The opinion of the court was delivered by: Townes, United States District Judge*fn1
Plaintiff, Chinatrust Bank (U.S.A.) ("Plaintiff" or "Chinatrust"), brings this action against Samuel Pinter, Fagie Pinter, and Avruhum M. Donner to enforce guaranties of payment allegedly signed by them in connection with certain mortgage warehouse lines of credit extended by Plaintiff to Olympia Mortgage Corporation ("Olympia"). Chinatrust has discontinued its action against Fagie Pinter after apparently discovering that her signature on the guaranties purportedly signed by her had been forged. Plaintiff moves for summary judgment against Samuel Pinter and Avruhum Donner*fn2 ("Defendants" or "Guarantors") pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, Plaintiff's motion is granted.
In 1991 and 1992, Chinatrust, as lender, and Olympia, as borrower, entered into three Mortgage Warehouse and Security Agreements (the "Credit Agreements") that were executed on January 3, 1991, October 1, 1991, and August 5, 1992. (Affidavit of Anthony Oliva ("Oliva Aff.") at ¶¶ 5,6,7.)*fn4 Pursuant to the Credit Agreements, Chinatrust extended certain lines of credit to Olympia for the purpose of enabling Olympia to originate mortgage loans to third parties. In connection with the Credit Agreements, Olympia executed revolving promissory notes with Chinatrust ("Olympia Notes") under which Olympia obligated itself to pay the balance owed to Chinatrust under the Credit Agreements. (See id.) In connection with the Credit Agreements and the Olympia Notes, Samuel Pinter, and Avruhum M. Donner each executed four personal guaranties on January 3, 1991, October 1, 1991, August 5, 1992 and November 30, 1993 that provide:
[the guarantor] absolutely and unconditionally guaranties and promises to pay to [Chinatrust] or its order, on demand, in legal tender of the United States of America, the indebtedness. . .of [Olympia] to [Chinatrust] on the terms and conditions set forth in this Guaranty. Under this Guaranty, the liability of Guarantor is unlimited and the obligations of Guarantor are continuing. (See Oliva Aff. ¶¶ 8,9; Exhibits F and G.)
On or about November 10, 2004, Olympia defaulted on its obligations under the Credit Agreements and the Olympia Notes. (Oliva Aff. at ¶12.) On November 16, 2004, Chinatrust notified Fagie Pinter, Samuel Pinter and Avruhum Donner of the default and demanded payment of $10,152, 971.84, representing what Chinatrust believed to be the amount owed to Chinatrust by Olympia at the time. (See Oliva Aff., Exhibit H.) Chinatrust then brought suit on December 8, 2004 seeking payment for that amount. (See Oliva Aff., Exhibit A.)
During the pendency of the suit, the Guarantors challenged the accuracy of the $10, 152, 971.84 figure. Specifically, the Guarantors alleged that Olympia had not been paid by Fannie Mae for mortgage notes sold by Olympia to Fannie Mae. In response, Chinatrust retained the firm of Anchin, Block and Anchin ("Anchin") to prepare an accounting report to determine whether mortgage notes originated by Olympia were sold to Fannie Mae and whether Fannie Mae paid Olympia for the notes. (See Oliva Aff. at ¶ 14.) Anchin determined that: (a) Olympia originated twenty-three mortgage loans that were in the total principal amount of $5,477,550 using $5,420,329.72 advanced by Chinatrust; (b) Olympia sold these notes to Fannie Mae in 2004 and Fannie Mae paid Olympia for these notes; (c) Olympia failed to repay the amount borrowed from Chinatrust. (See Oliva Aff., Exhibit I.)
In addition to the notes purchased by Fannie Mae, another loan was originated and sold by Olympia to the Government National Mortgage Association (the "GNMA note") using funds advanced by Chinatrust. (See Oliva Aff., Exhibit J.) Chinatrust was also not reimbursed for the money advanced by Chinatrust in connection with the GNMA note. With this note factored into the balance owed to Chinatrust by Olympia, Chinatrust concluded that Olympia was indebted to Chinatrust in the amount of $5,532,822.72. (See id.) Based on the foregoing, Chinatrust seeks payment of $5,532,822.72 plus interest, and reasonable attorney's fees incurred in enforcing the guaranties.
Defendant S. Pinter asserts that he is not responsible for any debt owed to Chinatrust by Olympia under the Credit Agreements and Olympia Notes notwithstanding the personal guaranties signed by him for two primary reasons.*fn5 First, S. Pinter argues that Chinatrust's failure to identify the alleged forgery of the guaranty purportedly signed by Fagie Pinter in connection with the Credit Agreements and the Olympia Notes should immunize S. Pinter from liability for Olympia's debt. (See Pinter Aff. at ¶¶ 7-8, 11-15, 38.) Second, Defendant S. Pinter asserts that because he signed the guaranties outside of a Chinatrust bank location, allegedly in violation of N.Y. Banking Law § 105, the agreements are not enforceable. (See Pinter Aff. ¶¶ 11, 36-37.) Additionally, S. Pinter argues that Chinatrust's motion should be denied because "Chinatrust comes before this Court with unclean hands." (Pinter Aff. at ¶ 39.)*fn6
A. Standard For Summary Judgment
Summary judgment is a useful "tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United Nat'l Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d. Cir. 1993). It is generally appropriate to grant a motion for summary judgment when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Viola v. Phillips Med. Sys. Of N. Am., 42 F.3d 712, 716 (2d Cir. 1994) (quoting Fed. R. Civ. P. 56(c)). The relevant governing law in each case determines which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986), and cannot rely on the allegations in his or her ...