United States District Court, E.D. Louisiana
GULF COAST BANK AND TRUST CO.
HOWARD G. ANDERS
ORDER AND REASONS
the Court is Plaintiff's unopposed motion for summary
judgment. R. Doc. 44. For the reasons that follow, the
unopposed motion is GRANTED.
breach of contract action arises out of a Receivables
Purchase Agreement (“RPA”) between Plaintiff Gulf
Coast Bank and Trust Company and Newberry Bakers, Inc. (which
is not a party to this case). Defendant Howard Anders signed
a Limited Guaranty agreeing to be solidarily liable for
Newberry's obligations under the RPA. Gulf Coast sued
Anders for his alleged breach of the Limited Guaranty, and
now moves for summary judgment. The motion is unopposed.
LAW AND ANALYSIS
judgment is proper 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.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists
if a reasonable jury could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1996). “[U]nsubstantiated assertions, ”
“conclusory allegations, ” and merely colorable
factual bases are insufficient to defeat a motion for summary
judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th
Cir. 1994); Anderson, 477 U.S. at 249-50. In ruling
on a summary judgment motion, a court may not resolve
credibility issues or weigh evidence. See Int'l
Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1263
(5th Cir. 1991). Furthermore, a court must assess the
evidence, review the facts and draw any appropriate
inferences based on the evidence in the light most favorable
to the non-moving party. See Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001).
Court may not grant Gulf Coast's motion for summary
judgment “merely because it is unopposed.”
Bustos v. Martini Club Inc., 599 F.3d 458, 468 (5th
Cir. 2010). Indeed, “[t]he movant has the burden of
establishing the absence of a genuine issue of material fact
and, unless he has done so, the court may not grant the
motion, regardless of whether any response was filed.”
Hetzel v. Bethlehem Steep Corp., 50 F.3d 360, 362
(5th Cir. 1995).
reviewed the evidence and arguments submitted by Gulf Coast,
the Court finds that Gulf Coast's unopposed motion has
merit. Under the terms of the Limited Guaranty, Texas law
controls. Gulf Coast is entitled to summary judgment if it
shows “(1) the existence and ownership of a guaranty
contract; (2) the terms of the underlying contract by the
holder; (3) the occurrence of the conditions upon which
liability is based; and (4) the failure or refusal to perform
by the guarantor.” Chahadeh v. Jacinto Med. Grp.,
P.A., 519 S.W.3d 242, 246 (Tex. App. 2017).
The Underlying Contract - the Receivables Purchase
September 2016, Gulf Coast and Newberry Bakers entered in to
a Receivables Purchase Agreement (“RPA”). The RPA
entails an agreement whereby Newberry would, among other
things, occasionally offer to sell its unpaid accounts
receivable to Gulf Coast and, in exchange, Gulf Coast would
purchase certain unpaid receivables in its sole discretion.
The RPA stated that all “invoices related to all of the
Receivables … shall set forth the Lockbox Address as
its sole address for payment. [Newberry] shall establish the
lock box with [Gulf Coast] under [Gulf Coast's] exclusive
control using the Lockbox Address and shall request in
writing or otherwise take reasonable steps to ensure that all
payments be sent directly to such Lockbox.” R. Doc.
44-2 at 1-2. It also required Newberry to deliver to Gulf
Coast “any payment or proceeds that it may receive with
respect to any Receivable Asset” within one business
day following Newberry's receipt thereof. Id. at
2. If Newberry failed to do so, it became liable to Gulf
Coast for a Misdirected Payment Fee. Id.
also required each Receivable offered for sale to be free
from any defenses, disputes, offsets, counterclaims, or
rights of return or cancellation. Newberry's failure to
abide by its obligations under the RPA constitutes an
“Event of Default, ” and Newberry becomes
“obligated to repurchase” the Receivable.
collateral for its obligations under the RPA, Newberry
granted to Gulf Coast a continuing first priority security in
and to all of Newberry's current and future “(i)
accounts, chattel paper, other Receivables, instruments
(including promissory notes), investment property, documents,
and general intangibles; including without limitation all
reserve accounts, Residual Payments, credits and reserves,
and letter-of credit rights, (ii) all deposit accounts, (iii)
all equipment and inventory, and (iv) all proceeds from any
of the foregoing” (the “Collateral”). R.
the RPA, Newberry expressly warrants and represents that
“the Collateral is not subject to, and is free and
clear of, any lien, claims, pledge, security, or encumbrance
of any kind, other than those granted to [Gulf Coast]”
under the RPA. R. Doc. 44-2 at 3. These representations and
warranties are “continuing in nature and …
remain in full force and effect until all obligations and
sums owing to [Gulf Coast] by [Newberry] have been fully
performed, paid and satisfied, whether or not [the RPA] is
canceled or terminated.” Id. The RPA provides
that an Event of Default occurs when “any warranty of
representation [in the RPA] proves to be false in any way,
however minor.” Id.