The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on the motion of Plaintiffs SEG Liquidation Company, LLC ("SEG Liquidation") and Thomas Lesko for summary judgment in their favor on all counts of their complaint against Defendant Hugo Stevenson. For the reasons set forth below, the motion is granted.
Lesko (through membership in a company called TLMR, LLC) and Stevenson are former members of Stevenson Entertainment Group, LLC ("SEG"). In 2003, SEG sought financing from Fifth Third Bank to fund its business activities. On December 5, 2003, Fifth Third made two loans to SEG: one for $750,000 and one for $450,000. Lesko and Stevenson each executed a personal guaranty for $825,000 to guarantee the payment of these loans.
In February 2003, Stevenson executed a note promising to pay $20,956.10 to SEG no later than December 31, 2003. The following month, he executed another note promising payment of $63,220.41 to SEG by December 31, 2003. Each note carried a 3.75% interest rate for 2003; thereafter the interest rate increased to 15%. Each also included a late charge of 3.75% of the amount unpaid on the note as of 10 days after the date final payment was due. As of April 24, 2008, $61,599.03 of interest had accrued on the two promissory notes. Stevenson made no payments to SEG on either of these notes.
In 2006, SEG defaulted on the Fifth Third loans. Fifth Third demanded full payment from SEG and the guarantors.*fn1 By that time, the full $1.2 million had been borrowed and $83,291.50 in interest had accumulated, yielding a total amount of indebtedness of $1,283,291.50.*fn2 Lesko paid the full amount of his $825,000 guaranty obligation toward satisfying this debt.
On December 19, 2006, Lesko formed SEG Liquidation as its president and sole member. Three days later, Fifth Third assigned its rights under the loan documents and guaranties to SEG Liquidation. Shortly thereafter, SEG Liquidation held a foreclosure proceeding at a public auction and foreclosed upon and purchased all of SEG's assets at that time. Stevenson made no payments to Fifth Third pursuant to his personal guaranties.
In June 2007, SEG Liquidation and Lesko brought the instant suit. In Count I of the complaint, SEG Liquidation alleges a breach of contract by Stevenson for failure to honor his guaranty obligations. Count II seeks equitable contribution from Stevenson in favor of Lesko in their capacity as coguarantors. Count III is a second breach of contract claim brought by SEG Liquidation against Stevenson, premised upon the failure to pay the amounts due on the two 2003 promissory notes. In conjunction with his answer, Stevenson asserted various affirmative defenses and filed a counterclaim. He later voluntarily dismissed the latter.
SEG Liquidation and Lesko now move for summary judgment in their favor on the three counts of the main complaint.
Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on issues on which the non-movant bears the burden of proof at trial. Id. The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence. Id. The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens Transp. Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
With these principles in mind, we turn our attention to Plaintiffs' motion.
A. Count I: Breach of Personal ...