The opinion of the court was delivered by: LEISURE
Plaintiff, the Federal Deposit Insurance Corporation ("FDIC") has brought suit against defendants Arcadia Marine, Inc. ("Arcadia") and its President, Juan Villanueva ("Villanueva"), to secure repayment of the balance of a loan made to Arcadia by the Pan American National Bank ("Pan Am Bank") and guaranteed by Villanueva. This Court has subject matter jurisdiction over plaintiff's action pursuant to 12 U.S.C. § 1819 and 28 U.S.C. § 1345.
On November 12, 1982, defendant Arcadia executed an installment loan note (the "Note") in the amount of $83,766 (including $23,766 in finance charges), payable to Pan Am Bank. On that same date, defendant Villanueva became guarantor of Arcadia's obligations to Pan Am Bank by executing a "Guarantee of All Liability and Security Agreement" (the "Guarantee"). The Guarantee expressly provides that Villanueva will be required to pay an attorney's fee of 15% of any principal and interest due under the Guarantee if an attorney's services are used to obtain payment or otherwise enforce Villanueva's obligation.
On March 18, 1983, Pan Am Bank was declared insolvent by the Comptroller of the Currency of the United States, who then ordered the Bank closed and appointed the FDIC as receiver, pursuant to 12 U.S.C. §§ 191 and 1821(c). Subsequently, the FDIC, acting in its corporate capacity, purchased from the FDIC, in its capacity as receiver, certain assets of Pan Am Bank, including the Note executed by Arcadia and the Guarantee signed by Villanueva.
While acknowledging that $8,401.60 in payments have been received either by Pan Am Bank or by the FDIC in reduction of Arcadia's obligation under the Note, the FDIC claims that $75,364.40 remains due and owing on Arcadia's Note.
In addition, the FDIC alleges that it is entitled to 15% of that amount in attorney's fees, according to the terms of the Guarantee signed by Villanueva. Pursuant to Fed. R. Civ. P. 56, the FDIC has now moved for summary judgment with regard to defendants' outstanding obligations under the Note and the Guarantee.
Defendants do not dispute that $49,213.30 is due on the Note. Defendants do allege, however, that Pan Am Bank failed to credit defendants with two payments, one for $1,401.10 and one for $24,750.00, made towards the Arcadia account. In addition, defendants contend that the FDIC is not entitled to collect attorney's fees from Villanueva, since the FDIC, in its corporate capacity, should not properly be regarded as successor-in-interest to the rights of Pan Am Bank under the Guarantee.
Upon a motion for summary judgment, "[t]he judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added). Thus, the mere fact that defendants dispute the FDIC's claim of non-payment in certain respects does not preclude this Court from granting plaintiff's motion for summary judgment, absent proof by defendants that such dispute is "genuine." As the Second Circuit has clearly stated:
The litigant opposing summary judgment . . . "may not rest upon mere conclusory allegations or denials" as a vehicle for obtaining a trial. Rather, he must bring to the district court's attention some affirmative indication that his version of relevant events is not fanciful.
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Defendants allege that on May 13, 1983, a payment of $1,401.10 was made towards the Arcadia account. See Affidavit of Juan C. Villanueva ("Villanueva Affidavit") PP 6, 7. To support that allegation, Villanueva has produced a Pan Am Bank coupon for the amount of $1,401.10 dated May 13, ...