FAITH S. HOCHBERG, District Judge.
This matter comes before the Court upon Plaintiff's Motion for Summary Judgment. The Court has considered the submissions of the parties pursuant to Fed.R.Civ.P. 78.
On or about August 17, 2010, Richmond Wholesale Company, Inc. ("Richmond") opened a business checking account at Capital One, account number ending in 5209, and on or about August 17, 2010, Richmond opened another business checking account at Capital One, account number ending in 5373. By executing the signature cards, Richmond agreed to be bound by Capital One's Rules Governing Deposit Accounts in New York ("Rules"), which set forth Capital One's policies and procedures relating to amounts drawn on deposit accounts in excess of the balance available in the account ("overdrafts") and provides:
We may in our sole discretion, and without obligation, elect to pay checks and other items drawn on your deposit account or to permit automatic bill payments and withdrawals against your account for an amount in excess of your available balance (an "Overdraft").... You have no right to overdraw your account at any time, for any reason, and our decision to pay Overdraft items is solely within our discretion. You understand and agree that if we elect to pay Overdraft items or to permit an Overdraft to exist in your account, you have no right to defer payment, and you must deposit additional funds into your account promptly in an amount sufficient to cover the Overdraft and to pay us Overdraft fees for each Overdraft item in accordance with our current Schedule of Fees and Charges.... You acknowledge and agree that no oral or other statement made to you by any of our officers or employees, or any course of dealing under which we may, from time to time, or one or more times, elect to pay and honor Overdrafts on your account, may be construed by you, or by any third person, or by any court or arbitrator, to in any way modify, amend or contravene the foregoing provisions, or to in any way obligate us to pay and honor future Overdraft items or permit you to defer payment of existing and future Overdraft balances.
Capital One extended to Richmond a product known as Remote Deposit Capture, by which Richmond could deposit an item electronically transmitting an image of that item to Capital One in lieu of presenting the item to Capital One in person. Capital One made deposited funds immediately available upon deposit with the expectation that Richmond actually had the funds, and that checks deposited with Capital One by Richmond would be honored by the payor bank.
As a result of certain wire transfers out of the overdrawn accounts, and of the deposit of certain checks into the overdrawn accounts which were returned for insufficient funds, the overdrawn accounts became substantially overdrawn. As of December 19, 2012, the date of the filing of the Complaint in the instant matter, the account ending in 5209 is overdrawn in the amount of $5, 032, 310.71, and the account ending in 5373 is overdrawn in the amount of $2, 403, 076.24, for a total of $7, 435, 386.95. Certain additional accounts are also overdrawn, specifically, account ending in 4321 is overdrawn in the amount of $2.98, and account ending in 1817 is overdrawn in the amount of $10, 763.72. Accordingly, the total amount on all overdrawn accounts is $7, 446, 153.65. Capital One has demanded that Richmond cover these overdrafts but it has failed to do so.
Capital One then commenced an action against Richmond in the Supreme Court of New York, County of New York, asserting causes of action based upon the overdrafts, including breach of contract, fraud and unjust enrichment. Richmond executed and delivered to Capital One a Confession of Judgment, which was executed by Saquib Khan, as president of Richmond, before a notary.
In the Confession of Judgment, Khan, on behalf of Richmond, "confesses judgment and authorizes entry thereof against [Richmond] in the amount of $7, 685, 389.93, which represents the balance owed by [Richmond], as of December 12, 2012, to [Capital One]." The Confession of Judgment further provides that it "is for a debt justly due as a consequence of withdrawals from business checking accounts [Richmond] maintained at [Capital One]... causing overdrafts." A Judgment by Confession in favor of Capital One in the amount of $7, 685, 659.93 was entered in Richmond County, New York on December 19, 2012.
Khan executed the guaranty in connection with the issuance of a letter of credit agreement for Richmond. The guaranty executed by Khan is based upon the form guaranty that is required by the bank in order to issue a letter of credit to a corporation, such as Richmond. During his deposition, Khan confirmed that he signed the guaranty because it was required for the letter of credit. As a result of the guaranty, Capital One has made a demand upon Khan to pay the amount due and owing to Capital One from Richmond on the overdrawn accounts.
Capital One claims that by executing and delivering the guaranty, Khan expressly agreed that he "absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Indebtedness of [Richmond] to [Capital One]... now existing or hereinafter arising or acquired on an open and continuing basis." "Indebtedness, " as defined by the guaranty, expressly includes the type of "overdraft indebtedness" at issue here. Capital One also argues that, in accordance with the express terms of the guaranty, Capital One can enforce the guaranty against Khan "even when [Capital One] has not exhausted [its] remedies against anyone else obligated to pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness."
Pursuant to Fed.R.Civ.P. 56(c), a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, "[s]ummary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hosp., 843 F.2d 139, 143 (3d Cir. 1988).
All facts and inferences must be construed in the light most favorable to the non-moving party. Peters v. Delaware River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994). The judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. "Consequently, the court must ask whether, on the summary judgment record, reasonable jurors could find facts that demonstrated, by a preponderance of the ...