Synovus Bank v. Bokke IV, LLC et al

Filing 69

MEMORANDUM OF DECISION AND ORDER granting 61 Motion to Dismiss; granting in part and denying in part 63 Motion to Dismiss; parties to conduct an initial attorneys' conference within 14 days. (SEE ORDER FOR DETAILS). Signed by District Judge Martin Reidinger on 8/15/12. (Pro se litigant served by US Mail with this Order & Coleman Order.)(ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv71

SYNOVUS BANK,
Plaintiff,
vs.
BOKKE IV L.L.C., et al.,
Defendants/
Third-Party Plaintiffs,
vs.
SYNOVUS FINANCIAL CORP. d/b/a
NATIONAL BANK OF SOUTH
CAROLINA, et al.,
Third-Party Defendants.

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MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Third Party Defendant
Synovus Financial Corp.’s Motion to Dismiss Defendants’ Second Amended
Third Party Claims [Doc. 61] and the Plaintiff Synovus Bank’s Motion to
Dismiss the Defendants’ Second Amended Counterclaims [Doc. 63].
Also before this Court is the case of Synovus Bank v. Coleman, Case
No. 1:11cv66 (W.D.N.C.). The facts, legal issues and causes of action
asserted by the parties in the present matter are virtually identical to those in

Coleman and the same attorneys appear in both cases. Even though the
cases have not been consolidated, the decision of this Court in the Order
being entered contemporaneously herewith in Coleman addresses and
disposes of nearly all of the issues raised by the motions currently before the
Court in this matter. The Order in Coleman, therefore, is incorporated herein,
and the current motions will be disposed of in accord therewith.
Synovus Bank raises an additional issue in this case that was not
addressed in the Coleman decision, that is, the issue of whether the individual
Defendants have waived all counterclaims and defenses in this matter by
executing various waivers and releases in the guaranties made in support of
the Promissory Note. [Doc. 64 at 4-5]. The Defendants argue that these
waivers violate public policy and are therefore unenforceable. [Doc. 65 at 2325].
The Court recently addressed the issue of waiver in another case
involving identical contractual language. See Synovus Bank v. Karp, No.
1:10cv172 (W.D.N.C.). For the reasons stated in the Karp decision, the Court
concludes that the individual Defendants’ counterclaims in this action are also
subject to dismissal on the basis of these express waivers. Since Defendant

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Bokke IV, LLC, did not join in the waiver, this would not serve to dismiss its
counterclaims pursuant to the ILSA.
ORDER
IT IS, THEREFORE, ORDERED that the Third Party Defendant
Synovus Financial Corp.’s Motion to Dismiss Defendants’ Second Amended
Third Party Claims [Doc. 61] is GRANTED, and the Defendants’ Second
Amended Third Party Claims against Synovus Financial Corp. are hereby
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiff Synovus Bank’s Motion to
Dismiss the Defendants’ Second Amended Counterclaims [Doc. 63] is
GRANTED IN PART and DENIED IN PART as follows:
(1)

The Motion to Dismiss [Doc. 63] is GRANTED with respect to the

counterclaims asserted by Defendants James R. Eley, John J. Kelly, Sr.,
Laura A. Kelly, Mark P. Kelly, Simon J. Mannion, Marlon Niemand, and John
G. Reckenbeil, and these counterclaims are DISMISSED WITH PREJUDICE;
(2)

The Motion to Dismiss [Doc. 63] is DENIED with respect to

Defendant Bokke IV, L.L.C.’s counterclaim under the ILSA; and

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(3)

With respect to all other counterclaims asserted by Defendant

Bokke IV, L.L.C., the Motion to Dismiss [Doc. 63] is GRANTED, and these
counterclaims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the parties shall conduct an initial
attorneys’ conference within fourteen (14) days of the entry of this Order and
shall file a Certificate of Initial Attorneys’ Conference within seven (7) days
thereafter.
IT IS SO ORDERED.
Signed: August 15, 2012

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