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Citizens Bank of Kentucky v. The Oaks, LLC

United States District Court, S.D. West Virginia

May 21, 2018

CITIZENS BANK OF KENTUCKY, Plaintiff,
v.
THE OAKS, LLC; THOMAS A. ZAMOW; and JOE C. FERRELL, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE

         Pending is plaintiff Citizens Bank of Kentucky's ("Citizens") motion for summary judgment against defendant The Oaks, LLC ("Oaks"), filed October 6, 2017.

         I. Background

         On June 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.)[1]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. C-E.)

         In his 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.)

         On 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 ΒΆ 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. ...


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