Branch Banking & Trust Company v. Camco Management, LLC

704 F. App'x 826
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 21, 2017
Docket16-17470 Non-Argument Calendar
StatusUnpublished
Cited by1 cases

This text of 704 F. App'x 826 (Branch Banking & Trust Company v. Camco Management, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branch Banking & Trust Company v. Camco Management, LLC, 704 F. App'x 826 (11th Cir. 2017).

Opinion

PER CURIAM:

Cameo Management, LLC (“Cameo”), Jeffrey Cohen, and Lori Cohen (collectively, “Appellants”) appeal from the district court’s denial of a motion to dismiss and grant of summary judgment in favor of the Branch Banking & Trust Company (“BB&T”) on BB&T’s claims for breach of contract and attorneys’ fees. BB&T’s claims stem from Cameo’s default on a promissory note secured by a shopping center and the Cohens’ default on their personal guaranty agreements guaranteeing payment of the promissory note. On appeal, the Appellants argue that the district court erred by: (1) denying their motion to dismiss BB&T’s claim for attorneys’ fees under O.C.G.A. § 13-1-11; (2) granting summary judgment on the breach of contract claims; (3) considering a supplemental affidavit filed by BB&T after it had filed its motion for summary judgment; and (4) failing to examine the reasonableness of the award of attorneys’ fees under O.C.G.A. § 13-l-ll(b). After careful review, we affirm.

We review a district court’s denial of a motion to dismiss de novo, applying the same standard as the district court. Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1044 (11th Cir. 2011). We also review a district court’s order granting summary judgment de novo, applying the same standard as the district court. Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). We view the material presented and draw all factual inferences in the light most favorable to the nonmoving party. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006). Summary judgment is proper where “the movant shows that 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). “A mere scintilla of evidence supporting the nonmoving party’s position will not suffice.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (alteration adopted) (quotations omitted). We review a district court’s evidentiary rulings at the summary judgment stage only for abuse of discretion. Wright v. Farouk Sys., Inc., 701 F.3d 907, 910 (11th Cir. 2012).

The Appellants argue that the district court should have dismissed BB&T’s claim for attorneys’ fees because BB&T sought an amount of fees based on the percentages in O.C.G.A. § 13-1-11(a)(2), and not the amount of fees “actually incurred,” as provided in the note and guaranties. We disagree. The statute provides that “[obligations to pay attorney’s fees upon any note or other evidence of indebtedness ... shall be valid and enforceable and collectable as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity....” O.C.G.A. § 13-1-11(a). It further provides methods for calculating the amount of fees, id. § 13-1-11(a)(1)-(2), and requires that the holder of the note meet certain notice requirements and give the debtor an opportunity to pay the principal and interest without attorney’s fees, id. § 13-1-11(a)(3). The Georgia Supreme Court has recognized that a trial court lacks discretion to deny fees under § 13-1-11 when:

B(l) the note’s terms include an obligation to pay attorney fees; (2) the debt owed under the note has matured; (3) notice was given to the debtor informing him that if he pays the debt within ten days of the notice’s receipt, he may avoid attorney fees; (4) the ten day period has expired without payment of the principal *829 and interest in full; and (5) the debt is collected by or through an attorney.

TermNet Merch. Servs., Inc. v. Phillips, 277 Ga. 342, 588 S.E.2d 745, 747 (2003). The Appellants do not argue that these statutory conditions were not satisfied or were inadequately pled. Even assuming BB&T was entitled to the amount of attorneys’ fees “actually incurred,” and not an amount calculated under § 13-l-ll(a)(2), it was nevertheless entitled to fees under the statute. Accordingly, the district court did not err in denying the motion to dismiss this claim.

We are also unpersuaded by the Appellants’ argument that genuine issues of material fact exist concerning their default and the amount of damages. As for the issue of default, the undisputed evidence shows that the Appellants signed two forbearance agreements, in which they acknowledged the default of the promissory note. During his deposition, Jeffrey Cohen admitted that he signed the loan documents and did not pay the remaining amount of indebtedness when the term for the second forbearance agreement ended. The Appellants note, however, that BB&T’s High Risk Reports that were made after the second forbearance term ended documented that the loan continued to be paid according to contractual terms. They argue that this statement creates a genuine dispute as to whether they defaulted on the loan at the end of the second forbearance term. But Steven Paulk, a vice president and problem loan administrator for BB&T, explained in his deposition — sealed in the district court — why the High Risk Reports included those notations. The Appellants did not provide any evidence to dispute Paulk’s explanation for the notations in the reports. On this undisputed record, the notations alone were not “sufficient evidence favoring the [Appellants] for a reasonable jury to return a verdict in [their] favor.” Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (citation omitted).

As for the amount of loss, Paulk’s initial declaration provided the principal balance of the loan, the accrued interest, and the per diem interest after the date of the calculation. BB&T provided the Loan History upon which the loss calculation was based and a copy of the loss calculation. Paulk and Carol Webb, who helped prepare the loss calculation, testified in depositions about how the loss amount was calculated. The Appellants point out that the Loan History contained inaccuracies, Webb made errors in her initial calculation of the loss, and the Loan History was inconsistent with the High Risk Reports. However, Paulk and Webb explained in their sealed depositions that the inaccuracies were corrected, and provided a likely explanation for the inconsistencies with the High Risk Reports. The Appellants did not produce evidence to contradict these explanations, and, again, the errors in the source material were insufficient to create a genuine factual dispute. Id.

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704 F. App'x 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branch-banking-trust-company-v-camco-management-llc-ca11-2017.