update) (“The party opposing summary judgment does
not have a duty to present evidence in opposition to a motion under Rule 56 . . . when
the matters presented fail to foreclose the possibility of a factual dispute.”).
Turning to the substance of its single breach of contract claim, BMO must
show (1) the existence of a contract, (2) that the other party breached the contract,
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and (3) damages stemming from the breach. Dunn v. Bennett, 303 Mich. App. 767,
774 (2014). Upon reviewing the current motion, the accompanying brief, along with
the attached exhibits, BMO sufficiently demonstrates that Yousif not only breached
his personal guaranties, but that the bank incurred damages amounting to
$327,734.71 as a result. Accordingly,
IT IS ORDERED that BMO’s motion for summary judgment (ECF No. 6) is
IT IS FURTHER ORDERED that judgment shall be entered in BMO’s favor
in the amount of $327,734.71.
IT IS FURTHER ORDERED that the Court will entertain BMO’s request for
attorney fees through a separate motion in the event BMO chooses to file one. See
Fed. R. Civ. P. 54(d)(2); E.D. Mich. LR 54.1.2.
IT IS SO ORDERED.
s/Bernard A. Friedman
Hon. Bernard A. Friedman
Senior United States District Judge
Dated: January 18, 2023
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