Crossing Park Properties, LLC, Glen H. Hammer and Joan F. Hammer appeal from the trial court’s grant of summary judgment in favor of Archer Capital Fund, L.P.”Archer” and two affiliated entities. Because disputed issues of material fact remain to be decided with respect to the dealings between the Hammers and Archer, we reverse. The underlying dispute arose from a 2006 real estate transaction. 2000 Ocean Drive LLC purchased a hotel property in Florida. Financing was arranged from several sources. Those sources were an initial financing from Bank of America and secondary financing through two lenders: JDI, the senior lender, which held the first mortgage on the property, and Archer, the junior lender, which held the second mortgage. The Archer loan was entered into by 2000 Ocean Drive LLC, Crossing Park, Mrs. Hammer, and TKW Partners, LLC. As part of the arrangements with Archer, which were negotiated between Archer’s representative and Mr. Hammer, Crossing Park and the Hammers offered security in the form of real property, and Mr. Hammer signed a personal guaranty.
During the course of negotiations, Mr. Hammer and Archer’s representative mutually agreed that they would “be totally open and honest” with one another and would deal “in a very honest and straightforward manner.” Mr. Hammer specifically requested, and Archer’s representative agreed, that “all the documents that pertain to him . . . would be forwarded to Atlanta in advance to give us a chance to review the documents.” Archer’s representative agreed that it was his “intention that no document was concealed.” But the documents given to Mr. Hammer did not include a subordination agreement between 2000 Ocean Drive LLC, Archer, and JDI that included several provisions specifically affecting Mr. Hammer and his obligations in the transaction. Provision 14 a of the subordination agreement provided that Archer would not, without JDI’s consent, commence, prosecute or participate in any administrative, legal or equitable action against Owner, any Guarantor as defined in the Loan Agreement other than Glen Hammer “Hammer” or the Property or take any other action that might adversely affect any Guarantor other than Hammer , Owner or Owner’s interest in the Property or the interests of the Owner’s members in the membership interests in Owner or that might adversely affect JDI and its interest in the Property. Emphasis supplied. Provision 19 provided that if JDI obtained the property from 2000 Ocean Drive LLC by deed in lieu of foreclosure, Archer would release its lien on the property.
