United States District Court, W.D. North Carolina, Statesville Division
KENNETH D. BELL UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiff's Motion
for Summary Judgment (Doc. No. 17). The Court has carefully
reviewed the motion and considered the parties' briefs
and exhibits. For the reasons and on the terms discussed
below, the Court will GRANT the motion and
enter Summary Judgment in favor of Plaintiff against all
Defendants on all claims.
January 5, 2016, Defendant Houser Transport entered into a
Factoring Agreement with Max Capital Group, LLC, which was
subsequently acquired by Plaintiff BAM Capital, LLC
(“BAM”). The Factoring Agreement is secured by
three Continuing Guaranty Agreements (the “Guaranty
Agreements”) made by the individual Defendants Houser,
Feaganes and Lee. In April 2019, the parties executed a
Forbearance Agreement and an accompanying Promissory Note in
connection with certain events of default that had occurred
under the Factoring Agreement. On August 9, 2019, Plaintiff
filed this action seeking Judgment against the Defendants for
all amounts allegedly due under the parties' various
corporate defendants - Houser Transport, Inc.; Houser
Logistics, Inc.; and Sibling Leasing, LLC - did not respond
to the Complaint and upon Plaintiff's motion the Clerk of
this Court entered Default against them on November 5, 2019
(Doc. No. 19). All of the individual Defendants answered the
Complaint, admitting its material allegations. On October 29,
2019, Plaintiff filed its Motion for Summary Judgment. The
individual Defendant Samuel Houser and the defaulted
corporate Defendants did not respond to the Motion for
Summary Judgment. Defendants Feaganes and Lee responded to
the Motion, but do not dispute Plaintiff's claims and
agree that “Plaintiff's calculations appear to be
correct as to the principal amount due, the default fees and
pre-judgment interest.” However, they oppose
Plaintiff's request for post-judgment interest of 10% per
annum, arguing that the proper amount of post-judgment
interest is instead governed by 28 U.S.C. 1961(a).
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 factual dispute is considered genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A fact is material if it might affect the outcome of
the suit under the governing law.” Vannoy v.
Federal Reserve Bank of Richmond, 827 F.3d 296, 300 (4th
Cir. 2016) (quoting Libertarian Party of Va. v.
Judd, 718 F.3d 308, 313 (4th Cir. 2013)).
party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact
through citations to the pleadings, depositions, answers to
interrogatories, admissions or affidavits in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 522 (4th Cir. 2003). “The
burden on the moving party may be discharged by
‘showing'. . . an absence of evidence to support
the nonmoving party's case.” Celotex, 477
U.S. at 325. Once this initial burden is met, the burden
shifts to the nonmoving party. The nonmoving party
“must set forth specific facts showing that there is a
genuine issue for trial, ” Id. at 322 n.3. The
nonmoving party may not rely upon mere allegations or denials
of allegations in his pleadings to defeat a motion for
summary judgment. Id. at 324.
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Tolan v.
Cotton, 572 U.S. 650, 657 (2014); see also
Anderson, 477 U.S. at 255. “Summary judgment
cannot be granted merely because the court believes that the
movant will prevail if the action is tried on the
merits.” Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 568-69 (4th Cir. 2015) (quoting
10A Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice & Procedure § 2728 (3d ed.1998)).
“The court therefore cannot weigh the evidence or make
credibility determinations.” Id. at 569
(citing Mercantile Peninsula Bank v. French (In
re French), 499 F.3d 345, 352 (4th Cir. 2007)).
“[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Ricci v.
DeStefano, 557 U.S. 557, 586 (2009) (internal citations
omitted). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248. Also, the mere argued
existence of a factual dispute does not defeat an otherwise
properly supported motion. Id. If the evidence is
merely colorable, or is not significantly probative, summary
judgment is appropriate. Id. at 249-50.
end, the question posed by a summary judgment motion is
whether the evidence as applied to the governing legal rules
“is so one-sided that one party must prevail as a
matter of law.” Id. at 252.
alleges and Defendants do not dispute that Defendants owe BAM
$2, 521, 961.40 under the Factoring Agreement (Compl. ¶
43), less the $37, 500 paid under the Promissory Note (Compl.
¶ 7), for a total of $2, 484, 461.40. Also, default fees
of $1, 656.30 per day from March 4, 2019 and $237, 413.66 are
admittedly due under the parties' agreements. Further,
Plaintiff alleges that Defendants owe pre-judgment interest
on the debt from March 4, 2019, which Defendants due not
dispute. The parties agree that the amount of pre-judgment
interest should be 10% APR, the amount set in the Promissory
Note. (Compl. ¶ 49).
total amount of the award sought by Plaintiff as of the date
of its Motion for Summary Judgment (October 29, 2019) is $3,
280, 413.75. Based on the agreed amounts due, the Court finds
that the total amount of the award (principal debt, default
fees and pre-judgment interest on the debt) calculated
through the date of this Order should be $3, 331, 825.37 ($2,
484, 461.40 $432, 294.30 ($1, 656.30 x 261) $237, 413.66
$177, 656.01 (pre-judgment ...