United States District Court, D. Nevada
For Branch Banking and Trust Company, Plaintiff: Jeremy J. Nork, LEAD ATTORNEY, Holland & Hart LLP, Reno, NV; Nicole E. Lovelock, LEAD ATTORNEY, Holland & Hart LLP, Las Vegas, NV.
For Pahrump 194, LLC, Nigro Development, LLC, Infinity Plus, LLC, Nigro Infinity Plus, LLC, Margaret Nigro, Michael E Nigro, Julie Koentopp, Todd A Nigro, Defendants: Joni A Jamison, Robert R. McCoy, Morris Law Group, Las Vegas, NV.
James C. Mahan, UNITED STATES DISTRICT JUDGE.
Presently before the court are plaintiff's motions for summary judgment (doc. # 28) and for a deficiency hearing (doc. # 29). Defendants have responded (doc. # 35) and plaintiff has replied (doc. # 40).
Also before the court is defendants' motion for partial summary judgment. (Doc. # 34). Plaintiff has responded (doc. # 39) and defendants have replied (doc. # 41).
Plaintiff Branch Banking is the successor in interest to non-party Colonial Bank by acquisition of assets from the FDIC as receiver for the bank.
Branch Banking's claims arise out of a September 30, 2005, promissory note secured by a deed of trust executed by defendant Pahrump 194, LLC, (" Pahrump 194" ). The note secured a loan from Colonial Bank in the original principal amount of $13,650,000. The deed of trust encumbered real property referred to as Nye County assessor's parcel numbers 35-041-25, 35-041-37, 35-041-39, 35-041-63, 35-041-67, and 35-041-68 (" the property" ). The individual and corporate defendants executed guaranties, promising to repay the present and future indebtedness of Pahrump 194.
On May 8, 2007, the note was amended to increase the principal to $14,556,779 and the maturity date was extended to April 11, 2008. The note was then amended an additional three times to extend the final maturity date to May 1, 2009.
On August 14, 2009, Colonial Bank was closed and the FDIC was named as receiver. That same day, the FDIC assigned all of its rights, title, and interest in, to, and
under the loan documents to Branch Banking.
On August 9, 2011, Branch Banking served a demand letter upon Pahrump 194 and the individual guarantors. Pahrump 194 and the guarantors failed to pay the balance due.
On February 29, 2012, a trustee's sale was held, and the property was sold to non-party Pahrump Town Square, LLC, for a cash bid in the amount of $2,640,001 in partial satisfaction of the note. According to Branch Banking, the principal balance remaining under the note is $14,556,779, with accrued interest at the time of filing in the amount of $2,151,168.47, for a total of $16,707,947.47.
The complaint asserts claims for breach of guaranty, breach of the covenant of good faith and fair dealing, and seeks a deficiency judgment.
II. Legal standard
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that " there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is " to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining summary judgment, a court applies a burden-shifting analysis. " When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A. ...