Whitney National Bank v. Derks

891 F. Supp. 416, 1995 U.S. Dist. LEXIS 9974, 1995 WL 416282
CourtDistrict Court, W.D. Michigan
DecidedJuly 7, 1995
DocketNo. 1:94-CV-241
StatusPublished

This text of 891 F. Supp. 416 (Whitney National Bank v. Derks) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitney National Bank v. Derks, 891 F. Supp. 416, 1995 U.S. Dist. LEXIS 9974, 1995 WL 416282 (W.D. Mich. 1995).

Opinion

OPINION OF THE COURT

MeKEAGUE, District Judge.

This is an action to enforce rights under seven promissory notes and related security agreements. The Court’s jurisdiction is premised on the parties’ diversity of citizenship. 28 U.S.C. § 1332. Now before the Court is plaintiffs motion for partial summary judgment under Fed.R.Civ.P. 56(a).

I

During the 1980’s, plaintiff Whitney National Bank loaned substantial sums of money to defendants Gerald A. Derks and his wife, Jacklyn J. Derks, and to two partnerships with which Gerald Derks was associated. The monies were loaned pursuant to seven promissory notes setting forth the agreed terms of repayment. Plaintiff alleges defendants are in default of their obligations under all seven notes.

In the present motion for partial summary judgment, plaintiff contends there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on four of the notes, and related security agree[418]*418ments.1'2 All four notes are expressly made payable on demand or by monthly payments at prescribed interest rates. According to the complaint, the principal amount owing on the four notes is $373,837.47. In addition, plaintiffs motion is supported by the affidavit of Whitney National Bank Assistant Vice President Louis R. Dubos, attesting that the Derkses are in default on all four notes and that the total amount owing, inclusive of interest, as of April 15, 1994, is $647,132.77, and that interest continues to accrue on the principal balance of the obligations at the per diem rate of $110.2437.

Defendants do not dispute the accuracy of these figures, but deny that they are in default at all. They contend the terms of the promissory notes and related security agreements do not reflect the parties’ entire agreements. The subject notes are said to be merely a small part of a larger history of business dealings between them and Whitney National Bank. During the course of this history, they contend, a mutual understanding developed to the effect that satisfaction of their obligations was contingent upon either a turn-around in the depressed New Orleans real estate market or the Derkses’ recovery of a monetary judgment in otherwise unrelated litigation pending in the Michigan Court of Claims, the “Nordhouse Dunes litigation.”3 Because the New Orleans market has not yet sufficiently recovered and the Nordhouse Dunes litigation is still pending, the conditions precedent to repayment on the notes are said not to have occurred.

Defendants admit this mutual understanding has not been reduced to writing, but contend it is evidenced by (1) security agreements entered into by the Derkses in 1989 and 1990, assigning to Whitney National Bank their rights to proceeds recovered in the Nordhouse Dunes litigation; (2) Gerald Derks’ affidavit attesting to an oral representation by Whitney National Bank Senior Vice [419]*419President Harry C. Stahel to the effect that the Bank would not initiate litigation to enforce the Derkses’ obligations; and (3) Whit1 ney National Bank’s history of forbearance. These matters, defendants argue, are sufficient to create a genuine issue of material fact and preclude summary judgment at this time.

II

Whitney National Bank’s motion for summary judgment requires the Court to look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. Fed.R.Civ.P. 56(c). See generally Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). The Court must determine “whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The Court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

An issue of fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson, supra, 477 U.S. at 248, 106 S.Ct. at 2510. Once the moving party identifies elements of a claim or defense which it believes are not supported by evidence, the nonmovant must present affirmative evidence tending to show a genuine dispute of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Production merely of a “scintilla of evidence” in support of an essential element will not forestall summary judgment. Anderson, 477 U.S. at 251, 106 S.Ct. at 2512. The nonmovant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, supra, 475 U.S. at 586, 106 S.Ct. at 1356.

The substantive law identifies which facts are “material.” Facts are “material” only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A complete failure of proof concerning an essential element necessarily renders all other facts immaterial. Celotex, supra, 477 U.S. at 322-23, 106 S.Ct. at 2552.

Ill

With reference to the substantive law of Louisiana, Whitney National Bank argues the evidence defendants would rely on to avoid their obligations under the subject notes is not admissible and should not be considered by the Court.4 In American Bank v. Saxena, 553 So.2d 836 (La.1989), the Louisiana Supreme Court recognized that summary judgment is appropriate to enforce a negotiable instrument where the debtor establishes no defense against enforcement. See also, Premier Bank Nat’l Ass’n v. Percomex, 615 So.2d 41, 43 (La.App.1993). Once the plaintiff, as holder of a promissory note, produces the note and proves the maker’s signature, it “is incumbent upon the defendant to demonstrate the existence of a triable issue by specific, admissible evidence.” Id. A defense may be established through parol evidence, but parol evidence is not admissible to vary the terms of an instrument. Id.; Louisiana Nat’l Bank v. Jumonville, 563 So.2d 965, 967-68 (La.App.1990). See also L.S.A.-C.C. art. 1848 (prohibiting admission of parol or other extrinsic evidence to negate or vary terms of a writing but allowing admission for limited other purposes, such as to show modification of the writing by subsequent and valid oral agreement).

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Related

Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Premier Bank, Nat. Ass'n v. Percomex, Inc.
615 So. 2d 41 (Louisiana Court of Appeal, 1993)
American Bank v. Saxena
553 So. 2d 836 (Supreme Court of Louisiana, 1989)
LOUISIANA NAT. BANK v. Jumonville
563 So. 2d 965 (Louisiana Court of Appeal, 1990)
Ouachita Nat. v. Gulf States Land & Dev.
579 So. 2d 1115 (Louisiana Court of Appeal, 1991)
Leahy v. Trans Jones, Inc.
996 F.2d 136 (Sixth Circuit, 1993)

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Bluebook (online)
891 F. Supp. 416, 1995 U.S. Dist. LEXIS 9974, 1995 WL 416282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-national-bank-v-derks-miwd-1995.