United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE
is plaintiff Citizens Bank of Kentucky's
("Citizens") motion for summary judgment against
defendant The Oaks, LLC ("Oaks"), filed October 6,
3, 2009, Citizens and Oaks entered into a business loan
agreement and a promissory note, by which Citizens agreed to
loan Oaks an amount of money in exchange for repayment with
interest. (Compl. ¶¶ 7-8; Mot. Summ. J. Exs. A and
B.)Over time, the parties entered into a
series of renewals and modifications of the note, with the
latest modification taking effect on December 5, 2012.
(See Compl. ¶¶ 11-15; Mot. Summ. J. Exs.
affidavit, Bradley Cantrell, a Special Assets Officer for
Citizens, swears the following in conjunction with
Citizens' summary judgment motion:
7. Citizens is the holder of the Promissory Note, including
all renewals, extensions, and modifications thereof.
8. ... [Oaks] failed to make payments on the Loan for the
months of May, August, and November, 2016 in violation, and
in default, of the Promissory Note, as modified.
9. On January 25, 2017, following [Oaks'] default,
Citizens accelerated the entire unpaid balance due on the
Loan and demanded payment thereof within ten days after
notice of the acceleration.
10. [Oaks] failed to pay the balance due on the Loan.
11. [Oaks] is in default under the terms of the Business Loan
Agreement and the Promissory Note, as modified due to its
failure to make all required payments.
12. ... There is due on the Loan the sum of $270, 301.04,
which amount includes all principal, accrued unpaid interest,
unpaid late charges, and unpaid legal expenses incurred in
the previous civil action seeking enforcement of the
Promissory Note and Business Loan Agreement, plus
attorneys' fees and costs incurred . . . by way of this
action, which amount may be provided by Citizens'
counsel. Interest accrues on the principal balance of the
Loan at the per annum rate of 5.25%.
(Mot. Summ. J. Ex. F ¶¶ 7-12; see id. Ex.
G (notice of default sent by Citizens to Oaks); see
also Compl. ¶¶ 11-15.)
April 17, 2017, Citizens initiated this action in this court.
On October 6, 2017, Citizens moved for summary judgment
against Oaks, seeking judgment through enforcement of the
promissory note and judgment that Oaks has breached the
business loan agreement. (See Mem. Supp. 5-10.)
Citizens claims that it is entitled to $270, 301.04 plus
interest at a rate of 5.25% per annum from the date of filing
the summary judgment motion and attorneys' fees and costs
of $10, 212.34, of which $6, 947.84 are included in the
principal balance, which $6, 947.84 presumably constitutes
the unpaid legal expenses incurred in a previous civil
action. (Id. 10; see Mot. Summ. J. Ex. F
¶ 12.) Oaks responds that the court should defer
consideration of Citizens' motion because no discovery
had taken place when Citizens filed the motion and because
Oaks disputes some unidentified facts regarding the alleged
debt owed. (Resp. ...