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Regions Bank v. Collier

United States District Court, N.D. Mississippi, Aberdeen Division

September 18, 2014

REGIONS BANK, Plaintiff,
v.
GREGORY W. COLLIER; and KENNETH WINDHAM, Defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

DEBRA M. BROWN, District Judge.

This is an action brought by Plaintiff Regions Bank to enforce the terms of commercial guaranty agreements executed by Defendants Gregory W. Collier and Kenneth Windham. Before the Court is Regions Bank's motion for summary judgment. Doc. #39. For the reasons below, the motion is granted.

I

Motion for Summary Judgment Standard

"Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law." Norwegian Bulk Transport A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). To award summary judgment, "[a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Id. at 411-12 (internal quotation marks omitted). To this end, "[t]he moving party bears the burden of establishing that there are no genuine issues of material fact." Id. at 412. "When considering a motion for summary judgment, the Court "resolve[s] factual controversies in favor of the nonmoving party." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

II

Relevant Facts

A. The Agreements

Before they sold their interests in 2007, Defendants Windham and Collier owned Como III Apartments, LLC ("Como III"). Doc. #47-2 at ¶ 1.

On October 31, 2003, Como III, through Windham and Collier, executed a promissory note in favor of Union Planters Bank NA. Doc. #39-1. The note, which carried a principal of $502, 753 and an initial interest rate of 5%, required Como III to "pay [the] loan in one payment... on October 31, 2004." Id. Also on October 31, 2003, Como III secured the note by executing in favor of Union Planters a deed of trust on property located in Como, Mississippi. Doc. #39-2. The deed of trust was recorded in the First Judicial District of Panola County on November 7, 2003. Id.

On January 26, 2005, Como III and Union Planters executed a Change in Terms Agreement regarding the October 31 promissory note. Doc. #39-3. Under the new agreement, Como III promised to pay an outstanding balance of $316, 500 in 180 monthly payments of $2, 117.06. Id. The same day, Como III and Union Planters executed a Modification of Deed of Trust to conform the original deed of trust to the terms of the new agreement. Doc. #39-4. The modified deed of trust was recorded on March 7, 2005. Id.

Also on January 26, 2005, Collier and Windham executed matching Commercial Guaranty agreements in which each "absolutely and unconditionally guarantee[d] and promise[d] to pay to Union Planters Bank... any and all of [Como III's] indebtedness to [Union Planters]." Docs. #39-5; #39-6. In executing these agreements, Collier and Windham explicitly waived "any right to require [Union Planters] to resort for payment or to proceed directly... against any person [or] to proceed directly against or exhaust any collateral." Docs. #39-5; #39-6. The guaranty agreements also provided that Collier and Windham "agree[d] to pay upon demand all of [Union Planters'] costs and expenses, including attorneys' fees and... legal expenses... incurred in connection with the enforcement of th[e] Guarant[ies]." Docs. #39-5; #39-6.

Sometime after the execution of the guaranties, Regions Bank became the successor in interest to Union Planters.[1] Doc. #39-7 at ¶ 8.

B. Affordable Housing Mississippi, LLC, Bankruptcy, and Default

In 2007, Windham and Collier sold their ownership interests in Como III to Affordable Housing Mississippi, LLC, and Kenneth Farrar. Doc. #47-2 at ¶ 3. Prior to the sale, the defendants, on Como III's behalf, "made all ...


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