of 2% per annum in excess of the Note's interest rate, computed on the unpaid principal balance, and the late charge was to relate back to the due date of the payment. A&K also agreed that NBW would be entitled to recover 15% of the unpaid balance of principal and interest additionally as attorney's fees, and costs of suit, should NBW institute suit to collect on the Note.
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 claims against Williams under the Williams Guaranty before pursuing its claims against Jean Kinser under the Kinser Guaranty.
Jean Kinser first argues that Roland Kinser submitted a payment of $ 314,950.39 to WB on February 28, 1990, in satisfaction of a detinue judgment obtained by WB against the stock held by the Kinsers and pledged in the two Kinser pledge/hypothecation agreements. Jean Kinser argues that Roland Kinser directed that the check be applied solely to interest and principal due on the Note, and that WB "misapplied" the payment by first satisfying bond costs and attorney's fees accrued in pursuing payment on the Note and then applying the balance of the check to interest and then to principal. Jean Kinser apparently contends that if WB had applied the February 28, 1990, payment "properly," the Kinsers would actually be owed money by the FDIC. (This is the basis of Jean Kinser's counterclaim, which is treated infra.) Kinser's argument is without merit. The terms of the pledge agreement provide that WB (and the FDIC) has "sole discretion" to apply payments received "on account of" a security obligation, and no other agreement has been alleged to exist whereby the Kinsers had the right to direct that payments be applied in a particular fashion to outstanding debt, interest, costs, and fees owed. Any oral agreement to this effect would be barred as a defense under 12 U.S.C. § 1823(e). That section provides:
No agreement which tends to diminish or defeat the interest of the [FDIC] in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the [FDIC] unless such agreement --