Garrett Investments, LLC v. SE Property Holdings, LLC

956 F. Supp. 2d 1330, 2013 WL 3441768, 2013 U.S. Dist. LEXIS 95083
CourtDistrict Court, S.D. Alabama
DecidedJuly 9, 2013
DocketCivil Action No. 12-0500-KD-N
StatusPublished
Cited by7 cases

This text of 956 F. Supp. 2d 1330 (Garrett Investments, LLC v. SE Property Holdings, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett Investments, LLC v. SE Property Holdings, LLC, 956 F. Supp. 2d 1330, 2013 WL 3441768, 2013 U.S. Dist. LEXIS 95083 (S.D. Ala. 2013).

Opinion

ORDER

KRISTI K. DuBOSE, District Judge.

This action is now before the court on the motion for summary judgment filed by counterclaim plaintiff SE Property Holdings, LLC (SEPH), the response in opposition filed by counterclaim defendants Garrett Investments, LLC (Garrett), John B. Foley IV and Lauren M. Foley, and SEPH’s reply (docs. 50-52, 55, 56). Upon consideration, and for the reasons set forth herein, the motion for summary judgment is GRANTED.

I. Procedural background

In the initial complaint, Garrett brought this action against SEPH to set aside a foreclosure sale and alleging breach of fiduciary duty, unjust enrichment, constructive trust, and fraudulent suppression (doc. 1, Exhibit A). Garrett alleged that during the foreclosure process SEPH withheld from its appraiser certain information relevant to the value of the real property in order to purchase the property at foreclosure for a greatly reduced price. . SEPH removed the action to this court and filed its answer (docs. 1, 2). SEPH then filed a motion for leave to amend its pleadings to [1334]*1334assert counterclaims against Garrett and to add John B. Foley IV and Lauren M. Foley (the Foleys), the members of Garrett and the guarantors on Garrett’s loan with SEPH, as counterclaim defendants (doc. 19). Garrett moved for leave to amend its complaint to add the appraiser hired by SEPH (doc. 20) and then moved to dismiss the action (doc. 30).

The court granted Garrett’s motion to dismiss without prejudice and since Garrett’s action had been dismissed, the court found that Garrett’s motion for leave to amend the complaint to add the appraiser was moot (doc. 43). SEPH’s motion was granted, the counterclaim was filed, and the action proceeded on the counterclaim (docs. 43, 44). SEPH has now filed a motion for summary judgment on the counterclaim. The motion has been briefed and is ready for decision.

II. Summary judgment standard

Summary judgment should be granted “if 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). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed.R.Civ.P. 56(c)(1)(A), (B).

SEPH, as the party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d. 604, 608 (11th Cir.1991). The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608 quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

Once SEPH has satisfied its responsibility, the burden shifts to Garrett and the Foleys, as the non-movants, to show the existence of a genuine issue of material fact. Id. “In reviewing whether the non-moving party has met its burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 1608-1609, 26 L.Ed.2d 142 (1970). However, “[a] moving party is entitled to summary judgment if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof ” In re Walker, 48 F.3d 1161, 1163 (11th Cir.1995) quoting Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.

Overall, the court must “resolve all issues of material fact in favor of the [nonmovant], and then determine the legal question of whether the [movant] is entitled to judgment as a matter of law under [1335]*1335that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir.2004) citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir.2003).

However, the mere existence of any factual dispute will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir.2004). “An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir.2010) (citation omitted). Also, “what is considered to be ‘facts’ at the summary judgment stage may not turn out to be the actual facts if the case goes to trial, but those are the facts at this stage of the proceeding for summary judgment purposes.” Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.1996).

III. Findings of Fact1

In October 2009, Vision Bank renewed a loan to Garrett in the principal amount of $1,299,675.00. (Doc. 52-1, Exhibit A, Affidavit of Deborah Ard, ¶ 5). SEPH became the successor-in-interest to Vision Bank pursuant to a merger occurring in February 2012. (Id., ¶ 2) The loan, the mortgage securing the loan, and the continuing guaranties guaranteeing payment of the loan, were transferred to SEPH as part of the merger process and SEPH is the current lawful holder of the mortgage and payee of the continuing guaranties (Id.,

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Bluebook (online)
956 F. Supp. 2d 1330, 2013 WL 3441768, 2013 U.S. Dist. LEXIS 95083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-investments-llc-v-se-property-holdings-llc-alsd-2013.