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BAM Capital, LLC v. Houser Transport, Inc.

United States District Court, W.D. North Carolina, Statesville Division

November 20, 2019

BAM Capital, LLC, Plaintiff,
Houser Transport, Inc. Houser Logistics, Inc. Candy Feaganes Sibling Leasing, LLC Sherry Lee Samuel Houser, Defendant.



         THIS 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.


         On 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 agreements.

         The 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).


         Summary 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)).

         The 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.

         When 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)).

         However, “[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.

         In the 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.


         Plaintiff 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).[1]

         The 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 ...

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