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2/23/2014 PNC BANK NATIONAL ASSOCIATION v. ORCHID GROUP INVESTMENTS, LLC, Dist. Court, MD Florida 2014 - Google Scholar PNC BANK NATIONAL ASSOCIATION, successor to RBC Bank (USA), Plaintiff, v. ORCHID GROUP INVESTMENTS, L.L.C., LYNNE W. WASHBURN, KRISTEN FLAHARTY, PATRICK FLAHARTY and JOHN P. ARNOLD, JR., Defendants. Case No. 2:13-cv-12-FtM-38CM. United States District Court, M.D. Florida, Fort Myers Division. February 13, 2014. ORDER[1] SHERI POLSTER CHAPPELL, District Judge. This matter comes before the Court on Plaintiff PNC Bank's Motion for Final Summary Judgment (Doc. #59) filed on December 13, 2013. Defendants Orchid Group Investments, LLC, Washburn, and Arnold's Response to the Plaintiff's Motion for Final Summary Judgment (Doc. #64) was filed on January 15, 2014. Defendants Patrick Flaharty and Kristen Flaharty's Opposition to Plaintiff's Motion for Final Summary Judgment and Motion to Strike (Doc. #65) was filed on January 15, 2014. Plaintiff also filed a Response in Opposition to Defendant Flahartys' Motion to Strike (Doc. #67), which the Flahartys have moved to strike (Doc. #73) arguing that the brief is actually a reply brief filed by the Plaintiff without leave of court. The Flaharty Defendants further argue that the "Second Knaus Affidavit" filed by Plaintiff in support of summary judgment, should be stricken because it is untimely. For the reasons stated below, PNC Bank's Motion for Summary Judgment is denied. Further, the Flaharty Defendant's Motion to Strike is denied without prejudice. BACKGROUND The Plaintiff's initial Verified Complaint was filed in this Court on January 8, 2013, based upon diversity jurisdiction and contained counts for Mortgage Foreclosure against all Defendants (Count I); Foreclosure of Security Interest in Leases and Rents against all Defendants (Count II); Breach of Note against Borrower (Count III); and Breach of Guaranty Agreements by multiple guarantors (Counts IV-VII). (Doc. #1). Upon initial review of the Complaint the Court found that the Plaintiff had failed to properly allege diversity jurisdiction and accordingly dismissed the Complaint without prejudice and allowed Plaintiff to amend. (Doc. #36). On July 2, 2013, Plaintiff filed its Verified Amended Complaint to Foreclose Mortgage and for Other Relief, containing the same counts. (Doc. #37). Thereafter Defendants filed answers to the Amended Complaint and the Flaharty Defendants filed a crossclaim against co-guarantor Defendants Lynne W. Washburn and John P. Arnold for contribution. (Doc. #44). Plaintiff filed the instant Motion arguing that it is entitled to summary judgment on all counts. STANDARD Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue is genuine if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 U.S. 2505, 91 L. Ed. 2d 202 (1986). Similarly, an issue is material if it may affect the outcome of the suit under governing law. Id. The moving party bears the burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In deciding whether the moving party has met this http://scholar.google.com/scholar_case?case=9543720636424970692&q=pnc+v.+orchid+group&hl=en&as_sdt=40006&as_ylo=2014&as_vis=1 1/6 2/23/2014 PNC BANK NATIONAL ASSOCIATION v. ORCHID GROUP INVESTMENTS, LLC, Dist. Court, MD Florida 2014 - Google Scholar initial burden, the Court must review the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). Once the Court determines that the moving party has met its burden, the burden shifts and the non-moving party must present specific facts showing that there is a genuine issue for trial that precludes summary judgment. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "The evidence presented cannot consist of conclusory allegations, legal conclusions or evidence which would be inadmissible at trial." Demyan v. Sun Life Assurance Co. of Canada, 148 F. Supp. 2d 1316, 1320 (S.D. Fla. 2001) (citing Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)). Failure to show sufficient evidence of any essential element is fatal to the claim and the Court should grant the summary judgment. Celotex, 477 U.S. at 322-23. Conversely, if reasonable minds could find a genuine issue of material fact then summary judgment should be denied. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992). "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007). FACTS The Court finds the following undisputed summary judgment facts: On or about June 21, 2005, Community Bank of Naples, N.A. loaned the sum of $3,965,000.00 to Borrower (the "Loan"). (Copy attached to Verified Amended Complaint at Doc. #37, ¶17). In order to evidence the Loan, on or about June 21, 2005, Borrower executed and delivered to Community Bank of Naples, N.A. a Promissory Note (the "2005 Note") in the principal amount of $3,965,000.00. (Doc. #37, ¶18). A true and correct copy of the 2005 Note is attached to the Verified Amended Complaint as Exhibit 2. The 2005 Note provided for the loan to mature on June 20, 2007 (the "Maturity Date"). (Doc. #37 ¶9). Pursuant to the Note, Borrower agreed to make consecutive monthly installments of interest, commencing on July 20, 2005 through and until the Maturity Date. (Doc. #37 ¶20). On June 20, 2007, Borrower and Community Bank of Naples, N.A. entered into a Loan Modification Agreement, extending the Maturity Date to August 20, 2007. (Doc. #37 ¶21). A true and correct copy of the Loan Modification Agreement is attached to the Verified Amended Complaint as Exhibit 3. To secure payment of the 2005 Note, Borrower entered into a Mortgage (the "2005 Mortgage") on April 4, 2005, on the Land defined in the 2005 Mortgage. (Doc. #37 ¶22). The 2005 Mortgage was recorded on June 30, 2005, in the Official Records of Lee County, Florida at Instrument No. 6872446, OR Book 04778, Page 4530. Id. A true and correct copy of the 2005 Mortgage is attached to the Verified Amended Complaint as Exhibit 4. In order to induce Community Bank of Naples, N.A. to enter into the Loan, the Guarantors each executed and delivered a separate Unconditional and Continuing Guaranty dated June 21, 2005, to Community Bank of Naples, N.A. (Doc. #37 ¶23). True and correct copies of each Unconditional and Continuing Guaranty (collectively, the "Unconditional and Continuing Guaranties") are attached to the Verified Amended Complaint as Exhibits 5, 6, 7 and 8. Pursuant to their respective Unconditional and Continuing Guaranty, each of the Guarantors guaranteed payment of the "Indebtedness," which includes, but is not limited to principal and interest on the Loan, collection costs and attorney's fees, and payment and performance of all Borrower's obligations under the Note and related loan documents. (Doc. #37 ¶24). The Unconditional and Continuing Guaranties provide that Plaintiff shall not be required to pursue or exhaust any of its rights or remedies against the Borrower or any collateral for the Loan before pursuing its remedies against the Guarantors. (Doc. # 37 ¶25). As a condition of Community Bank of Naples, N.A. renewing the Loan, Borrower executed and delivered a Renewal/Re- Write/Reamortization/Rate Modification of the Note dated August 20, 2007 (the "2007 Renewal Note") in the amount of $3,965,000.00. (Doc. #37 ¶26). A true and correct copy of the 2007 Renewal Note is attached to the Verified Amended Complaint as Exhibit 9. The Renewal Note extended the Maturity Date to August 20, 2008 ("Renewal Maturity Date"). Pursuant to the 2007 Renewal Note, Borrower agreed to make consecutive monthly installments of principal and interest, commencing on September 20, 2007, through and until the Renewal Maturity Date. (Doc. #37 ¶¶27-28). On April 12, 2008, Community Bank of Naples merged into RBC Bank (USA), pursuant to the Articles of Merger filed with http://scholar.google.com/scholar_case?case=9543720636424970692&q=pnc+v.+orchid+group&hl=en&as_sdt=40006&as_ylo=2014&as_vis=1 2/6 2/23/2014 PNC BANK NATIONAL ASSOCIATION v. ORCHID GROUP INVESTMENTS, LLC, Dist. Court, MD Florida 2014 - Google Scholar the Department of the Secretary of State for North Carolina. A true and correct copy of the Articles of Merger is attached to the Verified Amended Complaint as Exhibit 10. By virtue of the merger, RBC Bank (USA) succeeded to all the rights and obligations of Community Bank of Naples with respect to the Loan Documents. (Doc. #37 ¶¶29-30). On or about December 12, 2008, RBC Bank (USA) and Borrower entered into a Change In Terms Agreement (the "2008 Change In Terms Agreement"). (Doc. #37 ¶31). The 2008 Change In Terms Agreement increased the principal amount of the Loan to $3,986,683.02 and extended the Maturity Date to December 11, 2009. A true and correct copy of the 2008 Change In Terms Agreement is attached to the Verified Amended Complaint as Exhibit 11.