               Case: 13-15934        Date Filed: 05/06/2015      Page: 1 of 15


                                                                   [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-15934
                               ________________________

                       D.C. Docket No. 6:11-cv-00734-ACC-GJK

BANK OF AMERICA, NA,

                                                                   Plaintiff - Appellee,

                                            versus

ROBERT G. DELLO RUSSO,

                                                                   Defendant - Appellant,

STEPHEN ROMINGER,

                                                                   Defendant.
                              _______________ _________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                        (May 6, 2015)

Before MARCUS, JILL PRYOR and EBEL, * Circuit Judges.

PER CURIAM:


       *
         Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
              Case: 13-15934     Date Filed: 05/06/2015    Page: 2 of 15


      The district court granted summary judgment in favor of Bank of America

enforcing a guaranty provided by Robert Dello Russo. On appeal, Mr. Dello

Russo argues that questions of fact pertaining to his affirmative defenses preclude

summary judgment. After careful consideration and with the benefit of oral

argument, we affirm the district court’s judgment.

                                          I.

                                          A.

      A group of manufacturers (collectively, the “American Companies”)

borrowed a total of $21 million from Fifth Third Bank in a series of three notes

(collectively, “the loan”). Pursuant to the terms of the loan, Fifth Third Bank had a

lien upon and security interest in the collateral, which was nearly all of the

American Companies’ assets. Additionally, Mr. Dello Russo, a director and

investor in the American Companies, provided a personal guaranty (the

“guaranty”) to Fifth Third Bank, in which he agreed to “absolutely,

unconditionally, irrevocably, and continually guarantee[] . . . the full, prompt, and

faithful payment and performance” of up to $5.95 million under two of the notes

that made up the loan. See Amended and Restated Guaranty §§ 1.(a), 1.(b). The

guaranty required that, “[i]n the event of any Default” by the American

Companies, “on demand” by Fifth Third Bank, Mr. Dello Russo was to “pay and

perform all” of his obligations under the guaranty. Id. § 2.


                                           2
              Case: 13-15934     Date Filed: 05/06/2015   Page: 3 of 15


      The American Companies found themselves in financial distress, losing

millions of dollars a year, and had difficulty paying Fifth Third Bank and other

creditors. According to Mr. Dello Russo, Fifth Third Bank asked him to provide

funding to the American Companies to keep them afloat and in return promised to

credit the funding against the amount he owed on the guaranty. Mr. Dello Russo

testified that, based on this promise, he opened up lines of credit, provided cash to

the American Companies, and paid off obligations, such as rent and taxes, that the

American Companies owed to third parties. All told, Mr. Dello Russo estimates he

provided ten million dollars in funding to the American Companies.

      Even with the funding from Mr. Dello Russo, the American Companies’

financial difficulties continued, and they were unable to make timely payments to

Fifth Third Bank. The American Companies, Mr. Dello Russo, and Fifth Third

Bank entered into a series of forbearance agreements in which the bank agreed

temporarily not to exercise its remedies under the loan. As part of the forbearance

agreements, Mr. Dello Russo reaffirmed that “all obligations . . . shall remain

guarantied” and represented that he had no defenses under the guaranty. See, e.g.,

April 28, 2010 Forbearance Agreement § 10. He also expressly “waive[d],

discharge[d] and forever release[d]” Fifth Third Bank, as well as its successors and

assigns, from any defenses he had against them relating to the guaranty. See, e.g.,

id.§ 14.


                                          3
              Case: 13-15934    Date Filed: 05/06/2015   Page: 4 of 15


      After the forbearance period expired, Fifth Third Bank sold the American

Companies’ loan and Mr. Dello Russo’s guaranty, along with other loans, as part

of a portfolio to Bank of America. Because most of the loans in the portfolio were

in default, Bank of America purchased them at a discount compared to the total

amount owed collectively on the loans. Less than a week after Bank of America

acquired the loan, the American Companies advised Bank of America that they

needed additional cash to continue operating and asked the bank to loan more

money. Bank of America refused and, instead, exercised its right to accelerate the

loan and declared due all amounts payable from the American Companies. When

the American Companies failed to pay, Bank of America demanded payment on

Mr. Dello Russo’s guaranty. He refused to pay, claiming he had already satisfied

his guaranty by funding the American Companies under his agreement with Fifth

Third Bank.

      Bank of America exercised its right to sell the American Companies’

collateral, which consisted of nearly all of its assets. The American Companies

hired a broker to market the collateral. The broker identified an investment fund,

Blue Wolf, as a prospective purchaser. Blue Wolf offered to pay $1.5 million for

the collateral. After negotiations with Bank of America, Blue Wolf purchased the

collateral for $1.5 million. After the collateral was sold, the American Companies

still owed Bank of America more than $16 million on the loan.


                                         4
               Case: 13-15934       Date Filed: 05/06/2015     Page: 5 of 15


                                             B.

       Bank of America then filed this diversity lawsuit against Mr. Dello Russo,

seeking to collect $5.95 million under the guaranty, as well as costs and attorney’s

fees.1 In his answer, Mr. Dello Russo raised affirmative defenses asserting that

(1) he had paid off the guaranty by funding the American Companies; (2) even if

the guaranty did not contemplate that he could pay it off by funding the American

Companies, there was an accord and satisfaction in which Fifth Third Bank agreed

that Mr. Dello Russo’s funding of the American Companies satisfied his

obligations under the guaranty; and (3) Bank of America failed to sell the collateral

in a commercially reasonable manner. Shortly after discovery opened, Bank of

America moved for summary judgment. The district court granted the motion as to

Mr. Dello Russo’s affirmative defenses of payment and accord and satisfaction but

denied the motion on the commercial reasonableness defense, finding a disputed

issue of material issue of fact on that issue.

       After completing discovery, Bank of America again moved for summary

judgment, this time on the ground that it had acted in a commercially reasonable

manner when selling the collateral. The district court agreed and granted summary

judgment. A $5.95 million judgment against Mr. Dello Russo was entered; the


       1
         In the lawsuit, Bank of America also sued Stephen Rominger for breach of a separate
guaranty related to the American Companies. The claim against Mr. Rominger is not at issue in
this appeal.
                                              5
               Case: 13-15934        Date Filed: 05/06/2015      Page: 6 of 15


judgment also provided that Bank of America could recover its reasonable

attorney’s fees in an amount to be determined. Mr. Dello Russo appealed the

judgment to this Court, but we dismissed the appeal for lack of jurisdiction on the

ground that the district court’s judgment was not final because the judgment

“expressly reserved jurisdiction to resolve Bank of America[’s] claim for

attorneys’ fees.” Upon return to the district court, Bank of America was awarded

attorney’s fees, and an amended judgment was entered. Mr. Dello Russo appealed

from the amended judgment.2

                                              III.

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

all the evidence, and drawing all reasonable factual inferences, in favor of the

nonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321

(11th Cir. 2014). Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The parties agree that in this

diversity action Illinois law applies based on the choice-of-law provisions in the

guaranty and other loan documents.

       2
         As always, we must first determine whether we have jurisdiction. When we dismissed
Mr. Dello Russo’s original appeal, the case returned to the district court for resolution of the
attorney’s fees issue, but we invited Mr. Dello Russo to “renew [] his appeal following a final
judgment.” The district court, again vested with jurisdiction, resolved the attorney’s fees issue
and entered an amended final judgment. Because Mr. Dello Russo filed a timely notice of appeal
from the amended judgment, we have jurisdiction here.


                                               6
                Case: 13-15934       Date Filed: 05/06/2015        Page: 7 of 15


                                               IV.

                                                A.

       Mr. Dello Russo argues he paid off his guaranty by funding the American

Companies, even though he could have paid Fifth Third Bank directly. Even

accepting as true for the purposes of summary judgment Mr. Dello Russo’s

testimony that he funded the American Companies because Fifth Third Bank orally

promised him that doing so would satisfy his guaranty, 3 the district court correctly

granted summary judgment in favor of Bank of America. Mr. Dello Russo has

failed to come forward with evidence creating a disputed issue of material fact

about whether he performed his obligations under the guaranty because (1) the

plain language of the guaranty does not contemplate that Mr. Dello Russo could

satisfy the guaranty by funding the American Companies, and (2) there is no

evidence that the parties entered into a written agreement modifying the terms of

the guaranty to agree that Mr. Dello Russo could perform his obligations by

funding the American Companies. Moreover, Mr. Dello Russo’s affirmative

defense of accord and satisfaction fails because there is no evidence in the record

showing that the alleged oral agreement was made to resolve a bona fide dispute

about the amount owed on the guaranty.
       3
          The $10 million in funding Mr. Dello Russo provided greatly exceeded the $5.95
million he owed on the guaranty. One of only a few investors in the American Companies, Mr.
Dello Russo stood to lose his entire investment if the companies failed. It is beyond dispute that
if his efforts to fund the American Companies had succeeded in saving the companies, he would
have benefited; his paying off the guaranty instead would have benefited only the bank.
                                                7
              Case: 13-15934     Date Filed: 05/06/2015   Page: 8 of 15


                                          1.

      Under Illinois law, a guaranty is a legally enforceable contract that must be

construed according to its terms. S. Wine & Spirits of Ill. v. Steiner, 8 N.E. 3d

1065, 1069 (Ill. App. Ct. 2014). Although a guaranty is “strictly construe[d] . . . in

favor of the guarantor,” when the terms of the guaranty are unequivocal, “it must

be construed according to the terms and language used, as it is presumed the

parties meant what the language imports.” Id.

      The plain language of the guaranty prohibits Mr. Dello Russo from

performing his payment obligations to Fifth Third Bank by funding the American

Companies. In the guaranty, Mr. Dello Russo promised that if the American

Companies defaulted, he would provide “the full, prompt, and faithful payment

and performance when due” under two of the notes that made up the loan. See

Amended and Restated Guaranty ¶ 1(a), 1(b). Those notes, in turn, stated that the

American Companies could perform their obligations only by paying “in lawful

money . . . and in immediately available funds” the amount owed under the notes

to Fifth Third Bank or, later, Bank of America. See Term Note at 1; SOFA

Revolving Loan Note at 1. Neither the guaranty nor the notes contemplated that

Mr. Dello Russo could simply fund the American Companies to pay off his

obligation under the guaranty.




                                          8
                Case: 13-15934       Date Filed: 05/06/2015        Page: 9 of 15


       Perhaps recognizing that the guaranty did not permit him to pay off his

obligations by funding the American Companies, Mr. Dello Russo argues that he

and Fifth Third Bank orally agreed to modify the terms of the guaranty such that

his funding of the American Companies could constitute payment. Under Illinois

law, however, the guaranty is considered a credit agreement, 4 which may be

enforced only if the agreement is in writing and signed by both the debtor and

creditor. See 815 Ill. Comp. Stat. 160/2. Furthermore, a debtor cannot assert a

claim, counterclaim, or defense based on an “agreement by a creditor to modify or

amend an existing credit agreement” unless the creditor and debtor have signed a

writing setting forth the relevant terms of the modification. Id. 160/2, 160/3; see

Teachers Ins. & Annuity Ass’n of Am. v. LaSalle Nat’l Bank, 691 N.E. 2d 881, 888

(Ill. App. Ct. 1998) (“Because the purported credit agreement to modify or amend

the loans is not written and signed by the parties, [Illinois law] bars any

counterclaims or defenses based on it.”). Mr. Dello Russo has not come forward

with a signed writing in which Fifth Third Bank agreed to modify the guaranty’s

payment terms such that funding the American Companies could constitute


       4
           A credit agreement is an “agreement . . . by a creditor to lend money or extend credit
. . . not primarily for personal, family or household purposes, and not in connection with the
issuance of credit cards.” 815 Ill. Comp. Stat. 160/1(1). Illinois courts have explained that when
a guaranty agreement is an integral part of a loan or a condition precedent to a loan, it, together
with the loan, constitutes a credit agreement. See Bank One, Springfield v. Roscetti, 723 N.E. 2d
755, 762 (Ill. App. Ct. 1999). Mr. Dello Russo’s guaranty was an integral part of Fifth Third
Bank’s loan to the American Companies because the terms of the loan contemplated a guaranty
from Mr. Dello Russo.
                                                 9
             Case: 13-15934    Date Filed: 05/06/2015   Page: 10 of 15


performance under the guaranty; therefore, he cannot enforce the terms of the

guaranty that he asserts were modified.

                                          2.

      Mr. Dello Russo next argues that there was an accord and satisfaction in

which Fifth Third Bank agreed to accept Mr. Dello Russo’s funding of the

American Companies as fulfilling his obligations under the guaranty. Under

Illinois law, an accord and satisfaction “is an agreement between the parties which

settles a bona fide dispute over an unliquidated claim.” A.F.P. Enters. v. Crescent

Pork, Inc., 611 N.E. 2d 619, 623 (Ill. App. Ct. 1993). The elements of an accord

and satisfaction are:

      (1) an honest dispute between the parties as to the amount due at the time
      payment was tendered; (2) a tender of payment with the explicit
      understanding of both parties that it is in full payment of all demands; and
      (3) an acceptance by the creditor with the understanding that the tender is
      accepted as full payment.

Id. Mr. Dello Russo can point to no evidence in the record showing an honest

dispute with Fifth Third Bank about the amount he owed under the guaranty at the

time that he funded the American Companies. Instead, the evidence, viewed in the

light most favorable to Mr. Dello Russo, shows that Fifth Third Bank proposed that

Mr. Dello Russo fund the American Companies as a way to keep the companies

afloat, not because of any dispute between Mr. Dello Russo and Fifth Third Bank

about the amount he owed under the guaranty. Under these facts, Mr. Dello Russo


                                          10
                Case: 13-15934       Date Filed: 05/06/2015      Page: 11 of 15


cannot show there was an accord and satisfaction. See Choi v. Messer, 548 N.E.

2d 33, 35-36 (Ill. App. Ct. 1989) (affirming grant of summary judgment where

there was no evidence of a bona fide dispute as to the amount owed).

                                               B.

      Mr. Dello Russo argues that when Bank of America sold the collateral

securing the American Companies’ loan, which was substantially all of the

American Companies’ assets, for $1.5 million, Bank of America failed to conduct

the sale in a commercially reasonable manner. Although Mr. Dello Russo

challenges the commercial reasonableness of the sale on a variety of grounds, each

of his arguments fails.

      Upon the American Companies’ default on the loan, Bank of America was

entitled to take possession of the loan’s collateral and “sell, lease, license, or

otherwise dispose of any or all of the collateral.” 810 Ill. Comp. Stat. 5/9-609(a),

5/9-610(a). 5 However, “[e]very aspect” of Bank of America’s disposition of the

collateral “including the method, manner, time, place, and other terms, must be

commercially reasonable.” Id. 5/9-610(b). A disposition of collateral is

commercially reasonable if it is made “in conformity with reasonable commercial

practices among dealers in the type of property that was the subject of the

disposition.” Id. 5/9-627(b)(3). The fact that the secured party could have


      5
          Illinois’s statute is modeled on Article 9 of the Uniform Commercial Code.
                                               11
              Case: 13-15934     Date Filed: 05/06/2015     Page: 12 of 15


obtained more value if it had disposed of the collateral “at a different time or in a

different method . . . is not of itself sufficient to preclude” that the secured party

acted in a commercially reasonable manner. Id. 5/9-627(a). If Bank of America

failed to act in a commercially reasonable manner, then Mr. Dello Russo’s liability

under the guaranty should be reduced by the amount of the proceeds that would

have been realized had Bank of America acted in a commercially reasonable

manner. Id. 5/9-626(3)(B).

      Bank of America acted in a commercially reasonably manner when it relied

on an investment broker hired by the American Companies to market the collateral

and find a buyer. The undisputed evidence shows that the broker used a national

marketing campaign to identify prospective purchasers for the American

Companies’ assets. After the broker identified Blue Wolf as a potential purchaser

that was willing to purchase the collateral for $1.5 million, Bank of America

negotiated directly with Blue Wolf to try to increase the purchase price. But, given

the financial distress of the American Companies, Blue Wolf was unwilling to pay

any more than $1.5 million; lacking any other prospective purchasers willing to

pay more, Bank of America sold the collateral to Blue Wolf for $1.5 million.

      Although Mr. Dello Russo argues it was unreasonable for Bank of America

to rely on a broker hired by the American Companies to sell the assets, the

involvement of the debtor company in the sale of its assets is commercially


                                           12
             Case: 13-15934     Date Filed: 05/06/2015    Page: 13 of 15


reasonable because the company “has access to confidential information and its

officers and directors are also in the best position to market the company for sale,

or at the very least, advise the secured lender on how to market the company.”

Edgewater Growth Cap. Partners LP v. H.I.G. Cap., Inc., 68 A.3d 197, 213-14

(Del. Ch. 2013) (applying Illinois law).

      Mr. Dello Russo also contends that it was not commercially reasonable for

Bank of America to rely on the American Companies and their broker to identify

prospective purchasers because the American Companies’ executives had a

conflict of interest in that they were more interested in trying to secure jobs with

the purchaser than securing the maximum price for the collateral. The only

evidence Mr. Dello Russo has produced to show such a conflict of interest is that

Blue Wolf hired one of the American Companies’ executives to continue working

after the acquisition. This evidence, without more, does not support an inference

that the American Companies’ executives either intended or actually arranged to

sell the collateral for less than its fair market value. Instead, Mr. Dello Russo

relies on speculation, which is insufficient to create a disputed issue of material

fact. See Cordoba v. Dillard’s Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)

(“Speculation does not create a genuine issue of fact; instead, it creates a false

issue, the demolition of which is a primary goal of summary judgment.” (internal

quotation marks omitted)).


                                           13
              Case: 13-15934     Date Filed: 05/06/2015    Page: 14 of 15


       Additionally, Mr. Dello Russo argues that Bank of America failed to act in a

commercially reasonable manner because, he claims, it was uninterested in selling

the collateral for the highest possible price since it expected to collect on the

guaranty. In his speculation, Mr. Dello Russo ignores that the American

Companies owed more than $17 million on their loan — meaning that even if

Bank of America expected to collect in full on Mr. Dello Russo’s $5.95 million

guaranty, the bank would not collect the full amount the American Companies

owed. Even though Bank of America purchased the loan and guaranty from Fifth

Third Bank at a discount, Bank of America still had an incentive to maximize its

profit, and Mr. Dello Russo has not come forward with any evidence to the

contrary. Mr. Dello Russo also ignores the undisputed evidence that Bank of

America tried, albeit unsuccessfully, to negotiate with Blue Wolf for a higher price

for the collateral.

       Mr. Dello Russo next attacks the sale of the collateral as not commercially

reasonable because, he contends, he was not given proper notice of the sale.

Although Bank of America sent notice to Mr. Dello Russo, pursuant to the

guaranty, that it would sell the collateral under an Article 9 sale, Mr. Dello Russo

claims that the collateral was actually sold by the American Companies in a short

sale, rendering the notice deficient and not commercially reasonable. Mr. Dello

Russo’s assumption that the American Companies, not Bank of America, sold the


                                           14
               Case: 13-15934       Date Filed: 05/06/2015       Page: 15 of 15


collateral to Blue Wolf is unsupported by evidence. Instead, the undisputed

evidence shows that Bank of America sold the collateral to Blue Wolf after

negotiations between the two parties. Because Mr. Dello Russo has adduced no

facts to support his contention that the American Companies, not Bank of America,

sold the collateral, his argument fails.

       Finally, Mr. Dello Russo argues that the sale was not commercially

reasonable because record evidence shows that the $1.5 million price was too low.

But “mere inadequacy of price in the absence of fraud, mistaken or illegal practice

does not vitiate the sale.” Nat’l Boulevard Bank of Chicago v. Jackson, 416 N.E.

2d 358, 361 (Ill. Ct. App. 1981); see also Voutiritsas v. Intercounty Title Co. of Ill.,

664 N.E. 2d 170, 179 (Ill. Ct. App. 1996) (“[P]rice alone does not establish

commercial reasonableness . . . .”). Even assuming, arguendo, that the sale price

for the collateral was too low, this fact would be insufficient to show that the sale

process was commercially unreasonable.6

                                               V.

       We conclude that Bank of America was entitled to summary judgment in

this case. Accordingly, we affirm.

       AFFIRMED.
       6
         Mr. Dello Russo also argues that the district court erred by excluding the testimony of
his valuation expert regarding the American Companies’ collateral. We need not address this
issue because, even assuming expert testimony that the collateral was worth in excess of $1.5
million, Mr. Dello Russo has failed to show that Bank of America’s sale of the collateral was
commercially unreasonable.
                                               15
