             Case: 12-15449    Date Filed: 04/25/2013   Page: 1 of 7


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-15449
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 4:12-cv-00110-BAE-GRS



DOMINIC APPLEGATE,
CHARLES W. BAINES, JR.,
RYBA ENTERPRISES, INC.,

                                                            Plaintiffs - Appellants,

AMERIS BANK,
as Assignee of the Federal Deposit Insurance Corporation,
as Receiver of the business and property of Darby Bank
and Trust Co.

                                                    Counter - Plaintiff - Appellee,


                                versus

FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver of the Business and Property of Darby Bank & Trust Co.,

                                                            Defendant - Appellee.
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                           ________________________

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

                                   (April 25, 2013)

Before CARNES, HULL, and JORDAN, Circuit Judges.

PER CURIAM:

      Ryba Enterprises, Inc., Dominic Applegate, and Charles Baines, Jr. appeal

the district court’s grant of summary judgment requiring them to pay back money

they borrowed from Darby Bank & Trust Company. In 2006 and 2007 Ryba

Enterprises and Applegate executed three promissory notes in favor of Darby.

Those three notes were personally guaranteed by Baines. A fourth promissory note

was executed in 2008 by Applegate Snayd Industries, Inc. in favor of Darby, and it

was personally guaranteed by Dominic Applegate. When the four notes matured in

2010, the makers and guarantors were not able to pay back the principal and

interest that was due.

      In July 2010 Applegate, Ryba Enterprises, and Baines (collectively referred

to as the borrowers) filed suit against Darby in Georgia state court alleging

misrepresentation, breach of contract, detrimental reliance, and tortious

interference with contractual relations. Darby counterclaimed for the amounts due

under the four promissory notes.


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      On November 12, 2010, the Georgia Department of Banking and Finance

closed Darby and took possession of it. The Federal Deposit Insurance

Corporation was appointed as its receiver. The FDIC then sold virtually all of

Darby’s assets to Ameris Bank. The FDIC also executed assignments that

transferred to Ameris all of the FDIC’s rights in Darby’s loans, including the four

promissory notes at issue in this case.

      The Georgia state court later substituted the FDIC as the defendant and

Ameris, which now holds the four promissory notes, as the counter-plaintiff. The

FDIC removed the case to federal court. The borrowers eventually dismissed with

prejudice all their claims against the FDIC, leaving only Ameris’ counterclaim

against the borrowers. The district court granted summary judgment to Ameris on

its counterclaim, rejecting the borrowers’ argument that Ameris was estopped from

collecting on the notes. The court concluded that estoppel could not be asserted

against Ameris because the D’Oench Duhme doctrine applied, because the loan

documents contained an “entire agreement” clause, and because the borrowers had

alleged only that Darby had engaged in wrongdoing and did not allege any

wrongdoing by Ameris. The court entered judgment against the borrowers jointly

and severally in the amount of $7,035,709.83 and against Applegate separately in

the amount of $679,832.10. The borrowers have appealed the district court’s grant

of summary judgment.


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                                          I.

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

all evidence and drawing all reasonable inferences in favor of the nonmoving

party.” Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1254 (11th Cir. 2012).

“Summary judgment is proper only when there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Id.

(quotation marks omitted). “A creditor in possession of a valid and signed

promissory note has a prima facie right to repayment, unless the debtor can

establish a valid defense.” City of Bremen v. Regions Bank, 559 S.E.2d 440, 445–

46 (Ga. 2002). Here, the borrowers do not contest the validity of the promissory

notes. Instead, they contend that the district court erred in granting summary

judgment in favor of Ameris because equitable estoppel bars Ameris’ claims

against them.

      “Estoppels are not generally favored by the law.” Collins v. Grafton, Inc.,

435 S.E.2d 37, 39 (Ga. 1993). An equitable estoppel defense can be raised only

against a party that has: (1) made a false representation or concealed a material

fact; (2) with the intention that the other party act upon the misrepresentation; and

(3) with knowledge of the true facts. Bell v. Studdard, 141 S.E.2d 536, 540 (Ga.

1965). A party asserting equitable estoppel must show justifiable reliance on the

other party’s representations and a change in position to his or her detriment. Id.


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      The borrowers assert that Ameris should be estopped from collecting on the

notes because Darby’s loan officer “represented” to them that Darby would finance

the construction costs of certain improvements on real property, but then failed to

do so. The borrowers also maintain that Darby’s loan officer asked them to “put

more collateral or personal funds into the projects to get further support from

Darby,” which they did, but Darby still failed to make additional loans that were

promised. Even if those allegations are true, they do not prevent Ameris from

collecting on the loans that Darby did make. “A lender’s refusal to make a second

loan, or even misrepresentations that it would make a second loan, does not bar the

lender from recovery of the amount owed under the first loan.” Ga. Invs. Int’l, Inc.

v. Branch Banking & Trust Co., 700 S.E.2d 662, 664 (Ga. Ct. App. 2010).

      The borrowers also claim that Darby’s loan officer “frequently encouraged”

them “to purchase more property and obtain more loans through Darby Bank

without finishing any projects.” Even if that is true, Darby’s “encouragement” to

make business decisions that later went sour does not warrant application of

equitable estoppel because that encouragement was neither a “false representation”

nor a “concealment of a material fact.”

      The borrowers further assert that Darby permitted Applegate to sign

incomplete loan applications, dated one loan agreement on a day that Applegate

was not available to sign it, froze disbursement of construction draws under one of


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the notes, and refused to approve short sales of the collateral securing the notes.

While those allegations do suggest wrongful conduct by Darby, that still does not

relieve the borrowers of their obligation to pay back the money they borrowed. In

order for equitable estoppel to apply against Darby, its conduct “must amount to a

concealment or false representation of material facts” that is inconsistent with the

position it later tries to assert. Collins, 435 S.E.2d at 39. Even if the actions

alleged by the borrowers did amount to misrepresentations or concealments, which

we doubt, those acts are not inconsistent with the position that Ameris is now

asserting—that the borrowers are required to repay the money they borrowed.

Because the defense of equitable estoppel could not be asserted against Darby, it

cannot be asserted against its successor in interest, Ameris.

                                           II.

      The borrowers also contend that the district court “failed to consider” its

argument that Ameris would be unjustly enriched by a judgment for the entire

amount of the four promissory notes because it purchased those notes at a

“considerable discount.” The court did consider that argument and rejected it,

noting that there was no reason to “belabor the issue” because the argument was

“meritless.” We agree.




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       The district court correctly concluded that Ameris was entitled to summary

judgment on its counterclaims against the borrowers.1

       AFFIRMED.




       1
          In finding that equitable estoppel could not be asserted, the district court relied on
reasons that are different from the ones we rely on, including the D’Oench Duhme doctrine.
However, we may affirm for any reason supported by the record, even if not relied on by the
district court. United States v. $121,100 in United States Currency, 999 F.2d 1503, 1507 (11th
Cir. 1993). For that reason we need not address the D’Oench Duhme doctrine.
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