Bank of North Georgia v. McDowell (In re McDowell)

497 B.R. 363
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedJune 3, 2013
DocketBankruptcy No. 11-13519; Adversary Proceeding No. 12-01020
StatusPublished
Cited by15 cases

This text of 497 B.R. 363 (Bank of North Georgia v. McDowell (In re McDowell)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of North Georgia v. McDowell (In re McDowell), 497 B.R. 363 (Ga. 2013).

Opinion

ORDER

W. HOMER DRAKE, Bankruptcy Judge.

Before the Court is a Motion for Summary Judgment, filed by Bank of North Georgia (hereinafter the “Plaintiff’). The motion is opposed by Dennis McDowell (hereinafter the “Debtor” or “Defendant”). As this matter arises from a complaint objecting to the Debtor’s discharge and to the dischargeability of a particular debt, it constitutes a core proceeding, over which this Court has subject matter jurisdiction. See 28 U.S.C. § 157(b)(2)(I)-(J).

Findings of Fact

1. On October 24, 2011, Debtor filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code.1 (PL’s Statement of Material Facts, ¶ 10; Def.’s Resp. to Pl.’s Statement of Material Facts, ¶ 10.).

2. On June 26, 2007, Secured Realty & Investments, Inc. (hereinafter “Secured Realty”), a Georgia corporation, executed a promissory note, identified as Note 21, in favor of Citizens Bank and Trust of West Georgia (hereinafter “CB & T”) in the principal sum of $3,800,000.00. (PL’s Statement of Material Facts, ¶ 13: Ex. A.; Def.’s Resp. to PL’s Statement of Material Facts, ¶ 13.). On June 26, 2007, the Debt- or executed a personal guaranty in connection with Loan No. 21 in which he personally guaranteed the debt of Secured Realty to CB & T. (See PL’s Statement of Material Facts, ¶ 13; Ex. D.; Def.’s Resp. to PL’s Statement of Material Facts, ¶ 13.).

3. On February 19, 2008, Secured Realty executed a promissory note, identified as Note 16, in favor of CB & T in the principal amount of $471,980.33. (PL’s Statement of Material Facts, ¶ 13; Def.’s Resp. to PL’s Statement of Material Facts, ¶ 13. Ex. B.). On April 8, 2008, the Debtor executed a personal guaranty in which he personally guaranteed the debt of Secured Realty to CB & T. (See PL’s Statement of Material Facts, ¶ 13; Ex. E.; Def.’s Resp. to PL’s Statement of Material Facts, ¶ 13.).

4. On January 8, 2009, Secured Realty executed a promissory note, identified as Note 20, in favor of Plaintiff in the principal amount of $911,557.25. (PL’s Statement of Material Facts, ¶ 13; Ex. C.; Def.’s Resp. to PL’s Statement of Material Facts, ¶ 13.). In connection with Note 20, the Debtor also executed a personal guaranty on January 8, 2009. (See PL’s Statement of Material Facts, ¶ 13; Ex. F.; Def.’s Resp. to PL’s Statement of Material Facts, ¶ 13.).

5. On October 24, 2008, Plaintiff merged with CB & T. By the terms of the merger, the surviving entity was Bank of North Georgia. On June 1, 2010, Plaintiff again merged with Columbus Bank and Trust Company, which at the same time changed its name to Synovous Bank, and Plaintiff became a division of Synovous Bank. (PL’s Statement of Material Facts, ¶ 11, FN 1.).

6. On or before October 8, 2008, Secured Realty and Defendant defaulted on obligations owed to Plaintiff or its predeces[367]*367sor, including Note 20. Subsequently, Secured Realty and Defendant defaulted on other obligations owed to Plaintiff, including Note 21. (Pl.’s Statement of Material Facts, ¶ 15.).

7. On October 23, 2008, CB & T offset funds in the Defendant’s deposit accounts on the belief and information that Defendant defaulted on his notes. (See Pl.’s Statement of Material Facts, ¶ 18.).

8. On October 24, 2008, the Defendant provided to the Plaintiff, or its predecessor, a financial statement, described as the Defendant’s balance sheet, as of October 24, 2008, (hereinafter the “Balance Sheet”). The Defendant endorsed the Balance Sheet on October 27, 2008 as an accurate depiction of his financial status. (See PL’s Statement of Material Facts, ¶ 19. Def.’s Resp. to PL’s Statement of Material Facts, ¶ 19.).

9. The Plaintiff filed suit in the Superior Court of Carroll County against Secured Realty and the Defendant alleging default on Note 20 and Note 21. (See PL’s Statement of Material Facts, ¶¶ 15-16.). On May 2, 2011, the Superior Court of Carroll County entered summary judgment in favor of the Plaintiff for Note 21. The Superior Court of Carroll County denied PL’s Motion for Summary Judgment on Note 20. Both parties then appealed to the Georgia Court of Appeals. On March 7, 2012, the Georgia Court of Appeals affirmed the entry of judgment in favor of Plaintiff on Note 21 and granted Plaintiff a judgment on Note 20.2 See Bank of North Georgia v. Secured Realty & Investments, Inc., et al., 314 Ga.App. 628, 725 S.E.2d 336 (2012).

Conclusions of Law

The Plaintiff seeks a declaration that the debts owed by the Debtor to the Plaintiff are nondischargeable pursuant to section 523(a)(2)(B) of the Bankruptcy Code, and nondischargeable pursuant to section 523(a)(2)(A) of the Bankruptcy Code, and alternatively seeks the denial of the Debt- or’s discharge under section 727(a)(4). The Plaintiff requested summary judgment as to all claims on March 8, 2013, and oral argument on the motion took place on May 10, 2013.

A. Summary Judgment Standard

In accordance with Rule 56 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Rule 7056 of the Federal Rules of Bankruptcy Procedure, a party moving for summary judgment is entitled to prevail only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265; see also Fed. R. Bankr.P. 7056. The moving party bears the initial burden of establishing that no genuine factual issue exists. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). The movant must point to the pleadings, discovery responses or supporting affidavits which tend to show the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. [368]*368Moreover, the Court must construe this evidence in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir.1987).

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Bluebook (online)
497 B.R. 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-north-georgia-v-mcdowell-in-re-mcdowell-ganb-2013.