Crestmark v. Simon Automotive, LLC et al

Filing 42

ORDER terminating without prejudice 30 Intervenor's Motion for Partial Summary Judgment. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
CRESTMARK, a division of MetaBank, N.A.,
Plaintiff,
v.
FIRST WESTERN TRUST BANK,

Case No. 20-11396

Intervenor Plaintiff,
v.
SIMONXPRESS PIZZA, LLC, SIMON’S
ENTERPRISE, INC., and FAWZI R. SIMON,
Defendants.
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ORDER TERMINATING WITHOUT PREJUDICE INTERVENOR’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
On June 1, 2020, Plaintiff Crestmark, a division of MetaBank, N.A., filed this
action alleging ten Defendants breached loan and guaranty agreements. (ECF No. 1,
PageID.10-14.) First Western Trust Bank moved to intervene in the suit on June 28,
2020, asserting that three Defendants, Simonxpress Pizza, LLC, (“S. Pizza”), Simon’s
Enterprise, Inc., (“SEI”), and Fawzi Simon, defaulted on separate loan and guaranty
agreements. (ECF No. 12, PageID.411-412.) The court granted First Western Trust
Bank’s motion to intervene on July 27, 2020, (ECF No. 18), and Intervenor filed a sixcount complaint on December 21, 2020. (ECF No. 27.) On January 25, 2021, Plaintiff
dismissed its claims against Defendants. (ECF No. 33, PageID.1063.)

Intervenor has filed a motion for summary judgment on three claims against
Defendants S. Pizza, SEI, and Simon. (ECF No. 30.) The matter was thoroughly
briefed. (ECF Nos. 35, 36, 38.)
On April 29, 2021, the court entered a stipulated order that detailed the terms of
a settlement agreement between Intervenor and Defendants. (ECF No. 41.) The
stipulation states that on April 9, 2021, “the Parties entered into a Settlement Agreement
that is effective as of that day.” (Id., PageID.1274.) “[T]he Settlement Agreement paves
the way for the resolution of all issues in this case without the need for further discovery,
a hearing on the [motion for summary judgment] or a trial.” (Id., PageID.1275.)
Defendants agreed to sell certain collateral, make payments toward their debts to
Intervenor, and “refinance all outstanding obligations due and owing to [Intervenor].”
(Id.) If Defendants default on their obligations under the settlement agreement, the
stipulation allows Intervenor to “request [that] the Court enter [a] Confession of
Judgment in its favor.” (Id.)
As explained in the stipulated order, the parties’ settlement agreement
establishes the structure by which this case will ultimately be resolved. The parties have
come to an agreement on liability and repayment, and resolution of Intervenor’s motion
for summary judgment is no longer necessary. Thus, the court will terminate without
prejudice the pending motion for summary judgment. This order does not affect
Intervenor’s substantive rights, but is issued to avoid any confusion caused by motions
lingering needlessly on the docket. Accordingly,

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IT IS ORDERED that that Intervenor’s Motion for Partial Summary Judgment
(ECF No. 30) is TERMINATED WITHOUT PREJUDICE.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: May 11, 2021

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, May 11, 2021, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\2011396.CRESTMARK.Intervenor'sMotionforPartialSummaryJudgment.RMK.2.docx

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