Ameris Bank ex rel. Federal Deposit Insurance v. SB Partners, LLC
157 F. Supp. 3d 1356
S.D. Ga.2016Background
- Ameris Bank (successor to Darby Bank) holds two promissory notes executed by SB Partners, LLC: Note 1455850 ($1,350,382) and Note 1455910 ($6,548,000).
- Defendant James Shiver signed personal guaranties limiting his principal exposure to $250,000 on Note 1455850 and $1,750,000 on Note 1455910 (combined $2,000,000), and promising payment of unpaid interest; guaranties also provide for attorneys’ fees of 15% if collected by an attorney.
- SB Partners defaulted; Ameris obtained default judgment against SB Partners. Shiver answered, raising defenses about notarization/witnessing, unauthorized third-party signatures, and alleged misconduct by a non-party lawyer.
- Ameris moved for summary judgment; Shiver failed to respond to the plaintiff’s Local Rule 56.1 statement of undisputed facts (so many facts were deemed admitted), and he produced no evidence supporting his affirmative defenses.
- The court concluded the guaranties are signed and enforceable under Georgia law, limited Shiver’s principal liability to $2,000,000, awarded accrued interest, per diem interest, late fees, and statutory attorneys’ fees (15% of principal and interest), and entered judgment for Ameris.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability/liability under guaranties | Guaranties are signed, identify debt/parties, and establish Shiver’s liability for breach | Guaranties invalid because not notarized/witnessed; some documents executed by third party without consent | Court: Guaranties enforceable despite lack of notarization/witness; Shiver admitted signature and default; summary judgment for Ameris on liability |
| Amount of principal owed by Shiver | Seek recovery within guaranty limits; plaintiff identifies total principal and limits to $2,000,000 from guaranties | Shiver did not contest amounts or limits | Court: Principal liability limited to $2,000,000; summary judgment for Ameris |
| Interest, late fees, and per diem accrual | Ameris presented affidavit calculating accrued interest, per diem interest, and late fees | Shiver did not contest the interest or fees calculations | Court: Awarded $2,906,106.85 accrued interest; $2,375.04 per day from April 15, 2015; $825 late fees; total monetary judgment calculated accordingly |
| Attorneys’ fees under guaranty and O.C.G.A. § 13-1-11 | Guaranties permit 15% fees; Ameris provided statutory ten-day post-maturity notice letters; seeks 15% of principal+interest and per diem fee accrual | Shiver did not challenge fee provision or notice | Court: 15% attorneys’ fees recoverable; awarded $1,237,490.05 plus $356.26 per day from April 15, 2015 and appropriate court costs |
Key Cases Cited
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (Sup. Ct. 1986) (standard for evaluating summary judgment and viewing evidence in nonmovant’s favor)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct. 1986) (movant’s initial burden on summary judgment and allocation of proof)
- United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir. 1991) (court must draw all justifiable inferences for nonmoving party)
- Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993) (directed-verdict standard applicable when evaluating whether summary judgment is appropriate)
- Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991) (conclusory statements insufficient to avoid summary judgment)
- Jones v. City of Columbus, 120 F.3d 248 (11th Cir. 1997) (movant must meet initial burden before court evaluates nonmovant’s evidence)
- Griffith v. Wainwright, 772 F.2d 822 (11th Cir. 1985) (notice requirements for summary judgment against pro se litigants)
- Triple T-Bar, LLC v. DDR Se. Springfield, LLC, 330 Ga. App. 847 (Ga. Ct. App. 2015) (lack of notarization does not invalidate guaranty when signature and essential terms are present)
- Norton v. Budget Rent A Car Sys., Inc., 307 Ga. App. 501 (Ga. Ct. App. 2010) (elements plaintiff must prove for breach of contract under Georgia law)
- RES-GA SCL, LLC v. Stonecrest Land, LLC, 333 Ga. App. 289 (Ga. Ct. App. 2015) (a guaranty is an ‘‘evidence of indebtedness’’ under Georgia statute allowing contractual attorneys’ fees)