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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15449
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-00110-BAE-GRS
DOMINIC APPLEGATE,
CHARLES W. BAINES, JR.,
RYBA ENTERPRISES, INC.,
Plaintiffs - Appellants,
AMERIS BANK,
as Assignee of the Federal Deposit Insurance Corporation,
as Receiver of the business and property of Darby Bank
and Trust Co.
Counter - Plaintiff - Appellee,
versus
FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver of the Business and Property of Darby Bank & Trust Co.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(April 25, 2013)
Before CARNES, HULL, and JORDAN, Circuit Judges.
PER CURIAM:
Ryba Enterprises, Inc., Dominic Applegate, and Charles Baines, Jr. appeal
the district court’s grant of summary judgment requiring them to pay back money
they borrowed from Darby Bank & Trust Company. In 2006 and 2007 Ryba
Enterprises and Applegate executed three promissory notes in favor of Darby.
Those three notes were personally guaranteed by Baines. A fourth promissory note
was executed in 2008 by Applegate Snayd Industries, Inc. in favor of Darby, and it
was personally guaranteed by Dominic Applegate. When the four notes matured in
2010, the makers and guarantors were not able to pay back the principal and
interest that was due.
In July 2010 Applegate, Ryba Enterprises, and Baines (collectively referred
to as the borrowers) filed suit against Darby in Georgia state court alleging
misrepresentation, breach of contract, detrimental reliance, and tortious
interference with contractual relations. Darby counterclaimed for the amounts due
under the four promissory notes.
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On November 12, 2010, the Georgia Department of Banking and Finance
closed Darby and took possession of it. The Federal Deposit Insurance
Corporation was appointed as its receiver. The FDIC then sold virtually all of
Darby’s assets to Ameris Bank. The FDIC also executed assignments that
transferred to Ameris all of the FDIC’s rights in Darby’s loans, including the four
promissory notes at issue in this case.
The Georgia state court later substituted the FDIC as the defendant and
Ameris, which now holds the four promissory notes, as the counter-plaintiff. The
FDIC removed the case to federal court. The borrowers eventually dismissed with
prejudice all their claims against the FDIC, leaving only Ameris’ counterclaim
against the borrowers. The district court granted summary judgment to Ameris on
its counterclaim, rejecting the borrowers’ argument that Ameris was estopped from
collecting on the notes. The court concluded that estoppel could not be asserted
against Ameris because the D’Oench Duhme doctrine applied, because the loan
documents contained an “entire agreement” clause, and because the borrowers had
alleged only that Darby had engaged in wrongdoing and did not allege any
wrongdoing by Ameris. The court entered judgment against the borrowers jointly
and severally in the amount of $7,035,709.83 and against Applegate separately in
the amount of $679,832.10. The borrowers have appealed the district court’s grant
of summary judgment.
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I.
We review de novo a district court’s grant of summary judgment, “viewing
all evidence and drawing all reasonable inferences in favor of the nonmoving
party.” Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1254 (11th Cir. 2012).
“Summary judgment is proper only when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Id.
(quotation marks omitted). “A creditor in possession of a valid and signed
promissory note has a prima facie right to repayment, unless the debtor can
establish a valid defense.” City of Bremen v. Regions Bank, 559 S.E.2d 440, 445–
46 (Ga. 2002). Here, the borrowers do not contest the validity of the promissory
notes. Instead, they contend that the district court erred in granting summary
judgment in favor of Ameris because equitable estoppel bars Ameris’ claims
against them.
“Estoppels are not generally favored by the law.” Collins v. Grafton, Inc.,
435 S.E.2d 37, 39 (Ga. 1993). An equitable estoppel defense can be raised only
against a party that has: (1) made a false representation or concealed a material
fact; (2) with the intention that the other party act upon the misrepresentation; and
(3) with knowledge of the true facts. Bell v. Studdard, 141 S.E.2d 536, 540 (Ga.
1965). A party asserting equitable estoppel must show justifiable reliance on the
other party’s representations and a change in position to his or her detriment. Id.
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The borrowers assert that Ameris should be estopped from collecting on the
notes because Darby’s loan officer “represented” to them that Darby would finance
the construction costs of certain improvements on real property, but then failed to
do so. The borrowers also maintain that Darby’s loan officer asked them to “put
more collateral or personal funds into the projects to get further support from
Darby,” which they did, but Darby still failed to make additional loans that were
promised. Even if those allegations are true, they do not prevent Ameris from
collecting on the loans that Darby did make. “A lender’s refusal to make a second
loan, or even misrepresentations that it would make a second loan, does not bar the
lender from recovery of the amount owed under the first loan.” Ga. Invs. Int’l, Inc.
v. Branch Banking & Trust Co., 700 S.E.2d 662, 664 (Ga. Ct. App. 2010).
The borrowers also claim that Darby’s loan officer “frequently encouraged”
them “to purchase more property and obtain more loans through Darby Bank
without finishing any projects.” Even if that is true, Darby’s “encouragement” to
make business decisions that later went sour does not warrant application of
equitable estoppel because that encouragement was neither a “false representation”
nor a “concealment of a material fact.”
The borrowers further assert that Darby permitted Applegate to sign
incomplete loan applications, dated one loan agreement on a day that Applegate
was not available to sign it, froze disbursement of construction draws under one of
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the notes, and refused to approve short sales of the collateral securing the notes.
While those allegations do suggest wrongful conduct by Darby, that still does not
relieve the borrowers of their obligation to pay back the money they borrowed. In
order for equitable estoppel to apply against Darby, its conduct “must amount to a
concealment or false representation of material facts” that is inconsistent with the
position it later tries to assert. Collins, 435 S.E.2d at 39. Even if the actions
alleged by the borrowers did amount to misrepresentations or concealments, which
we doubt, those acts are not inconsistent with the position that Ameris is now
asserting—that the borrowers are required to repay the money they borrowed.
Because the defense of equitable estoppel could not be asserted against Darby, it
cannot be asserted against its successor in interest, Ameris.
II.
The borrowers also contend that the district court “failed to consider” its
argument that Ameris would be unjustly enriched by a judgment for the entire
amount of the four promissory notes because it purchased those notes at a
“considerable discount.” The court did consider that argument and rejected it,
noting that there was no reason to “belabor the issue” because the argument was
“meritless.” We agree.
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The district court correctly concluded that Ameris was entitled to summary
judgment on its counterclaims against the borrowers.1
AFFIRMED.
1
In finding that equitable estoppel could not be asserted, the district court relied on
reasons that are different from the ones we rely on, including the D’Oench Duhme doctrine.
However, we may affirm for any reason supported by the record, even if not relied on by the
district court. United States v. $121,100 in United States Currency, 999 F.2d 1503, 1507 (11th
Cir. 1993). For that reason we need not address the D’Oench Duhme doctrine.
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