Citizens Bank of Kentucky v. The Oaks, LLC et al

Filing 29

MEMORANDUM OPINION AND ORDER granting 13 MOTION by Citizens Bank of Kentucky for Summary Judgment against The Oaks, LLC; pursuant to Federal Rule of Civil Procedure 54(b), judgment for the sum of $282,391.05 is entered in favor of the plaintiff and against The Oaks, LLC, in a separate order entered contemporaneously herewith. Signed by Judge John T. Copenhaver, Jr. on 5/21/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CITIZENS BANK OF KENTUCKY,
Plaintiff,
v.

Civil Action No. 2:17-cv-02364

THE OAKS, LLC; THOMAS A. ZAMOW;
and JOE C. FERRELL,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff Citizens Bank of Kentucky’s
(“Citizens”) motion for summary judgment against defendant The
Oaks, LLC (“Oaks”), filed October 6, 2017.

I. Background

On June 3, 2009, Citizens and Oaks entered into a
business loan agreement and a promissory note, by which Citizens
agreed to loan Oaks an amount of money in exchange for repayment
with interest.

(Compl. ¶¶ 7-8; Mot. Summ. J. Exs. A and B.) 1

Over time, the parties entered into a series of renewals and

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Citizens swears to the authenticity of the loan documents
attached to its motion. (See Mot. Summ. J. Ex. F ¶¶ 1-6.)
Additionally, in its answer to the complaint, Oaks admitted to
all of the factual allegations stated in paragraphs one through
nineteen, which include express reference to and attachment of
the loan documents. (Oaks’ Answer ¶ 1; see Compl. ¶¶ 1-19.)

modifications of the note, with the latest modification taking
effect on December 5, 2012.

(See Compl. ¶¶ 11-15; Mot. Summ. J.

Exs. C-E.)
In his affidavit, Bradley Cantrell, a Special Assets
Officer for Citizens, swears the following in conjunction with
Citizens’ summary judgment motion:
7. Citizens is the holder of the Promissory Note,
including all renewals, extensions, and modifications
thereof.
8. . . . [Oaks] failed to make payments on the Loan
for the months of May, August, and November, 2016 in
violation, and in default, of the Promissory Note, as
modified.
9. On January 25, 2017, following [Oaks’] default,
Citizens accelerated the entire unpaid balance due on
the Loan and demanded payment thereof within ten days
after notice of the acceleration.
10.

[Oaks] failed to pay the balance due on the Loan.

11. [Oaks] is in default under the terms of the
Business Loan Agreement and the Promissory Note, as
modified due to its failure to make all required
payments.
12. . . . There is due on the Loan the sum of
$270,301.04, which amount includes all principal,
accrued unpaid interest, unpaid late charges, and
unpaid legal expenses incurred in the previous civil
action seeking enforcement of the Promissory Note and
Business Loan Agreement, plus attorneys’ fees and
costs incurred . . . by way of this action, which
amount may be provided by Citizens’ counsel. Interest
accrues on the principal balance of the Loan at the
per annum rate of 5.25%.

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(Mot. Summ. J. Ex. F ¶¶ 7-12; see id. Ex. G (notice of default
sent by Citizens to Oaks); see also Compl. ¶¶ 11-15.)
On April 17, 2017, Citizens initiated this action in
this court.

On October 6, 2017, Citizens moved for summary

judgment against Oaks, seeking judgment through enforcement of
the promissory note and judgment that Oaks has breached the
business loan agreement.

(See Mem. Supp. 5-10.)

Citizens

claims that it is entitled to $270,301.04 plus interest at a
rate of 5.25% per annum from the date of filing the summary
judgment motion and attorneys’ fees and costs of $10,212.34, of
which $6,947.84 are included in the principal balance, which
$6,947.84 presumably constitutes the unpaid legal expenses
incurred in a previous civil action.
Ex. F ¶ 12.)

(Id. 10; see Mot. Summ. J.

Oaks responds that the court should defer

consideration of Citizens’ motion because no discovery had taken
place when Citizens filed the motion and because Oaks disputes
some unidentified facts regarding the alleged debt owed.
Opp’n 1-2.)

(Resp.

Defendant Thomas A. Zamow, against whom summary

judgment is not sought, also responded to Citizens’ motion with
a similar argument.

(See Zamow Resp.)

No response to the

motion has been received from defendant Joe C. Ferrell.

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II. Discussion

The court first addresses Oaks’ argument that the
court should defer consideration of the summary judgment motion.
Federal Rule of Civil Procedure 56 allows a party to move for
summary judgment prior to the close of discovery.

Fed. R. Civ.

P. 56(b) (“Unless a different time is set by local rule or the
court orders otherwise, a party may file a motion for summary
judgment at any time until 30 days after the close of all
discovery.”).

In such an instance, Rule 56(d) provides a

nonmovant with an avenue to “defer [the district court’s] ruling
on a summary-judgment motion if the [nonmovant] ‘shows by
affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.’”

Hodgin v.

UTC Fire & Sec. Ams. Corp., 885 F.3d 243, 250 (4th Cir. 2018)
(quoting Fed. R. Civ. P. 56(d)).

A request for additional

discovery is “‘broadly favored and should be liberally granted’
in order to protect non-moving parties from premature summary
judgment motions.”

McCray v. Md. Dep’t of Transp., 741 F.3d

480, 484 (4th Cir. 2014) (quoting Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281
(4th Cir. 2013)).

Nevertheless, the nonmovant must “identify .

. . specific information that would create a genuine dispute of
material fact.”

Hodgin, 885 F.3d at 251.
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Oaks contends that “there are disputed facts
concerning the alleged debt owed” and that the court’s
consideration of Citizens’ motion, filed prior to discovery,
“would violate the letter and spirit of the controlling
precedents in this Circuit.”

(Resp. Opp’n 2.)

Oaks fails,

however, to identify which facts are in dispute, to cite the
purported controlling Fourth Circuit authority, and to support
its argument by affidavit or declaration.

(See id.)

Consequently, Oaks’ request that the court defer consideration
of Citizens’ summary judgment motion until discovery takes place
is without merit.

To the extent that Oaks can rely on the

affidavit attached to Zamow’s response, (see Zamow’s Resp. Ex.
1), the affidavit contains “generic statements merely
parrot[ing] the potential benefits of [discovery]” and is
likewise insufficient.

Hodgin, 885 F.3d at 250; see also

Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 411 (4th
Cir. 2015) (denying additional discovery where the nonmovant
failed to show the district court “how the information in her
MBCC account could possibly ‘create a genuine issue of material
fact sufficient for [her] to survive summary judgment,’ or
otherwise affect the court’s analysis.” (quoting Fed. R. Civ. P.
56(d)).

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Moreover, the court on November 21, 2017, ordered
deadlines for discovery, including the date of February 12,
2018, by which discovery closed.

That same order fixed February

6, 2018, as the date by which responses to dispositive motions
were to be filed.

No response has been received from any

defendant.
Oaks having failed to respond to the motion, the court
must nevertheless address the merits of Citizens’ request for
summary judgment.

As this court has succinctly explained,

Rule 56(e) addresses the situation where a party fails
to address a fact that the other party has asserted in
its motion for summary judgment. See Fed. R. Civ. P.
56(e). Rule 56(e) provides, in relevant part, that a
court may, inter alia, consider facts from a motion
for summary judgment that go unaddressed as undisputed
for purposes of the motion and “grant summary judgment
if the motion and supporting materials - including the
facts considered undisputed [under Rule 56(e)(2)] show that the movant is entitled to it.” Fed. R. Civ.
P. 56(e)(3).
However, summary judgment’s guiding principle, that
the moving party must show “there is no genuine
dispute as to any material fact and the movant is
entitled to judgment as a matter of law,” Fed. R. Civ.
P. 56(a), limits a court’s general discretion under
56(e) to grant summary judgment in favor of the moving
party when the non-moving party fails to address facts
in the motion. In other words, when the Advisory
Committee drafted 56(e), it did not intend to change
the moving party’s burden [to support its position
with evidence pursuant to] 56(c). See Adickes v. S.
H. Kress & Company, 398 U.S. 144, 90 S. Ct. 1598, 26
L. Ed. 2d 142 (1970). This principle extends to the
accepted doctrine requiring courts to view facts from
the moving party’s materials, and reasonable

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inferences drawn from those facts, in the light most
favorable to the non-moving party. See id. at 158-59.
First Century Bank, N.C. v. Batelic, No. 1:11-0580, 2012 U.S.
Dist. LEXIS 123528, at *3-4 (S.D. W. Va. Aug. 30, 2012) (last
alteration added).
The undisputed facts here, viewed most favorably to
Oaks, show that Oaks has defaulted on its obligations owed to
Citizens under the business loan agreement and promissory note
as modified.

(See Compl. ¶¶ 1-19; Mot. Summ. J. Exs. A-G.)

Indeed, Oaks has admitted to the authenticity of the loan
documents, and Cantrell testified to the undisputed fact that
Oaks has failed to meet its obligations imposed thereunder.
Accordingly, consistent with the terms of the agreements
attached as exhibits to Citizens’ motion, Citizens is entitled
to summary judgment against Oaks as a matter of law.
As set forth in the complaint and the Cantrell
affidavit, the plaintiff is entitled to recover from The Oaks,
LLC, the sum of $270,301.04, plus interest at the annual rate of
5.25% from October 6, 2017, to this date of $8,825.51 and a
remaining attorney fee and costs of $3,264.50, aggregating
$282,391.05.

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ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
III. Conclusion
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
For the foregoing reasons,willis ORDERED that
unsupported by memoranda it be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
Citizens’ motion for summary judgment against Oaks be, and
02/08/2016
Last day for Rule 26(f) meeting.
hereby is, granted. Pursuant to Federal Rule of Civil Procedure
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
54(b), judgment for the sum of $282,391.05 is entered in favor
02/22/2016 plaintiff and against The Oaks, LLC, inat separate order
Scheduling conference at 4:30 p.m. a the Robert C.
of the
Byrd United States Courthouse in Charleston, before
the undersigned, unless
entered contemporaneously herewith.canceled. Lead counsel
directed to appear.
02/29/2016

Entry of scheduling to transmit copies of this
The Clerk is directedorder.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
memorandum opinion and order to all counsel of record and to any
The Clerk is requested to transmit this Order and
unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: May 21, 2018
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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