The opinion of the court was delivered by: HARRIS
Before the Court is the motion of plaintiff Federal Deposit Insurance Corporation ("FDIC") for summary judgment against defendants Atchison & Keller, Jean Kinser, and Williams Industries, Inc., defendants' responses, and plaintiff's reply. Also before the Court is plaintiff's motion to dismiss the counterclaim of defendant Jean Kinser for lack of subject matter jurisdiction, defendant's response, and plaintiff's reply. Upon consideration, plaintiff's motion for summary judgment against defendants Atchison & Keller, Jean Kinser, and Williams Industries is granted. In addition, the Court dismisses defendant Jean Kinser's counterclaim as untimely filed. Plaintiff's motion to dismiss defendant's counterclaim for lack of subject matter jurisdiction is therefore denied as moot.
On September 11, 1985, Atchison & Keller ("A&K"), through its president, Roland Kinser, executed a Master Promissory Note ("Note") promising to pay to the National Bank of Washington ("NBW") the principal sum of$ 1,000,000. NBW endorsed the Note over to the Washington Bank ("WB") on April 21, 1987. Under the terms of the Note, A&K promised to pay NBW interest at NBW's floating prime rate plus 1% on the unpaid principal balance monthly until the principal balance was paid. The terms of the Note also provided that the interest and principal were payable on demand.
As security for the Note, Roland Kinser, in his capacity as president of A&K, executed a security agreement giving NBW a security interest in A&K's inventory and accounts receivable. In addition, Roland Kinser executed a pledge/hypothecation agreement assigning a number of shares of stock in favor of NBW, and Roland and Jean Kinser together executed a second pledge/hypothecation agreement, also assigning stock in favor of NBW. The second pledge/hypothecation agreement rendered Roland and Jean Kinser jointly and severally liable for any liabilities incurred under the terms of that agreement.
As additional security for the Note, Roland and Jean Kinser executed, also in their personal capacities, a guaranty (the "Kinser Guaranty"), in which they jointly and severally guaranteed the punctual payment of the principal sum of the Note, any interest thereon, and any court costs and attorney's fees incurred in a suit to collect the unpaid balance of the Note. Finally, Williams Industries, Inc. ("Williams"), through its president and secretary-treasurer, executed a guaranty and a modification thereto (the "Williams Guaranty"), in which Williams likewise guaranteed the punctual payment of the principal sum of the Note, interest thereon, and any costs and fees incurred in a suit to collect the balance of the Note. The Williams Guaranty provided that Williams's liability would never exceed 50% of the amount outstanding, and would not in any circumstances exceed $ 500,000, plus interest thereon and any expenses incurred in a suit to collect the amount outstanding.
On April 7, 1989, WB (to whom the Note had been endorsed in 1987 by NBW) made written demand on A&K for payment of all sums due and owing under the Note. A&K did not pay WB those sums. Also on April 7, 1989, WB exercised its right under the Williams Guaranty and demanded that Williams pay $ 500,000 to WB, pursuant to the terms of the Williams Guaranty. On January 23, 1990, WB and Williams executed an agreement whereby Williams acknowledged its debt to WB and WB agreed to forbear from enforcing the guaranty it held against Williams until February 28, 1990. WB has again made written demand on Williams to pay the sums it owes to WB and Williams has not paid those sums. WB also has made written demand on Jean Kinser to pay all sums due under the terms of the Kinser Guaranty Jean Kinser has not paid the amount found to be due and owing under the terms of the Kinser Guaranty.
On February 28, 1990, Roland and Jean Kinser paid to WB a check in the amount of $ 314,950.39, in satisfaction of a detinue judgment issued against the stock pledged in the Kinser pledge/hypothecation agreements. The Kinsers had directed in a letter accompanying the check that the check be applied to principal and interest on the Note. WB applied the check to legal fees and bond costs WB had incurred in pursuing the detinue judgment, applying the remainder to outstanding interest and principal.
On March 5, 1990, WB liquidated the stock held pursuant to the Kinsers' pledge-hypothecation agreements, netting the sum of $ 294,070.16. WB applied the sum to defray further attorney's fees expended in connection with its pursuit of payment on the Note, accrued interest, and another portion of the outstanding principal of the Note.
Plaintiff's Motion for Summary Judgment
Summary judgment may be granted only "if 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Here, plaintiff has shown that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless briefly sets forth its analysis. See Fed. R. Civ. P. 52(a); Anderson, 106 S. Ct. at 2511.
First, Williams has filed a response indicating that it "does not oppose" the motion for summary judgment filed by the FDIC. Second, the opposition filed by defendants Jean Kinser and A&K raises no arguments on behalf of A&K. Plaintiff's motion for summary judgment against A&K may therefore be treated as conceded, pursuant to Local Rule 108(b). In defendants' opposition, Jean Kinser contends only that WB misapplied sums previously paid by the Kinsers to WB, and that the FDIC must pursue its ...