The opinion of the court was delivered by: Trager, J.
Merrill Lynch Business Financial Services, Inc. brought this motion for summary judgment, pursuant to Federal Rules of Civil Procedure 56. For the reasons set forth below, the motion is granted.
On July 17, 2003, defendant, Heritage Packaging Corporation ("Heritage" or "defendant"), a New York Corporation with its principal place of business in Brooklyn, New York, entered into a Working Capital Management Account Agreement ("loan agreement" or "WMCA Note") with plaintiff, Merrill Lynch Business Financial Services, Inc. ("Merrill" or "plaintiff"), a Delaware corporation with its principal place of business in Chicago, Illinois, whereby Merrill granted Heritage a $550,000 commercial line of credit. Compl. ¶¶ 1-2, 8; Declaration of Catherine L. Briick ("Briick Decl."), Ex. A, WCMA Note; Pl.'s Statement of Undisputed Material Facts ("Pl.'s 56.1 Statement") ¶ 1. In order to receive the loan, on July 17, 2003, Heritage's principals, Rachel and Solomon Schnitzler (collectively, "the Schnitzlers"), personally guaranteed the line of credit extended.*fn1 Briick Decl., Ex. B, Unconditional Guaranty by Rachel Schnitzler; Briick Decl., Ex. C, Unconditional Guaranty by Solomon Schnitzler; Pl.'s 56.1 Statement ¶ 2. Under the note, in the event of a default, Merrill could accelerate the principal, interest and other obligations immediately due and payable under the note. Briick Decl., Ex. A, WCMA Note, § 3.6, ¶ ii. Furthermore, the Schnitzlers guaranteed payment of all sums and other obligations due from Heritage to Merrill, including court costs and reasonable attorney's fees incurred in collecting the indebtedness. Briick Decl., Ex. B, Unconditional Guaranty by Rachel Schnitzler; Briick Decl., Ex. C, Unconditional Guaranty by Solomon Schnitzler.
The loan agreement initially matured on July 31, 2004, but was later extended to a new maturity date of July 31, 2006. Briick Decl., Ex. D, Aug. 4, 2005 Letter From Merrill to Solomon Schnitzler.
On April 21, 2006, Merrill sent a "Demand Notice" to Heritage, outlining two overall deficiencies in the line of credit: (1) that the line of credit was overdrawn by $908.08 and (2) that certain financial documentation required under the loan agreement was outstanding. Briick Decl., Ex. E, Demand Notice; Pl.'s 56.1 Statement ¶ 3. Merrill demanded that Heritage deposit at least $908.08, by April 28, 2006, to cover the overdrawn balance and that Heritage provide Merrill with the necessary financial documentation by May 5, 2006. Briick Decl., Ex. E, Demand Notice; Pl.'s 56.1 Statement ¶ 3. The defendant failed to supply this information and, thus, caused an Event of Default.*fn2
Briick Decl., Ex. A, WCMA Note, § 3.5(c); Pl.'s 56.1 Statement ¶ 4; Briick Decl., Ex. F., Notice of Default and Demand for Payment ("Default Notice") at 1-2; Briick Decl. ¶¶ 7-8.
On or about July 26, 2006, Merrill sent a "Notice of Default and Demand for Payment" to defendant for all amounts due under the loan agreement and pursuant to the acceleration provision in the note. Briick Decl., Ex. F, Default Notice; Pl.'s 56.1 Statement ¶ 5. The letter outlined the balance owed and imposed a default interest rate*fn3 and a five percent late fee on the outstanding balance. Briick Decl., Ex. F, Default Notice. Merrill indicated in this letter that Heritage had to comply with this payment request before August 3, 2006, otherwise it would institute legal proceedings to protect its interest. Id. at 2.
On August 9, 2006, Merrill filed a complaint against Heritage, the Schnitzlers and 12 unnamed defendants described as holding some interest or claim upon the chattel*fn4 defined in the loan agreement. The complaint alleged two separate causes of action: (1) money owed to Merrill from nonpayment of indebtedness and (2) replevin of the chattel as described in the loan agreement. Compl. ¶¶ 1-27.
On September 27, 2006, defendant answered Merrill's complaint and raised the following affirmative defenses: (1) the court lacked subject matter jurisdiction because of a want of complete diversity; (2) Merrill failed to mitigate damages; and (3) Merrill failed to state a cause of action.*fn5 See Answer. On December 14, 2006, Merrill brought this motion pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that an entry of judgment against defendant for the amount outstanding on the loan*fn6 is appropriate because there is no dispute regarding the execution of the loan or the failure to comply with the terms of the loan agreement. Pl.'s Mem. of Law in Supp. at 5; Pl.'s 56.1 Statement ¶¶ 1-6.
Heritage opposed the motion on January 15, 2007, arguing that summary judgment is inappropriate because there is a genuine issue of material fact as to the amount owed by Heritage. Def.'s Mem. of Law in Supp. of Response ("Def.'s Mem.") at 1-5; Def.'s Response to Mot. for Summary Judgment ("Def.'s Opp.") ¶¶ 1-7; Def.'s Local 56.1 (b) Statement of Disputed Facts ("Def.'s 56.1 Statement") ¶ 7. Specifically, defendant argues that Merrill failed to credit Heritage for "numerous payments" it made on the loan, Def.'s Mem. at 4-5, and, therefore, improperly calculated the amount owed by Heritage, Def.'s Opp. ¶¶ 3-5, Def.'s 56.1 Statement ¶ 7. In support of this claim, Heritage submits evidence that it had made certain payments pursuant to the loan agreement that did not appear on the statement of the account provided by Merrill in the complaint and motion.*fn7 Affidavit of Rachel Schnitzler ("R. Schnitzler Aff.") ¶¶ 6-7; January 15, 2007 Letter from Rachel Schnitzler to Ted Mozes, Esq. Defendant further argues that documents offered in support of Merrill's summary judgment motion lack proper evidentiary foundation. Specifically, Heritage claims that: (1) the Briick declaration is not based on the personal knowledge of the declarant, as required by Federal Rule of Civil Procedure 56(e), Def.'s Opp. ¶ 6; Def.'s Mem. at 3-4; and (2) the document showing defendant's indebtedness to Merrill lacks proper evidentiary foundation, Def.'s Mem. at 3-4, Def.'s Opp. ¶ 2.
On January 29, 2007, Merrill filed a reply, laying out the evidentiary basis for the documents used in the original motion. Pl.'s Reply Mem. of Law in Supp. of its Summary Judgment Mot. ("Pl.'s Reply") at 2-4; Pl.'s Reply, Ex. A. In addition, Merrill submits documents demonstrating that the account balance information is correct, that the alleged uncredited payments were indeed credited and that the account summary it submitted in support of its moving papers was not a complete itemized listing of deposits and withdrawals but merely a daily summary, netting any transactions occurring on the same day. Reply Declaration of Catherine L. Briick ("Briick Reply") ¶¶ 5-8; Pl.'s Reply, Ex. A.