                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 10-10999         ELEVENTH CIRCUIT
                                                       JAN 19, 2011
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________          CLERK

                    D. C. Docket No. 1:09-cv-00523-KOB

U.S. BANK, NA, as successor to FDIC as
receiver for Park National Bank,

                                                      Plaintiff-Appellee,

                                   versus

MICHAEL HOFFMAN,

                                                      Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                             (January 19, 2011)


Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
       Michael Hoffman appeals the district court’s order granting summary

judgment to U.S. Bank, N.A. (U.S. Bank) in an action alleging breach of contract

involving commercial property.1 Hoffman contends the district court erred in

granting relief because his affirmative defense of equitable estoppel creates a

genuine issue of material fact as to the validity of U.S. Bank’s claim. Specifically,

Hoffman claims U.S. Bank should be equitably estopped from enforcing the

guaranty agreement executed by him in favor of Noble Building, LLC (Noble),

because the bank’s own actions and misstatements directly contributed to the

default of the loan. U.S. Bank claims Hoffman failed to make payments pursuant

to the guaranty agreement after the note went into default and is now liable in the

amount of $1,222,484.60.2 After review, we affirm the district court’s grant of

summary judgment.3




       1
        U.S. Bank was substituted as the plaintiff for Park National Bank after the FDIC took
over Park National Bank and transferred its assets to U.S. Bank.
       2
         The record shows the property went into foreclosure and was later sold. U.S. Bank
contends this figure represents the deficiency amount due under the note, after deducting the
foreclosure bid price and the amount held in the escrow fund, and including pre-judgment
interest and attorney’s fees.
       3
        We review a district court’s grant of summary judgment de novo, viewing all facts in the
light most favorable to the non-moving party. Willingham Sports, Inc. v. Bureau of Alcohol,
Tobacco, Firearms, and Explosives, 415 F.3d 1274, 1276 (11th Cir. 2005).



                                                2
      To establish the defense of equitable estoppel under Alabama law, a party

must show the following:

            (1) That the person against whom estoppel is asserted . . .
            communicates something in a misleading way, either by words,
            conduct, or silence, with the intention that the communication
            will be acted on; (2) That the person seeking to assert estoppel,
            who lacks knowledge of the facts, relies upon [the]
            communication; and (3) That the person relying would be
            harmed materially if the actor is later permitted to assert a
            claim inconsistent with his earlier conduct.

Allen v. Bennett, 823 So. 2d 679, 685 (Ala. 2001) (quotations omitted).

      As stated in the district court’s well-reasoned order, even assuming

arguendo that Hoffman could show the first and second elements of equitable

estoppel, his defense fails because he has not shown the third element–that he

would be harmed materially if U.S. Bank was permitted to assert a claim

inconsistent with their earlier conduct. Although U.S. Bank allegedly refused to

allow Hoffman to use escrow funds for improvements to the property, U.S. Bank’s

subsequent act of applying the escrow funds to the debt owed by Noble is

consistent with U.S. Bank’s statement that the funds would not be used for

improvements because they might be needed to pay the debt. Further, Hoffman

has not shown how any act or statement made by U.S. Bank is inconsistent with its

instant claim seeking payment under the guaranty agreement. Thus, Hoffman has



                                         3
failed to establish an equitable estoppel defense, and we affirm the district court’s

grant of summary judgment.

      AFFIRMED.




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