[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10999 ELEVENTH CIRCUIT
JAN 19, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 1:09-cv-00523-KOB
U.S. BANK, NA, as successor to FDIC as
receiver for Park National Bank,
Plaintiff-Appellee,
versus
MICHAEL HOFFMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 19, 2011)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Michael Hoffman appeals the district court’s order granting summary
judgment to U.S. Bank, N.A. (U.S. Bank) in an action alleging breach of contract
involving commercial property.1 Hoffman contends the district court erred in
granting relief because his affirmative defense of equitable estoppel creates a
genuine issue of material fact as to the validity of U.S. Bank’s claim. Specifically,
Hoffman claims U.S. Bank should be equitably estopped from enforcing the
guaranty agreement executed by him in favor of Noble Building, LLC (Noble),
because the bank’s own actions and misstatements directly contributed to the
default of the loan. U.S. Bank claims Hoffman failed to make payments pursuant
to the guaranty agreement after the note went into default and is now liable in the
amount of $1,222,484.60.2 After review, we affirm the district court’s grant of
summary judgment.3
1
U.S. Bank was substituted as the plaintiff for Park National Bank after the FDIC took
over Park National Bank and transferred its assets to U.S. Bank.
2
The record shows the property went into foreclosure and was later sold. U.S. Bank
contends this figure represents the deficiency amount due under the note, after deducting the
foreclosure bid price and the amount held in the escrow fund, and including pre-judgment
interest and attorney’s fees.
3
We review a district court’s grant of summary judgment de novo, viewing all facts in the
light most favorable to the non-moving party. Willingham Sports, Inc. v. Bureau of Alcohol,
Tobacco, Firearms, and Explosives, 415 F.3d 1274, 1276 (11th Cir. 2005).
2
To establish the defense of equitable estoppel under Alabama law, a party
must show the following:
(1) That the person against whom estoppel is asserted . . .
communicates something in a misleading way, either by words,
conduct, or silence, with the intention that the communication
will be acted on; (2) That the person seeking to assert estoppel,
who lacks knowledge of the facts, relies upon [the]
communication; and (3) That the person relying would be
harmed materially if the actor is later permitted to assert a
claim inconsistent with his earlier conduct.
Allen v. Bennett, 823 So. 2d 679, 685 (Ala. 2001) (quotations omitted).
As stated in the district court’s well-reasoned order, even assuming
arguendo that Hoffman could show the first and second elements of equitable
estoppel, his defense fails because he has not shown the third element–that he
would be harmed materially if U.S. Bank was permitted to assert a claim
inconsistent with their earlier conduct. Although U.S. Bank allegedly refused to
allow Hoffman to use escrow funds for improvements to the property, U.S. Bank’s
subsequent act of applying the escrow funds to the debt owed by Noble is
consistent with U.S. Bank’s statement that the funds would not be used for
improvements because they might be needed to pay the debt. Further, Hoffman
has not shown how any act or statement made by U.S. Bank is inconsistent with its
instant claim seeking payment under the guaranty agreement. Thus, Hoffman has
3
failed to establish an equitable estoppel defense, and we affirm the district court’s
grant of summary judgment.
AFFIRMED.
4