United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on several motions by Plaintiff
and Third Party Defendants. In September 2016, Third Party
Defendants filed a Motion for Summary Judgment as to Third
Party Complaint (Doc. No. 29), and Plaintiff filed a Motion
for Summary Judgment as to All Claims and Counterclaims (Doc.
No. 32). After all parties fully briefed the motions, the
Court held a hearing on February 9, 2017. At the conclusion
of the hearing, the Court entered an oral ruling granting the
motions for summary judgment and instructing the parties to
file supplemental briefs or motions regarding an award for
attorneys' fees and costs. Thereafter, Third Party
Defendants filed a Motion for Attorneys' Fees and Costs
with a supporting affidavit (Doc. Nos. 59-60), and Plaintiff
filed a Brief on Propriety of an Award of Attorney's Fees
with supporting affidavits (Doc. Nos. 61-63). These motions
are also fully briefed, and the matter is ripe for review.
For the reasons that follow, Third Party Defendants'
Motion for Summary Judgment (Doc. No. 29) is GRANTED,
Plaintiff's Motion for Summary Judgment (Doc. No. 32) is
GRANTED, and Third Party Defendants' Motion for
Attorneys' Fees and Costs (Doc. No. 59) is DENIED.
2005, Defendants Weaver and Radmanesh became interested in
purchasing two undeveloped residential lots near Lake Norman
(the “Property”). They formed Defendant Zaria
Properties, LLC (“Zaria, ” and together with
Weaver and Radmanesh, “Borrowers”) for the sole
purpose of holding the Property. (Doc. No. 30-2, p. 6; Doc.
No. 30-3, p. 14). In 2006, Borrowers executed contracts to
purchase the lots for $250, 000 and $150, 000. (Doc. No.
30-2, p. 25, Doc. No. 30-3, p. 13). Nearly two years later,
in 2008, Borrowers pursued and obtained a loan from Third
Party Defendant New Dominion Bank (“NDB”) to
purchase the Property. (Doc. No. 1-1). NDB furnished
Borrowers with appraisals ordered by the bank appraising the
Property at $270, 000 and $170, 000. (Doc. No. 30-2, p. 10,
Doc. No. 30-3, p. 14).
August 13, 2008, Zaria executed a Promissory Note (the
“Note”) that obligated Zaria to pay to NDB the
principal amount of $471, 750 by August 10, 2010. (Doc. No.
1-1, p. 1). Radmanesh and Weaver each executed a Guaranty of
Payment Agreement (the “Guaranties”)
unconditionally guaranteeing the payment of all amounts due
under the Note. (Doc. No. 1-1, p. 18-21). Thereafter,
Borrowers executed several successive amended agreements
extending the time within which the debt had to be repaid.
(Doc. No. 1-1, pp. 3-14).
Guaranties included a waiver clause in which Radmanesh and
waive[d] all rights of offset and counterclaims against Bank
or Borrower, all defenses to the enforceability of the[e]
Guaranty, all defenses based on suretyship or impairment of
collateral, and rights under NCGS Section 26-7 et seq. or any
similar or subsequent laws, and any defenses which the
undersigned or the Borrower may assert on the Obligations,
including but not limited to, failure of consideration,
breach of warranty, theft, statute of frauds, bankruptcy,
lack of legal capacity, lender liability, deceptive trade
practices accord and satisfaction or usury.
(Doc. No. 1-1, pp. 18, 20). Likewise, in one amended
agreement extending the loan's due date, Zaria agreed to
“waive all claims, defenses, setoffs, or counterclaims
relating to the [loan], or any document securing the [loan],
that [it] may have.” (Doc. No. 1-1, p. 14). In another,
Weaver and Radmanesh “unconditionally consent[ed] to
the modification [and] acknowledge[d] that the terms and
conditions of the [loan] and the Guaranty continue in full
force and effect.” (Doc. No. 30-3).
having been in the business of owning and managing commercial
and residential properties for nearly a decade, (Doc. No.
30-2, pp. 3-7; Doc. No. 30-3, pp. 4-5, 23-25, 28), Borrowers
chose not to verify the appraisals ordered by NDB, chose not
to order their own appraisals, and chose not to conduct any
due diligence regarding the Property's value prior to
obtaining the loan. (Doc. No. 30-2, pp. 10-12; Doc. No. 30-3,
pp. 15-18). They also admit to not reading the loan documents
before signing them. (Doc. No. 30-2, pp. 8, 16-20; Doc. No.
30-3, pp. 7-8, 11, 31-32).
December 19, 2014, NDB sold its interest in the loan
documents to Plaintiff, (Doc. 1-1, p. 15), and Plaintiff
demanded payment (Id. at 16). When Borrowers failed
to make payments as required by the loan documents, Plaintiff
filed the instant action for breach of contract and breach of
personal guaranties, as well as for attorneys' fees and
costs. (Doc. No. 1).
raised several affirmative defenses and counterclaims against
Plaintiff and filed a third party complaint against NDB and
Greer, a senior Vice President at NDB who handled the loan at
issue. (Doc. No. 13). Both Plaintiff and Third Party
Defendants filed motions for summary judgment asserting,
inter alia, that the waiver provisions contained in
the loan documents bar all of Borrowers' defenses,
claims, and counterclaims.
STANDARD OF REVIEW
judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Bouchat v. Balt. Ravens Football
Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003). The court
determines “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.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). The moving party has the burden to
show the court it must prevail because there are no genuine
issues of material fact, Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986), and the non-moving party must then
demonstrate the existence of “evidence from which a
jury might return a verdict in his favor.”
Anderson, 477 U.S. at 257. In making its decision,
the Court must view the facts and all inferences drawn from
the facts in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); see also Henson
v. Jefferson, N.C.App. 204, 200 S.E.2d 812 (1973).