WOODFOREST NATIONAL BANK

v.

FREEMAN ORTHODONTICS, P.A.

THIS CAUSE is before the Court on Plaintiff Woodforest National Bank’s Motion for Summary Judgment, ECF No. , filed April 23, 2020.1 The Motion seeks summary judgment allowing Plaintiff to enforce “several binding agreements” Compl., ECF No. ¶ 29, collectively referred to as Loan Documents, see id. The Loan Documents include a Loan Agreement, ECF No. 1-1, under which Plaintiff extended a “revolving credit facility” to Borrowers² in the amount of $6,500,000.00, see Loan Agreement section A; a Revolving Line of Credit Promissory Note (“Note”), ECF No. [1-2]; a Security Agreement, ECF No. [1-7], granting Plaintiff a security interest in Borrowers’ Collateral;³ and three Guarant[ies] of Payment and Performance, ECF Nos.

Defendants — Guarantors Wilson and Pearson — to respond to the Motion and cautioned those Defendants that the Court would consider the Motion without the benefit of a response should they not comply. See May 19, 2020 Order. To date, neither Defendants Wilson nor Pearson have responded to the Motion.

Accordingly, the Court considers the Motion on the merits. For the following reasons, the Motion is granted in part. Summary judgment is rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). At summary judgment, the moving party has the burden of proving the absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the nonmoving party. See Allen v. Tyson Foods, Inc., 121 F. 3d 642, 646 (11th Cir. 1997). The Court cannot grant a motion for summary judgment by default, even where the nonmoving party fails to respond. See United States v. 5800 SW 74th Ave., 363 F. 3d 1099, 1101 (11th Cir. 2004) (“[A] district court cannot base the entry of summary judgment on the mere fact

Plaintiff seeks repayment of the principal, plus interest, late charges, and attorney’s and consultant’s fees. See id. ¶¶ 46–47. Plaintiff sets forth the same basic facts in support of its Motion. See generally Pl.s SOF. Pointing to the Loan Documents, Plaintiff argues it is entitled to enforce the same because (1) the Loan Documents are contracts; (2) Borrowers and Guarantors breached their respective contracts by failing to pay Plaintiff; and (3) Plaintiff has suffered monetary damages. (See Mot. 8–10).

As noted, Plaintiff filed its Motion before the Bankrupt Borrowers and Freeman filed the Suggestion of Bankruptcy. Because the case is stayed as to these Defendants, the Court only addresses the Motion as it pertains to Wilson and Pearson. See Lane v. Capital Acquisitions & Mgmt. Co., No. 04-60602 Civ, 2005 WL 5544964, at *1 (S.D. Fla. Nov.⁴, 2005) (“It is well established that stays pursuant to [section] 362(a) are limited to debtors and do not encompass non-bankrupt co-defendants.” (alteration added)).

The Guaranties, which are not disputed, contain the following provisions: Guarantor hereby unconditionally and irrevocably guarantees to Lender the punctual payment when due, whether by lapse of time, by acceleration of maturity, or otherwise, of all principal, interest (including interest accruing after maturity and after the commencement of any bankruptcy or insolvency proceeding by or against Borrower, whether or not allowed in such proceeding), prepayment premiums, fees, late charges, costs, expenses, indemnification indebtedness, and other sums of money now or hereafter due and owing, or which Borrower is obligated to pay, pursuant to the terms of the Note, the Loan Agreement, that certain Security Agreement by and between Borrower and Lender . . . .

Wilson Guaranty § 1.5

Guarantor agrees that neither Lender's rights or remedies nor Guarantor’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of: . . . (viii) the insolvency, bankruptcy, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower or any other person at any time liable for the payment of any or all of the Guaranteed Obligations.

Id. § 4(a)

If acceleration of the time for payment of any amount payable by Borrower under the Note, the Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender. Id. § 4(e).

The validity, enforcement, and interpretation of this Guaranty, shall for all purposes be governed by and construed in accordance with the laws of the State of Florida and applicable United States federal law, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. . . .

Id. § 9. There is no dispute that Wilson and Pearson are currently in default under their respective Guaranties because “neither Borrowers nor Guarantors paid the balance due on the maturity date or thereafter upon receipt of notice and demand.” Pl.’s SOF § 22. In other words, Plaintiff has shown there is no genuine dispute that both Wilson and Pearson breached a contract under Florida law. See Vega v. T-Mobile USA, Inc., 564 F. 3d 1256, 1272 (11th Cir. 2009) (“For a breach of contract claim, Florida law requires the plaintiff to plead and establish: (1) the existence of a contract; (2) a material breach of that contract; and (3) damages resulting from the breach.”) For the foregoing reasons, it is ORDERED AND ADJUDGED that Plaintiff Woodforest National Bank’s Motion for Summary Judgment, ECF No. , is GRANTED in part and Judgment will be entered against Defendant Wayne Pearson and Defendant Jeffrey Wilson by separate order. DONE AND ORDERED in Chambers at Miami, Florida, on June 11, 2020.

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of record