USA v. Tomlinson et al

Filing 16

MEMORANDUM DECISION AND ORDER granting 8 Motion for Summary Judgment. Plaintiff is directed to submit a proposed Judgment to the court. Signed by Judge Dale A. Kimball on 6/10/11 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

THE UNITED STATES OF AMERICA,
through its agency, THE SMALL
BUSINESS ADMINISTRATION,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.
RANDY LEE TOMLINSON and
LEEANN TOMLINSON,

Case No. 2:11CV98 DAK

Defendants.

This matter is before the court on the United States of America’s Motion for Summary
Judgment. Defendants have failed to respond to the motion and the time for doing so has
expired. The court has carefully considered the memoranda and other materials submitted by the
United States. Now being fully advised, the court renders the following Memorandum Decision
and Order.
On or about March 27, 1998, the Tomlinson Group, LLC, executed and delivered to
Greater Salt Lake Business District (“GSLBD”) a promissory note in the original principal
amount of $1,000,000.00 (“Note”). On or about March 27, 1998, Randy Lee Tomlinson and
LeAnn Tomlinson (“Tomlinsons”) executed guarantee agreements (“Guarantees”), thereby
guaranteeing repayment of the Note.
The Small Business Administration (“SBA”) is successor-in-interest to GSLBD in the

Note, the Guarantees, and all related documents. The Tomlinson Group, LLC, defaulted under
the terms of the Note and continues to be in default. SBA accelerated the amounts due and
owing on the Note. SBA made demand upon the Tomlinsons pursuant to the Guarantees for
payment of the remaining balance of the Note. The Tomlinsons have not made payment as
demanded.
As of January 24, 2011, the outstanding principal balance on the Note was $612,024.99
and accrued interest was $60,360.08 for a total outstanding balance of $672,385.07. Interest has
accrued and continues to accrue on the principal balance at the rate of 6.36% per annum. These
facts were not denied or addressed in Defendants’ Answer to the Complaint.
The United States has met its burden of demonstrating that there is no genuine dispute in
this case that the Note was executed, that Tomlinsons guaranteed repayment of the Note, that the
Note is in default, that demand was made upon the Guarantees, and that the Note is outstanding
in the amounts set forth above. None of these facts were disputed in Defendants’ Answer to the
Complaint. A failure to deny allegations is deemed an admission of those allegations. See Fed.
R. Civ. P. 8(b)(6). In addition, Defendants raise no real affirmative defenses in their Answer.
Defendants mention in their Answer that they submitted a compromise offer to SBA and
never heard back. Even assuming that such an offer was made, SBA had no duty to accept the
offer. See U.S. v. Anderson, 2008 WL 5377958 (D. Utah).
Pursuant to the terms of the Note and the Guarantees, Plaintiff is entitled to judgment as a
matter of law against Defendants for the balance due and owing on the Note.

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For the foregoing reasons and good cause appearing, IT IS HEREBY ORDERED that
Plaintiff’s Motion for Summary Judgment [docket # 8] is GRANTED. The United States is
directed to submit a proposed Judgment to the court.
DATED this 10th day of June, 2011.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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