Friday, August 16, 2013, 4:59 PM

Summary Judgment For Assignee of Note and Guaranty

Authored by: Jason Hicks
On July 26, 2013, Judge Turk entered summary judgment in the amount of $3.2 million in favor of the assignee of a note and personal guaranty.  See City National Bank v. Tress (WDVa 2013).  The defendants had agreed to guaranty the repayment of a note that secured commercial loans made to their LLC.  The LLC, however, soon stopped making payments on the note and went into receivership.  Plaintiff purchased the note and guaranty, but apparently there were problems with how the note was endorsed by the original noteholder.  Defendants, therefore, argued that the personal guaranty was not enforceable since the underlying note was arguably not enforceable by plaintiff.  The Court, however, ruled that under McDonald v. National Enterprises Inc., 547 S.E. 2d 204 (Va. 2001), the guaranty was an independent contract that could be enforced even if plaintiff would not have been able to enforce the note.  The enforceability of the guaranty depended on whether the note had been repaid.  Since the obligation on the note remained outstanding, the personal guaranty could be enforced even if plaintiff could not enforce the note itself.

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