Federal National Mortage Association v. Kalkan

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Federal National Mortgage 	§
Association, 	§
Plaintiff, 	§
§
v. 	§ 	Civil Action H-25-1132
§
Fercan E. Kalkan, 	§
Defendant. 	§
MEMORANDUM AND ORDER
This case has been referred to the undersigned magistrate
judge 	pursuant 	to 	28 U.S.C. § 636(b)(1). 	ECF 	No. 21. 	Pending
before the court is Plaintiff’s Unopposed1 Motion for Summary
Judgment, ECF No. 11. The court recommends that the motion be
GRANTED.
Also pending before the court is Plaintiff’s Motion to Strike,
ECF No. 33. Plaintiff requests that the court strike Defendant’s
rebuttal 	to 	Plaintiff’s 	sur-reply 	to 	the 	Motion 	for 	Summary
Judgment, ECF No. 32. Defendant did not respond to the motion,
so it is deemed unopposed. See S.D. Tex. L.R. 7.4 (stating that
failure to respond to a motion is “taken as a representation of no
opposition”). Moreover, the rebuttal adds nothing to the case. The
Motion to Strike is GRANTED.
1 As will be discussed, despite admitting virtually all of the relevant facts in his Answer, and
despite presenting no evidence at all to refute Plaintiff’s factual recitation, Defendant insists
that he is opposed to the motion.
United States District Court
Southern District of Texas
ENTERED
February 04, 2026
Nathan Ochsner, Clerk
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1. Procedural Posture
Before turning to a more detailed discussion of the facts,
which are set forth in the next section, the court reviews the
procedural posture of this case. While the amount in controversy
here is well into eight figures, the facts are not complicated.
Briefly, Ferkan Kalkan signed a guaranty agreement obligating
him to pay the full amount of indebtedness on a note in the event
that the borrower, Piney Point 2023, LLC (the Borrower), filed for
bankruptcy. Kalkan served as the Borrower’s “sole manager.”
Federal National Mortgage Association (Fannie Mae) now owns
the note. The borrower filed for bankruptcy and Kalkan is now
obligated to repay the loan. He has not done so. Fannie Mae now
seeks 	to 	recover 	the 	outstanding 	principal 	on 	the 	note, 	plus
interest and attorney fees.
In his Answer, ECF No. 6, Kalkan admitted virtually every
fact necessary to support a final judgment in Fannie Mae’s favor.
He has not amended or withdrawn the Answer. Before filing the
instant Motion for Summary Judgment, Fannie Mae’s counsel
conferred with Kalkan’s then-counsel, Camden Chancellor. ECF
No. 17. Fannie Mae’s counsel stated in an email that Fannie Mae
intended to “file a motion for summary judgment . . . on [Fannie
Mae’s] claim for Breach of the Guaranty . . . . [P]lease let us know
if Mr. Kalkan opposes the MSJ. We believe all elements of the
claim are established as a matter of law and intend to argue as
much.” ECF No. 17-1 at 2 (emphasis in original). Mr. Chancellor
responded 	with 	“[t]he 	Defendant 	is 	unopposed 	to 	the 	relief
requested at this time.” Id. at 2.
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Fannie Mae filed the instant motion with “unopposed” in the
title, given that Mr. Chancellor had clearly indicated Kalkan’s non-
opposition. Mr. Chancellor almost immediately changed course
when he requested that the court delay ruling on the Motion for
Summary Judgment until after discovery had taken place. ECF
No. 14, 18. Mr. Chancellor withdrew as Kalkan’s counsel shortly
thereafter, and Kalkan’s current lawyer, James Pope, appeared.
ECF Nos. 20, 23. The court held a hearing to resolve the apparent
confusion about whether the motion was opposed. At the hearing,
Mr. Pope stated that he needed certain real property inspection
reports before he could respond to the summary judgment motion.
The court entered an order requiring Fannie Mae’s counsel to
direct Mr. Pope to the location of those documents. ECF No. 27.
The court also extended the time for Defendant to respond and for
Plaintiff to reply. Id.
The court has now reviewed the parties’ post-hearing filings.
The court refers to Kalkan’s second, court authorized response,
ECF No. 29, which appears to be a duplicate of ECF No. 28, but
with a signature, as his “Supplemental Response.” Interestingly,
while Kalkan’s Supplemental Response has as an attachment a
Property Condition Assessment, ECF No. 29-2, the Supplemental
Response does not mention the assessment or state which part of
the assessment the court should read or what legal impact it may
have in the case. Also attached to the Supplemental Response is
the loan agreement between the Borrower and the original lender.
ECF No. 29-1. Highlighted in the loan agreement are various parts
of a force majeure clause. But, again, Kalkan does not explain why
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force majeure is even relevant to this case. Kalkan refers to “severe
storm damage, winter freeze impacts, extensive fire casualties,
drainage failures, roof collapses, and infrastructure issues,” but
provides no discussion of how any of that could be relevant to
Kalkan’s liability on the guaranty agreement. The Supplemental
Response just states—in an entirely conclusory manner—that
“[w]hether Borrower invoked Force Majeure and whether Plaintiff
refused to honor it is a material fact in dispute . . . .” ECF No. 29
at 5. The Supplemental Response states, in many places, that
there are disputes about the facts, but presents no evidence to
support the existence of a fact dispute.
Kalkan’s 	Supplemental 	Response 	also 	seems 	to 	dispute
whether the Answer, which clearly admits many facts, should bind
Kalkan. ECF No. 29 at 1. 	The Answer re-states allegations from
the Complaint word for word and then states “ADMIT” as to nearly
every allegation in the Complaint. The Supplemental Response
also seems to refute the very same factual allegations that Kalkan
admitted in his Answer. For example, the Answer states, “A
recourse trigger occurs if Borrower files for bankruptcy. ADMIT.”
The very next paragraph states, “On January 6, 2025, Borrower
filed 	a 	Voluntary 	Petition 	for 	Bankruptcy . . . . 	ADMIT.” 	This
seems to be a clear and unequivocal admission that a recourse
trigger under the Guaranty—a bankruptcy—occurred. But the
Supplemental Response states that Kalkan disputes that “the
bankruptcy filing constituted a ‘Bankruptcy Event’ as defined by
the 	Loan 	Agreement.” 	ECF 	No. 29 	at 	1. 	The 	Supplemental
Response does not make any argument or cite any evidence to show
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that the Borrower’s bankruptcy filing was not a recourse trigger
under the guaranty agreement.
Kalkan’s attempt to muddy the factual record is not well
taken. Kalkan is bound by his Answer. The Fifth Circuit has held
that factual statements in pleadings are judicial admissions by
which the parties are bound. State Farm Fire & Cas. Co. v.
Flowers, 854 F.3d 842, 845 (5th Cir. 2017). Kalkan did not amend
his Answer, so that is the live pleading by which he is bound.
Moreover, merely saying that one disputes a fact does not raise a
factual dispute at the summary judgment stage. The court will rely
in 	the 	next 	section 	on 	Kalkan’s 	Answer 	and 	the 	unrebutted
evidence 	attached 	to 	Fannie 	Mae’s 	Motion 	for 	Summary
Judgment.
2. Facts
The court summarizes here only the facts that are directly
relevant to Fannie Mae’s single cause of action for breach of the
guaranty agreement. These facts are taken from the Declaration
of Joey Davenport, Fannie Mae’s Senior Asset Manager, ECF
No. 12—the 	contents 	of 	which 	Kalkan 	has 	not 	meaningfully
refuted—and Kalkan’s admissions in his Answer, ECF No. 6. The
court has reviewed all the filings in the case. The fact that the court
has not mentioned every fact or argument mentioned by the
parties should not be understood to mean that the court overlooked
it.
On June 8, 2023, JLL Real Estate Capital, LLC (the Original
Lender) made a loan to the Borrower in the original principal
amount of $73,893,000.00 (the Loan). Davenport Decl. ¶ 5; Answer
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at 1. Fannie Mae is the current owner and holder of all documents
related to the Loan (the Loan Documents). Id. The purpose of the
loan was to finance a commercial property in Houston, Texas
(the Property). Davenport Decl. ¶ 5; Answer at 1–2. Borrower’s
debt 	is 	evidenced 	by 	a 	Multifamily 	Note 	(the 	Note) 	and 	a
Multifamily Loan and Security Agreement (the Loan Agreement).
Davenport Decl. ¶ 5. Those documents are attached to Davenport’s
Declaration as Exhibits B and C, ECF Nos. 12-2, 12-3, and their
authenticity has not been contested.
Also on June 8, 2023, Kalkan executed a Guaranty of Non-
Recourse 	Obligations 	(the 	Guaranty), 	which 	was 	attached 	to
Davenport’s Declaration as Exhibit A, ECF No. 12-1. Kalkan
admits that he executed the Guaranty, and thus “guaranteed
repayment of the full amount of the indebtedness owed to Fannie
Mae in the event of certain recourse triggers.” Answer at 2; see also
Davenport Decl. ¶ 5. The Original Lender assigned its interest in
the Note, Deed of Trust, Guaranty, and Loan Documents to Fannie
Mae. Davenport Decl. ¶ 7.
Eventually, the Borrower defaulted on the Loan Agreement.
Davenport Decl. ¶ 9. Fannie Mae served the Borrower with a
Notice of Demand, as well as a Notice of Default and Demand for
Cure. Id. ¶ 10. The Borrower failed to cure its defaults. Id. Thus,
on May 17, 2024, Fannie Mae issued a Notice of Default and
Acceleration to notify both the Borrower and Kalkan of the default
and failure to cure. Id. ¶ 11.
“Bankruptcy Event” is defined in the Loan Agreement to
include filing a voluntary case or proceeding under an “Insolvency
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Law,” which includes the Bankruptcy Code. ECF No. 12-3 at 103,
108. 	Under 	Section 	14.01(a)(7) 	of 	the 	Loan 	Agreement, 	“the
occurrence 	of 	a 	Bankruptcy 	Event” 	qualifies 	as 	an 	“Event 	of
Default.” Id. at 84. Thus, the occurrence of a Bankruptcy Event
triggered 	automatic 	acceleration 	of 	the 	Loan 	and 	made 	all
obligations 	and 	indebtedness 	immediately 	due 	and 	payable
without written notice or any further action by the Lender. Id.
at 86. Relatedly, under Article 3, Section 3.02(b)(3) of the Loan
Agreement, upon the occurrence of a “Bankruptcy Event,” the
Borrower 	becomes 	personally 	liable 	to 	the 	Lender 	for 	the
repayment of all indebtedness. ECF No. 12-3 at 18.
Under Section 3 of the Guaranty, Kalkan guaranteed the full
and prompt payment and performance “when due, whether at
maturity or earlier, by reason of acceleration or otherwise” for all
amounts 	owed 	by 	the 	Borrower 	under 	Article 	3 	of 	the 	Loan
Agreement. ECF No. 12-1 at 3 (emphasis added). In short, if, and
when, a Bankruptcy Event occurred, Kalkan became personally
liable for the full amount of the Borrower’s indebtedness. The full
amount of indebtedness includes costs, expenses, and attorney and
expert witness fees. ECF No. 12-1 at 3. Kalkan agrees to this
reading of the Loan Documents and the Guaranty. Answer at 5.
On January 6, 2025, the Borrower filed a voluntary petition
for 	bankruptcy 	under 	Chapter 	11 	of 	the 	Bankruptcy 	Code.
Davenport Decl. ¶ 13; Answer at 9. That constituted a “Bankruptcy
Event.” Answer at 9 (admitting that “Borrower’s bankruptcy suit
constitutes a Bankruptcy Event and another default by Borrower
under Section 14.01(a)(7) of the Loan Agreement”). Kalkan admits
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that “[t]he filing of the Bankruptcy Case constitutes a full recourse
trigger for full personal liability of the Loan pursuant to Section
3.02(b)(3) of the Loan Agreement.” Id. He further admits that he
is “jointly and severally liable to Fannie Mae for the entire amount
of the Indebtedness as a result of Borrower’s bankruptcy pursuant
to Section 3(a) and 10 of the Guaranty.” Id.
Kalkan has failed to pay the full amount due to Fannie Mae
under the terms of the Loan Documents. Davenport Decl. ¶ 15.
According to Fannie Mae, the amount currently due and owing is
$73,893,000 	in 	outstanding 	principal; 	$9,102,960.78 	in
prejudgment interest; $1,957,417.06 in prepayment premium and
late fees, and $30,250 in third-party reports and costs. Id. ¶ 17.
Fannie Mae also seeks attorney fees.
3. Summary Judgment Standard
“Summary judgment is appropriate 	only if, 	viewing the
evidence in the light most favorable to the nonmovant, ‘the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
Initially, “[t]he movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
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genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna,
401 F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant
must then “go beyond the pleadings,” using competent summary
judgment evidence to cite “specific facts” showing a genuine issue
for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357
(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. See Tolan v.
Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). The court, however, does not have
a duty “to search the record for material fact issues.” RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports [the] claim.”). Although the court needs to consider only
the cited evidence, it is allowed to consider other materials in the
summary judgment record. Fed. R. Civ. P. 56(c)(3).
“[C]onclusory 	allegations, 	unsubstantiated 	assertions, 	or
‘only a scintilla of evidence’” are not enough to defeat a properly
supported 	motion 	for 	summary 	judgment. 	Turner 	v. 	Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
“[T]here must be evidence on which the jury could reasonably find
for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
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4. Analysis
To recover on a claim for breach of a guaranty, the plaintiff
must 	prove 	“(1) the 	existence 	and 	ownership 	of 	the 	guaranty
contract, (2) the terms of the underlying contract by the holder,
(3) the occurrence of the conditions upon which liability is based,
and 	(4) the 	failure 	or 	refusal 	to 	perform 	the 	promise 	by 	the
guarantor.” Harrison Co., L.L.C. v. A-Z Wholesalers, Inc., 44 F.4th
342, 346–47 (5th Cir. 2022) (quoting Haggard v. Bank of Ozarks
Inc., 668 F.3d 196, 199 (5th Cir. 2012)).
There is no real dispute that Fannie Mae has met each of
these elements. Kalkan has admitted the existence and terms of
the Guaranty. Fannie Mae has attached the Guaranty and the
related Loan Documents. The court has reviewed the documents
and concludes that they are clear and unambiguous. A Bankruptcy
Event occurred, which triggered Kalkan’s obligations under the
Guaranty. He owes the full amount of the indebtedness under the
Loan, as well as costs and attorney fees. He has failed to satisfy
that 	obligation. 	Summary 	judgment 	should 	be 	granted 	on
Fannie Mae’s breach of guaranty claim.
As discussed, Kalkan originally conceded that he was liable
under the Guaranty and did not oppose the instant summary
judgment motion. Since then, he has changed counsel and his
position. The court has attempted to understand Kalkan’s current
position and to identify the evidence and law that might support
it. Kalkan seems to be saying that the Borrower was forced or
coerced by Fannie Mae into filing for bankruptcy. Kalkan appears
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to 	be 	taking 	the 	position 	that 	he 	is 	thus 	excused 	from 	his
obligations under the Guaranty.
The problem is that there are no facts to support Kalkan’s
position. Kalkan cites no law that would lead to that result. This
appears to the court to have been a transaction at arm’s length
between several sophisticated parties. There appears to have been
events that led to default, a failure to cure, and acceleration of the
loan—all of which led the Borrower to file for bankruptcy. Kalkan
himself is the manager of the Borrower, and he signed all of the
documents on behalf of that entity in the Bankruptcy Court.
ECF No. 13 at 10–13. Kalkan appears to have been represented by
counsel when he filed for bankruptcy. Id. at 10. Kalkan stated in
writing 	that 	the 	Borrower 	was 	filing 	for 	bankruptcy 	after
consultation 	with 	legal 	and 	financial 	advisors 	and 	having
determined that doing so is in the best interests of the Borrower.
Id. at 11. There is no indication whatsoever that Fannie Mae did
anything inappropriate that led to the bankruptcy filing.
Kalkan also states that Fannie Mae misrepresented and
misconstrued 	the 	real 	estate 	property 	inspections 	mentioned
earlier. ECF No. 18 at 2. He does not cite any evidence to support
that statement. In his Supplemental Response to the instant
motion, while he attaches the property inspection report as an
exhibit, he does not even mention the property inspection report in
his argument. See generally ECF No. 29. The court is left to guess
what legal import Kalkan attaches to the report.
Finally, in his Supplemental Response, Kalkan makes many
conclusory statements and denials. None of these are supported by
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evidence, argument, or law. Merely denying allegations at the
summary 	judgment 	stage 	is 	insufficient 	to 	defeat 	a 	properly
supported motion for summary judgment, such as is currently
before the court.
5. Conclusion
For 	the 	foregoing 	reasons, 	the 	court 	recommends 	that
Fannie Mae’s Motion for Summary Judgment, ECF No. 11, be
GRANTED.
Assuming 	the 	district 	judge 	adopts 	the 	court’s
recommendation, the undersigned will order that Fannie Mae file
a motion for entry of final judgment with a proposed order showing
how to calculate all elements of damages, including an updated
calculation of pre-judgment interest, costs, and attorney fees.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas on February 4, 2026.
___________________________________
Peter Bray
United States Magistrate Judge
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