UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

BMO HARRIS BANK N.A., 

 

 Plaintiff, 

 

v. Case No. 2:17-cv-760 

 JUDGE GEORGE C. SMITH 

 Magistrate Judge Jolson 

ICS 1 LTD, et al., 

 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court upon Plaintiff BMO Harris Bank’s Motion for Summary 

Judgment. (Doc. 8). Defendants, ICS 1 Ltd. (“Borrower”) and Mark Harmon (“Guarantor”), filed 

a Response in Opposition, followed by a retraction. (Docs. 13 and 14). Plaintiff also filed a Reply. 

(Doc. 15). Additionally, Plaintiff filed a Supplemental Motion on damages following the 

liquidation of the collateral. (Doc. 22). Accordingly, the issues before the Court are fully briefed 

and ripe for review. For the reasons that follow, Plaintiff BMO Harris Bank’s Motion for Summary 

Judgment is GRANTED. 

I. BACKGROUND 

This is a collection and replevin action. On March 12, 2015, Borrower entered into two 

loan agreements (collectively the “Agreements”) with non-party GE Capital Commercial, Inc. 

(“GECCI”) to finance the purchase of equipment for use in Borrower’s business. Pursuant to the 

first agreement, Borrower agreed to pay GECCI $305,151.92 including interest. (Doc. 22-1). On 

April 21, 2015, Borrower entered into a second agreement whereby GECCI agreed to finance 

Borrower’s purchase of additional equipment. Borrower agreed to pay GECCI $99,188.88 
2 

including interest. (Doc. 22-1). Guarantor executed a Continuing Guaranty for both loan 

agreements in which Guarantor “agreed to promptly and fully perform, pay and discharge all of 

Borrower’s present and future liabilities, obligations and indebtedness to GECCI and its successors 

in interest.” (Doc. 8, Mot. for. Sum. Judgment at 5). Borrower also granted GECCI a security 

interest in collateral, which consisted of several vehicles, and GECCI “perfected its security 

interests in the Collateral by recording its lien on the Certificates of Title for each of the vehicles.” 

(Doc. 8-1, SOF ¶¶ 12–13). On December 1, 2015, GECCI transferred and assigned to Plaintiff all 

its rights, titles, and interests in and to its accounts with Defendants at which point Plaintiff became 

GECCI’s successor-in-interest. (Id. ¶ 15). In early 2017, Borrower defaulted on both loan 

agreements by failing to pay the amounts due thereunder. (Doc. 1, Compl. ¶ 16). As a result of 

the default, Plaintiff “elected to accelerate the balance due thereunder and declare the entire 

indebtedness owed immediately due and payable.” (Doc. 8, Mot. for. Sum. Judgment, at 6). “The 

principal amount due and owing after acceleration totals not less than $197,145.67.” (Doc. 8-1, 

SOF ¶ 21). In early 2018, Plaintiff took possession of the Collateral and subsequently “sold off 

all units of the Collateral at public auction” receiving “net proceeds of $94,468.09.” (Id. ¶¶ 30, 

34). 

II. STANDARD OF REVIEW 

 Plaintiff has moved for summary judgment pursuant to Rule 56 of the Federal Rules of 

Civil Procedure. 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 Court’s purpose in considering a summary judgment motion is 

not “to weigh the evidence and determine the truth of the matter” but to “determine whether 

there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A 
3 

genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient 

evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not 

significantly probative,” however, is not enough to defeat summary judgment. Id. at 249–50. 

 The party seeking summary judgment shoulders the initial burden of presenting the court 

with law and argument in support of its motion as well as identifying the relevant portions of 

“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial 

burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing 

that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Cox v. Kentucky Dep’t of Transp., 

53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce evidence that 

results in a conflict of material fact to be resolved by a jury”). In considering the factual allegations 

and evidence presented in a motion for summary judgment, the Court must “afford all reasonable 

inferences, and construe the evidence in the light most favorable to the nonmoving party.” Id. 

III. DISCUSSION 

Plaintiff seeks judgment in its favor against Defendants in the amount of $165,327.14 plus 

interest accruing at a rate of $77.73 per diem following September 6, 2018. (See Doc. 22). Plaintiff 

argues that summary judgment is appropriate with respect to both liability and damages. Plaintiff 

“is entitled to summary judgment with respect to liability, since the undisputed facts establish all 

four elements of BMO Harris’ claim for breach of contract.” (Doc. 22, Amend. Mem. at 8). 

Additionally, regarding damages, there is no genuine dispute “that Plaintiff has been damaged and 

the amount of damages.” (Doc. 22, Amend. Mem. at 9). 

A. Breach of Contract 
4 

The parties do not dispute that Defendants’ default under the Agreements constitutes a 

breach of contract which entitles Plaintiff to recover. “Defendants conceded in answering the 

Complaint that the Agreements constituted valid and binding contracts” and also admitted that 

“the Loan Documents that provide BMO Harris its rights ‘speak for themselves.’” (Doc. 22, 

Amend. Mem. at 8). 

 The laws of Utah govern the parties’ respective rights and obligations under the 

Agreements as dictated by contract. Under Utah law, a breach of contract action requires: “(1) a 

valid contract; (2) performance by the plaintiff thereunder; (3) breach of the contract by the 

defendant; and (4) damages to the plaintiff.” Simmons Media Grp. v. Waykar, LLC., 335 P.3d 885, 

890 (Utah Ct. App. 2014). The parties are in agreement that the above requirements are met. Both 

parties agree that the Agreements constitute valid contracts. They also agree that “BMO Harris 

and its predecessors-in-interest have performed any and all conditions and obligations required of 

them under the Loan Documents.” (Doc. 8-1, SOF ¶ 25). Furthermore, “Defendants breached by 

failing to make payments when due as required under the Agreements, thus causing damage to 

BMO Harris, which is entitled to recover from Defendants.” (Doc. 22, Amend. Mem. at 8). 

Consequently, all the requirements of a valid cause of action for breach of contract are met making 

summary judgment appropriate as no genuine issues of material fact remain.

B. Damages 

The amount of damages due and owing in this case was originally disputed by the parties. 

Plaintiff argued that summary judgment was appropriate as “Defendants cannot genuinely dispute 

that Plaintiff has been damaged and under the Agreements is owed an amount not less than 

$216,520.41, plus interest at the rate of $98.57 per diem from June 29, 2017, plus attorneys’ fees 

and costs incurred by BMO Harris to recover from Defendants all such amounts owed.” (Doc. 8, 
5 

Mot. for Sum. Judgment at 10). Defendants initially argued that there was an issue of material fact 

regarding the amount of damages owed due to “Plaintiff’s repossession of one of the tractors.” 

(Doc. 13, Mem. in Opp. at 1). Defendants later retracted the Memorandum in Opposition upon 

discovering that they were mistaken about repossession of the tractor and stated that “once Plaintiff 

repossesses all five trucks, it will determine the amount of alleged damages.” (Doc. 14, Mem. in 

Supp. at 2). Now that Plaintiff has repossessed the trucks and sold the Collateral, there is no longer 

a dispute regarding the amount of damages. “BMO Harris credited the account with the net sale 

proceeds of the Collateral on May 2, 2018, and applied the proceeds first to outstanding costs of 

collection, then to accrued and unpaid late fees, then to accrued and unpaid interest, and then to 

principal.” (Doc. 22, Amend. Mem. at 6). “Calculated as of September 6, 2018, after crediting 

Defendants with the net sale proceeds of the Collateral, the total amount due and owing under the 

Agreements, not including attorneys’ fees, totals $165,327.14.” (Doc. 22, Amend. Mem. at 6–7). 

“Interest continues to accrue on the amount of unpaid principal at the rate of $77.73 per diem.” 

(Doc. 22, Amend. Mem. at 6). Therefore, there is no genuine issue of material regarding damages 

as both parties are now in agreement on amount of damages following the sale of the Collateral. 

C. Attorneys’ Fees 

 Plaintiff argues that “under the Agreements, Defendants are obligated to the pay the 

attorneys’ fees and costs incurred by BMO Harris in enforcing its rights thereunder.” (Doc. 22 

Amend. Mem. at 7). However, Plaintiff provides no foundation for this argument nor is an amount 

owed specified. Due to the lack of specificity, Plaintiff’s request to order payment of attorneys’ 

fees is denied. 

IV. CONCLUSION 
6 

 Based on the aforementioned discussion, the Court finds that no genuine issues of fact 

remain and that Plaintiff BMO Harris Bank is entitled to judgment as a matter of law pursuant to 

Rule 56 of the Federal Rules of Federal Procedure. Accordingly, the Court GRANTS Plaintiff’s 

Motion for Summary Judgment (Doc. 8). Final judgment shall be entered in favor of Plaintiff in 

the amount of $165,327.14 plus interest at the rate of $77.73 per diem. 

 The Clerk shall remove Documents 8, 13, 14, 15, and 22 from the Court’s pending motions 

list and enter judgment in favor of the Plaintiff. 

 IT IS SO ORDERED. 

 

/s/ George C. Smith__________________ 

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT