United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT (DOC. 18)
CARAM STEEH, UNITED STATES DISTRICT JUDGE
Comerica Bank (“Comerica”) brought this breach of
contract action for failure to repay an Installment Note
against defendants James Esshaki, James Esshaki Living Trust
dated April 25, 1991 (“Trust”), Peter Shaman, and
Peter Shaman, M.D. P.C. (“Shaman P.C.”)
(collectively “defendants.”). Plaintiff alleges
that defendants owe $344, 558.62 plus interest, late fees,
costs and attorney fees. Defendants oppose the motion on the
grounds that discovery has just begun. Upon review of the
parties' written submissions, the court determines that
no oral argument is necessary pursuant to Local Rule
7.1(f)(2). For the reasons set forth below, Comerica's
motion shall be granted.
loaned money to defendant Peter Shaman under the terms of an
Installment Note, and the debt was guaranteed by Shaman,
Shaman P.C., Esshaki, and the Trust (collectively
“Guarantors”). In their Answer, defendants admit
to same. Under the Note, Shaman agreed to pay Comerica $437,
382.91 payable in monthly installments of $2, 650.45
beginning on June 1, 2011, and continuing until the maturity
date of September 15, 2011 when the entire unpaid balance of
principal, interest and other sums was due and payable in
full. According to the Complaint, defendants failed to pay
the indebtedness on the Note when due. Under the terms of the
Note, Comerica's record of outstanding debt is
“conclusive evidence thereof” and the burden is
on defendants to prove that the loan history suffers from
“manifest error.” (Doc. 18, Ex. A at 1).
their Answer, defendants admit that the Note was not fully
paid at maturity on September 15, 2011. (Doc. 11 at Para.
12). When defendants failed to repay the debt, the parties
agreed to a new payment schedule in a Forbearance Agreement
executed on June 19, 2012, which was extended three times,
under which Comerica agreed to forbear from collection for a
period of time. Under the original Forbearance Agreement,
Comerica agreed to forbear from collection until September
15, 2012. The First Amended Forbearance Agreement extended
Comerica's forbearance to January 15, 2013, the Second
Amended Forbearance Agreement extended Comerica's
forbearance to June 30, 2015, and the Third Amended
Forbearance Agreement extended Comerica's forbearance to
July 1, 2017. Comerica alleges that defendants stopped making
payments in May, 2016. In their Answer, defendants admit that
they did not make all the required payments under the Third
Amended Forbearance Agreement. (Doc. 11 at Para. 17).
of the Forbearance Agreement and in its subsequent
amendments, defendants acknowledged that they were in default
on the Note. (Doc. 18, Ex. E, F, G, H). Specifically, the
Forbearance Agreement provides: “The Maturity Date of
the Note is September 15, 2011, and the Note has not been
paid. This is a default under the Note and Loan Documents.
The full amount of the Note is and remains immediately
payable in full.” (Doc. 18, Ex. E at 1). On January 15,
2016, as consideration for forbearance, each defendant
explicitly “acknowledge[d] the Liabilities as set out
in the [Note], . . .the existence of the default, and that
the Liabilities are immediately due and payable.” (Doc.
18, Ex. H at 1).
January 31, 2017, Comerica notified defendants of their
defaults under the Note, the Forbearance Agreement and
subsequent amendments, terminating the term of forbearance
and demanding full payment. In their Answer, defendants admit
that they executed the Forbearance Agreement and its three
subsequent extensions, and admit that they failed to make all
the monthly payments. (Doc. 11 at Para. 13-17). Comerica
filed this lawsuit on March 30, 2017. The discovery cut-off
date is January 31, 2018. Comerica filed its motion for
summary judgment on July 25, 2017. In support of its motion
for summary judgment, Comerica relies on the affidavit of
Sarah Miller, Vice President of the Special Assets Group for
Comerica who avers that as of July 17, 2017, defendants owe
the sum of $344, 558.62 in principal, plus accrued interest
in the amount of $21, 325.93, plus $1, 779.09 in late fees,
costs, and attorney fees.
Standard of Law
Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if 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
moving party is entitled to judgment as a matter of
law." See Redding v. St. Eward, 241 F.3d 530,
532 (6th Cir. 2001). The Supreme Court has affirmed the
court's use of summary judgment as an integral part of
the fair and efficient administration of justice. The
procedure is not a disfavored procedural shortcut.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dep't of Transp., 53
F.3d 146, 149 (6th Cir. 1995).
standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.'" Amway Distributors Benefits
Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th
Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)). The evidence and all reasonable
inferences must be construed in the light most favorable to
the non-moving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding, 241 F.3d at 532 (6th Cir. 2001).
"[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original); see also National Satellite Sports, Inc. v.
Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
movant establishes by use of the material specified in Rule
56(c) that th If the movant establishes by use of the
material specified in Rule 56(c) that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue
for trial." First Nat'l Bank v. Cities Serv.
Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
Mere allegations or denials in the non-movant's pleadings
will not meet this burden, nor will a mere scintilla of
evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. Rather, there must be evidence on which
a jury could reasonably find for the non-movant.
McLean, 224 F.3d at 800 (citing Anderson,
477 U.S. at 252).
Loan Documents Enforceable
is no genuine issue of material fact that the loan documents
are enforceable. Under Michigan law, promissory notes and
guarantees are “to be construed as ordinary
contracts.” 31800 Wick Road Holdings, LLC v. Future
Lodging-Airport, Inc., 848 F.Supp.2d 757, 763 (E.D.
Mich. 2012) (citing Collateral Liquidation, Inc. v.
Renshaw,301 Mich. 437, 443 (1942)). The guarantees are
enforceable because a “promise to answer for the debt,
default, or misdoings of another person” need only be a
“memorandum of the agreement . . . in writing and
signed with an authorized signature by the party to be
charged with the agreement.” MCL Sec. 566.132(1)(b).
Defendants have admitted to execution of the ...