Orix Financial Services, Inc. v. Thunder Ridge Energy, Inc.

Full title: ORIX FINANCIAL SERVICES, INC., f/k/a "Orix Credit Alliance, Inc.,…

Court: United States District Court, S.D. New York

Date published: Mar 7, 2006

01 Civ. 4788 (RJH) (HBP) (S.D.N.Y. Mar. 7, 2006)

Opinion

01 Civ. 4788 (RJH) (HBP).

March 7, 2006

MEMORANDUM OPINION AND ORDER

RICHARD HOLWELL, District Judge

Orix Financial Services, Inc. f/k/a "Orix Credit Alliance, Inc.," ("Orix") brings this diversity action to collect the unpaid balance of a consolidated loan, along with interest and attorney's fees incident to collection, from the principal debtor, Thunder Ridge Energy, Inc. ("Thunder Ridge"), and the eight individually named plaintiffs alleged to be guarantors of the loan. Plaintiff has moved for summary judgment on all of its claims against all defendants. In lieu of an opposition to summary judgment, the individual pro se defendants have moved to dismiss.

On December 29, 2005, Magistrate Judge Pitman issued a Report and Recommendation ("Report") recommending that plaintiff's motion for summary judgment be granted as to defendants Thunder Ridge, Carey Cline, Eddie Cline, Larry Cline, Linda L. Cline, and Mark Cline, but recommending plaintiff's motion be denied as to Ileen Cline, Linda G. Cline, and Pamela S. Cline. The Report further recommended that the individual plaintiffs' motion to dismiss be denied. Plaintiff submitted timely objections to the Report. Defendants did not submit any objections. Having considered those portions of the Report objected to de novo, the Court adopts Magistrate Judge Pitman's Report in its entirety.

BACKGROUND

The Report extensively outlines the procedural history and facts of the case, which, with limited exception, are not in dispute. ( See Report 1-10.) Accordingly, and consistent with the purpose of the Federal Magistrates Act to "promote efficiency of the judiciary," the Court will assume familiarity with the Report rather than compose what would be a largely redundant background section. The Report is attached in its entirety at the end of this opinion. In light of the defendants pro se status, the Magistrate recommended that the defendants' motion to dismiss and its supporting affidavits be treated as defendants' opposition to plaintiff's motion for summary judgment. (Report 2 n. 1.) The Court adopts this recommendation. See Nichols v. Bd. of Educ., 123 F. Supp. 2d 320, 321 (D. Md. 2000), aff'd without opinion 15 Fed. Appx. 156, 156-57 (4th Cir. 2001) (treating pro se party's motion to dismiss as opposition to a summary judgment motion).

STANDARD OF REVIEW

A district court judge may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten (10) days of service of the recommendation, any party may file written objections to the magistrate's report. Id. Upon review of those portions of the record to which objections were made, the district court judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).¹ The nature and depth of that review depends on the tenor and specificity of the objections. Where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition," reviewing courts should review a report and recommendation for clear error. Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. 2002); see also Barratt v. Joie, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) ("When a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.") (citation omitted). On the other hand, where objections to a report are "specific and . . . address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992).

1 Where neither party makes a timely objection to the magistrate judge's findings, a district court "'need only satisfy itself that there is no clear error on the face of the record.'" Johnson v. Reno, 143 F. Supp. 2d 389, 391 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted)); see also Bryant v. New York State Dep't of Corr. Servs. Albany, 146 F. Supp. 2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").

The individual defendants did not submit objections to the Report. Plaintiff has submitted objections (cited hereinafter as "Pl.'s Obj.") to the portion of the Report recommending denial of its motion for summary judgment against Ileen Cline, Linda G. Cline, and Pamela S. Cline (collectively the "remaining defendants"). Specifically, plaintiff objects to the Report's conclusion that the remaining defendants' submission of an expert affidavit in support of their claim that the signatures on their guaranties were forged created issues of material fact precluding summary judgment. (Pl.'s Obj. 2.) Plaintiff makes two arguments in support of its position: (1) the defense of forgery was waived under Rule 8(c) when it was not pleaded as an affirmative defense, Fed.R.Civ.P. 8; and (2) the submitted handwriting expert affidavit was not disclosed in accordance with Rule 26(a) of the Federal Rules of Civil Procedure and, therefore, should be excluded from consideration under Rule 37(c)(1).

DISCUSSION

The portion of the Report discussing the enforceability of the guaranties or the underlying agreements (Report 16-32) is not objected to. Having reviewed the Report and applicable legal authorities, the Court concludes that the determinations and recommendations are supported by the record and the law in all respects. See Knight v. Keane, 2006 WL 89929, at *2 (S.D.N.Y. Jan. 12, 2006).

The Court will address in turn plaintiff's objections respecting the Report's recommendation relating solely to the due execution of guaranties by the remaining defendants.

1. Rule 8(c) Waiver of Affirmative Defense

Remaining defendants Ileen Cline, Linda G. Cline, Linda L. Cline, and Pamela S. Cline submitted affidavits stating that they did not sign the guaranties carrying notarized signatures, nor did they authorize anyone to sign the guaranties for them. In support of these allegations, remaining defendants submit the affidavit of Harold F. Rodin, a purported "Certified Document Examiner and Certified Questioned Document Examiner."² In his affidavit, Rodin states that it is his opinion that the notarized signatures on the guaranties do not compare with the standards provided by remaining defendants. (Rodin Aff. 2.) He therefore concludes that the signatures are not genuine. ( Id.)

2 Linda L. Cline, the fourth individual defendant to submit an affidavit claiming that her signature was forged, did not submit an affidavit by a handwriting expert alleging an opinion that the signature on her guaranty was not genuine. Because a conclusory affidavit stating she did not sign the guaranty bearing her name is insufficient as a matter of law to rebut the presumption that a notarized signature is authentic, the Report recommended that plaintiff's motion for summary judgment with respect to Linda L. Cline be granted. (Report 42-43.) Linda L. Cline did not object to this finding, and the Court agrees that summary judgment should be entered against Linda L. Cline. See, e.g., Midfirst Bank v. Rath, 706 N.Y.S.2d 651, 651 (N.Y.App. Div. 2000) ("We reject the contention of defendant that her 'affidavit of non-signature' raised an issue of fact regarding the authenticity of her purported signatures on the note and mortgage.").

In its moving papers, plaintiff argued that defendants had waived the defense of nonexecution for failure not to timely plead the defense as required by Rule 8(c), and that Rodin's affidavit was insufficient for various reasons. In the Report, Magistrate Judge Pitman rejected all of these arguments. (Report 33-43.) Plaintiff now objects to the Report's finding that forgery is not an affirmative defense and need not be pled in the answer.

In order to prevail on its claim to enforce the consolidated loan and the individual guaranties, plaintiff must prove the following elements: (1) due execution of the note and guaranties and (2) failure to pay. (Report 13 (citing Valley Nat'l Bank v. Greenwich Ins. Co., 254 F. Supp. 2d 448, 453 (S.D.N.Y. 2003) ("In cases involving notes and guaranties, this Court has held that 'a plaintiff establishes its prima facie entitlement to summary judgment by establishing the execution of the agreements at issue and nonpayment thereunder.'").) As the Report explains, remaining defendants' allegations of nonexecution simply serve to rebut an element of plaintiff's prima facie case. In this district, a defense is not considered affirmative where it "merely negates an element of the plaintiff's prima facie case." Hadar v. Concordia Yacht Builders, Inc., 886 F. Supp. 1082, 1089 (S.D.N.Y. 1995); see also Laborde v. City of New York, 1999 WL 38253, at *4 (S.D.N.Y. Jan. 27, 1999).

Plaintiff is correct, however, that a federal court sitting in diversity looks to state law in determining whether a claim is an affirmative defense. Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1540-41 (2d Cir. 1997); Carnley v. Aid to Hosps., Inc., 975 F. Supp. 252, 254 (W.D.N.Y. 1997). Unfortunately, New York case law is not entirely clear on the question of whether forgery is considered an affirmative defense when the due execution of an instrument is at issue. Plaintiff relies on Seaboard Surety Co. v. Nigro Bros., Inc., 635 N.Y.S.2d 296 (N.Y.App.Div. 2d Dep't 1995), for its position that under New York law, forgery and nonexecution of an indemnity agreement is an affirmative defense to its enforcement. In Seaboard Surety, the Appellate Division did hold that defendants failed to timely amend their answer to include the affirmative defenses of forgery and nonexecution, and therefore that the defense should not have been considered on plaintiff's motion for summary judgment. Id. at 297. However, the court noted that an unpleaded defense could defeat a motion for summary judgment where the opposing party is "not taken by surprise." Id. at 296-97. In a more recent decision, the Second Department held that "[n]otwithstanding that the defendant failed to plead forgery as an affirmative defense, he was properly permitted to offer evidence as to the genuineness of the signatures." Ouziel v. Baram, 759 N.Y.S.2d 373, 374 (N.Y.App.Div. 2d Dep't 2003).

In Freeman Check Cashing, Inc. v. New York, 412 N.Y.S.2d 963 (N.Y. Ct. Claims 1979), the court addressed a case where the payor refused to honor certain checks on the grounds that the endorsements were forgeries. The court noted that there was a rebuttable presumption of genuineness, but nevertheless held that "[f]orgery does not function as a true affirmative defense since the holder has the ultimate burden of proof." Id. at 964. Similarly here, there is a presumption of genuineness that arises from the notarization of the guaranties, and remaining defendants are attempting to rebut that presumption with their allegations of forgery. (Report 36 (citing Chinanese v. Meier, 729 N.Y.S.2d 460, 466 (1st Dep't 2001), aff'd as modified, 98 N.Y.2d 270, 279 (N.Y. 2002) ("Where a document on its face is properly subscribed and bears the acknowledgement of a notary public, there is a 'presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary.'"). As the Magistrate Judge properly found, defendants' allegations of nonexecution merely seek to negate an essential element of plaintiff's prima facie case — due execution — and therefore are not properly viewed as an affirmative defense. ( See Report 34-35 and cases cited therein.) Even if viewed as an affirmative defense, it appears that plaintiff was "not taken by surprise" by the allegations of nonexecution. Both Linda G. Cline and Pamela S. Cline submitted allegations that they did not sign the guaranties bearing their names at the pleading stage. By Order dated December 11, 2003, defendants' time to answer was extended to January 15, 2004 by this Court. In response to this Order, some of the defendants submitted letters asking that all their prior submissions to this Court be considered their Answer. By at least August 2003, Linda G. Cline and Pamela S. Cline had submitted affidavits claiming they did not sign the guaranties purported to bear their notarized signatures, nor did they authorize anyone to sign for them. ( See Report 7 (citing Affidavit of Linda G. Cline, sworn to August 27, 2003; Affidavit of Pamela S. Cline, sworn to August 26, 2003).) Accordingly there was no undue surprise on the facts of the present case. Seaboard Surety, 635 N.Y.S.2d at 196-97.

2. Rule 37(c)(1) Preclusion of Evidence in Violation of Rule 26

Plaintiff further argues that the Rodin Affidavit be precluded from consideration based on defendants' failure to previously submit it into evidence, relying on Rule 26(a) and Rule 37(c)(1) of the Federal Rules of Civil Procedure.

The Court need not consider at the objection stage any legal argument not presented to the Magistrate Judge. See Amadasu v. Rosenberg, 2005 WL 954916, at *1-2 (S.D.N.Y. Apr. 25, 2005); Robinson v. Keane, 1999 WL 459811, at *4 (S.D.N.Y. June 29, 1999) ("An objecting party may not raise new arguments [in its objections] that were not made before the Magistrate Judge."); Baker v. Ace Advertisers Serv., Inc., 153 F.R.D. 38, 43 (S.D.N.Y. 1992) ("The Court is not required to consider these objections because a 'party is not entitled as of right to a de novo review by the judge [of] an argument never seasonably raised before the magistrate.'"). Plaintiff did not raise this argument before Magistrate Judge Pitman, and therefore the Court is not required to entertain it.

Even if plaintiff had raised this argument before the Magistrate, however, it would not provide a clear basis for deciding the issue differently. Rule 37(c)(1) provides a basis for refusing to admit evidence if it has not previously been submitted in compliance with Rule 26(a). Plaintiff argues that remaining defendants have "blatantly failed to disclose the finds of their expert during the requisite time for discovery afforded by this Court." (Pl.'s Obj. 7.) However, by Order dated January 28, 2005 (date of entry February 7, 2005, see docket entry [21]), Magistrate Judge Pitman allowed sixty days to conduct whatever discovery might be necessary in the matter. Remaining defendants "motion to dismiss," including Rodin's affidavit, was filed on April 1, 2005, sixty-two days after the date of Magistrate Judge Pitman's Order and less than sixty days after the Order's date of entry. Given remaining defendants' substantial compliance with the discovery order, the preclusion of the affidavit pursuant to Rule 37 would be inappropriate.

CONCLUSION

The Court adopts Magistrate Judge Pitman's Report in its entirety, and, for the reasons stated herein and therein, grants Plaintiff's motion for summary judgment [23] as to defendants Thunder Ridge, Carey Cline, Eddie Cline, Larry Cline, Linda L. Cline, and Mark Cline, but denying plaintiff's motion as to Ileen Cline, Linda G. Cline, and Pamela S. Cline. The Court further denies defendants' motion to dismiss [25].

SO ORDERED.

I. Introduction

This is an action to collect the unpaid balance of a consolidated loan, along with interest and attorney's fees incident to collection, from both the principal debtor, Thunder Ridge Energy, Inc. ("Thunder Ridge"), and the eight guarantors of the loan.

Plaintiff moves for summary judgment on all of its claims against all defendants. The individual, pro se defendants have moved to dismiss.¹

1 In response to my January 28, 2005 Order directing the parties to serve summary judgment motions no later than March 30, 2005, the pro se defendants, collectively, submitted a document entitled "Motion of Dismissal" that was served on March 26, 2005 (Docket Item No. 25). Plaintiff served its motion for summary judgment on March 30, 2005, which contained the Local Rule 56.2 notice to pro se litigants. Apparently in response to plaintiff's motion and its Local Rule 56.2 notice, defendants, individually, submitted affidavits in support of their motion to dismiss that were received by my Chambers on April 20, 21, May 2 and May 6, 2005. After receiving an extension of time to file opposition papers, plaintiff responded to defendants' motion to dismiss and its supporting affidavits on May 16, 2005 (Docket Item Nos. 26, 27).
In light of the individual defendants' pro se status, I shall treat their motion to dismiss and its supporting affidavits as opposition to plaintiff's motion for summary judgment. See Nichols v. Bd. of Educ., 123 F. Supp.2d 320, 321 (D. Md. 2000),aff'd without opinion, 15 Fed. Appx. 156, 156-57 (4th Cir. 2001) (treating a pro se party's motion to dismiss as opposition to a summary judgment motion). Accord Weixler v. Bd. of Educ. of the City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002) (pro se submissions are to considered leniently);Vallen v. Carrol, 02 Civ. 5666 (PKC), 2005 WL 2296620 at *3 (S.D.N.Y. Sept. 20, 2005) ("I am mindful of the latitude afforded to a pro se party opposing a summary judgment motion. However, a party's pro se status does not alter the obligation placed upon the party opposing summary judgment to come forward with evidence demonstrating that there is a genuine dispute regarding material fact." (citations omitted)).

For the reasons set forth below, I respectfully recommend that plaintiff's motion be granted as to defendants Thunder Ridge, Carey Cline, Eddie Cline, Larry Cline, Linda L. Cline and Mark Cline. I further recommend that plaintiff's motion be denied as to defendants Ileen Cline, Linda G. Cline and Pamela S. Cline. I recommend that the individual defendants' motion to dismiss also be denied.

II. Facts

Except as noted, the following facts are uncontroverted.

A. The Parties

Plaintiff, Orix Financial Services, Inc. ("OFS"), formerly known as Orix Credit Alliance, Inc. ("OCAI"), is a corporation organized and existing under the laws of the State of New York with its principal place of business in the State of New Jersey (Compl. ¶ 2).

Defendant Thunder Ridge is corporation organized under the laws of the State of West Virginia with its principal place of business in the State of West Virginia (Compl. ¶ 3).

Defendants Carey Cline, Eddie Cline, Ileen Cline, Larry Cline, Linda G. Cline, Linda L. Cline, Mark Cline and Pamela S. Cline (collectively, the "Guarantors"), are all citizens of the State of West Virginia (Compl. ¶ 4).

B. Transactions in Issue

On or about January 11, 1999, Thunder Ridge, as buyer, entered into a Conditional Sales Contract Note ("Note 1") with Phillips Machine Service, Inc. ("Phillips") pursuant to which Thunder Ridge purchased from Phillips a Joy 14CM-14AX Continuous Miner, bearing serial number JM4498, for a price of $883,548.00. Note 1 permitted Thunder Ridge to pay for the Continuous Miner in installments and granted Phillips a security interest in the Continuous Miner. The Continuous Miner was to be used in connection with Thunder Ridge's mining activities (Compl. ¶ 6 Ex. A attached thereto; Affidavit of William Bagby, Senior Vice President of OFS, sworn to March 24, 2005 ("Bagby Aff."), ¶ 2). Note 1 was signed by Carey Cline as president of Thunder Ridge (Compl. Ex. A).

On the same date, Thunder Ridge executed a Delivery/Installation Certificate, Waiver and Agreement in which it acknowledged the complete and satisfactory delivery of the Continuous Miner and agreed not to assert any defenses against OCAI relating thereto (Compl. ¶ 7 Ex. B attached thereto; Bagby Aff. ¶ 3).

Also on January 11, 1999, Phillips assigned to OCAI all of Phillips' rights, title and interests in Note 1 and all related documents and Phillips' security interest in the Continuous Miner (Compl. ¶ 8 Ex. C attached thereto; Bagby Aff. ¶ 4).

On or about March 25, 1999, Thunder Ridge executed a Promissory Note — Security Agreement in the amount of $82,968.00, payable to the order of OCAI ("Note 2"), in consideration of OCAI's financing the purchase by Thunder Ridge of a Fairchild Scoop, Model 35C, bearing serial number T339-117. Note 2 also permitted Thunder Ridge to pay for the Fairchild Scoop in installments and granted OCAI a security interest in the Fairchild Scoop. The Fairchild Scoop was to be used in connection with Thunder Ridge's mining operations (Compl. ¶ 9 Ex. D attached thereto; Bagby Aff. ¶ 5).

Also on March 25, 1999, Thunder Ridge executed a Delivery/Installation Certificate, Waiver and Agreement in which it acknowledged the complete and satisfactory delivery of the Fairchild Scoop and agreed not to assert any defenses against OCAI relating thereto (Compl. ¶ 10 Ex. E attached thereto; Bagby Aff. ¶ 6).

On or about April 6, 2000, Thunder Ridge executed a Consolidation and Extension Agreement ("CE Agreement"), under which its obligations to OCAI in Notes 1 and 2 were consolidated subject to the terms set forth in the CE Agreement (Compl. ¶ 11 Ex. F attached thereto; Bagby Aff. ¶ 7). Among other things, the CE Agreement required Thunder Ridge to make installment payments to satisfy the debts that it originally incurred in Notes 1 and 2.

On September 26, 2000, OCAI's name was changed to OFS, and OFS acceded to all of OCAI's rights in Notes 1 and 2 and the CE Agreement and the personal guarantees of the Guarantors, which are described below (Compl. ¶ 12; Bagby Aff. ¶ 18).

C. The Guarantors' Undertakings

On various dates between January 8 and January 12, 1999, each of the Guarantors purportedly executed a personal and unconditional guaranty in favor of OCAI in which each agreed to be liable to OCAI for all of Thunder Ridge's obligations to OCAI without regard to whether such obligations were then existing or were incurred or arose thereafter (Compl. Exs. G-N).

The guaranties bear the address and/or driver's licence number of each respective Guarantor, as well as an "Individual Acknowledgment" notarized by a West Virginia Notary Public. The dates on which each Guarantor purportedly executed his or her respective guaranty are listed below:

Carey Cline January 8, 1999

Eddie Cline January 11, 1999

Ilene Cline January 11, 1999

Larry Cline January 8, 1999

Linda G. Cline January 12, 1999

Linda L. Cline January 11, 1999

Mark Cline January 12, 1999

Pamela S. Cline January 8, 1999

(Compl. ¶¶ 16, 20, 24, 28, 32, 36, 40, 44 Exs. G-N attached thereto; Bagby Aff. ¶¶ 10-17).

However, in affidavits submitted in connection with their motion to dismiss, defendants Ileen Cline, Linda G. Cline, Linda L. Cline and Pamela S. Cline claim that they did not sign the guaranties that purport to bear their notarized signatures nor did they authorize anyone to sign for them (See Affidavit of Ileen Cline, sworn to April 17, 2005 ("Ileen Aff."); Affidavit of Linda G. Cline, sworn to August 27, 2003 ("8/03 Linda G. Aff."); Affidavit of Linda G. Cline, sworn to April 16, 2005 ("4/05 Linda G. Aff."); Affidavit of Linda L. Cline, sworn to April 20, 2005 ("Linda L. Aff."); Affidavit of Pamela S. Cline, sworn to August 26, 2003 ("8/03 Pamela S. Aff."), at ¶ 3; Affidavit of Pamela S. Cline, sworn to April 17, 2005 ("4/05 Pamela S. Aff.")).

In support of their claim of non-execution, defendants Ileen Cline, Linda G. Cline and Pamela S. Cline offer the affidavit of Harold F. Rodin, a purported "Certified Document Examiner and Certified Questioned Document Examiner," who submits that, in his opinion, the signatures on the respective guaranties do not match the samples provided by these defendants (Affidavit of Harold F. Rodin, sworn to March 21, 2005 ("Rodin Aff."), at p. 2, attached as Exhibit 3 to Defendants' Motion of Dismissal ("Def. Mot."), served March 26, 2005). Rodin does not offer an opinion on the authenticity of Linda L. Cline's signature.

D. The Default and Foreclosure

On or about November 15, 2000, Thunder Ridge defaulted on its obligations under the CE Agreement by failing to make the installment payment due on the fifteenth day of that month. As a result of Thunder Ridge's default, OFS accelerated the balance owed under the CE Agreement (Compl. ¶ 13; Bagby Aff. ¶ 8).

On or about March 8, 2002, a "Notice of Public Sale," setting a date of March 22, 2002 for the sale at auction of the Continuous Miner was sent to Thunder Ridge and each of the Guarantors by certified mail, return receipt requested (Bagby Aff. ¶ 24 Ex. 4 attached thereto). Additionally, it appears from the record that at least two of the defendants received this notice as evidenced by the two return receipts attached to plaintiff's motion, one addressed to Carey Cline and the other to Pamela Cline, both of which were signed for by Pamela Cline on March 11 and 13, 2002, respectively (Bagby Aff. Ex. 4). The auction was advertised on March 15 and March 17, 2002 in The Register Herald, a newspaper of general circulation in Beckley, West Virginia, the location of the sale (Bagby Aff. ¶ 24 Ex. 5 attached thereto). Prior to March 22, 2002, OFS also sent notice of the auction to five of its other customers which OFS believed might have an interest in purchasing the equipment (Bagby Aff. ¶ 26 Ex. 8 attached thereto).

On March 22, 2002, pursuant to its security interest, OFS foreclosed on the Continuous Miner and caused it to be sold at auction (Bagby Aff. ¶ 24 Ex. 6 attached thereto). Based on the auctioneer's worksheet, signed by the auctioneer and two witnesses, and Carey Cline's own affidavits, the only attendees at the auction were a representative of plaintiff and Carey and Pamela Cline (Bagby Aff. ¶ 24 Ex. 6 attached thereto; Affidavit of Carey Cline, sworn to May 2, 2002 ("5/02 Carey Aff."), at ¶ 3; Affidavit of Carey Cline, sworn to April 10, 2003 ("4/03 Carey Aff."), at ¶ 3). Plaintiff made an opening bid of $122,500, which was the only bid made at the auction (Bagby Aff. ¶ 24). According to Carey Cline, he notified the auctioneer that he "was prepared to bid $125,000 to $130,000 . . . in order to protect [his] interest" (5/02 Carey Aff. ¶ 3). Cline, however, did not make a bid, allegedly because he believed the sale was being called off and would be rescheduled (5/02 Carey Aff. ¶ 3; 4/03 Carey Aff. ¶ 3).

After expenses were deducted, the auction yielded net proceeds of $89,901.76 which were applied to Thunder Ridge's outstanding balance (Bagby Aff. ¶¶ 24-27 Exs. 7, 9 attached thereto). The record is silent on whether OFS foreclosed on the second piece of machinery, the Fairchild Scoop.

The terms of Notes 1 and 2 and the CE Agreement provide that, in the event of default, OFS is entitled to recover: (1) the outstanding principal balance on Note 1 and 2 ($523,530.07); (2) interest at the rate of one-fifteenth of one percent per day, and (3) attorney's fees in the liquidated amount of 20% of all amounts due under the CE Agreement (Bagby Aff. ¶ 19). After deducting the net proceeds from the sale of the Continuous Miner ($89,901.76) from the present value of the balance due on Note 1 and 2, including late charges and interest as of March 22, 2002 ($686,380.70), which yields $596,478.94, and adding interest at the rate of one-fifteenth of one percent per day from March 23, 2002 to March 30, 2005, the date of plaintiff's motion ($438,213.19), which yields $1,034,692.13, and limiting attorney's fees, on plaintiff's motion, to $30,000 instead of the 20% permitted by Notes 1 and 2, I calculate that Thunder Ridge's outstanding indebtedness was $1,064,692.13 as of March 30, 2005 (Bagby Aff. ¶¶ 28-29 Exs. 2-3, 7 attached thereto).²

2 The total balance due of $1,268,740.98 stated in Exhibit 2 of plaintiff's motion appears to be based on a miscalculation.

III. Analysis

A. Choice of Law

Since the Court's subject matter jurisdiction is predicated on diversity of citizenship, 28 U.S.C. § 1332 (a) (1), I am required to apply New York's choice of law rules to determine what law applies to this matter. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941); Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1538-39 (2d Cir. 1997). Notes 1 and 2 and the terms of the guarantees executed by each of the Guarantors (Compl. Exs. A, D, G-N) all provide for the application of New York law. Since choice of law clauses are routinely enforced in this Circuit, I shall apply New York law to plaintiff's claims. See Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 556 (2d Cir. 2000) ("New York law is clear in cases involving a contract with an express choice-of-law provision: Absent fraud or violation of public policy, a court is to apply the law selected in the contract as long as the state selected has sufficient contacts with the transaction."), citing Intn'l Minerals Res., S.A. v. Pappas, 96 F.3d 586, 592 (2d Cir. 1996); Walter E. Heller Co. v. Video Innovations, Inc., 730 F.2d 50, 52 (2d Cir. 1984) ("New York courts generally accord deference to choice-of-law provisions in contracts.").

B. Summary Judgment Standard

The standards applicable to a motion for summary judgment are well-settled and require only brief review.

Summary judgment shall be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). . . . This form of remedy is inappropriate when the issue to be resolved is both genuine and related to a disputed material fact. An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990). Moreover, the existence of a mere scintilla of evidence in support of nonmovant's position is insufficient to defeat the motion; there must be evidence on which a jury could reasonably find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If the movant demonstrates an absence of a genuine issue of material fact, a limited burden of production shifts to the nonmovant, who must "demonstrate more than some metaphysical doubt as to the material facts," and come forward with "specific facts showing that there is a genuine issue for trial." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). If the nonmovant fails to meet this burden, summary judgment will be granted against it.

Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004); accord Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005); Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). In the summary judgment context, "[w]here the non-moving party is proceeding pro se, the court must interpret that party's supporting papers liberally, that is, interpret them 'to raise the strongest arguments that they suggest.'" Forsyth v. Fed'n Employment Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005), quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

Courts look to the substantive law applicable to the claims or defenses at issue in the case in order to determine which facts are material. Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721 (2d Cir. 1994) ("Only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute."); accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (same). As the Second Circuit has explained:

Whether an item of information is material or not is, in the context of a motion for summary judgment, a mixed question of law and fact. The legal component depends on whether the information is relevant to a given question in light of the controlling substantive law. The factual component requires an inference as to whether the information would likely be given weight by a person considering that question.

Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir. 1991) (citations omitted).

In order to prevail on its claim to enforce the consolidated note and its guaranties, plaintiff must prove the following two elements by a preponderance of the evidence: due execution of the note and the guaranties and defendants' failure to pay. See WestRM-West Risk Markets, Ltd. v. Lumbermens Mut. Cas. Co., 314 F. Supp.2d 229, 232 (S.D.N.Y. 2004); Valley Nat. Bank v. Greenwich Ins. Co., 254 F. Supp.2d 448, 453 (S.D.N.Y. 2003) ("In cases involving notes and guaranties, this Court has held that 'a plaintiff establishes its prima facie entitlement to summary judgment by establishing the execution of the agreements at issue and nonpayment thereunder.'"), quoting Orix Credit Alliance, Inc. v. Bell Realty, Inc., 93 Civ. 4949 (LAP), 1995 WL 505891 at *3 (S.D.N.Y. Aug. 23, 1995); Pickwick Communications, Inc. v. Weinberg, 91 Civ. 1642 (AGS), 1994 WL 620950 at *9 (S.D.N.Y. Nov. 8, 1994), aff'd without opinion, 89 F.3d 825 (2d Cir. 1995) (same).

C. Plaintiff's Motion for Summary Judgment against Defendant Thunder Ridge

Plaintiff has submitted uncontroverted evidence showing that on or about November 15, 2000, Thunder Ridge defaulted on its obligations under the CE Agreement by failing to make the installment payment due on the fifteenth day of that month (Bagby Aff. ¶¶ 8, 20-22 Payment History attached as Ex. 3 thereto). Plaintiff has also established Thunder Ridge's due execution of the notes by appending to this motion and its complaint copies of Note 1, signed by Carey Cline on behalf of Thunder Ridge (Compl. Ex. A), Note 2, signed by Larry Cline on behalf of Thunder Ridge (Compl. Ex. D), the CE Agreement, signed by Carey Cline on behalf of Thunder Ridge and witnessed by Larry Cline (Compl. Ex. F).

Plaintiff's motion for summary judgment is unopposed as to defendant Thunder Ridge. To the extent Carey Cline's objections purport to be raised on behalf of Thunder Ridge they need not be considered because Thunder Ridge is a corporation and cannot appear pro se in federal court and Carey Cline is not an attorney. See Wilen v. Alternative Media Net, Inc., 03 Civ. 2524 (RMB) (JCF), 2005 WL 167589 *2 n. 2 (S.D.N.Y. Jan. 26, 2005), citing Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568 (2d Cir. 2000); See also Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 172 (2d Cir. 2001) (a corporation cannot be represented pro se by its principal);Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (the shareholders of a corporation are not allowed to represent the corporation pro se); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) ("a corporation, which is an artificial entity that can only act through agents, cannot proceed pro se."). I will treat Carey Cline's objections as being raised on behalf of the individual Guarantors in their individual capacities only.

Accordingly, I respectfully recommend that plaintiff's motion for summary judgment be granted as to defendant Thunder Ridge.

D. Plaintiff's Motion for Summary Judgment against the Guarantor Defendants

Plaintiff has submitted evidence showing that the individual Guarantors failed to make any payments on their respective guaranties although payment was duly demanded (Bagby Aff. ¶¶ 19, 20 Payment History attached as Affidavit Ex. 3 thereto).

The Guarantors raise no issue of fact concerning the non-payment of the debt owed under the CE Agreement or the guaranties. Thus, the only questions to be resolved here are whether there are genuine issues of material fact concerning the enforceability and due execution of these guaranties. See generally Chromalloy Am. Corp. v. Universal Hous. Sys. of Am., Inc., 495 F. Supp. 544, 552 (S.D.N.Y. 1980), aff'd without opinion, 697 F.2d 289 (2d Cir. 1982) (if a party raises "an issue of fact with respect to the enforceability of his personal guarantee" this can "preclude the entry of summary judgment.").

1. The Guarantors' Arguments Challenging the Enforceability of the Guaranties

Defendant Carey Cline, joined by the other pro se Guarantors, challenges the enforeability of the Guaranties on seven grounds:³ (1) the Notes, guaranties and the CE Agreement are contracts of adhesion (Affidavit of Carey Cline, sworn to August 26, 2003 ("8/03 Carey Aff."), at ¶ 1); (2) the waiver clause contained in the two "Delivery-Installation, Certificate[s], Waiver[s] and Agreement[s]," which Thunder Ridge executed, was not part of "the basis of any bargain" (5/02 Carey Aff. ¶ 1; 4/03 Carey Aff. ¶ 1); (3) the guaranties were executed after the transactions were completed (8/03 Carey Aff. ¶¶ 2, 6-7); (4) no additional consideration was given for executing the guaranties (8/03 Carey Aff. ¶¶ 2, 6-7); (5) it was "impossible for a guaranty to be made to [plaintiff because it] was not part of the deal" (8/03 Carey Aff. ¶ 7); (6) defendants Ileen Cline, Linda G. Cline, Linda L. Cline and Pamela S. Cline were not advised of a default (8/03 Carey Aff. ¶ 5), and (7) none of the individual Guarantors were given notice of the March 25, 1999 transaction involving Note 2 or of the CE Agreement executed on April 6, 2000 (8/03 Carey Aff. ¶ 9).

3 In addition to their motion to dismiss and its supporting affidavits, the individual defendants have also filed the following documents that address the merits of plaintiff's claim: (1) an unsworn "Special Appearance — Pro Se," purportedly constituting the Answer of all individual defendants, served on July 20, 2001; (2) Affidavit of Carey Cline, sworn to May 2, 2002 ("5/02 Carey Aff."); (3) Carey Cline's Objections to my April 2, 2003 Report and Recommendation, sworn to April 10, 2003 ("4/03 Carey Aff."); (4) an unsworn letter from Carey Cline to the Honorable Richard M. Berman, United States District Judge, dated July 24, 2003; (5) a letter to my Chambers, sworn to by Carey Cline on August 26, 2003 ("8/03 Carey Aff.") and Eddie, Illen, Pamela and Mark Cline on August 27, 2003; (6) an unsworn letter from Carey Cline and Pamela S. Cline to the Honorable Richard J. Holwell, United States District Judge, dated December 31, 2003 in response to Judge Holwell's December 11, 2003 Order; (7) an unsworn letter from Linda G. Cline to Judge Holwell dated January 6, 2004 in response to Judge Holwell's December 11, 2003 Order; (8) an unsworn letter from Mark Cline to Judge Holwell dated January 6, 2004 in response to Judge Holwell's December 11, 2003 Order; (9) an unsworn letter from Illen Cline to Judge Holwell dated January 9, 2004 in response to Judge Holwell's December 11, 2003 Order; (10) an unsworn letter from Eddie Cline to Judge Holwell dated January 9, 2004 in response to Judge Holwell's December 11, 2003 Order, and (11) an unsworn letter to my Chambers from Carey Cline and Pamela Cline, dated December 7, 2004.
To the extent that the above documents are unsworn, they do not constitute competent evidence for the purpose of opposing plaintiff's motion for summary judgment, and, hence, will not be considered. See Fed.R.Civ.P. 56(e); Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005) ("'[T]he submission of [an] unsworn letter was an inappropriate response to the . . . motion for summary judgment, and the factual assertions made in that letter were properly disregarded by the court.'"), quoting United States v. All Right, Title Interest in Real Prop. Appurtenances, 77 F.3d 648, 657-58 (2d Cir. 1996); Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) ("[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.").

Defendants further argue that the public sale of the Continuous Miner was not commercially reasonable because: (1) no local point of contact was provided in the public sale notice (5/02 Carey Aff. ¶ 2); (2) the public sale was only advertised in one newspaper (5/02 Carey Aff. ¶ 4); (3) defendants were not given an opportunity to bid at the auction and, if given an opportunity, would have bid $2,500 to $7,500 higher (5/02 Carey Aff. ¶¶ 3, 9), and (4) the Continuous Miner was in "good shape" and had "only 373 hours of service," thus, it should have fetched a higher price at auction (5/02 Carey Aff. ¶¶ 5-9).

(a) No Material Issue of Fact Exists as to the Guaranties Being Contracts of Adhesion

As a threshold matter, the Guarantors have failed to offer any evidence that would give rise to a genuine issue of material fact as to whether the guaranties are contracts of adhesion. As explained in Aviall, Inc. v. Ryder System, Inc., 913 F. Supp. 826, 831-32 (S.D.N.Y. 1996), aff'd, 110 F.3d 892 (2d Cir. 1997):

New York contract law presumes that a written agreement is valid and that it accurately reflects the intention of the parties, and imposes a heavy burden on the party seeking to disprove those presumptions. A court will find adhesion only when the party seeking to rescind the contract establishes that the other party has used "high pressure tactics" or "deceptive language" or that the contract was the product of a gross inequality of bargaining power. Typical contracts of adhesion are standard-form contracts offered by large, economically powerful corporations to unrepresented, uneducated, and needy individuals on a take-it-or-leave-it basis, with no opportunity to change any of the contract's terms.

To be considered an unenforceable contract of adhesion, the contract also must inflict substantive unfairness on the weaker party, because its terms are not within the reasonable expectations of that party, or because its terms are unduly oppressive, unconscionable, or contrary to public policy. A court may refuse to enforce an agreement only if the contract is the product of procedural unfairness and suffers from one of the enumerated substantive defects. If either feature is absent, the court will enforce the contract, and even if both features are present the court's only remedy is non-enforcement, not reformation. (citations omitted); accord Medinol Ltd. v. Boston Scientific Corp., 346 F. Supp.2d 575, 623 (S.D.N.Y. 2004). The Guarantors' only submission in support of their allegation that the guaranties are contracts of adhesion is their conclusory contention that "they [sic] are big and we are small and they imposed . . . their terms on us without any input from us," (8/03 Carey Aff. ¶ 1). Apart from this conclusory allegation, however, they offer no evidence concerning the factors that will support a finding that a contract is unenforceable under New York law, such as the use of high-pressure tactics, deceptive language, or that there was gross inequality of bargaining power in the negotiating process. The Guarantors' bald statement is simply insufficient to give rise to a genuine issue of material fact. As explained in Rooney v. Columbia Pictures Industries, Inc., 538 F. Supp. 211, 228 (S.D.N.Y.), aff'd without opinion, 714 F.2d 117 (2d Cir. 1982):

[Plaintiff] seeks to avoid the contracts by conclusorily denominating them contracts of adhesion. That unsupported accusation does not, on this record, provide a basis for denying summary judgment on the unambiguous provisions of the contracts. The mere fact that many of the contracts were standardized form contracts is not a reason to deny their enforcement.

Accord Ocean Salvors Co. v. Crossway Nav. Agency, Inc., 543 F. Supp. 918, 920 (S.D.N.Y. 1982) (defendants' "faint, alternative suggestion of a contract of adhesion" did not raise material issues of fact); Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 618, 487 N.Y.S.2d 105, 108 (2d Dep't), aff'd without opinion, 66 N.Y.2d 701, 487 N.E.2d 282, 496 N.Y.S.2d 425 (1985) (defendant's contract of adhesion defense rejected where defendant offered no evidence to substantiate claims of overreaching); Wasserbauer v. Marine Midland Bank, 92 Misc.2d 388, 400, 400 N.Y.S.2d 979, 987 (Sup.Ct. Monroe Co. 1977) (a "lack of parity in negotiation" was insufficient to prove a contract of adhesion claim).

Further, and as noted in plaintiff's Memorandum of Law, nearly identical Orix guaranties have routinely been enforced in this Court. See, e. g, Orix Credit Alliance, Inc. v. Bell Realty, Inc., supra, 1995 WL 505891 at *3; Orix Credit Alliance v. Phillips-Mahnen, Inc., 89 Civ. 8376 (THK), 1993 WL 183766 at *1, *11 (S.D.N.Y. May 26, 1993); Orix Credit Alliance v. Hamrick, 90 Civ. 7012 (JFK), 1992 WL 84458 at *1, *4 (S.D.N.Y. April 13, 1992).

In sum, the Guarantors have not offered sufficient evidence to give rise to any genuine issue of material fact as to whether the notes, guaranties and CE Agreement are defective contracts of adhesion.

(b) The Guarantors' Remaining Objections to Enforcement Lack Merit

The Guarantors' arguments against enforcement of the guaranties lack force in light of the unambiguous waivers contained in these agreements. See Orix Credit Alliance, Inc. v. Brown, 93 Civ. 1019, 1994 WL 392240 at *4 (S.D.N.Y. July 27, 1994) ("[A] signatory to a contact is presumed to have read, understood and agreed to be bound by all terms . . . in the documents he or she signed."), citing Pimpinello v. Swift Co., 253 N.Y. 159, 162, 170 N.E. 530, 531 (1930). Nevertheless, I shall address each of the Guarantors' arguments separately.

(i) Validity of the Waiver Clause Contained in Thunder Ridge's Agreements

The Guarantors first challenge the waiver of defense clause contained in the two "Delivery/Installation Certificate[s], Waiver[s] and Agreement[s]," which Thunder Ridge executed, arguing that the clause was not part of "the basis of any bargain" (5/02 Carey Aff. ¶ 1; 4/03 Carey Aff. ¶ 1). This argument is without merit. The OCAI guaranties are unconditional, and the individual defendants waived their ability to raise any defenses or counterclaims pertaining to Thunder Ridge's underlying obligations.⁴ The Guarantors cannot "rely on defenses that were waived by a guarantee to defeat summary judgment, even if the defendant establishes an issue of fact."Citicorp Leasing, Inc. v. United American Funding, Inc., 03 Civ. 1586 (WHP), 2005 WL 1847300 at *5 (S.D.N.Y. Aug. 5, 2005), quoting Compagnie Financiere de Cic et de L'Union Europeenne v. Merrill, Lynch, Pierce, Fenner Smith Inc., 188 F.3d 31, 35-36 (2d Cir. 1999); Middle East Bank v. Harmony Sportswear Inc., 93 Civ. 228 (JFK), 1994 WL 74057 at *8 (S.D.N.Y. March 10, 1994) ("The Guaranty signed by [defendant] expressly waives the Guarantor's right to assert affirmative defenses and counterclaims. Such clauses are valid and enforceable." (citations omitted)).

4 The guaranties state: "[W]e, the undersigned, . . . agree to be, without deduction by reason of set-off, defense or counterclaim of [Thunder Ridge] and/or us, jointly, severally, directly and unconditionally liable to [OCAI] for the due performance of all such Security Obligations. . . ." (Compl. Exs. G-N).

(ii) The Guaranties Were Not Executed on the Same Date as Note 1

The Guarantors next try to assert some unspecified argument based on the fact that some the guaranties were executed on dates other than the date on which Note 1 was executed.

The guaranties were executed on January 8, 11 and 12, 1999, while Note 1 was executed on January 11, 1999. However, under the terms of these guaranties, defendants agreed to be "unconditionally liable to [OCAI] for the due performance of all such Security Obligations past, present and future and any and all subsequent renewals, continuations, modifications, supplements and amendment thereof, and for all payments of any and all debts and other obligations of [Thunder Ridge] of whatever nature, . . . whether now or hereinafter existing" (Compl. Exs. G-N). By their terms, the guaranties applied to all "past, present and future" security obligation; therefore, the fact that these guaranties were executed either before, on, or after the dates that Note 1, Note 2 and the CE Agreement were entered into is immaterial and does not furnish the Guarantors with any defense to liability under the guaranties. See Orix Credit Alliance, Inc. v. Bell Realty, Inc., supra, 1995 WL 505891 at *10 n. 4 (enforcing an Orix guaranty containing identical "past, present and future" language); Orix Credit Alliance v. Phillips-Mahnen, Inc., supra, 1993 WL 183766 at *9 (S.D.N.Y. May 26, 1993) (same).

(iii) The Guaranties Are Not Supported by Consideration

The Guarantors contend that the guaranties are invalid because no additional consideration was given for their guaranties.

Defendants' argument, although not waived, see Midwest Corp. v. Global Cable, Inc., 688 F. Supp. 872, 875 (S.D.N.Y. 1988), has no basis in New York law. New York General Obligations Law Section 5-1105 provides:

A promise in writing and signed by the promisor . . . shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed.

Thus, past consideration, such as Phillip's extension of credit to Thunder Ridge under the terms of Note 1, is sufficient consideration under New York law so long as it was expressed in the written guaranty. Weyerhaeuser Co. v. Gershman, 324 F.2d 163, 165 n. 3 (2d Cir. 1963) ("Past consideration consisting of [creditor's] prior extension of credit to [debtor] is sufficient under New York law where the guaranty is in writing and states the consideration."); United Bank of Africa, P.L.C. v. Odimayo, 93 Civ. 3998 (WK), 1994 WL 185826 at *3 (S.D.N.Y. May 10, 1994) (noting that the consideration for the guaranty is valid if it is expressed in the written guaranty and citing N.Y. Gen. Oblig L. § 5-1105); Mfrs. Hanover Trust Co. v. Jayhawk Assocs., 766 F. Supp. 124, 127 (S.D.N.Y. 1991) (same).

Here, the OCAI guaranties do express the consideration given for them: "To induce [OCAI] to enter into one or more equipment lease agreements and/or one or more security agreements . . . and/or in consideration of [OCAI] having heretofore done any or all of the foregoing . . ." (Compl. Exs. G-N). Moreover, Thunder Ridge received the benefit of the stated consideration when it took possession of the equipment that was the subject matter of the security agreements.

Furthermore, N.Y.U.C.C. § 3-408 provides that, "no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind." Thus, to the extent that these guaranties were given for a past obligation, new consideration was not required. Midwest Corp. v. Global Cable, Inc., supra, 688 F. Supp. at 877 (citing U.C.C. § 3-408).

In light of the foregoing authority, because the consideration was expressed in the written guaranties and was actually extended to Thunder Ridge, the guaranties are supported by valid consideration under New York law.

(iv) Guaranties Cannot Be Made in Favor of OFS, which Was Not a Party to Note 1

The Guarantors next argue that OFS cannot enforce the guaranties because it was not a party to Note 1, the equipment lease agreement between Phillips and Thunder Ridge, and, "was not part of the deal until January 11, 1999." This argument is also meritless.

It is well-settled that most contractual rights, such as those contained in Note 1, are freely assignable unless the parties agree otherwise. See Cavendish Traders, Ltd. v. Nice Skate Shoes, Ltd., 117 F. Supp.2d 394, 399 (S.D.N.Y. 2000) ("Under New York law, 'any claim or demand can be transferred,' unless there is an express provision in the instruments prohibiting assignment. . . . The assignee stands in the shoes of the assignor and is subject to the 'equities between the original parties.'"). No such prohibition of assignment or transferability is contained in Note 1.

The Guarantors were admittedly aware that Phillips assigned all of its "rights, remedies and powers" under Note 1 and all related documents to OCAI on January 11, 1999 — the same date that Note 1 was executed (Compl. Ex. C; Bagby Aff. ¶ 4). In addition, these guaranties were given to OCAI, not to Phillips; indeed, each guaranty's heading or caption makes that fact irrefutably obvious: "TO: ORIX CREDIT ALLIANCE, INC." In executing these guaranties, the Guarantors represented and agreed that they were doing so to induce OCAI, not Phillips, "to purchase and/or accept an assignment of Security Obligations from [Thunder Ridge]" and that they would be "liable to [OCAI] for the due performance of all such Security Obligations past, present and future . . . and whether now or hereinafter existing or arising or contracted or incurred or owing to or acquired by [OCAI] by assignment, transfer, or otherwise . . ." Based on the unambiguous quoted language, each Guarantor knew or should have known that, by signing the guaranty, he or she was agreeing to be personally liable to OCAI for Thunder Ridge's past, present or future security obligations, including those that OCAI acquired by assignment. The fact that OCAI was not a party to the underlying transaction is immaterial.

(v) The Guarantors Were Not Notified of Any Default or Subsequent Transactions

The fact that the Guarantors were not notified of a default or any of the subsequent transactions between OCAI and Thunder Ridge is also immaterial, since the Guarantors waived their right to receive such notice: "We hereby waive notice of . . . non-payment . . . of any notes or other instruments for which we are or may be liable hereunder" (Compl. Exs. G-N). See Mfrs. Hanover Trust Co. v. Yanakas, 7 F.3d 310, 318 (2d Cir. 1993) (a guaranty's waiver of notice provision bars the guarantor from arguing that the bank failed to notify him of an additional loan for which he was liable); Battery Assocs., Inc. v. J B Battery Supply, Inc., 944 F. Supp. 171, 177 (E.D.N.Y. 1996) ("Notice is not necessary," when "[u]nder the plain meaning of the guaranty, the guarantor expressly waived the right to receive notice and demand on default"); Orix Credit Alliance, Inc. v. Hamrick, supra, 1992 WL 84458 at *3 (enforcing a guaranty containing an identical waiver of notice provision).

(c) Commercial Reasonableness of the Sale of the Continuous Miner

The Guarantors' next series of arguments are directed to the commercial reasonableness of the auction of the Continuous Miner.

As an initial matter, even though the language of the guaranty purports to waive all defenses, this "does not foreclose a challenge to the calculation of the amount owed." L B 57th Street, Inc. v. E.M. Blanchard, Inc., 143 F.3d 88, 92 (2d Cir. 1998); Midwest Corp. v. Global Cable, Inc., supra, 688 F. Supp. at 875 ("[A] guarantor cannot be liable for an amount greater than that for which the principal is liable."). Since the sale price obtained for the Continuous Miner at auction directly impacts the amount owed under the guaranties, I conclude that this issue is not foreclosed by the language of the guaranties.

First, the Guarantors take issue with OFS's failure to provide a local point of contact in its public sale notice, (5/02 Carey Aff. ¶ 2), as well as the way in which the public sale was advertised (5/02 Carey Aff. ¶ 4).

As to the former argument, my research has not disclosed any authority holding that the use of a non-local point of contact in an auction notice renders the sale commercially unreasonable. Moreover, there is no logical reason why a non-local point of contact should make the sale unreasonable. If read carefully, the notice of sale merely states that the non-local point of contact would "make arrangements" for potential purchasers to inspect the equipment, not that potential purchasers were required to travel to a remote location to perform an inspection.

With respect to the Guarantors' objection to the manner in which the auction was advertised, Note 1 contains the following stipulation concerning the manner in which both notification and advertisement of a foreclosure sale were to be performed:

Buyer and Guarantor hereof agree that any public sale will be deemed commercially reasonable if notice thereof is mailed to them at least ten (10) days before such sale and advertised in at least one newspaper of general circulation in the area of the sale at least twice prior to the date of sale upon terms of 25% cash down and the balance within 24 hours and further agree that any private sale shall be deemed commercially reasonable if notice thereof is mailed to them at least 14 days before the sale date stated therein and credit given for the price stated.

(Compl. Ex. A).

The auction of the Continuous Miner was advertised on two occasions prior to the sale, on March 15 and March 17, 2002, inThe Register Herald, a newspaper of general circulation in Beckley, West Virginia, the area of the sale, which was the precise manner specified in Note 1 (Bagby Aff. ¶ 24 Ex. 5 attached thereto). In addition to complying with these stipulated notice requirements, OFS also sent notice of the auction to five entities that it believed might be interested in purchasing the Continuous Miner (Bagby Aff. ¶ 26 Ex. 8 attached thereto).

The Guarantors expressly agreed in their guaranties to be bound by all provisions in any credit agreement Thunder Ridge entered into (Compl. Ex. G), therefore, defendants cannot now challenge the commercial reasonableness of the notification and advertising. See N.Y.U.C.C. § 9-603(a) ("The parties may determine by agreement the standards measuring the fulfillment of the rights of a debtor or obligor and the duties of a secured party under a rule stated in Section 9-602 [which includes the requirement of commercial reasonableness set forth in Section 9-610(b)] if the standards are not manifestly unreasonable.");Wombles Charters, Inc. v. Orix Credit Alliance, Inc., 97 Civ. 6186 (JSM), 1999 WL 498224 at *5-*6 (S.D.N.Y. July 14, 1999) (upholding provision in security agreement that advertising the sale of collateral in two editions of one newspaper of general circulation in the area of the sale was commercially reasonable).

Further, Carey Cline claims that he was never given an opportunity to bid at the auction and, that had he been given that opportunity, his bid would have been $2,500 to $7,500 higher than the bid that was accepted (5/02 Carey Aff. ¶ 3; 4/03 Carey Aff. ¶ 3).

Assuming the truth of this contention, the alleged defect in the sale would not have released the Guarantors, but would only reduce plaintiff's recovery in an amount equal to the diminution in the proceeds from the sale attributable to the defect. Paco Corp. v. Vigliarola, 611 F. Supp. 923, 925 (E.D.N.Y. 1985),aff'd without opinion, 835 F.2d 1429 (2d Cir. 1987). More specifically, however, the Guarantors have provided no admissible evidence establishing that the sales price was in fact unreasonably low. To the contrary, the fact that the actual sales price ($122,500) was at least 94% of the maximum amount Carey Cline was willing to bid ($130,000) is compelling evidence that the sales price was not an unreasonable departure from fair market value. Finally, even if I assume that the sales price should have been higher, based on the alleged condition of the Continuous Miner, that fact alone is insufficient as a matter of law to establish that a sale was not commercially reasonable.See N.Y.U.C.C. § 9-627(a) ("The fact that a greater amount could have been obtained by a collection, enforcement, disposition, or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition, or acceptance was made in a commercially reasonable manner.").

(d) Summary

For all the reasons discussed above, I find that the Guarantors have offered no evidence that raises a genuine issue of material fact as to the enforceablity of these guaranties or the underlying agreements.

2. The Guarantors' Arguments Challenging the Validity of the Signatures on the Guarentees

Plaintiff must also prove due execution of the guaranties in order to establish its entitlement to summary judgment. Accordingly, plaintiff has appended to its motion and its complaint copies of all of the eight guaranties signed by each of the Guarantors and notarized.

Defendants Carey Cline, Eddie Cline, Larry Cline and Mark Cline do not contest the validity of their notarized signatures on the respective guaranties bearing their signatures. Since there is no evidence to the contrary, the authenticity of the notarized signatures of Carey Cline, Eddie Cline, Larry Cline and Mark Cline is presumed as a matter of law, see Lum v. Antonelli, 102 A.D.2d 258, 260-261, 476 N.Y.S.2d 921, 923 (2d Dep't 1984),aff'd, 64 N.Y.2d 1158, 1161, 480 N.E.2d 347, 348, 490 N.Y.S.2d 733, 734 (1985), and, plaintiff's motion should, therefore, be granted with respect to these individuals.

However, four of the Guarantors, Ileen Cline, Linda G. Cline, Linda L. Cline and Pamela S. Cline, have submitted affidavits, stating that they did not sign the respective guaranties bearing their notarized signatures nor did they authorize anyone to sign the guaranties for them (See Ileen Aff.; 8/03 Linda G. Aff.; 4/05 Linda G. Aff.; Linda L. Aff.; 8/03 Pamela S. Aff. ¶ 3; 4/05 Pamela S. Aff.). These Guarantors are not alleging fraud; rather, they are alleging that the signatures on their guaranties are forged.

In support of their allegation, defendants Ileen Cline, Linda G. Cline and Pamela S. Cline offer the affidavit of Harold F. Rodin, a purported "Certified Document Examiner and Certified Questioned Document Examiner." In Rodin's opinion, the signatures on the respective guaranties do not match with the signature samples provided by these defendants (Rodin Aff. at p. 2). Rodin's affidavit does not address the validity of Linda L. Cline's signature.

Plaintiff's reply papers take issue with these Guarantors raising the issue of non-execution so late in the litigation. Plaintiff argues that these defendants have waived the defense of non-execution because they failed to raise it until two years after the complaint was filed and cites Fed.R.Civ.P. 8(c) for the proposition that a party who fails to timely assert an affirmative defense waives that defense (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Pl. Opp'n"), dated May 16, 2005, at ¶¶ 2-13). However, the nonexecution of a guaranty is not an affirmative defense under Fed.R.Civ.P. 8(c). Rather, allegations of non-execution merely controvert an essential element of plaintiff's prima facie case — due execution of the guaranties in question. See Laborde v. City of New York, 93 Civ. 6923 (JGK), 1999 WL 38253 at *4 (S.D.N.Y. Jan. 27, 1999) ("An affirmative defense is distinguished from a fact that would merely negate an element of the plaintiff's prima facie case, which a defendant does not have to plead."); Hadar v. Concordia Yacht Builders, Inc., 886 F. Supp. 1082, 1089 (S.D.N.Y. 1995) ("A defense is not affirmative where it 'merely negates an element of the plaintiff's prima facie case.'"). As noted above, plaintiff bears the burden of establishing due execution of the guaranties in issue. See WestRM-West Risk Markets, Ltd. v. Lumbermens Mut. Cas. Co., supra, 314 F. Supp.2d at 232; Valley Nat. Bank v. Greenwich Ins. Co., supra, 254 F. Supp.2d at 453; Orix Credit Alliance, Inc. v. Bell Realty, Inc., supra, 1995 WL 505891 at *3; Pickwick Communications, Inc. v. Weinberg, supra, 1994 WL 620950 at *9. Thus, plaintiff's contention that non-execution is an affirmative defense that has been waived is without merit.

Because the rebuttable presumption of authenticity accorded notarized acknowledgments relates to an issue of fact pertaining to an element of plaintiff's claim to enforce a guaranty, it is governed by New York law. As explained in Peoples Westchester Sav. Bank v. Carlysle, 87 Civ. 0463 (SWK), 1988 WL 85457 at *3 (S.D.N.Y. Aug. 11, 1988):

[U]nder Federal Rule of Evidence 302, "the effect of a presumption respecting a fact — in this case the notarial certification — which is an element of a claim or defense as to which State law supplies the rule of decision — as is true in this diversity case — is determined in accordance with State law." See also 9 Charles A. Wright Arthur R. Miller, Federal Practice Procedure § 2408 at 556 (2d ed. 1995) ("As to presumptions, the Evidence Rules specifically provide that a presumption respecting a fact that is an element of a claim or defense to which state law applies is to be determined in accordance with state law.").

Under New York law, a certificate of acknowledgment by a notary public gives rise to a presumption of due execution that can only be rebutted upon "a showing of clear and convincing evidence to the contrary." Chianese v. Meier, 285 A.D.2d 315, 320, 729 N.Y.S.2d 460, 466 (1st Dep't 2001), aff'd as modified, 98 N.Y.2d 270, 279, 774 N.E.2d 722, 727, 746 N.Y.S.2d 657, 661 (2002) ("Where a document on its face is properly subscribed and bears the acknowledgment of a notary public, there is a 'presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary.'"),quoting Spilky v. Bernard H. La Lone Jr. P.C., 227 A.D.2d 741, 743, 641 N.Y.S.2d 916, 918 (3d Dep't 1996). Accord Hedger v. Reynolds, 216 F.2d 202, 203 (2d Cir. 1954) ("Certainly the certificate of the notary was . . . rebuttable evidence that the appellee's acknowledgment had been taken as certified and that the instrument had been duly executed by her."); Orix Credit Alliance, Inc. v. Khoury, 94 Civ. 2083 (HB), 1995 WL 2133 at *1 (S.D.N.Y. Jan. 3, 1995) ("Notarization of a signature raises a presumption that the signature is valid. This presumption can be rebutted, however, 'after being weighed against any evidence adduced to show that the subject instrument was not duly executed.'"); In re Piazza, 181 B.R. 19, 21 (Bankr. E.D.N.Y. 1995); Osborne v. Zornberg, 16 A.D.3d 643, 644, 792 N.Y.S.2d 183, 184 (2d Dep't 2005) ("A certificate of acknowledgment attached to an instrument . . . raises a presumption of due execution, which presumption can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed."); Republic Pension Servs., Inc. v. Cononico, 278 A.D.2d 470, 472, 718 N.Y.S.2d 76, 78 (2d Dep't 2000); Seaboard Sur. Co. v. Earthline Corp., 262 A.D.2d 253, 253, 692 N.Y.S.2d 375, 375 (1st Dep't 1999) ("Although the notarization of a signature raises a presumption that the signature is genuine . . . the presumption is rebuttable.").

The mere "unsupported testimony of interested witnesses" is insufficient as a matter of law to rebut the presumption that a notarized signature is authentic. Demblewski v. Demblewski, 267 A.D.2d 1058, 1058, 701 N.Y.S.2d 567, 567-68 (4th Dep't 1999);Lum v. Antonelli, supra, 102 A.D.2d at 260-61, 476 N.Y.S.2d at 923 ("[A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing as to amount to a moral certainty."); accord In re Piazza, supra, 181 B.R. at 21; 39 College Point Corp. v. Transpac Capital Corp., 22 A.D.3d 663, 663, 802 N.Y.S.2d 733, 733 (2d Dep't 2005); Republic Pension Servs., Inc. v. Cononico, supra, 278 A.D.2d at 472, 718 N.Y.S.2d at 78; Osborne v. Zornberg, supra, 16 A.D.3d at 644, 792 N.Y.S.2d at 184.

The Guarantors claim that they have met their burden, citing Rodin's affidavit. Plaintiff challenges the sufficiency of Rodin's affidavit, arguing that it contains numerous flaws, namely: (1) Rodin examined copies of the guaranties, not originals; (2) Rodin provided an inadequate statement about the methods and tools he utilized during his examination; (3) Rodin'scurriculum vitae contains "omissions or generalities about his qualifications as a handwriting expert," and (4) Rodin's affidavit fails to state whether or not the handwriting samples he utilized as a basis of comparison were authenticated in accordance with Fed.R.Evid. 901(b) (3) (Pl. Opp'n ¶¶ 14-17).

Rodin's use of copies of the guaranties does not rob his opinion of all probative value. First, the original guaranties are, presumably, in plaintiff's possession. Thus, Rodin's use of copies appears to have an innocent and reasonable explanation. Second, plaintiff cites no authority, and I am aware of none, holding that a handwriting comparison that utilizes photocopies is inherently unreliable. Indeed, it appears that, if anything, a handwriting expert's use of photocopies goes to the weight of his opinion, not its admissibility. See Kluge v. Fugazy, 739 F. Supp. 939, 939-40 (S.D.N.Y. 1990) (finding that handwriting expert's analysis of photocopy of questioned document is sufficient to give rise to genuine issue of fact).

Second, although plaintiff is correct that Rodin's declaration provides no description of the specific methods and tools he used, it is self-evident that the principal tool utilized by a handwriting expert is a visual comparison. Although Rodin's affidavit is far from being a model Fed.R.Civ.P. 26(a) (2) disclosure, the lack of a detailed description of Rodin's methodology is not so severe a defect as to warrant the total disregard of the affidavit. See United States v. Starzecpyzel, 880 F. Supp. 1027, 1040-41, 1047 (S.D.N.Y. 1995) (holding that the proffered expert testimony of a forensic document examiner constituted admissible, non-scientific expert testimony under Rule 702 so long as it was reliable); United States v. Buck, 84 Cr. 220 (CSH), 1987 WL 19300 at *2 (S.D.N.Y. Oct. 28, 1987) (noting that "the Federal Rules of Evidence presuppose the admissibility of expert handwriting testimony");see also 4 Jack B. Weinstein Margaret A. Berger,Weinstein's Federal Evidence § 702.06[7] (Joseph M. McLaughlin ed., 2d ed. 2005) (although the Second Circuit has yet to address the issue, in the majority of Circuits that have, handwriting analysis is admissible under Fed.R.Evid. 702 and Daubert).

Third, after reviewing Rodin's nine-page curriculum vitae, I conclude that his experience and training are set forth in sufficient detail for the purpose of the pending motion. Again, although it is not in strict compliance with Fed.R.Civ.P. 26 (a) (2),⁵ it does set forth sufficient information concerning his training and experience at some length and is sufficient to support a finding that he is qualified.

5 For example, Rodin does not specifically identify the trials at which he has testified and the depositions that he has given within the preceding four years.

Plaintiff's final objection — that Rodin's affidavit does not state whether the known hand-writing samples were authenticated in accordance with Fed.R.Evid. 901 (b) (3) — is difficult to understand. Handwriting can be authenticated by the testimony of the putative penman attesting that the writing is his. Fed.R.Evid. 901 (b) (1); see also United States v. Chin, 371 F.3d 31, 38 (2d Cir. 2004) (Judge McLaughlin explaining that "Rule 901's requirements are satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification." (internal quotation marks omitted)). By providing samples,⁶ Linda G. Cline, Pamela S. Cline and Ileen Cline, were, presumably, attesting to the authenticity of the signatures in the samples. Although this is not explicit from Rodin's affidavit, this shortcoming is most likely attributable to the Guarantors' pro se status. Since there is an apparent attestation to the authenticity of the samples by Linda G. Cline, Pamela S. Cline and Ileen Cline, evidence of authentication pursuant to Fed.R.Evid. 901 (b) (3) is unnecessary.

6 Here, the exemplars Rodin inspected, which are attached to his affidavit, included signatures on: a credit card, cleared checks, an AARP membership card, an odometer disclosure statement, a vehicle purchase agreement, a West Virginia notice of lien, various authorizations and releases executed in connection with unrelated litigation, a record of admittance for a safe deposit box, a credit card receipt, a Sears maintenance agreement, a savings account withdrawal form and a federal income tax form. Further, Rodin's own affidavit, although inartfully drawn, states that he compared the signatures with "standards provided, being those of [defendants]" (Rodin Aff. at p. 1-2).

In light of the Rodin affidavit, I conclude that Ileen Cline, Pamela S. Cline and Linda G. Cline have offered evidence sufficient to rebut the presumption of authenticity accorded their notarized signatures and that a genuine issue of material fact exists as to whether these Guarantors actually signed the guaranties allegedly bearing their signature. See Cavendish Traders, Ltd. v. Nice Skate Shoes, Ltd., supra, 117 F. Supp.2d at 402 (holding that summary judgment is inappropriate where there is a genuine issue of material fact as to the authenticity of the signature on a guaranty); see also, e. g., Orix Credit Alliance, Inc. v. Khoury, supra, 1995 WL 2133 at *1 (motion for summary judgment denied as plaintiff demonstrated a genuine issue of material fact by rebutting the presumption of his signature's validity on a guarantee; plaintiff offered evidence that he was abroad on the date the guarantee was allegedly executed);Lombardo v. United Techs. Corp., 3:95-CV-2353 (WWE), 1997 WL 289669 at *2 (D. Conn. May 7, 1997) ("At the outset, the court finds a genuine issue of material fact as to whether Mrs. Lombardo's signature was forged. . . . While a notary public's certificate of acknowledgement, regular on its face, carries a strong presumption of validity, in light of Mrs. Lombardo's affidavit and the expert's opinion that this is not her signature, the issue of the authenticity of plaintiff's signature is in dispute."); accord In re Piazza, supra, 181 B.R. at 22 (noting that a "handwriting expert who could testify regarding the authenticity of the execution of the otherwise presumptively genuine document" could be utilized to overcome the burden of due execution). Of course, whether the presumption of validity actually is rebutted is an issue for the fact finder at trial.

Conversely, Linda L. Cline's conclusory affidavit, stating that she did not sign the guaranty bearing her name, is not sufficient to rebut the presumption of due execution. She cannot overcome the presumption of authenticity given her notarized signature by merely offering the "unsupported testimony of [an] interested witness." Demblewski v. Demblewski, supra, 267 A.D.2d at 1058, 701 N.Y.S.2d at 567-68; Lum v. Antonelli, supra, 102 A.D.2d at 260-261, 476 N.Y.S.2d at 923; accord In re Johansmeyer, 231 B.R. 467, 473 (Bkrtcy. E.D.N.Y. 1999) (because all that the Court has before it is the debtor's conclusory statement that he did not sign the continuing agreement of indemnity, the debtor did not rebut the prima facie validity of that agreement which clearly has the affixed statement by the notary public that [debtor] had signed that document.");Midfirst Bank v. Rath, 270 A.D.2d 932, 932, 706 N.Y.S.2d 651, 651 (4th Dep't 2000) ("We reject the contention of defendant that her 'affidavit of non-signature' raised an issue of fact regarding the authenticity of her purported signatures on the note and mortgage. . . . 'Defendant cannot raise a triable issue of fact . . . simply by alleging, in conclusory form, that the signatures were forgeries.'").

Thus, I conclude that only Ileen Cline, Pamela S. Cline and Linda G. Cline have offered evidence sufficient to rebut the presumption of authenticity accorded their notarized signatures and, therefore, that a genuine issue of material fact exists as to whether these defendants actually signed the guaranties allegedly bearing their signature. In addition, since no such issue of fact has been raised as to defendants Carey Cline, Eddie Cline, Larry Cline, Linda L. Cline and Mark Cline, plaintiff's motion for summary judgment, as to them, should be granted.

IV. Conclusion

Accordingly, for all of the foregoing reasons, I respectfully recommend that plaintiff's motion for summary judgment be granted as to defendants Thunder Ridge, Carey Cline, Eddie Cline, Larry Cline, Linda L. Cline and Mark Cline. I further recommend that plaintiff's motion be denied as to defendants Ileen Cline, Linda G. Cline and Pamela S. Cline.

I also recommend that the individual defendants' motion to dismiss be denied. Defendants argue that plaintiff's claims should be dismissed because various non-parties failed to appear at depositions improperly noticed by putative subpoena duces tecum issued by the pro se defendants. Defendants' argument is baseless. In may March 16, 2005 endorsed Order, I instructed defendants that:

A pro se litigant cannot issue a subpoena. He or she must make an application to the Clerk of the Court with jurisdiction over the witness for a subpoena. In addition, a party seeking to take a notice of deposition or obtain documents by subpoena must give notice to all adverse parties before sending the subpoena. Defendants are directed to call Mr. Smoley forthwith to attempt to resolve the discovery matters raised in this letter.

(Docket Item No. 22 (emphasis in original)). Defendants, however, have failed to comply with my Order and the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 45. In addition, defendants do not explain why plaintiff should be sanctioned for the alleged misconduct of non-parties. Accordingly, I recommend that defendants' motion to dismiss be denied.

As to damages, after deducting the net proceeds from the sale of the Continuous Miner ($89,901.76) from the present value of the balance due on Note 1 and 2, including late charges and interest as of March 22, 2002 ($686,380.70), which yields $596,478.94, adding interest at the rate of one-fifteenth of one percent per day from March 23, 2002 to March 30, 2005, the date of plaintiff's motion ($438,213.19), which yields $1,034,692.13 (Bagby Aff. ¶¶ 28-29 Exs. 2-3, 7 attached thereto), adding interest at the rate of one-fifteenth of one percent per day from March 31, 2005 through today, December 29, 2005, which yields $1,223,695.89 ($1,034,692.13 plus $189,003.76 in additional interest), and limiting attorney's fees, on plaintiff's motion, to $30,000 instead of the 20% permitted by Notes 1 and 2, the total damages amount to $1,253,695.89 as of today, December 29, 2005.

Accordingly, and for all the foregoing reasons, I respectfully recommend that plaintiff recover from defendants, jointly and severally, the sum of $1,253,695.89. Until judgment is entered, interest at the rate of one-fifteenth of one percent per day should be added onto the principle balance due, $1,223,695.89, which excludes attorney's fees, for every day after today, December 29, 2005. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).