UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

PNC BANK NATIONAL ASSOCIATION, 

 Plaintiff, Case No. 15-cv-11608 

v Honorable Thomas L. Ludington 

MARK GETTEL, et al., 

 

 Defendants. 

__________________________________________/ 

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 

DIRECTING PLAINTIFF TO SUBMIT PROPOSED JUDGMENT 

Beginning on January 12, 2007, Defendants Spectrum Manufacturing, Inc. and MCMK 

Investments, LLC, borrowed over $1,000,000 from Plaintiff PNC Bank National Association. 

These loans were in turn guaranteed by Defendants Spectrum, MCMK Investments, and Mark 

Gettel. ECF No. 1. By November of 2014, Defendants were in default of the loan agreements. 

Accordingly, PNC Bank sent Defendants a notice of default and demanded full payment of the 

indebtedness. 

When the indebtedness was not paid, PNC Bank filed the present action on May 6, 2015 

alleging five counts: (1) breach of the spectrum notes; (2) breach of the spectrum notes 

guaranties; (3) breach of the MCMK note; (4) breach of the MCMK note guaranties; and (5) 

claim and delivery of collateral. See ECF No. 1. In their answer to the complaint, Defendants 

admit that the notes, amendments, and guarantees speak for themselves, and that they failed to 

make payments on the notes in the agreed upon time. See ECF No. 10. PNC Bank then filed a 

motion for summary judgment on August 10, 2015. See ECF Nos. 17, 19. Defendants did not 

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file a response. Because there are no material facts in dispute, Plaintiff’s motion for summary 

judgment will be granted. 

I. 

 The following facts set forth by Plaintiff in its Motion for Summary Judgment are not 

disputed by Defendants. 

A.

 On January 12, 2007, Defendant Spectrum entered into a commercial demand note with 

Plaintiff PNC Bank in the amount of $250,000. See Def.’s Mot. for Summ. J. Ex. A. The note 

was modified on September 28, 2007 to increase the amount to $350,000. Id. Also on January 

12, 2007, Defendant Spectrum entered into a commercial installment note with Plaintiff PNC 

Bank in the amount of $105,000. Id. Ex. D. On February 1, 2007, Defendant Spectrum entered 

into a second commercial installment note with Plaintiff PNC Bank in the amount of $188,300. 

Id. Ex. B. Then, on February 22, 2008, Defendant Spectrum entered into a promissory note with 

Plaintiff PNC Bank in the amount of $106,700. Id. Ex. C. These notes together are hereinafter 

referred to as the “Spectrum Notes.” Defendants MCMK and Gettel agreed to an unlimited 

guaranty of the note payment on January 12, 2007. Id. Ex. J. 

On January 12, 2007, Spectrum and PNC Bank also entered into a security agreement. 

Pursuant to that agreement Defendant Spectrum granted the Bank a security interest in all of 

Defendants’ business assets, including accounts, equipment, inventory, chattel paper, general 

intangibles, instruments, rents, monies, books and records, software, attachments, accessories, 

replacements, additions, substitutions, and all proceeds (the “Collateral”). Id. Ex. H. The 

security agreement was perfected on January 22, 2007 through the filing of a UCC Financing 

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Statement. Id. at Ex. I. The UCC Financing Statement was amended on August 4, 2011 to 

update the name of the secured party from National City Bank to Plaintiff PNC Bank. Id. 

On September 28, 2007, Defendant Gettel, Defendant Spectrum and Plaintiff PNC Bank 

entered into a Subordination agreement. Id. Ex. L. Pursuant to that agreement, Gettel agreed to 

subordinate all indebtedness and interest thereon that Spectrum owed to him. Id. 

 On April 6, 2012, Defendant Spectrum and Plaintiff PNC entered into an amendment to 

the Spectrum Notes. Id. Ex. F. This amendment extended the maturity dates for the commercial 

installment notes by 6 months. Id. Defendant Mark Gettel consented to the amendment in his 

individual capacity as guarantor of the notes. Id. 

 Subsequently, on October 28, 2013, Defendant Spectrum and Plaintiff PNC Bank entered 

into a Forbearance and Modification Agreement. Id. Recognizing that the notes were in an 

existing state of default, Plaintiff agreed to forbear collection against either Spectrum, as the 

debtor, or MCMK and Mark Gettel, as guarantors. Id. In return, MCMK and Mark Gettel as 

guarantors agreed to make certain payments during the forbearance period. Id. This forbearance 

agreement was later amended on June 20, 2014. Id. 

B. 

 On January 12, 2007, Defendant MCMK entered into a commercial installment note in 

the amount of $340,000. Id. Ex. E. This note is hereinafter referred to as the “MCMK Note.” 

Defendants Spectrum and Gettel agreed to an unlimited guaranty of the note payment on January 

12, 2007. Id. Ex. K. 

On April 6, 2012, Defendant MCMK and Plaintiff entered into an amendment to the 

MCMK note whereby the maturity date of the note was extended 6 months. Id. Ex. G. 

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Defendant Mark Gettel consented to the amendment in his individual capacity as guarantor of the 

note. Id. 

 Subsequently, on October 28, 2013, Defendant MCMK and Plaintiff PNC Bank entered 

into a Forbearance and Modification Agreement. Id. Recognizing that the notes were in an 

existing state of default, Plaintiff agreed to forbear collection against either MCMK, as the 

debtor, or Spectrum and Mark Gettel, as guarantors. Id. In return, Spectrum and Mark Gettel as 

guarantors agreed to make certain payments during the forbearance period. Id. This forbearance 

agreement was amended on June 20, 2014. Id. There, the parties acknowledged that as of May 

27, 2014, Defendants owed $244,129.18 on the MCMK note. 

C.

Plaintiff sent Defendants a notice of default on the Spectrum Notes and demand for full 

and immediate repayment pursuant to the terms of the loan documents on November 18, 2014. 

Id. Ex. M. The notice explained that the following amounts were due and payable in full, 

together with costs, expenses, premiums, and attorney fees: Defendants owed the following: (1) 

$354,648.31 on the January 12, 2007 commercial demand note; (2) $15,381.02 on the January 

12, 2007 commercial installment note; (3) $23,974.72 on the February 1, 2007 commercial 

installment note; and (4) $24,991.01 on the February 22, 2008 promissory note. The letter 

explained that it was demanding payment from Defendants MCMK and Mark Gettel as 

guarantors as well as from Defendant Spectrum. Id. 

That same day, November 18, 2014, Plaintiff sent Defendants a notice of default on the 

MCMK Note and demand for full and immediate repayment pursuant to the terms of the loan 

documents. Id. The notice explained that Defendants owed $247,527.82 on that note, along with 

costs, expenses, premiums, and attorney fees. Id. The letter explained that it was demanding 

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payment from Defendants Spectrum and Mark Gettel as guarantors as well as from Defendant 

MCMK. Id. 

After Defendants failed to repay their obligations to Plaintiff PNC Bank, Plaintiff filed 

the instant suit on May 6, 2015. Plaintiff alleges that Defendants still have not repaid their 

obligations under the loan agreements. In their answer to Plaintiff’s complaint, Defendants do 

not dispute these allegations. Plaintiff now moves for summary judgment against Defendants on 

all of its claims. Defendants have not filed a response to this motion. 

II. 

A. 

A motion for summary judgment should be granted 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 moving party has the initial burden of identifying where to look 

in the record for evidence “which it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 

opposing party, who must set out specific facts showing “a genuine issue for trial.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986. “The court need consider only the cited materials, 

but it may consider other materials in the record.” Fed. R. Civ. P. 56(c). 

If an opposing party fails to properly address the factual assertions of the moving party, 

the court may “consider the facts undisputed for the purposes of the motion” and “grant 

summary judgment if the motion and supporting materials – including the facts considered 

undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). As explained by the 

Sixth Circuit: 

This burden to respond is really an opportunity to assist the court in understanding 

the facts. But if the non-moving party fails to discharge that burden—for example, 

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by remaining silent—its opportunity is waived and its case wagered. Nothing in 

either the Rules or case law supports an argument that the trial court must conduct 

its own probing investigation of the record. 

Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405 (6th Cir. 1992). Because there are no 

material facts in dispute, summary judgment will be granted in favor of Plaintiff PNC Bank on 

all of its claims. 

B. 

 Plaintiff’s first four claims allege breach of the Spectrum notes and MCMK note by both 

the debtor entities and the guarantors. Defendants do not deny that they entered into the note 

agreements with Plaintiff. Defs.’ Answer ¶¶ 1, 8-14. Defendants also do not deny that they 

entered into guarantee agreements on both the Spectrum notes and the MCMK note, or that they 

entered into the subordination agreement with Plaintiff. Id. at ¶¶ 16-18. Finally, Defendants 

admit that the Demand notes sent by Plaintiff speak for themselves, and that they failed to make 

payments as and when agreed. Id. ¶¶ 20-25. 

 Thus, Defendants do not deny that they entered into contracts with Plaintiff and 

subsequently breached those contracts. Defendants also do not contest the amounts Plaintiff 

claims Defendants owe it. Accordingly, summary judgment will be entered in favor of Plaintiff 

on Counts I-IV as a matter of law. Defendants Spectrum, MCMK, and Mark Gettel will be held 

jointly and severally liable for $716,766.25. 

C. 

 Plaintiff’s fifth claim (erroneously labeled Count VI) relates to its rights to Defendants’ 

Collateral under the Security Agreement. Defendants again admit that the note agreements speak 

for themselves and that Defendants have not paid the amount demanded. Defs.’ Answer ¶ 54. 

Defendants also admit that the Security Agreement entered into with Plaintiff and the financing 

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statements speaks for themselves, as does the Michigan Uniform Commercial Code. Id. ¶¶ 55-

56. Defendants also admit that the definition of Collateral provided by Plaintiff and the 

attachment, perfection, and priority of Plaintiff’s alleged lien speak for themselves. Id. ¶¶ 57-58. 

Defendants also neither admit nor deny Plaintiff’s allegation that the Collateral has an aggregate 

value which is less than the indebtedness Defendants’ owe to Plaintiff. Id. ¶ 60. 

The Michigan Court of Appeals has held that security agreements are generally effective 

according to their terms: 

When a debtor is in default under a security agreement, a secured party has the 

rights and remedies provided for in that agreement and he “may reduce his claim 

to judgment, foreclose or otherwise enforce the security interest by any available 

judicial procedure.” M.C.L.A. § 440.9501(1).... In addition, “(u)nless otherwise 

agreed a secured party has on default the right to take possession of the 

collateral.” M.C.L.A. § 440.9503.... 

Gorham v. Denha, 77 Mich. App. 264, 269-70, (1977) 

 Here, the security interest grants Plaintiff an interest in all of Defendants’ Collateral. See

Pl.’s Mot. for Summ. J. Ex. H. ¶ 1. The security agreement provides that upon default, Plaintiff 

has the right to take remedial action, as provided. Id. at ¶ 7. Plaintiff may exercise any and all 

rights and remedies available at law or equity to collect, enforce, or satisfy any debt. Id. Thus, 

under the plain terms of the agreement, Plaintiff may enter the premise on which the Collateral is 

located to take possession of the Collateral, attach, execute or levy the Collateral, and sell, 

transfer, or otherwise dispose of any Collateral. Id. Because the financing documents show that 

Plaintiff has a perfected security interest in Defendants’ Collateral, and because Defendants have 

breached the terms of the security agreement, summary judgment will be entered in favor of 

Plaintiff on Claim VI, and Plaintiff will be allowed to exercise its rights under the Security 

Agreement. 

III. 

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 Accordingly, it is ORDERED that Plaintiff’s Motion for Summary Judgment, ECF No. 

17, is GRANTED. 

 It is further ORDERED that Plaintiff is DIRECTED to submit a proposed judgment on 

or before November 20, 2015 via the link located under the Utilities section of CM/ECF. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: November 5, 2015 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on November 5, 2015. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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