1 On January 5, 2010, defendant William A. Swiacki, Jr. filed a motion to allow

and notice of filing of original affidavit in opposition to the motion for partial summary

judgment (Doc. 56). To the extent a ruling is required with respect to this pleading, same is

hereby GRANTED.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LESLIE C. SWIACKI, :

Plaintiff, :

vs. : CA 09-0348-C

WILLIAM A. SWIACKI, JR., :

et al., 

:

Defendants.

MEMORANDUM OPINION AND ORDER

This cause is before the Court on plaintiff’s motion for partial summary

judgment (Doc. 34; see also Doc. 35), the response of William A. Swiacki, Jr.

(Doc. 54),1

 and plaintiff’s reply brief (Doc. 62). The parties have consented to

the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. §

636(c), for all proceedings, including disposition of the instan t motion for

summary judgment. (Docs. 12 & 13 (“In accordance with provisions of 28

U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have

a United States magistrate judge conduct any and all proceedings in this case,

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 1 of 20
2 Any appeal taken from this memorandum opinion and order and judgment shall

be made to the Eleventh Circuit Court of Appeals. (See Docs. 12 & 13 (“An appeal from a

judgment entered by a magistrate judge shall be taken directly to the United States court of

appeals for this judicial circuit in the same manner as an appeal from any other judgment of this

district court.”))

3 There was no actual cash contribution of $240,000 by plaintiff. (See Doc. 56,

Affidavit of William A. Swiacki, Jr., at ¶ 2)

2

including the trial, order the entry of a final judgment, and conduct all postjudgment proceedings.”)) Upon consideration of the contents of the briefs,

attachments to the briefs, and all other pertinent pleadings, the Court DENIES

plaintiff’s motion for partial summary judgment (Doc. 34).2

FINDINGS OF FACT

1. On June 21, 2004, Leslie Swiacki and Bill Swiacki made a

$480,000 ($240,000 attributable to each) purchase money loan3

 to Draper

Woods Development, LLC (“Draper Woods”). (Compare Doc. 35, Affidavit

of Leslie Swiacki, at ¶¶ 2-3 with Doc. 56, Bill Swiacki aff., at ¶¶ 1-2) As

partial security therefor, a promissory note was apparently entered into on June

21, 2004. (Doc. 35, Exhibit A to Leslie Swiacki aff.)

FOR VALUE RECEIVED, the undersigned, DRAPER

WOODS DEVELOPMENT, L.L.C., a Massachusetts limited

liability company, with its principal office at 54 Main Street, 2nd

Floor, Sturbridge, Worcester County, Commonwealth of

Massachusetts (the “maker”) promises to pay to LESLIE S.

BAILEY, of 11800 Champion Road, Fairhope, Baldwin

County, State of Alabama, and WILLIAM A. SWIACKI, JR.,

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 2 of 20
3

of 938 Leigh Mill Road, Great Falls, Fairfax County,

Commonwealth of Virginia, as TENANTS IN COMMON (the

“payee”), or order in care of William A. Swiacki, Jr., 1501 Farm

Credit Drive, Suite 2500, McLean, Virginia 22102 or such other

places as may be designated in writing by the holder of this

Note, the principal sum of Four Hundred Eighty Thousand

and 00/100 Dollars ($480,000.00), as follows: (a) One Hundred

Thousand and 00/100 Dollars ($100,000.00) in thirty (30) days

(i.e., on or before July 21, 2004), and (b) Three Hundred Eighty

Thousand and 00/100 Dollars ($380,000.00) in twenty-four

months (i.e., on or before June [21], 2006), all with interest on

the unpaid balance from the date hereof at the rate of ten percent

(10%) per annum, which interest is payable annually on the

unpaid balance until fully paid. The entire principal balance,

together with any interest then unpaid, is due twenty-four (24)

months from the date hereof.

This NOTE may be prepaid in whole or in part at any

time without premium or penalty. All prepayments shall be

applied first to interest, then to principal payments in the order

of their maturity. With reference to Paragraph 16 of the belowreferenced mortgage, (a) the amount required for release of

individual finished building lots within Phases 2 and 3 of the

Draper Woods Subdivision, said Phase 2 and Phase 3 lots being

Lots 15-45, inclusive, as more particularly described in Exhibit

A attached hereto and made part hereof, shall be as set forth in

Exhibit B attached hereto and made part hereof, and (b) the

amount required for release of Lot 46 as more particularly

described in said Exhibit A shall be the principal amount of One

Hundred Thousand and 00/100 Dollars ($100,000.00) plus

accrued interest on said principal amount.

This NOTE shall, at the option of the holder, become

immediately due [and] payable without notice or demand by the

holder to the maker upon the occurrence of any of the following

events:

1. Failure of the maker to pay when due any payment

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 3 of 20
4

of principal or interest herein required;

2. Default, continuing for more than thirty (30) days

by the maker, under any mortgage, agreement or undertaking

securing in any way the indebtedness hereby evidenced or given

in connection herewith;

3. Default under any prior mortgage encumbering the

Premises not cured within the applicable grace periods;

4. Death, dissolution or termination of existence of

the maker or of any endorser or guarantor hereon;

5. The making of an assignment for the benefit of

creditors, insolvency, appointment of a receiver of any part of

the property of, or the filing of a petition in bankruptcy, or the

commencement of any proceedings under any bankruptcy or

insolvency law or any law relating to the relief of debtors,

readjustment of indebtedness, reorganization, composition or

extension, by or against the maker or any endorser or guarantor

hereon.

While any default exists in the making of any payments

required by this Note (including final payment upon maturity)

or in the performance or observance of any of the covenants,

agreements or conditions of this Note or of any instrument now

or hereafter evidencing or securing the indebtedness evidence

hereby, the maker further promises to pay, on each payment

date, an additional five percent (5%) on the amount then due and

in arrears and the payment of such additional amount which has

accrued shall be a condition precedent to the curing of any

default.

The maker and all endorsers and guarantors of the Note

hereby waive presentment, demand, notice, protest and all other

demands and notices in connection with the delivery,

acceptance, performance, default or enforcement of this Note,

generally waive all suretyship defenses, assent to any extension

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 4 of 20
5

or postponement of the time of payment or any other

indulgences and to the addition or release of any party or person

primarily or secondar[il]y liable including the maker.

The maker and all endorsers and guarantors of this Note

hereby assent to the release in whole or in part of any collateral

held by the payee of this Note as security for the payment of this

Note.

The rights, powers, privileges and remedies of the holder

of this Note are cumulative and not exclusive of any right,

power, remedies and privileges which the holder might have

under any other agreement now in effect or hereafter entered

into between the maker and the payee and the failure to assert

any power, right or remedy shall not be deemed to be a waiver

or election. 

This Note is transferable by any holder by endorsement

or assignment in writing. The holder of this Note may negotiate,

assign and transfer this Note and may deliver all or any part of

the collateral security held hereunder to the transferee who shall

thereupon became vested with all the powers and rights above

given to the payee in respect to the collateral security transferred

and the payee shall thereafter be forever released and discharged

of and from any and all liability or responsibility to the

undersigned for or on account of the collateral security so

delivered and the payee shall retain all powers and rights with

respect to the collateral security not so delivered. 

If this Note be not paid when due or in the event of a

default or acceleration in accordance with the terms hereof, and

if it be placed with an attorney for collection, the maker agrees

to pay all costs of collection, including reasonable attorney’s

fees, which costs shall be added to the amount due under this

Note and shall be recoverable with the amount due under this

Note. Said costs shall be in addition to all costs and

disbursements allowed by the statutes of the Commonwealth of

Massachusetts. 

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 5 of 20
6

In the event that any notice shall be given hereunder, it

shall be sent by registered or certified mail, postage prepaid, in

the case of the maker to such address as is known to the payee,

and in the case of the payee to 1501 Farm Credit Drive, Suite

2500, McLean, Virginia 22102 or, in the case of either party, to

such address as is subsequently indicated in writing to the other

party.

(Id.) The promissory note, on its face, indicates that same was being executed

on June 21, 2004, in Sturbridge, Massachusetts by Mark W. Judson and

William A Swiacki, Jr. on behalf of Draper Woods and, as well, jointly and

severally guaranteed by Judson and Bill Swiacki; however, the document

contains no signatures and, in fact, none of the parties in this lawsuit have

produced a copy of the promissory note containing the signatures of Judson

and Bill Swiacki. (See id.; cf. Doc. 62, Affidavit of Robert J. Riccio, at ¶¶ 2-5

(plaintiff’s counsel received in discovery only an unexecuted copy of the

promissory note but after originally receiving only unexecuted copies of the

loan modification agreement and promissory note extension plaintiff’s counsel

received executed copies of those two documents identical to the unexecuted

copies)) 

2. The unexecuted June 21, 2004 promissory note states on its face

that it was being “secured by a mortgage on certain real estate located within

the Draper Woods Subdivision, Sturbridge, Worcester County, Massachusetts,

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 6 of 20
4 See Doc. 56, Bill Swiacki aff., at ¶ 5 & n.5 (Mark Judson and Bill Swiacki were

each 50% members and co-managers of Draper Woods).

7

duly recorded with the Worcester District Registry of Deeds[.]” (Doc. 35,

Exhibit A to Leslie Swiacki aff., at 4) The mortgage was executed by the

managers of Draper Woods, that is, Mark Judson and Bill Swiacki, Jr.,4

 in

Sturbridge, Massachusetts on June 21, 2004. (Doc. 35, Exhibit A to Leslie

Swiacki aff., MORTGAGE, at 3; see also id. at 1 (“DRAPER WOODS

DEVELOPMENT, LLC, a Massachusetts limited liability company with its

principal office at 54 Main Street, 2nd Floor, Sturbridge, Worcester County,

Commonwealth of Massachusetts (the “Mortgagor”), FOR

CONSIDERATION PAID, hereby GRANTS to LESLIE S. BAILEY, of

11800 Champion Road, Fairhope, Baldwin County, State of Alabama, and

WILLIAM A. SWIACKI, JR., of 938 Leigh Mill Road, Great Falls, Fairfax

County, Commonwealth of Virginia, as TENANTS IN COMMON (the

“Mortgagee”), with MORTGAGE COVENANTS to secure the payment of

Four Hundred Eighty Thousand and 00/100 Dollars ($480,000.00) at the

times, in the manner and with interest, all as provided in a certain note of even

date from Mortgagor to Mortgagee (the “Note”), and also to secure the

performance of all covenants and agreements herein and in the Note, and any

and all other obligations due from Mortgagor to Mortgagee whether now

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 7 of 20
8

existing or hereafter arising, the real estate described in Exhibit A attached

hereto and made part hereof (the “Premises”), together with all equipment and

fixtures owned by the Mortgagor now or hereafter thereon which are a part of

the realty.”))

3. On May 14, 2008, Bill Swiacki, using a durable power of

attorney, executed a Loan Modification Agreement for renewal and extension

of the payment of the promissory note. (See Doc. 62, Exhibit A-2, Loan

Modification Agreement)

For Value Received, the undersigned, DRAPER

WOODS DEVELOPMENT, LLC (the “maker”) and LESLIE

S. BAILEY (also known as LESLIE C. SWIACKI) and

WILLIAM A. SWIACKI, JR. (the “payee”) under that certain

Promissory Note date June 21, 2004 in the principal amount of

$480,000.00 hereby agree that (a) the maturity date therein shall

be extended to August 15, 2009, and (b) Exhibit B to said Note

shall be deleted in its entirety and be replaced by the revised

Exhibit B attached hereto and made part hereof.

All other terms of said Promissory Note are hereby

ratified and confirmed.

(Id.)

4. On March 11, 2009, one of plaintiff’s attorneys wrote a letter to

counsel for Bill Swiacki requesting written assurances that plaintiff would be

paid the full amount due her based upon the aforementioned purchase money

loan made to Draper Woods. (See Doc. 62, Exhibit B, Affidavit of David R.

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 8 of 20
5 See Doc. 56, Bill Swiacki aff., at ¶ 9 (“Beginning in February 2009, [Leslie]

indicated that she would be expecting full payment of her share of the loan on the August 15,

2009 maturity date established by the loan modification agreement dated May 14, 2008.”).

9

Quittmeyer, at ¶ 2) Plaintiff’s counsel received no response to this letter. (Id.)5

5. Plaintiff filed her complaint in this Court initially against only

her brother, William A. Swiacki, Jr., and Swiacki Trust Management

Company. (See Doc. 1) 

6. On August 4, 2009, counsel for plaintiff received an email from

one of the attorneys representing Bill Swiacki which stated the following

regarding plaintiff’s share of the purchase money loan made to Draper Woods:

“‘I am quite certain that there are no funds to pay your client under the

documents.’” (Doc. 62, Exhibit B, Quittmeyer aff., at ¶ 3)

7. On October 1, 2009, plaintiff filed her first amended complaint,

adding as parties defendant Draper Woods and Mark W. Judson, and asserting

as Count Seven against Draper Woods, Bill Swiacki and Judson breach of

Promissory Note and Guaranties. (Doc. 22, at 1 & 13) “Defendants Draper

Woods, William Swiacki, and Judson have defaulted under the Note and

guaranties, and each of them owes the plaintiff the full amount due to her

thereunder, including all lawful costs, charges, late fees, and attorney’s fees.”

(Doc. 22, at ¶ 72; see also Doc. 64, at ¶ 76 (plaintiff’s second amended

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 9 of 20
10

complaint wherein she makes the same allegations in Count Seven)) 

8. Plaintiff filed her motion for partial summary judgment on

November 30, 2009 (Doc. 34; see also Doc. 35), therein seeking judgment in

her favor on Count Seven of the complaint, as amended, against defendants

Bill Swiacki and Draper Woods. (See id.) In response to plaintiff’s motion,

defendant Bill Swiacki does not deny the existence of a promissory note or that

plaintiff is owed money under same. (See Doc. 56, Bill Swiacki aff., at ¶ 11)

Instead, it is defendant Swiacki’s contention that because no executed copy of

the promissory note has been produced, he is unable to determine if it was

executed in the form alleged by plaintiff and, as a result, cannot determine the

amount owed. (Id.) “Also, there is no proof that Leslie should be awarded 15%

per annum interest, late charges, expenses and costs of collection, including

attorneys’ fees and court costs. . . . There is no showing of the interest rate

allowed by the Commonwealth of Massachusetts or the Commonwealth of

Virginia on a promissory note or the amount allowed with respect to attorney

fees and expenses.” (Id. at ¶¶ 11 & 13) In his brief in opposition to the motion

for partial summary judgment, Bill Swiacki cites to some cases from Virginia

regarding unexecuted copies of promissory notes and intent behind such notes.

(See Doc. 54, at 3-4)

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 10 of 20
6 The substantive law will identify which facts are material. 477 U.S. at 248, 106

S.Ct. at 2510. The Supreme Court concluded in Anderson “that the determination of whether a

given factual dispute requires submission to a jury must be guided by the substantive evidentiary

standards that apply to the case.” Id. at 255, 106 S.Ct. at 2514.

11

CONCLUSIONS OF LAW

A. Summary Judgment Standard.

1. Summary judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed.R.Civ.P. 56(c)(2); see Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“The

mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment.”);6

Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (“[S]ummary

judgment is appropriate even if ‘some alleged factual dispute’ between the

parties remains, so long as there is ‘no genuine issue of material fact.’”). 

2. The party seeking summary judgment has the initial

responsibility of informing the court of the basis for the motion and of

establishing, based upon the discovery instruments outlined in Rule 56(c), that

there is no genuine issue of material fact and that the moving party is entitled

to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323,

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 11 of 20
7 Rule 56(e)(2) now reads, in relevant part, as follows: “When a motion for

summary judgment is properly made and supported, an opposing party may not rely merely on

allegations or denials in its own pleading; rather, its response must–by affidavits or as otherwise

provided in this rule–set out specific facts showing a genuine issue for trial.” Id.

12

106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Board of

Public Educ. for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007) (“The

moving party bears the initial burden of showing the court, by reference to

materials on file, that there are no genuine issues of material fact that should

be decided at trial.”). Once this initial demonstration is made, Rule 56(e)

requires the nonmoving party to “go beyond the pleadings and by [his] own

affidavits, or by the ‘depositions, answers to interrogatories, and admissions

on file,’ designate ‘specific facts showing that there is a genuine issue for

trial.’” Celotex Corp., supra, 477 U.S. at 324, 106 S.Ct. at 2553, quoting

Fed.R.Civ.P. 56(e)7

; see also Allen, supra, at 1314 (“‘When a moving party

has discharged its burden, the non-moving party must then “go beyond the

pleadings,” and show by its own affidavits, or by “depositions, answers to

interrogatories, and admissions on file,” designate specific facts showing that

there is a genuine issue for trial.’”); see Comer v. City of Palm Bay, Florida,

265 F.3d 1186, 1192 (11th Cir. 2001) (“Once the moving party discharges its

initial burden of showing that there is an absence of evidence to support the

non-moving party’s case, the non-moving party must specify facts proving the

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 12 of 20
13

existence of a genuine issue of material fact for trial confirmed by affidavits,

‘”depositions, answers to interrogatories, and admissions on file.”’”).

Forbidding reliance upon pleadings precludes a party from

“choos[ing] to wait until trial to develop claims or defenses

relevant to the summary judgment motion.” . . . This effectuates

the purpose of summary judgment which “‘is to pierce the

pleadings and to assess the proof in order to see whether there

is a genuine need for trial.’” . . . Thus, “mere general allegations

which do not reveal detailed and precise facts” will not prevent

the award of summary judgment upon a court’s determination

that no genuine issue for trial exists.

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert.

denied sub nom. Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74,

133 L.Ed.2d 33 (1995); see also LaChance v. Duffy’s Draft House, Inc., 146

F.3d 832, 835 (11th Cir. 1998) (“[The nonmoving party] must raise ‘significant

probative evidence’ that would be sufficient for a jury to find for that party.”).

In other words, there is no genuine issue for trial “[w]here the record taken as

a whole could not lead a rational trier of fact to find for the non-moving

party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, supra, 265

F.3d at 1192 (“Summary judgment is required where the non-moving party’s

response to a motion is merely ‘a repetition of his conclusional allegations’

and is unsupported by evidence showing an issue for trial.”).

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 13 of 20
14

3. In considering whether the plaintiff is entitled to summary

judgment, the Court has viewed the facts in the light most favorable to

defendant William A. Swiacki, Jr. Comer, supra, 265 F.3d at 1192 (“We view

the evidence and all factual inferences raised by it in the light most favorable

to the non-moving party, and resolve all reasonable doubts about the facts in

favor of the non-moving party.”). 

The requirement to view the facts in the nonmoving party’s

favor extends only to “genuine” disputes over material facts. A

genuine dispute requires more than “some metaphysical doubt

as to the material facts.” A “mere scintilla” of evidence is

insufficient; the non-moving party must produce substantial

evidence in order to defeat a motion for summary judgment. 

Garczynski, supra, 573 F.3d at 1165 (internal citations omitted).

B. Choice of Law-Contract.

4. “‘A federal court in a diversity case is required to apply the laws,

including principles of conflict of laws, of the state in which the federal court

sits.’” Colonial Life & Accident Ins. Co. v. Hartford Fire Ins. Co., 358 F.3d

1306, 1308 (11th Cir. 2004) (citation omitted); see also Trumpet Vine

Investments, N.V. v. Union Capital Partners I, Inc., 92 F.3d 1110, 1115 (11th

Cir. 1996) (“In determining which law applies, a federal district court sitting

in diversity must apply the choice of law rules of the forum state.”). It is clear

that “Alabama applies the traditional doctrine[] of lex loci contractus to

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 14 of 20
15

contract claims . . . . The doctrine of lex loci contractus governs the validity,

interpretation, and construction of the contract. The doctrine states that ‘a

contract is governed by the laws of the state where it is made except where the

parties have legally contracted with reference to the laws of another

jurisdiction.’” Colonial Life & Accident Ins. Co., supra (internal citation

omitted); compare id. and Industrial Chem. & Fiberglass Corp. v. North River

Ins. Co., 908 F.2d 825, 829 n.3 (11th Cir. 1990) (“Alabama’s choice of law

rule provides that the law of the state wherein the contract was executed shall

govern interpretation of the contract. The last act necessary to the execution

of the North River policies, the receipt and acceptance of the policies by the

named insured, took place in New York.” (internal citation omitted)) with

Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So.3d 200, 213

(Ala. 2009) (“Alabama law follows the traditional conflict-of-law principles

of lex loci contractus . . . . Under the principles of lex loci contractus, a

contract is governed by the law of the jurisdiction within which the contract

is made.” (internal citation omitted)) and Stovall v. Universal Constr. Co., Inc.,

893 So.2d 1090, 1102 (Ala. 2004) (“In a contractual dispute, Alabama law

would have us first look to the contract to determine whether the parties have

specified a particular sovereign’s law to govern. . . . Lacking such a

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 15 of 20
8 Therefore, defense counsel’s citation to Virginia law with respect to the

promissory note provides this Court with no guidance or assistance.

16

contractual specification, we follow the principle of lex loci contractus,

applying the law of the state where the contract was formed.”). 

5. The parties appear to agree that the unexecuted June 21, 2004

promissory note was made in Massachusetts (compare Doc. 56, Bill Swiacki

aff., at ¶ 12 (“If the original promissory note for the purchase money loan was

executed, it was executed in Massachusetts.”) with Doc. 62, at 6 n.1 (“Because

Alabama law provides that the law of the state where the contract was

executed shall govern interpretation of the contract, the last act necessary to

the execution of the Note is the determining factor in this analysis. . . . It

appears from Bill’s affidavit that that place is Massachusetts.”)); therefore, the

Court finds Massachusetts law, not Virginia or Alabama law, applicable in this

case.8

 While the May 14, 2008 loan modification agreement may well have

been executed in Virginia and Massachusetts as Bill Swiacki contends (Doc.

56, Swiacki aff., at ¶ 12), Virginia law still has no application because all that

document changed was the maturity date of the loan, same being extended to

August 15, 2009, a date that has since passed. In fact, the modification

agreement specifically ratified and confirmed “[a]ll other terms of said

Promissory Note[.]” (Doc. 62, Exhibit A-2, LOAN MODIFICATION

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 16 of 20
17

AGREEMENT)

C. Plaintiff’s Promissory Note Claim.

6. Massachusetts law is clear that “[s]ummary judgment on breach

of a promissory note is appropriate once it is established in discovery that there

is no genuine issue of material fact regarding the authenticity of the note and

the amount due on said note.” Gelfand v. Sorkin, 2005 WL 3489705, *4

(Mass.Super. October 17, 2005) (citation omitted). “Once the moving party

establishes execution, delivery and non-payment on the promissory note, the

burden shifts to the defendant to demonstrate by way of affidavit, that there is

a genuine issue for trial.” Id. (citation omitted); see also First Colonial Bank

for Savings v. Webster, 1993 WL 818626, *2 (Mass.Super. October 12, 1993)

(“The maker of a promissory note is obligated to pay the note in accordance

with its terms. When a holder produces a note and proves the maker’s

signature, the maker has the burden of proving a defense to payment.” (internal

citations omitted)).

7. In light of the requirement under Massachusetts law that the

moving party establish execution of the promissory note at issue, plaintiff’s

inability to locate an executed copy of the promissory note, and William

Swiacki’s unwillingness to agree that the copy of the promissory note

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 17 of 20
9 See First Colonial Bank for Savings, supra, at *2 (“A guaranty imposes upon a

guarantor collateral liability for a principal’s obligations. If the principal defaults on its

obligations, the guarantor must pay in accordance with the guaranty’s terms.”). 

18

produced to this Court by plaintiff (having earlier been produced to plaintiff

in discovery by defendant Swiacki) “was in fact executed or that it was

executed in the form alleged by [the moving party]” (Doc. 54, William

Swiacki aff., at ¶ 11), this Court finds itself in the position of having to deny

plaintiff’s motion for partial summary judgment against William Swiacki and

Draper Woods in respect to the promissory note. In this regard, the

undersigned would note that while the “unexecuted” June 21, 2004 promissory

note presented to the Court would undoubtedly be the best evidence of the

substantive provisions and contents of same (see Doc. 62, at 3-4), it cannot be

said that same is the best evidence of the execution of that promissory note by

William Swiacki and Mark Judson as co-managers of Draper Woods or of the

joint and several guaranty9

 by Bill Swiacki and Judson. Instead, the best

evidence of the execution of that document would be the testimony and/or

admissions of Bill Swiacki and/or Mark Judson. Compare Gelfand, supra, at

*1 & *4 (“The Goldins admit that they signed the promissory note and

promised to [p]a[y] Gelfand on January 16, 2002 for the loan. Yelena Goldin

Request for Admissions; David Goldin Request for Admissions. . . . By virtue

Case 1:09-cv-00348-C Document 65 Filed 01/27/10 Page 18 of 20
19

of the defendants’ admissions, the existence and authenticity of the promissory

notes are admitted.”) with First Colonial Bank for Savings, supra, at *2

(“Because the bank has produced the note and demanded payment, and

Webster has admitted that he executed the note on behalf of the 127 Ocean

Street Trust, the bank is entitled to summary judgment against the trust unless

the trust raises a genuine issue of material fact regarding a valid defense to

payment. . . . Webster executed and delivered a guaranty to the bank in which

he ‘unconditionally guarant[eed] [the bank] the prompt and full repayment of

the principal sum owing on [the note] in accordance with its terms and the

terms of the mortgage securing it . . . .’ Since the trust defaulted on the note

and Webster admits his signature on the guaranty, the bank is also entitled to

summary judgment against Webster personally, again unless Webster raises

a genuine issue of material fact related to a meritorious defense against

payment.”). 

CONCLUSION

Based upon the foregoing, the Court DENIES plaintiff’s motion for

partial summary judgment against William Swiacki and Draper Woods as to

Count Seven of the complaint, as amended (Doc. 34). 

DONE and ORDERED this the 27th day of January, 2010.

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 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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