Wells Fargo Bank v. Singh
Filing
11
MEMORANDUM AND ORDER Granting 6 MOTION for Summary Judgment Against Defendant Singh ( Proposed Order due by 8/16/2012)(Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WELLS FARGO BANK, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE
REGISTERED HOLDERS OF LSTAR
COMMERCIAL MORTGAGE TRUST
2011-1, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2011-1,
Plaintiff,
V.
GURPREET SINGH,
Defendant.
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CIVIL ACTION NO. H-12-0147
MEMORANDUM AND ORDER
Pending is Plaintiff’s Motion for Summary Judgment (Document No. 6), in which Plaintiff
seeks summary judgment on its claim against Defendant Gurpreet Singh for breach of a guaranty
agreement. Defendant has not filed a response to the Motion for Summary Judgment.
Having considered Plaintiff’s Motion for Summary Judgment and the supporting summary
judgment evidence, the absence of a response, and the applicable law, the Court1 ORDERS, for the
reasons set forth below, that Plaintiff’s Motion for Summary Judgment (Document No. 6) is
GRANTED.
1
On May 25, 2012, pursuant to the consent of the parties, this case was transferred by the
District Judge to the undersigned Magistrate Judge for all further proceedings. See Document No.
8.
I.
Background
Plaintiff filed this case against Defendant Gurpreet Singh, seeking to recover on a guaranty
agreement. According to the allegations in the Complaint, Singh entered into a guaranty agreement,
whereby he personally and unconditionally guaranteed a commercial real estate loan, in the amount
of $1,837,500.00, that was issued to G. Singh Enterprises, LLC. (referred to hereafter as “the Note”).
G. Singh Enterprises, LLC defaulted on the Note, and then filed for bankruptcy protection under
Chapter 11. After the automatic stay was lifted by the Bankruptcy Court, the property that secured
the Note, a multi-family apartment building in Tomball, Texas, was sold at a foreclosure sale on
March 6, 2012, for $800,000.00. That left a deficiency, as of April 10, 2012, of $1,114,650.52 due
and owing on the Note. Plaintiff seeks, in this action, and with its Motion for Summary Judgment,
to recover from Defendant Gurpreet Singh, individually, based on the guaranty agreement, the
amounts that remain due and owing on the Note.2
II.
Summary Judgment Standard
Rule 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED . R. CIV . P. 56(a). The moving party must initially “demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986). Once the
moving party meets its burden,3 the burden shifts to the nonmovant, “who must, by submitting or
2
Defendant Gurpreet Singh, individually, was not a party to the bankruptcy of G. Singh
Enterprises, LLC.
3
Where “the dispositive issue is one on which the nonmoving party will bear the burden of
proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the
2
referring to evidence, set out specific facts showing that a genuine issue exists that summary
judgment should not be granted.” Id.; see also Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). A party opposing a properly supported motion for summary judgment may
not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact
issue exists will not suffice. Celotex, 106 S. Ct. at 2548. Instead, “the nonmoving party must set
forth specific facts showing the existence of a 'genuine' issue concerning every essential component
of its case." Morris, 144 F.3d at 380.
In considering a motion for summary judgment, all reasonable inferences to be drawn from
both the evidence and undisputed facts are be viewed in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). "If the
record, viewed in this light, could not lead a rational trier of fact to find" for the nonmovant, then
summary judgment is proper. Kelley v. Price- Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993)
(citing Matsushita, 106 S. Ct. at 1351). On the other hand, if "the factfinder could reasonably find
in [the nonmovant's] favor, then summary judgment is improper." Id. Even if the standards of Rule
56 are met, a court has discretion to deny a motion for summary judgment if it believes that "the
better course would be to proceed to a full trial." Anderson, 106 S. Ct. at 2513.
III.
Discussion
In its Motion for Summary Judgment, Plaintiff maintains that summary judgment is
warranted on its breach of contract claim. According to Plaintiff, the summary judgment evidence
record contains insufficient proof concerning an essential element of the nonmoving party's claim.”
Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520 F.3d 409, 412
(5th Cir. 2008).
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shows that it is the current owner of the Note and the guaranty agreement; that the terms of the Note
are not in dispute; that G. Singh Enterprises, LLC. defaulted on the Note; and that Singh is liable,
based on his unconditional guaranty of the indebtedness pursuant to the guarantee agreement, for all
amounts due and owning on the Note, including interest and attorneys’ fees.
Here, Defendant Gurpreet Singh has not filed a response to Plaintiff’s Motion for Summary
Judgment. In addition, there is no summary judgment evidence to controvert that of Plaintiff, which
establishes Defendant Gurpreet Singh’s indebtedness on the Note pursuant to the terms of the
guaranty agreement. That guaranty agreement provides as follows:
1.
GUARANTY
Guarantor absolutely, unconditionally and irrevocably guarantees and promises to
Lender: (i) the prompt, complete and full payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of Borrower’s Recourse
Obligations; and (ii) in addition to all other amounts due hereunder, the prompt,
complete and full payment, upon demand, of all attorneys’ fees, costs and expenses
(including, without limitation, the allocable fees and costs of Lender’s staff
attorneys), and all other costs and expenses incurred by Lender in enforcing any
rights or remedies under or otherwise in connection with this Guaranty or any of the
Loan Documents (including in the context of any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors’ rights and involving a claim
under this Guaranty or any of the Loan Documents). . . .
***
3.
GUARANTY TO BE ABSOLUTE; INDEPENDENT; CONTINUING
a.
This is an absolute and unconditional and continuing guaranty of
payment and performance and not of collection. The obligations of
Guarantor under this Guaranty shall be performed immediately upon
demand by Lender and shall be absolute and unconditional,
irrespective of (i) the genuineness, validity, regularity or
enforceability of the Loan Documents; (ii) any action, omission or
circumstance that might increase the likelihood that Guarantor may
be called upon to perform under this Guaranty; (iii) any action of
Lender described in Section 2 above; or (iv) any other circumstance
that might otherwise discharge, reduce, limit or modify Guarantor’s
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obligations under this Guaranty, it being the purpose and intent of
Guarantor that the obligations of Guarantor hereunder shall be
absolute and unconditional under any and all circumstances
whatsoever.
b.
The obligations of Guarantor hereunder are independent of and in
addition to the obligations of Borrower, and a separate action or
actions may be brought and prosecuted against Guarantor, whether or
not action is brought against Borrower or whether or not Borrower
may be joined in any such action or actions. . . .
***
4.
GUARANTOR’S WAIVERS
Guarantor waives and agrees not to assert or take advantage of:
(a)
All defenses given to sureties or guarantors at law or in equity other
than actual payment of the Note and the Guaranteed Obligations, and
performance of the actions, constituting the Guaranteed Obligations. . . .
***
5.
ADDITIONAL WAIVERS GUARANTOR WAIVES ANY RIGHTS that
Guarantor may have to require Lender to (a) proceed against, give notice to
or make demand upon Borrower; (b) proceed against or exhaust any security
held from Borrower, any endorser, or any other guarantor; (c) pursue any
other remedy in Lender’s power whatsoever; or (d) provide notice to
Guarantor of any change in the solvency of Borrower or in Borrower’s ability
to perform any Guaranteed Obligations or pay any Note. . . .
Guaranty Agreement (Document No. 6-7).4
Given the terms of the guaranty agreement, the uncontroverted summary judgment evidence
that Plaintiff is the owner of the Note, see Affidavit of Marc L. Lipshy and the attachments thereto
attached to Plaintiff’s Motion for Summary Judgment (Document No. 6) as Exhibit A, that G. Singh
4
The Guaranty Agreement was modified on May 4, 2010. The modification did not lessen
any of Defendant Singh’s guarantor obligations, and Defendant Singh reaffirmed therein his
guarantor obligations: “Guarantor acknowledges that, by executing this Acknowledgment, Guarantor
expressly reaffirms Guarantor’s liability under the Guaranty of Borrower’s Recourse Obligations
dated as October 4, 2006 (the ‘Guaranty’) and the other Loan Documents.” (Document No. 6-8).
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Enterprises, LLC defaulted on the Note, id., and that as of April 10, 2012 $1,114,650.52 remains due
and owing on the Note, id., Plaintiff is entitled to summary judgment on its breach of contract claim.
IV.
Conclusion and Order
Based on the foregoing and the uncontroverted summary judgment evidence on each element
of Plaintiff’s breach of contract claim, it is
ORDERED that Plaintiff’s Motion for Summary Judgment (Document No. 6) is GRANTED,
and summary judgment is granted in Plaintiff’s favor on its breach of contract claim. Plaintiff shall,
within fourteen days after the entry of this Order, submit a proposed judgment that reflects the ruling
made herein, including Defendant Singh’s liability for pre-judgment interest, post-judgment interest,
attorneys’ fees, costs and expenses.
Signed at Houston, Texas, this 2nd day of August , 2012.
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