United States District Court, D. Maryland
DAVID A. BLANK et al., Plaintiffs
ROBERT W. NESS, Defendant
K. BREDAR CHIEF JUDGE
pending before the Court is Plaintiffs' Motion for
Partial Summary Judgment for First Cause of Action of Third
Amended Complaint. (ECF No. 48.) The first count is for
breach of contract, specifically, a promissory note. (Third
Amended Complaint ("TAC") ¶¶ 72-79, ECF
No. 43.) Defendant Robert W. Ness has responded in opposition
to Plaintiffs' request for interest on the first count,
but consents to judgment being entered on the unpaid
principal of $202, 000. (ECF No. 50.) Plaintiffs' reply
has been filed, and the motion is ripe for decision. No.
hearing is necessary. Local Rule 105.6 (D. Md. 2016). The
motion will be granted.
Standard for Summary Judgment
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing predecessor to current Rule
56(a)). The burden is on the moving party to demonstrate the
absence of any genuine dispute of material fact. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a
verdict in favor of the party opposing the motion, then a
genuine dispute of material fact is presented and summary
judgment should be denied. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, the "mere
existence of a scintilla of evidence in support of the
[opposing party's] position" is insufficient to
defeat a motion for summary judgment. Id. at 252.
The facts themselves, and the inferences to be drawn from the
underlying facts, must be viewed in the light most favorable
to the opposing party, Scott v. Harris, 550 U.S.
372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008), who may not rest upon the mere allegations
or denials of his pleading but instead must, by affidavit or
other evidentiary showing, set out specific facts showing a
genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting
and opposing affidavits are to be made on personal knowledge,
contain such facts as would be admissible in evidence, and
show affirmatively the competence of the affiant to testify
to the matters stated in the affidavit. Fed.R.Civ.P.
David A. Blank ("Blank") and Defendant Robert W.
Ness entered into an "Agreement Between Friends,"
in which Blank agreed to lend $250, 000 to Ness, and Ness
agreed to repay that amount, without interest, within two
months of his receipt of the money. (Agreement, ECF No.
10-2.) The agreement was signed by both Blank and Ness on
March 11, 2014. (Id.) The agreement recites that its
governing law is that of the State of Louisiana.
(Id.) The money was transferred by wire to Ness on
March 12, 2014. (TAC ¶ 75.) Although somewhat oddly
worded, the agreement is unambiguous and constitutes a
promissory note. Ness admits he did not pay the loan when
due-two months after Ness's receipt of the money was May
11, 2014-and he was thus in default. He has paid some of the
money back since the due date, and the parties agree the
remaining principal owed is $202, 000.
has established the elements of breach of promissory note.
See Nat'l Collegiate Student Loan Tr. 2003-1 v.
Thomas, 129 So.3d 1231, 1233-34 (La. Ct. App. 2013)
("Plaintiff establishes a prima facie case to
enforce a promissory note where plaintiff 1) produces and
presents the note into evidence; 2) shows that it was signed
by the defendant; [and] 3) that the defendant has defaulted
...."). Thus, judgment will be entered in Blank's
favor on the principal amount of the loan.
the agreement recites that the parties to the loan agreement
are not only Blank and Ness but also their "respective
heirs and legal representatives," Blank has presented no
authority for the notion that anyone other than the
signatories is a party to the promissory note.Consequently, to
the extent that both David and Sandra Blank seek
judgment in their favor on the unpaid balance of the
promissory note, the Court finds no basis to award judgment
for Sandra Blank on the first count. Judgment will only be
entered in favor of David Blank on this count.
real disagreement between the parties as to Plaintiffs'
motion is Blank's assertion of an entitlement to
prejudgment interest on the amount in default. The agreement
states in pertinent part, "The Borrower will repay the
same Loan Amount ($250, 000.00) without interest within two
months from the Date these funds are received in the
Borrower's account." (Agreement 1.) It also states,
"[A]t the end of two (2) months from the time of
execution of the Loan, if there is any unpaid debt, then the
terms of the Loan will either be by mutual agreement
renegotiated or considered in Default." (Agreement 2.)
recites Louisiana law for the proposition that
"[i]nterest is recoverable on debts arising ex
contractu from the time they become due, unless
otherwise stipulated" (Def.'s Opp'n6
(citing Corbello v. Iowa Prod., 850 So.2d 686, 706
(La. 2003), superseded on other grounds by statute as
stated in State v. La. Land. & Explor. Co., 110
So.3d 1038 (La. 2013).) From that proposition, Ness posits
that since the agreement gave him an interest-free loan,
Blank is not entitled to prejudgment interest after the
default. Ness misinterprets Louisiana law.
allowance of prejudgment interest is set forth in
Louisiana's Civil Code:
When the object of the performance is a sum of money, damages
for delay in performance are measured by the interest on that
sum from the time it is due, at the rate agreed by the
parties or, in the absence of agreement, at the rate of legal
interest as fixed by R.S. 9:3500. The obligee may recover
these damages without having ...