You're viewing Docket Item 43 from the case BANK OF THE OZARKS v. CROCKETT et al. View the full docket and case details.

Download this document:




Case 3:13-cv-00023-CDL Document 43 Filed 01/14/14 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA

ATHENS DIVISION

Plaintiff,


BANK OF THE OZARKS,



vs.

JAMES R. GOFF, JR.,



Defendant.








*

*

*

*

*

CASE NO. 3:13-CV-23 (CDL)






O R D E R

Defendant James R. Goff, Jr. guaranteed a loan made by the

Chestatee State Bank to Sherman Nathaniel Crockett, Jr. and

Barbara Womack Crockett. After Chestatee State Bank failed,

Plaintiff Bank of the Ozarks assumed the loan, including Goff’s

guaranty, pursuant to its agreement with the Federal Deposit

Insurance Corporation to assume certain assets and liabilities

of the failed bank. The Crocketts defaulted on the loan, and

Goff has refused to honor his obligations under the guaranty.

He admits that he is in default on the guaranty, but he

maintains that he should be excused from liability because

Ozarks improperly increased his risk as guarantor. Ozarks

responds that Goff expressly waived his “increased risk” defense

in the guaranty agreement that he signed. Ozarks now seeks

summary judgment on its claim against Goff pursuant to the

Case 3:13-cv-00023-CDL Document 43 Filed 01/14/14 Page 2 of 7

guaranty. For the reasons explained in the remainder of this

Order, Ozarks’s motion (ECF NO. 30) is granted.1

SUMMARY JUDGMENT STANDARD

Summary judgment may be granted only “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). In determining whether a genuine dispute of

material fact exists to defeat a motion for summary judgment,

the evidence is viewed in the light most favorable to the party

opposing summary judgment, drawing all justifiable inferences in

the opposing party’s favor. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). A fact is material if it is relevant

or necessary to the outcome of the suit. Id. at 248. A factual

dispute is genuine if the evidence would allow a reasonable jury

to return a verdict for the nonmoving party. Id.

FACTUAL BACKGROUND

On August 29, 2008, the Crocketts executed a promissory

note in favor of Chestatee State Bank in the principal amount of

$266,221.25. The Note obligates the Crocketts to timely pay the

lender or its successors and assigns all amounts due under the

Note, including principal, interest, other accrued charges,

collection costs, and attorneys’ fees of “15 percent of the


1 Although Goff requested oral argument (ECF No. 36), the Court finds
that the issues to be decided are clear from the briefing and that no
hearing is necessary.

2

Case 3:13-cv-00023-CDL Document 43 Filed 01/14/14 Page 3 of 7

principal and interest then owed, plus court costs.” Kundrat

Aff. Ex. 1, Promissory Note 1-2, ECF No. 30-2 at 15-16. Goff

executed

two

documents

(collectively,

the

“Guaranty”)

“absolutely and unconditionally” guaranteeing all amounts owed

by the Crocketts, including an “UNLIMITED” principal amount

“plus accrued interest, attorneys’ fees and collection costs . .

. and all other amounts agreed to be paid under all agreements

evidencing the debt and securing the payment of the debt.”

Kundrat Aff. Exs. 4-5, Guaranty, ECF No. 30-2 at 25-27. The

Guaranty signed by Goff contains the following waivers:

No modification of this agreement is effective unless
in writing and signed by you and me, except that you
may, without notice to me and without the addition of
a signed writing or my approval . . . (12) renew,
extend, refinance or modify the borrower’s debt on any
terms agreed to by you and the borrower (including,
but not limited to, changes in the interest rate or in
the method, time, place or amount of payment) without
affecting my obligation to pay under this guaranty.

. . . I waive presentment, demand, protest, notice of
dishonor, and notice of acceptance of this guaranty.
I also waive, to the extent permitted by law, all
notices, all defenses and claims that the borrower
could assert, any right to require you to pursue any
remedy or seek payment from any other person before
seeking payment under this agreement, and all other
defenses to the debt, except payment in full. You may
without notice to me and without my consent, enter
into agreements with the borrower from time to time
for purposes of creating or continuing the borrower’s
debt as allowed by this guaranty.

Id.

3

Case 3:13-cv-00023-CDL Document 43 Filed 01/14/14 Page 4 of 7

Chestatee State Bank failed before the Crocketts paid back

the loan. The FDIC negotiated a Purchase and Assumption

Agreement (“P & A Agreement”) with Ozarks which resulted in

Ozarks assuming certain assets and liabilities of Chestatee

State Bank, including the Crocketts’ Note and the Goff Guaranty.

Goff does not dispute that the Crocketts defaulted on the Note

and as of October 25, 2013 owe Ozarks $209,334.91 in principal,

$10,226.07 in interest continuing to accrue at $39.48 per day,

$1,795.00 in late charges, and attorneys’ fees of fifteen

percent of the principal and interest due. Pl.’s Statement of

Material Facts ¶ 24, ECF No. 30-1; Def.’s Resp. to Pl.’s

Statement of Material Facts ¶ 24, ECF No. 32. Goff also admits

that he is in default on the Guaranty. Id. ¶ 14.

DISCUSSION

Ozarks seeks summary judgment on its action to enforce

Goff’s Guaranty of the Crocketts’ Note. It is undisputed that

the Crocketts’ Note and the Goff Guaranty were validly executed,

that the Crocketts are in default on the Note, and that Goff has

refused to pay the Note obligation pursuant to his Guaranty.

Therefore, Goff is liable on the Guaranty unless he can

establish a defense for his non-payment. Fielbon Dev. Co. v.

Colony Bank, 290 Ga. App. 847, 850, 660 S.E.2d 801, 805 (2008).

Goff argues that he should be discharged of his guarantor

obligation because Ozarks increased his risk by increasing the

4

Case 3:13-cv-00023-CDL Document 43 Filed 01/14/14 Page 5 of 7

Crocketts’

monthly

payments

and

not

offering

further

modifications. See O.C.G.A. § 10-7-22 (“Any act of the creditor

. . . which injures the surety or increases his risk or exposes

him to greater liability shall discharge him.”). Ozarks

responds that Goff waived any right to object to an increase in

his risk by the clear language of his Guaranty. “A guarantor

may consent in advance to a course of conduct that would

otherwise result in his discharge” and waive defenses that would

otherwise be available to a guarantor. Baby Days, Inc. v. Bank

of Adairsville, 218 Ga. App. 752, 755, 463 S.E.2d 171, 174

(1995); accord Panasonic Indus. Co. v. Hall, 197 Ga. App. 860,

861, 399 S.E.2d 733, 734 (1990). Goff does not dispute that the

language of his Guaranty permitted Chestatee State Bank and/or

Ozarks to modify the underlying debt without notifying him.

Def.’s Resp. in Opp’n to Pl.’s Mot. for Summ. J. 14, ECF No. 31.

And any argument to the contrary would be frivolous. The

Guaranty clearly provides that Goff unconditionally guarantees

an unlimited amount of the Crocketts’ debt to the bank and that

Goff consents in advance to modifications to the debt without

providing him notice or obtaining his approval. Guaranty 1.

Goff has waived the “increased risk” defense he now seeks to

assert. See Fielbon, 290 Ga. App. at 854, 660 S.E.2d at 807-08

(holding as a matter of law that guarantor waived increased risk

defense based on similar language in guaranty).

5

Case 3:13-cv-00023-CDL Document 43 Filed 01/14/14 Page 6 of 7

To the extent that Goff seeks to avoid his obligations

under the Guaranty based on Ozarks’s alleged failure to treat

the Crocketts’ loan as residential and thus offer modifications

as part of the residential loan program contained in the P & A

Agreement between the FDIC and Ozarks, that argument is also

unpersuasive. As explained previously, Goff has waived this

defense. But even if he had not, he has no legal basis for

relying on an agreement between the FDIC and Ozarks. Goff’s

argument relies on the alleged improper classification of the

Crocketts’ loan as commercial instead of residential according

to the terms of the P & A Agreement between Ozarks and the FDIC.

See Def.’s Resp. 3-7 (summarizing the P & A Agreement’s terms as

to residential and commercial loans then arguing that the Bank

“refuses to modify the . . . residential loan pursuant to the

Agreement, increasing Mr. Goff’s risk”); see also Def.’s Resp.

to Pl.’s Statement of Material Facts ¶ 29 (explaining that

Ozarks increased Goff’s risk under the guaranty by raising the

interest rate and refusing to modify the loan as required by the

P & A Agreement). The Court has previously ruled that the P & A

Agreement clearly and unambiguously disclaimed the creation of

any rights, remedies, or claims by third parties. July 31, 2013

Order 4-7, ECF No. 22. For the same reasons, Goff cannot base

his affirmative defense of increased risk on an alleged

obligation of Ozarks pursuant to the P & A Agreement.

6

Case 3:13-cv-00023-CDL Document 43 Filed 01/14/14 Page 7 of 7

Goff is in default on his Guaranty and has no valid

affirmative defenses to Ozarks’s claim. Pursuant to the terms

of his Guaranty, Goff is liable for the total amount of

$257,967.69.2

CONCLUSION

For the reasons set forth above, Ozarks’s Motion for

Summary Judgment (ECF No. 30) is granted.3 The Clerk shall enter

judgment in favor of Bank of the Ozarks against James R. Goff,

Jr. in the amount of $257,967.69.





IT IS SO ORDERED, this 14th day of January, 2014.

S/Clay D. Land

CLAY D. LAND

UNITED STATES DISTRICT JUDGE


2 This figure represents $209,334.91 in principal, $13,423.95 in
interest (calculated as $10,226.07 up to October 25, 2013 plus
eighty-one days of interest from October 25, 2013 to today at $39.48
per diem), $1,795.00 in late charges, and $33,413.83 in attorneys’
fees calculated as fifteen percent of the principal and total interest
owed.
3 The Court notes that Ozarks abandons its unjust enrichment claim.
Pl.’s Mot. For Summ. J. 1 n.1, ECF No. 30. Therefore, Goff’s motion
for partial summary judgment on this claim (ECF No. 34) is terminated
as moot.

7