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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

 ) 

VISION BANK, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) CIVIL ACTION NO. 09-0442-CG-M 

 ) 

ALAN J. SWINDALL, ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER

 This matter is before the court on plaintiff’s motion for partial summary judgment (Doc. 

39), defendant’s opposition thereto (Doc. 43), and plaintiff’s reply (Doc. 45). Plaintiff seeks 

summary judgment in its favor as to Count One of its complaint and as to all of defendant’s 

counterclaims. For reasons that will be explained below, the court finds that plaintiff’s motion is 

due to be granted. 

FACTS

 Plaintiff, Vision Bank, filed this case alleging that defendant, Alan J. Swindall, was 

indebted to plaintiff on a loan for the principal amount of $4,550,000.00. (Doc. 1). Vision Bank 

alleges that defendant is in default. The complaint asserts two counts, the first seeks judgment 

for all sums owed under the note and the second seeks an accounting and inspection. Defendant 

asserts counterclaims for (1) breach of contract because plaintiff “fail[ed] or refus[ed] to renew 

the Notes at prime plus 1%,” (2) breach of contract for failing, “first and before any other 

remedy, either explicitly or by implication, to foreclose upon [the collateral property] and offset 

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the monies received against the note(s),” (3) promissory fraud regarding plaintiff’s promise “that 

the interest rate on this loan would at all times be prime plus 1%,” (4) conspiracy “to obtain 

Swindall’s credit to take all of the risk on an extremely shaky and doomed condominium 

development called Oyster Bay Condominium and did in fact secure said financing to the extent 

that only Swindall will suffer any loss...” and (5) specific performance seeking foreclosure 

before any other remedy. (Doc. 7). Plaintiff seeks summary judgment in its favor as to Count 

One of its complaint and as to all of defendant’s counterclaims. 

 On June 23, 2005, defendant executed a Promissory Note in favor of Vision Bank in the 

principal amount of $4,550,000.00 with a maturity date of January 1, 2006. (Doc. 40-1). The 

Note stated that the interest rate was “7.000% per year until first rate change” and that the “future 

rate” will be Wall Street Prime plus 1%. The Note stated that the purpose of the loan is to 

“purchase 10+/- acres of commercial property” and that the Note was secured by the real estate 

mortgage. On May 1, 2006, defendant executed a replacement Note for the $4,550,000.00 

previously loaned at a new interest rate of Wall Street Prime plus 2% and with the extended 

maturity date of July 1, 2009. (Doc. 40-3). Defendant testified that he knew when he executed 

the replacement note that the interest rate was going up by 1 percent. (Doc. 40-2 pp. 12-13). 

Defendant executed a modification effective December 24, 2008, which changed the maturity 

date to March 1, 2009, and set the interest at a fixed rate of 6.5% per annum. (Doc. 43-10). 

 The Notes provide that defendant is in default if, among other things, he fails “to make a 

payment on time or in the amount due” or if he fails “to pay, or keep any promise on any debt or 

agreement [defendant has with [Vision Bank].” (Docs. 40-1, 40-3, at p. 3). The Notes further 

provide that if defendant is in default, Vision Bank may use any remedy it has under state or 

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federal law. (Docs. 40-1, 40-3, at p. 3). The Notes state that “[t]he law of the state of Alabama 

will govern this agreement.” Docs. 40-1, 40-3, at p. 3). 

 Defendant reportedly failed to make scheduled payments under the Notes. (Doc. 40-5). 

Defendant testified that “if the economy hadn’t turned bad and this underlying transaction 

worked as it was supposed to, [he] would have paid on the note.” (Doc. 40-2, p. 10). As of April 

20, 2010, the balance owed under the Notes was $4,208,469.78, consisting of $4,163,955.67 in 

principal, $44,314.11 in accrued and unpaid interest, and $200.00 in late charges. Interest 

continues to accrue on the Notes at a rate of 6.5% per annum. The Notes also provide for the 

recovery of attorney’s fees and collection costs incurred if defendant defaults. (Docs. 40-1, 40-3, 

at p. 3). 

 Defendant avers that Vision Bank told him at the time he executed the original Note on 

June 23, 2005, that the interest rate throughout the entire term of the loan would be Wall Street 

Prime plus 1%. (Doc. 43-12). Defendant testified that what made him believe that Vision Bank 

conspired against him is that Andy Shaddix, a former employee of Vision Bank, got a preconstruction contract for a condo in the development project on the collateral property for the 

loan at issue in this case. (Doc. 44-1, p. 2). As far as defendant knows, Vision Bank did not play 

any role in causing the development project to fail. (Doc. 44-1, p. 4). Vision Bank appraised the 

collateral property and estimated that as of March 6, 2009, the value of the collateral was 

$3,210,000.00. (Docs. 43-11, 43-12). 

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DISCUSSION

A. Summary Judgment Standard

 Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted: 

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

the affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law.@ The trial court=s function is not Ato 

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). AThe mere 

existence of some evidence to support the non-moving party is not sufficient for denial of 

summary judgment; there must be >sufficient evidence favoring the nonmoving party for a jury to 

return a verdict for that party.=" Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) 

(quoting Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not significantly 

probative, summary judgment may be granted." Anderson, at 249-250. (internal citations 

omitted). 

 The basic issue before the court on a motion for summary judgment is Awhether the 

evidence presents a sufficient disagreement to require submission to a jury or whether it is so 

one-sided that one party must prevail as a matter of law.@ See Anderson, 477 U.S. at 251-252. 

The moving party bears the burden of proving that no genuine issue of material fact exists. 

O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of 

the moving party, the court must view all evidence in the light most favorable to the non-moving 

party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). AIf reasonable minds could differ on the 

inferences arising from undisputed facts, then a court should deny summary judgment.@ Miranda 

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v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank 

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). 

Once the movant satisfies his initial burden under Rule 56(c), the non-moving party "must make a 

sufficient showing to establish the existence of each essential element to that party's case, and on 

which that party will bear the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 

524 (11th Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, 

the non-movant must Ademonstrate that there is indeed a material issue of fact that precludes 

summary judgment.@ See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The 

non-moving party Amay not rest on the mere allegations or denials of the [non-moving] party=s 

pleading, but .... must set forth specific facts showing that there is a genuine issue for trial.@ Fed. R. 

Civ. P. 56(e) AA mere >scintilla= of evidence supporting the [non-moving] party=s position will not 

suffice; there must be enough of a showing that the jury could reasonably find for that party.@ 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). A[T]he nonmoving party 

may avail itself of all facts and justifiable inferences in the record taken as a whole.@ Tipton v. 

Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). AWhere the record taken as a whole 

could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for 

trial.@ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal 

quotation and citation omitted). 

B. Plaintiff’s Claims

 Vision Bank seeks summary judgment as to Count One of its complaint which alleges that 

defendant has defaulted on the Notes and seeks judgment for all sums owed under the note. A 

plaintiff can establish a claim for breach of contract by showing “(1) the existence of a valid 

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contract binding the parties in the action, (2) his own performance under the contract, (3) the 

defendant’s nonperformance, and (4) damages.” State Farm Fire & Cas. Co. v. Slade, 747 So.2d 

293, 303 (Ala. 1999)(citing S. Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala. 

1995)(citations omitted)). There is no dispute that the parties entered into the Notes described 

above. There also appears to be no dispute that Vision Bank loaned defendant the $4,550,000.00 

stated in the agreements and that defendant has failed to pay as required by the agreements. 

However, defendant claims that Vision Bank did not fully perform under the contracts because the 

original Note stated that the future interest rate will be Wall Street Prime plus 1% and Vision Bank 

failed to uphold that bargain. 

 According to defendant, Vision Bank told him at the time he executed the original Note that 

the interest rate throughout the entire term of the loan would be Wall Street Prime plus 1%. 

However, the maturity date of the original agreement was January 1, 2006. The interest rate did not 

increase above Wall Street Prime plus 1% throughout the term of the original loan. Had plaintiff 

paid off the note on January 1, 2006, as contemplated by the agreement, there would have been no 

increase in the interest rate. Moreover, when the parties entered into the second written agreement, 

the terms of the second agreement became controlling. “Parties may modify the terms of their 

agreement and ‘if the terms of a subsequent agreement contradict the earlier agreement, the terms of 

the later agreement prevail.’” McLemore v. Hyundai Motor Mfg. Alabama, LLC, 7 So.3d 318, 332 

-333 (Ala. 2008) (quoting Cavalier Mfg., Inc. v. Clarke, 862 So.2d 634, 641 (Ala. 2003)). Thus, the 

parties’ agreement to increase the interest rate and extend the maturity date prevails over any 

contrary prior agreement between the parties. 

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 To the extent defendant contends that the parties had an oral agreement at the time the 

replacement note was executed that the interest rate would remain the same,1

 the evidence does not 

support that contention. Defendant admits that he knew when he executed the second note that the 

interest rate was going up by one percent. Moreover, generally “if a written contract exists, the 

rights of the parties are controlled by that contract; and parol evidence is not admissible to 

contradict, vary, add to, or subtract from its terms.” Tyler v. Equitable Life Assur. Soc. of U.S., 512 

So.2d 55, 57 (Ala. 1987) (citing Alabama Farm Bureau Mutual Casualty Insurance Co. v. Adams, 

289 Ala. 304, 267 So.2d 151 (1972)). Extrinsic evidence may be allowed to show fraud, mistake or 

ambiguity. However, there has been no contention that the replacement Note is ambiguous and, as 

stated above, defendant admits that he knew when he executed the second agreement that it would 

raise the interest rate. Thus, the court finds that the terms of the second note were binding on the 

parties. 

 The uncontroverted evidence shows that the parties entered into a series of valid contracts, 

that Vision Bank fully performed under the contracts, that the defendant failed to perform under the 

contracts, and that Vision Bank suffered damages as a result. Therefore, summary judgment is due 

to be granted in favor of Vision Bank on its breach of contract claim. 

C. Defendant’s Counterclaims

 Defendant asserts counterclaims for (1) breach of contract because Vision Bank “fail[ed] or 

refus[ed] to renew the Notes at prime plus 1%,” (2) breach of contract for failing, “first and before 

 

1 In response to plaintiff’s assertion that under ALA CODE § 8-9-2 an agreement to lend money must 

be in writing, defendant argues that “there was no oral agreement as to interest.” (Doc. 43-2, p. 3). 

While defendant’s argument is directed in defense of summary judgment with regard to one of his 

counterclaims against Vision Bank, the concession is also relevant to his defense of Vision Bank’s 

breach of contract claim.

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any other remedy, either explicitly or by implication, to foreclose upon [the collateral property] and 

offset the monies received against the note(s),” (3) promissory fraud regarding plaintiff’s promise 

“that the interest rate on this loan would at all times be prime plus 1%,” (4) conspiracy “to obtain 

Swindall’s credit to take all of the risk on an extremely shaky and doomed condominium 

development called Oyster Bay Condominium and did in fact secure said financing to the extent 

that only Swindall will suffer any loss...,” and (5) specific performance seeking foreclosure before 

any other remedy. The court will discuss each in turn below. 

1. Breach of Contract (increase in interest rate) 

 Defendant asserts that Vision Bank breached an agreement when it failed or refused to 

renew the Notes at prime plus 1%. Defendant concedes that “[t]here was no oral agreement as to 

interest.” (Doc. 43-2, p. 3). The court finds that defendant’s breach of contract counterclaim fails 

because, as discussed above with regard to Vision Bank’s breach of contract claim, Vision Bank 

fully performed under the contracts. Although the original Note stated that the future rate would be 

prime plus 1%, that agreement required defendant to repay the money on January 1, 2006, at which 

time the contract would be complete. The only “future” contemplated by the original Note was 

through January 1, 2006. Defendant failed to perform under the original Note, and the parties 

entered into a second agreement which modified the interest rate and the maturity date. Upon 

execution of the replacement Note, the terms of the replacement Note became controlling. 

McLemore, 7 So.3d at 332-333 (citation omitted). As such, the court finds that Vision Bank did 

not breach any agreement between the parties by increasing the interest rate in the replacement 

Note. 

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2. Breach of Contract (choice of remedy) 

 Defendant’s second breach of contract claim asserts that Vision Bank breached the contract 

by failing, “first and before any other remedy ... to foreclose upon [the collateral property] and 

offset the monies received against the note(s).” Defendant asserts that because Alabama is a title 

theory state, meaning that mortgaging property actually works a conveyance of legal title to the 

lender, the value of the land should be set off against the loan and the interest rate calculated upon 

the balance. However, as plaintiff points out in its reply, the mere fact that Alabama is a title state 

does not require a lender to exercise its right to title. 

The mortgagee may pursue any course he pleases to collect the debt, whether it be a 

suit for a personal judgment against the debtor, or for damages against one who has 

wrongfully converted the mortgaged property, or otherwise destroyed his rights in it, 

or for a foreclosure. And he may do them all at the same time. But when he once 

collects his debt, by any one of those proceedings, or by a voluntary payment of it, 

he cannot pursue any other remedy. They are all but means to accomplish one 

purpose, and when that is accomplished, all the remedies, not used in so doing, are 

terminated. 

Sloss-Sheffield Steel & Iron Co. v. Wilkes, 165 So. 764, 767 (Ala. 1936). “’The Supreme Court of 

Alabama has held that the mortgagor continues to be the real owner of property, subject to a 

mortgage, and that in equity, until foreclosure, the property is ‘merely security for a debt’, and ‘title 

to the property is in the mortgagee only as security’ [.]” Baldwin County Sav. & Loan Ass'n v. U.S., 

1981 WL 1851, *3 (S.D.Ala. May 18, 1981) (citing Jones v. Butler, 237 So. 2d 460 (1970)); see

also Denton v. Lindler, 163 So. 334, 334 -335 (Ala. 1935) (“The theory of mortgages in Alabama is 

that, at law, they pass the legal title, sufficient to sustain ejectment. But in equity, until foreclosure, 

they are merely security for a debt; the mortgagor continuing the real owner of the land.” citations 

omitted); Jefferson County v. Smith, 125 So. 401, 423 (Ala.App. 1930) (“The Supreme Court in 

Garrison, Judge of Probate, v. Hamlin, 215 Ala. 39, 109 So. 106, [(Ala. 1926)] affirmatively held 

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that recordation of an assignment of a chattel mortgage was not subject to the ‘deed-tax,’ the court 

in that case reasoning that the interest conveyed by the assignment and transfer was a mere 

conditional interest in the property covered by the mortgage; that that interest was subject to 

divesture by the payment of the mortgage debt; that that interest was merely security for a debt, 

coupled with the right under the instrument to charge the property with the payment of the debt; and 

that the transfer or assignment of such a conditional interest was not a conveyance of property 

within the contemplation of the Deed-Tax Act.”). 

 Although Vision Bank had legal title to the mortgaged property, it has not foreclosed upon 

the property and has no right to possession of the property. Vision Bank only holds title to the 

property as security for the loan to defendant and may choose to foreclose upon the property or seek 

judgment against defendant. The Notes expressly state that Vision Bank may use any remedy it has 

under state or federal law. Vision Bank has fully performed under the contract, and its decision to 

seek money damages instead of foreclosing is within its rights under the terms of the contracts at 

issue and under the laws of Alabama. Therefore, the court finds that Vision Bank did not breach 

any agreement with defendant by seeking money damages against defendant instead of foreclosing 

on the property. 

3. Promissory Fraud 

 Defendant’s claim for promissory fraud is based on Vision Bank’s promise that the interest 

rate on the loan would at all times be prime plus 1%. Promissory-fraud is an intentional species of 

fraud, requiring proof of an intent to deceive. Byrd v. Lamar, 846 So.2d 334 (Ala. 2002); see Ex 

parte Michelin North America, Inc., 795 So.2d 674, 678 (Ala. 2001); Ex parte City of Gadsden, 718 

So.2d 716, 720 (Ala. 1998). “A claim of promissory fraud is ‘one based upon a promise to act or 

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not to act in the future.’” Michelin, 795 So.2d at 678 (quoting Padgett v. Hughes, 535 So.2d 140, 

142 (Ala. 1988)). 

The elements of fraud are: (1) a false representation (2) of a material existing fact (3) 

reasonably relied upon by the plaintiff (4) who suffered damage as a proximate 

consequence of the misrepresentation. To prevail on a promissory fraud claim ..., 

two additional elements must be satisfied: (5) proof that at the time of the 

misrepresentation, the defendant had the intention not to perform the act promised, 

and (6) proof that the defendant had an intent to deceive. 

Michelin, 795 So.2d 674, at 678-679 ( quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala. 1988)). 

In the instant case, the court finds that defendant has not presented evidence tending to show all of 

the above elements. 

 Defendant has conceded that there was no oral agreement as to interest and, as discussed 

above, the court finds that Vision Bank has fully complied with the terms of the written agreements 

with regard to the interest rate. The original Note merely stated that the interest rate would be Wall 

Street Prime plus 1% for the future of that agreement, which matured on January 1, 2006. The 

interest rate was not changed until after that date. Thus, there was no false representation. Even if 

Vision Bank had promised the defendant that the rate would not ever change throughout the life of 

the loan and beyond the maturity date of the original Note, there is no evidence that Vision Bank 

intended not to perform at the time such promise was made, or that it intended to deceive defendant. 

As previously discussed, under the original Note the defendant was to pay off the loan on January 

1, 2006, and the relationship between the parties would have then come to an end. If everything 

had gone as planned and intended, Vision Bank would have been paid for the loan and the interest 

rate would not have changed. The uncontroverted evidence is that the parties later agreed to change 

the interest rate by entering into a new Note, which defendant executed with the knowledge that the 

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interest rate would increase. Defendant could not reasonably have relied on the alleged promise 

when he executed the replacement Note. 

 Defendant asserts in his brief that Vision Bank concealed facts from the defendant.2 

However, defendant did not assert a claim for suppression as a counterclaim. Moreover, the 

uncontroverted evidence shows that defendant knew when he executed the replacement note that 

the interest rate was increasing by one percent. To the extent defendant contends that the facts were 

suppressed at the time he entered into the original loan, there is no evidence that Vision Bank at that 

time planned to raise the interest rate if a replacement Note was later executed. The fact that Vision 

Bank intended to raise the interest rate could not have been suppressed if Vision had no such 

intention at that time. Thus, the court finds that summary judgment should be granted in favor of 

Vision Bank as to defendant’s counterclaim for fraud. 

4. Conspiracy 

 Defendant claims that Vision Bank conspired to have defendant assume all of the risk on an 

“extremely shaky and doomed” condominium development and caused him to suffer a loss. 

 “‘Alabama recognizes [civil conspiracy] as a substantive tort.’ Purcell Co. v. 

Spriggs Enters., Inc., 431 So.2d 515, 522 (Ala. 1983). ‘In essence, civil conspiracy is 

a combination of two or more persons to do: (a) something that is unlawful; [or] (b) 

something that is lawful by unlawful means.’ Id. See also Eidson v. Olin Corp., 527 

So.2d 1283, 1285 (Ala. 1988). ‘In a conspiracy, the acts of coconspirators are 

attributable to each other.’ Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 476, 700 

N.E.2d 859, 868 (1998).” 

DGB, LLC v. Hinds, --- So.2d ---, 2010 WL 2629411, 14 (Ala. June 30, 2010) (quoting Ex parte 

Reindel, 963 So.2d 614, 621 n. 11 (Ala. 2007)). “A plaintiff alleging a conspiracy must have a 

 

2

 Defendant argues that Vision Bank “had a duty to disclose to Swindall that the interest rate 

promised on the June 23, 2005 note was not going to be on the supposed January 1, 2006 note, but 

would be increased in all notes” and that Vision Bank “concealed those facts from Swindall” and 

induced Swindall to act. (Doc. 43-2, p. 4). 

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valid underlying cause of action.” Id. (quoting Callens v. Jefferson County Nursing Home, 769 

So.2d 273, 280 (Ala. 2000)). “‘[A] conspiracy claim must fail if the underlying act itself would not 

support an action.’ Id. (quoting Callens supra). 

 It is unclear what underlying cause of action defendant claims supports his conspiracy 

claim. Defendant testified that what made him believe that Vision Bank conspired against him is 

that Andy Shaddix, a former employee of Vision Bank, got a pre-construction contract for a condo 

in the development project on the collateral property for the loan at issue in this case. However, 

defendant has not shown that Shaddix’ obtaining a pre-construction loan supports an underlying 

claim. The court has found herein that all of defendant’s other counterclaims fail, and notes that 

there is no evidence that Vision Bank played any role in causing the development project to fail or 

that it had any knowledge of the alleged “doomed” nature of the project. There is also no evidence 

that Vision Bank suppressed any facts regarding the risk involved with the development project. 

Because defendant has asserted no viable underlying claim that could support his conspiracy claim, 

the court finds that defendant’s conspiracy claim also fails. 

5. Specific Performance 

 As in defendant’s second counterclaim for breach of contract, defendant asserts that Vision 

Bank must seek foreclosure before any other remedy. The court finds that defendant’s claim for 

specific performance fails for the same reasons stated above with regard to defendant’s breach of 

contract claim. Vision Bank’s action seeking money damages rather than foreclosure is within its 

rights under the terms of the contracts at issue and under the laws of Alabama. 

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CONCLUSION

 For the reasons stated above, the court finds that summary judgment should be entered in 

favor of Vision Bank and against Alan J. Swindall as to Count One of plaintiff’s complaint and as 

to all of defendant’s counterclaims. Accordingly, plaintiff’s motion for partial summary judgment 

(Doc. 39) is GRANTED. 

 DONE and ORDERED this 4th day of August, 2010. 

 

 /s/ Callie V. S. Granade 

 UNITED STATES DISTRICT JUDGE 

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