              Case: 14-14130   Date Filed: 06/23/2015   Page: 1 of 8


                                                            [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-14130
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:10-cv-03820-TWT




WELLS FARGO BANK, N.A.,
as successor by consolidation to Wells Fargo
Bank MN, N.A. as Trustee for the registered holders
of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2003-2, by and through it Special Servicer, ORIX Capital,

                                                               Plaintiff-Appellee,

                                     versus

MITCHELL'S PARK, LLC,

                                                                       Defendant,

PETER BRIGHT,

                                                            Defendant-Appellant.
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                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                      (June 23, 2015)



Before HULL, ROSENBAUM, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Peter Bright, proceeding pro se, appeals the district court’s grant of summary

judgment in favor of Wells Fargo Bank, N.A. (“Wells Fargo”). Wells Fargo filed

this diversity action against Bright and against Mitchell’s Park, LLC 1 to enforce a

promissory note and guaranty agreement. No reversible error has been shown; we

affirm.

       In 2003, Mitchell’s Park secured a loan of $5.55 million to build an

apartment complex. The loan was memorialized by various loan documents,

including a Promissory Note Secured by Security Deed (“Note”) and a Limited

Guaranty (“Guaranty”). Both the Note and the Guaranty were signed on the same

day.

1
 On 4 December 2014, this Court dismissed Mitchell’s Park for failure to prosecute. Mitchell’s
Park is not a party to this appeal.


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       The current parties to the Note are Mitchell’s Park, as Borrower, and Wells

Fargo, as Lender. 2 The Note, among other things, gives Lender the right to

accelerate payments due under the Note if Borrower fails to make a payment. The

Note also contains a Full Recourse Liability Clause; this Clause provides that, if

Borrower fails to maintain the single-purpose entity requirements, the “Lender

shall have the right to seek a personal judgment against Borrower on this Note and

under any other Loan Document with respect to any and all indebtedness secured

thereby.”

       The parties to the Guaranty are identified as Bright (in his individual

capacity), as Guarantor, and Wells Fargo, as Lender. The Guaranty was entered

into for the express purpose of inducing Lender to make the loan. Under the terms

of the Guaranty, Guarantor “unconditionally, absolutely, and irrevocably

guarantees and promises to pay to Lender . . . all sums for which Borrower is now

or hereafter liable” under the Note. The Guaranty also contains a Full Recourse

Liability Clause that is nearly identical to the language used in the Note. The

Guaranty specifically provides that, in the event Borrower fails to maintain the

single-purpose entity requirements, the “Lender shall have the right to seek a

personal judgment against Borrower on this Guaranty and under any other Loan


2
 The Note, in fact, identifies the “Lender” as Bridger Commercial Funding, LLC. But Wells
Fargo later acquired all legal and equitable interest to the loan and now serves as the “Lender”
under both the Note and the Guaranty.
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Document with respect to any and all indebtedness secured thereby.” (emphasis

added).

      Mitchell’s Park failed to make the payments due under the Note. The parties

do not dispute that Mitchell’s Park also failed to maintain the single-purpose entity

requirements and, thus, triggered application of the Full Recourse Liability

provisions. As a result of Mitchell’s Park’s default, Wells Fargo accelerated the

Note and ultimately foreclosed on the real property and other collateral secured by

the Note. Wells Fargo then brought this civil action against Mitchell’s Park and

Bright, pursuant to the Full Recourse Liability provisions, to collect the

outstanding $4 million debt.

      The district court denied Bright’s motions to dismiss for lack of subject

matter jurisdiction and granted Wells Fargo’s motion for summary judgment. The

district court then denied Bright’s motion for reconsideration and entered final

judgment in favor of Wells Fargo.



                               I. Diversity Jurisdiction



      On appeal, Bright contends that Wells Fargo failed to satisfy its burden of

establishing diversity jurisdiction because Wells Fargo failed to plead the

citizenship of its trust beneficiaries. We review de novo a district court’s denial of


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a motion to dismiss for lack of subject matter jurisdiction. Underwriters at

Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010). The

party filing a diversity lawsuit in federal court bears the burden of establishing, by

a preponderance of the evidence, that all the parties are completely diverse. Id.

      Wells Fargo filed this civil action in its capacity as trustee for an express

trust known as “the registered holders of Banc of America Commercial Mortgage

Inc., Commercial Mortgage Pass-Through Certificates, Series 2003-2.” The trust,

itself, is no party to this action. Under the terms of the trust agreement, Wells

Fargo holds all right, title and interest in the trust fund for the exclusive benefit of

the trust beneficiaries. As a result, Wells Fargo constitutes the real party in interest

and can “sue in [its] own right, without regard to the citizenship of the trust

beneficiaries.” See Navarro Sav. Ass’n v. Lee, 100 S.Ct. 1779, 1783-84 (1980) (“a

trustee is a real party to the controversy for purposes of diversity jurisdiction when

he possesses certain customary powers to hold, manage, and dispose of assets for

the benefit of others.”).

      Complete diversity exists between the parties: Wells Fargo is a citizen of

South Dakota and California, and Bright and Mitchell’s Park are both citizens of

Georgia. The district court concluded properly that it had subject matter

jurisdiction over this case.




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                              II. Summary Judgment



      We review the district court’s grant of summary judgment de novo, viewing

the evidence and all reasonable factual inferences in the light most favorable to the

nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).

Because our jurisdiction in this case is based on diversity, Georgia substantive law

controls the interpretation of the contracts at issue. See Ferrero v. Associated

Materials Inc., 923 F.2d 1441, 1444 (11th Cir. 1991).

      Briefly stated, Bright argues that he cannot be held personally liable for

debts owed by Mitchell’s Park under the Note because the Guaranty provides only

that “Lender shall have the right to seek a personal judgment against Borrower on

this Guaranty.” (emphasis added). Bright contends that the language in the

Guaranty is unambiguous and that the district court erred in determining that the

use of the term “Borrower” -- instead of the term “Guarantor” -- was an obvious

mistake that should be corrected.

      Under Georgia law, the “cardinal rule of construction is to ascertain the

intention of the parties.” C.L.D.F., Inc. v. The Aramore, LLC, 659 S.E.2d 695,

696 (Ga. Ct. App. 2008). “If that intention is clear and contravenes no rule of law

and sufficient words are used to arrive at the intention, it shall be enforced

irrespective of all technical or arbitrary rules of construction.” Id. In determining


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the intended meaning of a document, Georgia courts consider contemporaneous

writings together. Id.

       Because the Note and the Guaranty were executed on the same day, we must

-- as a matter of Georgia contract law -- consider both documents together in

determining the parties’ intended meaning. See id. That both documents identify

the Guaranty as a loan document further evidences the parties’ intent that the

documents be read together.

       Reading and construing the Note and the Guaranty together, we conclude

that the parties intended clearly for Bright personally to guarantee all debts

incurred by Borrower under the Note, including debts incurred under the Note’s

Full Recourse Liability Clause. Bright’s obligations under the Guaranty induced

Lender to make the loan. Given the parties’ clear intentions, we conclude that the

use of the term “Borrower” (instead of “Guarantor”) in the last sentence of the

Guaranty’s Full Recourse Liability Clause was an obvious mistake. The district

court committed no error in correcting the obvious mistake and in interpreting the

Guaranty in the light of the parties’ intended language.

       We find support for our decision in two Georgia cases.3 In C.L.D.F., Inc.,

the Georgia Court of Appeals -- construing a guaranty together with a

contemporaneously-signed lease -- concluded that the guaranty contained an

3
 Because Georgia law provides sufficient guidance on this issue, we deny Bright’s request to
certify a question to the Supreme Court of Georgia.
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obvious mistake in naming the wrong principal debtor. 659 S.E.2d at 696-97. The

Georgia court concluded that it was no error “for the trial court to correct an

obvious error and interpret the Guaranty accordingly” and, thus, affirmed the trial

court’s grant of summary judgment. Id. at 697.

       Likewise, in Tucker Station, Ltd. v. Chalet I, Inc., 417 S.E.2d 40 (Ga. Ct.

App. 1992), the Georgia Court of Appeals construed together a lease and a

guaranty that were executed on the same day. The state court determined that an

obvious error existed on the face of the guaranty, which referred to a default by the

“Guarantor” instead of by the “Tenant.” In affirming the grant of summary

judgment, the state court said “[d]espite the misuse of the term ‘Guarantor,’ the

guaranty agreement clearly indicates the intent of the individual defendants to

guarantee the credit extended by the landlord for tenant finishes in the event of

default by the tenant . . . .” Id. at 42.4

       No genuine issue of material fact exists. We affirm the district court’s grant

of summary judgment in favor of Wells Fargo.

       AFFIRMED.


4
  Contrary to Bright’s argument, the Georgia Court of Appeals’s recent opinion in Citrus Tower
Blvd. Imaging Ctr., LLC v. Owens, 752 S.E.2d 74 (Ga. Ct. App. 2013), is not controlling here.
The issue in Citrus Tower was whether the individual debtor had guaranteed the lease obligations
of his professional corporation. Because the individual defendant had unambiguously signed the
guaranty only in his corporate capacity, the state court concluded that the guarantor was in fact
the professional corporation and not the individual defendant. Unlike this appeal, Citrus Tower
involved no obvious mistake on the face of the guaranty. And nothing in Citrus Tower appears
to us to have changed the controlling law established by C.L.D.F., Inc. and by Tucker Station.
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