Full opinion text
TABLE OF CONTENTS I. INTRODUCTION.1363 II. STANDARDS FOR SUMMARY JUDGMENT.1365 III. FINDINGS OF FACT.1367 A Undisputed Facts.1367 B. Disputed Facts .1370 IV. LEGAL ANALYSIS . H-i CO ( — l A David Garst’s Counterclaim 1 — *■ 00 1 — L 1. Procedural posture of the review of the order striking the counterclaim . 1371 2. The standard of review. 1372 3. Propriety of striking the counterclaim. 1373 4. Striking of “defenses”. 1377 B. CFA’s Claim. 1378 1. Is CFA entitled to judgment on the note?. 1378 a. Greenwald’s authority to draw against the line of credit_ 1378 i. The partnership agreement. 1378 ii. The power of attorney. 1379 iii. Authority under the loan documents. 1380 iv. Apparent authority established by course of conduct .. 1380 b. CFA’s right to pursue judgment on the note. 1382 2. Who is liable on the note?. 1383 a. David Garst. 1383 b. Marilyn Garst.. 1384 i. Procedural bars to Marilyn Garst’s affirmative defenses 1385 ii. Adequacy of the affirmative defenses. 1386 V. CONCLUSION.1388 MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF/COUNTERCLAIM DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BENNETT, District Judge. After a faffing out between partners, and a faffing out between one of the partners and his wife, who also signed a note for a loan to the partnership, the question confronting the court here is, “Who pays a debt of the partnership?” One partner and his estranged wife, who are defendants here, each say, “Not I.” The lender, however, says, “Either or both.” In this lawsuit to recover the outstanding balance on a loan to a farming partnership, the plaintiff lender has moved for summary judgment against one of the partners and his estranged wife, both of whom signed the note on the loan. Another partner, who also signed the note, is not a party here. The defendant partner filed a counterclaim for damages allegedly caused by misconduct of the lender in conducting business of the partnership with the other partner. The defendant partner’s counterclaim has been ordered stricken by a magistrate judge as a sanction for refusal to make discovery and for failure to comply with court orders, and the lender asserts that the defendants have no defenses to the original claim. The wife of the partner has resisted summary judgment as to her by belatedly asserting various affirmative defenses arising from her purported status as merely an “accommodation party” on the loan papers. Both defendants insist genuine issues of material fact preclude the entry of summary judgment in this ease. I. INTRODUCTION Plaintiff Cooperative Finance Association, Inc. (CFA), filed this diversity lawsuit on July 28, 1994, seeking a judgment in the amount of the outstanding balance on a note for a loan made to a farming partnership known as Double G Ranch (DGR). The partners in DGR were Orben Greenwald and defendant David Garst. The only defendant named in the original complaint was David Garst; however, on August 23, 1994, prior to any answer, CFA filed a first amended complaint adding as a defendant David Garst’s estranged wife, Marilyn Garst, who had also signed the note for the loan in question. The amended complaint seeks judgment in the sum of just over one hundred thousand doI: lars, plus interest, costs, and attorney fees. Both defendants answered the amended complaint on September 22, 1994. The defendants’ answer consisted only of denials of some of the factual allegations in the complaint, but did not include any counter allegations or assertions of any affirmative defenses. David Garst subsequently filed a counterclaim on October 6, 1994, alleging generally that CFA was barred from recovering on the note owing to its misconduct, which apparently consisted of conducting business of the partnership with Orben Greenwald, the other member of the partnership, who is not a party here, knowing that Greenwald and David Garst were at odds over operation of the partnership, and also alleging some failure to give notice to David Garst concerning the loan to DGR. CFA answered the counterclaim on October 24,1994. The parties commenced discovery, but it did not proceed altogether smoothly. Discovery requests propounded by CFA to David Garst on December 29, 1994, regarding his counterclaim, went unanswered. CFA moved to compel answers on April 27, 1995. Several hearings and status conferences -with Chief Magistrate Judge John A. Jarvey during the summer and fall of 1995 and an order compelling discovery by Judge Jarvey, dated September 28, 1995, followed. Each time the issue was raised, David Garst’s counsel assured the court and CFA that responses to CFA’s discovery requests would be forthcoming. CFA finally moved for discovery sanctions, including dismissal of the counterclaim, on October 17,1995. Garst has never provided responses to the discovery requests at issue. Judge Jarvey heard the motion for sanctions on January 16,1996, and, on January 17, 1996, entered an order, inter alia, striking David Garst’s counterclaim for failure to make discovery, pursuant to Fed.R.Civ.P. 37(b)(2)(B) & (C), and for failure to comply with court orders, pursuant to Fed.R.Civ.P. 41(b). Judge Jarvey determined that the long record of delays, unfulfilled assurances that discovery would be forthcoming, and lack of any legitimate explanation for the delay demonstrated that the failure to make discovery or to comply with the court order compelling discovery was “willful.” In determining the appropriate sanction, Judge Jarvey concluded that an award of attorney fees would give CFA “nothing that it does not already have,” because, as the result of a state court receivership, CFA currently has a lien on David Garst’s property that covers the debt owed CFA, interest on the debt, and CFA’s attorney fees in this action. Judge Jarvey therefore concluded that striking the counterclaim was an appropriate sanction for David Garst’s misconduct. No party filed objections to Judge Jarvey’s order striking the counterclaim nor any motion for reconsideration of that order. On February 6, 1996, although Judge Jar-vey’s order striking the counterclaim was not cast as a report and recommendation for dismissal, but as an order imposing discovery sanctions, in an abundance of caution, this court allowed the parties ten more days to state any objections to Judge Jarvey’s determination that the counterclaim should be stricken. This court recognized something of a split in authority on the power of a magistrate judge to dismiss a claim or counterclaim as a discovery sanction, compare Devore & Sons v. Aurora Pacific Cattle Co., 560 F.Supp. 236 (D.Kan.1983) (§ 636(b)(1)(A) prevents a magistrate judge from disposing of cases on the merits, but does not preclude Fed.R.Civ.P. 37(b) sanctions, including striking a party’s counterclaim, because the district court retains the power to review for clear error or to reconsider such a decision), with Donovan v. Gingerbread House, Inc., 106 F.R.D. 57 (D.Colo.1985), rev’d and remanded on other grounds, 907 F.2d 115 (10th Cir.1989) (a magistrate judge does not have the authority to involuntarily dismiss an action as a discovery sanction pursuant to Fed.R.Civ.P. 37(b)(2)(C), and the court will treat the magistrate judge’s order dismissing a claim as a report and recommendation, applying de novo review under an arbitrary and capricious standard), but declined to resolve that dispute in this litigation. Instead, the court afforded the parties, and principally David Garst, one last opportunity to be heard on whether the counterclaim should remain part of this case. On February 16, 1996, David Garst took advantage of this last opportunity by filing an objection to Judge Jarvey’s order striking his counterclaim and defenses. His objections are four in number: (1) David Garst’s counsel was involved in a trial the week of the sanctions hearing, and his motion to continue that hearing was denied, leaving him with only an inadequate opportunity to prepare for the sanctions hearing; (2) there is no substantial prejudice to CFA owing to his failure to provide discovery, because CFA’s motion for summary judgment is pending and, according to David Garst, “the underlying claim and the case had, until relatively recently, been held in abeyance” until a trial scheduling order was entered; (3) since issuance of the trial scheduling order on December 12, 1995, David Garst has been recovering from hip surgery, and, prior to that time, had other “legitimate” scheduling conflicts resulting from travel outside of the United States as a representative of government affiliated and private organizations, presumably explaining his failure to comply with the discovery requests and the order compelling-discovery; and (4) the discovery sanction imposed is inappropriate under the circumstances. The court will consider the adequacy of these objections in the proper place. In the midst of the discovery dispute, on May 15, 1995, CFA moved for summary judgment in its favor against both defendants on its own claim and against David Garst on his counterclaim. Following a request for an extension of time, Marilyn Garst filed a timely resistance to the motion for summary judgment on June 16, 1995, to which CFA replied on June 26, 1995. David Garst was granted an extension until June 23, 1995, to resist the motion for summary judgment, and a further extension until July 7, 1995. However, in granting the second of these extensions, and at the same time denying CFA’s motion to close briefing, the court stated that no further extensions would be granted and that any untimely resistance would be stricken, because the court believed that David Garst had already been given sufficient time to respond to CFA’s summary judgment motion. David Garst’s resistance was timely filed on July 7, 1995. CFA filed a timely reply to David Garst’s resistance on July 21, 1995, pursuant to the final briefing deadlines established by the court. In its May 15, 1995, motion for summary judgment, CFA seeks judgment for the unpaid balance on a 1993 Revolver Note in an amount then calculated to be $82,148.78, plus interest in the amount of $8,869.78, with interest continuing to accrue at the per diem rate of $36.57. CFA also seeks an award of attorneys fees of $58,497.00, and expenses of $5,805.26 thus far incurred, plus other expenses of $2,028.37 incurred by CFA. Thus, CFA seeks judgment in the sum of $162,-986.36, plus interest, attorney fees, and expenses incurred after May 15, 1995. CFA has, from time to time, filed supplemental affidavits of attorneys fees and expenses incurred since May 15, 1995. As grounds for summary judgment in its favor, CFA argues that amounts are due and owing under the 1993 Revolver Note; that Orben Greenwald had the authority to draw against the line of credit of $865,000 created by the loan and 1993 Revolver Note; that CFA did not violate the terms of the loan or allow DGR, the Greenwald-Garst partnership, to exceed its borrowing base; and that CFA has complied with the requirements of the Uniform Commercial Code (UCC) in seeking to recover on the note rather than against collateral in which CFA has a security interest. Marilyn Garst has resisted the motion for summary judgment by belatedly asserting several affirmative defenses not previously pleaded. She claims that she is an “accommodation party” entitled to raise certain suretyship defenses to CFA’s action against her on the 1993 Revolver Note. Specifically, she contends that conduct of CFA in the state court receivership of the partnership released or discharged her from liability on the note, because she received no notice of proceedings in that action and the duration of the debt was extended or the value of the collateral was impaired. She further contends that the 1993 Revolver Note is a contract of adhesion or is unconscionable as to her. CFA has replied to these contentions by asserting that any affirmative defenses not pleaded have been waived, and that the note in question is neither a contract of adhesion nor unconscionable. On September 20,1995, some months after CFA’s motion for summary judgment, Marilyn Garst’s resistance, and CFA’s reply were filed, Marilyn Garst finally moved to amend her answer to assert baldly that she is an “accommodation party” on the 1993 Revolver Note and therefore entitled to assert certain defenses. On January 17, 1996, Judge Jar-vey granted Marilyn Garst leave to amend her answer, finding that the issues presented in the proffered amendment had been “in the case” since Marilyn Garst had resisted the motion for summary judgment and the proffered amendment involved “predominantly legal issues.” Order of January 17, 1996, at 2. Defendant David Garst’s resistance to the motion for summary judgment principally asserts the issues apparently, though imprecisely or vaguely, raised in his stricken counterclaim as grounds for denying CFA the judgment it seeks. Additionally, his resistance asserts that CFA is improperly pursuing judgment against the Garsts on the 1993 Revolver Note instead of pursuing Green-wald or the collateral identified in the companion security agreement. CFA’s reply is that Garst has failed to generate any genuine issue of material fact concerning the loan or amount due thereon. Furthermore, CFA argues, Greenwald had the power to act as he did, thus binding the partnership and the signatories to the note for the amounts due, and that both Garst’s liability and the propriety of CFA’s conduct are apparent under governing law. This matter is now fully submitted. The court therefore turns first to the standards for disposition of CFA’s motion for summary judgment, then to the undisputed and disputed facts in this case, and ultimately to a legal analysis and disposition of CFA’s motion. II. STANDARDS FOR SUMMARY JUDGMENT The Eighth Circuit Court of Appeals recognizes “that summary judgment is. a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.” Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Wabun-Inini, 900 F.2d at 1238 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986)); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by an adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith 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. Fed.R.Civ.P. 56(a), (b) & (c) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)). A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party or parties, here the Garsts, and give the Garsts the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Munz v. Michael, 28 F.3d 795, 796 (8th Cir.1994); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994); Johnson v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir.1993); Burk v. Beene, 948 F.2d 489, 492 (8th Cir.1991); Coday v. City of Springfield, 939 F.2d 666, 667 (8th Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). Procedurally, the moving party, here CFA, bears “the initial responsibility of informing the district court of the basis for [its] motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53); see also Reed v. Woodruff County, Ark., 1 F.3d 808, 810 (8th Cir.1993). CFA is not required by Rule 56 to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. “When a moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. The Garsts are therefore required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach, 49 F.3d at 1325. Although “direct proof is not required to create a jury question, ... to avoid summary judgment, ‘the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.’ ” Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.1985) (quoting Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984)), cert. denied sub nom. Metge v. Bankers Trust Co., 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774 (1986). The necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994). In Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11, Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53, and Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56, the Supreme Court established that a summary judgment motion should be interpreted by the trial court to accomplish its purpose of disposing of factually unsupported claims, and that the trial 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. Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). The trial court, therefore, must “assess the adequacy of the nonmovants’ response and whether that showing, on admissible evidence, would be sufficient to carry the burden of proof at trial.” Hartnagel, 953 F.2d at 396 (citing Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). If David or Marilyn Garst fails to make a sufficient showing of an essential element of a claim with respect to which he or she has the burden of proof, then CFA is “entitled to judgment as a matter of law” against that defendant. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53; Woodsmith, 904 F.2d at 1247. However, if the court can conclude that a reasonable trier of fact could return a verdict for the nonmov-ant, then summary judgment should not be granted. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burk, 948 F.2d at 492; Woodsmith, 904 F.2d at 1247. With these standards in mind, the court turns to consideration of the undisputed and disputed facts in the case. III. FINDINGS OF FACT A. Undisputed Facts The record and submissions of the parties demonstrate that the following facts are undisputed. Orben Greenwald and defendant David Garst were the only partners in Double G Ranch (DGR), which was a partnership that came into existence in 1987 pursuant to an oral agreement. DGR was a farming operation in the business of buying, selling, and raising livestock and raising crops. On October 29, 1987, David Garst executed a Power of Attorney in favor of Orben Green-wald that allowed Greenwald to sign and execute financial instruments in David Garst’s name having to do with the business of DGR. The Power of Attorney specifies that it cannot be revoked except in writing, and no written revocation appears in the record. David Garst contends that the Power of Attorney was nonetheless superseded by a formal partnership agreement in January of 1988, and is otherwise irrelevant to this litigation, because CFA did not know of or rely upon it. Certainly, Garst and Greenwald entered into a written Partnership Agreement on January 3, 1988. The critical portion of the Partnership Agreement is ¶ 7, which states in its entirety as follows: 7. MANAGEMENT DUTIES AND RESTRICTIONS. All partners shall have an equal vote in all major decisions effecting [sic] the partnership. Orben Green-wald shall function as office and farm manager for the partnership. He shall also have primary responsibility for all operations of the partnership. No partner shall without consent of all partners endorse any notes, or act as an accommodation party, or otherwise become surety for any person. Any managing partner shall have the right to draw checks upon any bank account of the partnership, and to make, deliver and accept commercial paper in connection with the business of the partnership. Except with the consent of all partners, no partner shall, on behalf of the partnership, borrow or lend money, or make, deliver or accept any extraordinary commercial paper or execute any mortgage, security agreement, bond or lease or purchase or contract to purchase, or sell or contract to sell any property for or of the partnership, other than the type of property bought and sold in the regular course of its business. Partnership Agreement, Double G Ranch, Plaintiffs Exhibit 5, ¶ 7. The parties agree that under this Partnership Agreement, Or-ben Greenwald ran the day-to-day operations of DGR and had the power to draw checks on behalf of the partnership, and that Green-wald made most of the decisions of the partnership, although Garst contends many of these decisions were over his objections. There is also no dispute that Garst provided the majority of the financial investment in the partnership, while Greenwald ran its operations and received a salary for doing so. In 1991, CFA made a loan to DGR involving a written loan agreement, a term promissory note, and a revolving promissory note in the principal amount of $865,000. The 1991 loan agreement states that no amounts will be advanced after January 31, 1992. Therefore, on February 12, 1993, CFA, DGR, Or-ben and Rebecca Greenwald, and David and Marilyn Garst executed three more loan documents, including another loan agreement (the 1993 Loan Agreement), another revolving promissory note in the principal amount of $865,000 (the 1993 Revolver Note), and a security agreement. It is upon the 1993 Revolver Note that CFA is suing here. The 1993 Revolver Note states that “the undersigned Borrower, Double G Ranch, Route # 2 Box 16 Coon Rapids, Iowa 50058 (jointly and severally if more than one) (“Borrower”)” promised to pay CFA the principal advanced under the note, and fur-, ther stated that “the aggregate principal indebtedness outstanding at any one time shall not exceed Eight Hundred Sixty Five Thousand and No/100 ($865,000).” The 1993 Revolver Note states that it is “governed by and construed and enforced in accordance with the laws of the State of State [sic],” which the parties concede means Missouri, the' place of business of CFA. The 1993 Revolver Note is signed, on behalf of DGR, by David Garst and Orben C. Greenwald, each identified as a “Partner’,” and, under the heading “Individually,” by David Garst, Marilyn Garst, Orben Greenwald, and Rebecca Greenwald. The 1993 Revolver Note matured by its terms on February 1, 1994. The 1993 Revolver Note provides, inter alia, that “[a]ll rights and remedies of Lender shall be cumulative and may be exercised singularly or concurrently, at Lender’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.” 1993 Revolver Note, ¶ 9. The other loan documents executed concurrently with the 1993 Revolver Note include identical or substantially identical language. See 1993 Loan Agreement, ¶ 6; 1993 Security Agreement, ¶ 7. The 1993 Security Agreement further provides that “Secured Party shall not be obligated to ... realize on the Collateral at all or in any particular manner or order or to apply any cash proceeds of Collateral in any particular order of application.” 1993 Security Agreement, ¶ 7. The collateral in which the 1993 Security Agreement grants CFA a security interest includes all of the following property then owned or after acquired by DGR: farm products, livestock, crops, feed, seed, supplies, accounts, contract rights, general intangibles, equipment and machinery, and the proceeds thereof, and the products and progeny therefrom. CFA perfected its security interest. Under the loan documents, DGR submitted monthly borrowing base reports, listing eligible collateral, lending margins, and computing the amount of available credit under the $865,000 revolving line of credit. Each of these reports was executed by Orben Green-wald. When credit was available under the borrowing base reports, DGR could submit a draft on CFA’s bank account. Each draft was executed solely by Orben Greenwald, and each draft was honored. The borrowing base was in a negative position only twice, in May and October of 1993, but after each month, the borrowing base returned to a positive position. As collateral was sold, checks from buyers were made payable jointly to CFA and DGR, and, when forwarded to CFA for deposit, were used to reduce the amount of the balance due on the line of credit. The partners had a dispute about sale of calves by the partnership in the fall of 1992. CFA, through some of its officers, was aware of the dispute, but at no time did David Garst order Greenwald to stop writing drafts against the 1991 revolving credit line. During this period, as at all other times, only Greenwald signed drafts and CFA honored those drafts, and it does not appear anywhere in the record that David Garst ever objected to this practice. However, David Garst describes the dispute between the partners concerning the sale of calves in late 1992 as an “impasse.” Whatever the state of relations between the partners, the 1993 Revolver Note and other 1993 loan documents were nonetheless entered into in early 1993 as renewals of the 1991 loan and revolving credit line. On or about October 26,1993, David Garst initiated a legal action in Iowa District Court for Guthrie County for an accounting of the partnership. In those state court proceedings, Hertz Management Company was appointed as a receiver, and liquidation of the property of the partnership began. CFA was a participant in the state court action and the receiver paid over proceeds of CFA’s collateral to CFA. CFA retired the term note and paid down the 1993 Revolver Note with these proceeds. The receiver made reports on the liquidation of assets of the partnership to the court. David Garst does not deny that he received or had access to those reports. On July 5,1994, David Garst filed a motion in the state court proceedings to stop the liquidation and to return all remaining partnership assets to him. CFA objected to the motion, but, by order dated September 30, 1994, approving a settlement among the parties, CFA was granted a lien on DGR property distributed to David Garst and other property belonging to David Garst, and the state court proceedings were terminated. The lien granted CFA included, without limitation, the DGR partnership property and other real estate set out in an itemization by the receiver, and was “to secure payment of the entire amount of the indebtedness owed by Double G, Garst and/or Greenwald to CFA, and includes, without limitation, unpaid principal, accrued interest, costs, expenses, and attorneys fees recoverable by CFA” as determined by “a court of competent jurisdiction.” In the interim, on July 28,1994, CFA filed this lawsuit in federal court seeking a judgment in the amount of the outstanding balance on the 1993 Revolver Note, which had come due on February 1, 1994. As of May 15, 1995, the unpaid balance on the 1993 Revolver Note was calculated by CFA to be $82,148.78, plus interest in the amount of $8,869.78, with interest continuing to accrue at the per diem rate of $36.57. As of that date, CFA also claimed attorneys fees of $58,497.00, and expenses of $5,805.26 thus far incurred, plus other expenses of $2,028.37 incurred by CFA. Thus, CFA seeks judgment in the sum of $162,986.36, plus interest, attorney fees, and expenses incurred after May 15, 1995. David Garst does not dispute this accounting, but asserts that no balance is due from him. Marilyn Garst does not appear to dispute any of these facts, but asserts disputes exist as to a number of other factual matters. B. Disputed Facts Each of the defendants asserts disputes of fact which they contend should preclude summary judgment in CFA’s favor on either its claim or David Garst’s counterclaim. Marilyn Garst contends that there is a genuine issue of material fact as to whether or not she is merely an “accommodation party” on the 1993 Revolver Note, but she does not allege any facts, in either her statement of material facts in response to CFA’s motion for summary judgment or in her amended answer, where she now asserts affirmative defenses, in support of this contention. Her references to David Garst’s deposition in her statement of facts support her conclusory assertions to the extent that they show David Garst and Orben Greenwald were the only partners of DGR, that Marilyn Garst was present during the signing of the 1991 loan papers, that she was aware of a dispute between the partners and “ha[d] a great deal of knowledge as to related things” she had discussed with the Greenwalds, and that all payments by DGR to David Garst went only to David Garst, not to Marilyn Garst. In her brief, Marilyn Garst alleges that she was never consulted nor involved in any decisions of the partnership, that she never received any benefit of any loan from CFA to DGR, and that she signed the loan papers only because CFA required her to do so before granting the loan to DGR. Marilyn Garst asserts further, again with scant statement of a factual basis or reference to parts of the record from which a factual basis could be gleaned, that there is at least a genuine issue of material fact as to whether or not she was unduly prejudiced by the disposition of the state court proceedings. Somewhat more specifically, she contends that she was prejudiced by a lack of notice of the state court proceedings, was prejudiced when collateral earmarked to satisfy the debt to CFA was returned to David Garst in those proceedings, and was prejudiced by a constructive extension of the debt in those proceedings. She further contends that there are genuine issues of material fact as to whether CFA has waived a right to seek payment from her by failing to notify her of the state court proceedings, and whether the state court proceedings relied in any way on the 1993 Revolver Note. Finally, she asserts that there is a genuine issue of material fact as to whether the loan documents were rendered contracts of adhesion or unconscionable by CFA’s exploitation of her marital relationship to make her sign them. David Garst’s disputes of fact are several, but few are supported by a citation to the record or amplified by factual allegations. He asserts an issue of fact as to whether or not the Power of Attorney was ever terminated or superseded, and whether CFA relied upon it in any way. He also contends that there is a genuine issue of material fact as to the extent to which the partnership agreement or course of conduct authorized Orben Greenwald alone to incur liabilities of the partnership against the revolving line of credit. Although David Garst admits that Greenwald made most of the partnership decisions, he contends that these decisions were made over his objections. He contends further that the only borrower on the various loan documents is DGR, and therefore there is at least a genuine issue of material fact as to whether or not he signed the loan papers only as a surety. He contends that the failure of CFA to pursue Greenwald demonstrates that CFA has improperly released or discharged him. He further disputes the amount and reasonableness of all attorneys fees claimed by CFA. With somewhat better references to the record, David Garst asserts that there are genuine issues of material fact, based upon the depositions of CFA employees Tom Collins and David Eggiman, as to the extent of CFA’s knowledge of the dispute between the partners beginning in 1992 and whether CFA supported Greenwald’s position and insisted upon certain of his actions. He also contends that it is undisputed that the partnership owed him over $700,000 for loans he had made to finance its operations. CFA admits that David Garst has made such a claim, but contends that if such a loan or loans exist, they are immaterial to CFA’s claim and David Garst’s liability on it. The court will consider in the proper place the extent to which any of these disputes of fact are either adequately supported, Hartnagel, 953 F.2d at 394, or material to the disposition of CFA’s motion for summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. TV. LEGAL ANALYSIS The first issue confronting the court is whether Judge Jarvey properly struck David Garst’s counterclaim as a sanction for failure to make discovery and failure to comply with a court order, because whether or not the issues raised in that counterclaim continue to be part of this lawsuit will structure any further discussion of CFA’s motion for summary judgment. The court will then consider CFA’s motion for summary judgment on its own claim as to each of the defendants separately. A. David Garst’s Counterclaim 1. Procedural posture of the review of the order striking the counterclaim Judge Jarvey entered an order on January 17, 1996, which, among other things, struck David Garst’s counterclaim as a sanction for failure to make discovery, pursuant to Fed. R.Civ.P. 37(b)(2)(B) & (C), and for failure to comply with court orders, pursuant to Fed. R.Civ.P. 41(b). No objections nor any motions to reconsider were filed within ten days thereafter. This court offered the parties a further ten days within which to file objections to Judge Jarvey’s order on February 6, 1996, out of an abundance of caution to protect David Garst’s ability to pursue his counterclaim, and, on February 16, 1996, David Garst did indeed respond to that additional opportunity to challenge the striking of his counterclaim. The court does not purport to resolve the split in authority over a magistrate judge’s ability to dispose of a claim as a sanction for discovery, which the court identified in its ruling granting the parties a further opportunity to file objections and earlier in this order. However, to avoid any possibility of error, the court will conduct the de novo review of Judge Jarvey’s order striking the counterclaim that is ordinarily afforded a magistrate judge’s recommendation for dismissal upon a dispositive motion. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.1996) (“[T]his court [has] held that where the district court does not conduct a de novo review of a magistrate judge’s report where such review is required, this is reversible error.”); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir.1995) (failure to conduct de novo review when required is reversible error); Belle v. Purkett, 15 F.3d 803, 815 (8th Cir.1994) (holding failure to conduct de novo review when required is reversible error). 2. The standard of review Both 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) provide that, when reviewing a recommendation for dismissal, a judge shall make a de novo determination of those portions of the magistrate judge’s ruling to which objections are made, and may accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.”); Fed.R.Civ.P. 72(b) (“The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.”). Courts have recognized two exceptions to the de novo review requirement for rulings that dispose of a party’s claim or claims. Some courts have recognized an exception to the de novo review requirement “when a party makes general and conelusory objections that do not direct the court to a specific error in the magistrate judge’s proposed findings and recommendations.” Belk, 15 F.3d at 815 (citing as recognizing or approving of this exception United States v. Merz, 376 U.S. 192, 199, 84 S.Ct. 639, 643-44, 11 L.Ed.2d 629 (1964); Johnson v. Enable, 934 F.2d 319 (table case), 1991 WL 87147, *1 (full text) (4th Cir.1991); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.1984) (per curiam); Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.1982); Pendleton v. Rumsfeld, 628 F.2d 102, 105-06 (D.C.Cir.1980)); see also Hudson, 46 F.3d at 786 (quoting Belk). Although language in an Eighth Circuit Court of Appeals decision indicates approval of such an exception, Branch v. Martin, 886 F.2d 1043 (8th Cir.1989) (“In the present case, plaintiffs objections to the magistrate’s factual conclusions were timely filed and specific enough to trigger de novo review.”), the Eighth Circuit Court of Appeals has repeatedly emphasized the necessity of de novo review and has specifically refused to embrace the exception suggested in Branch. See Hudson, 46 F.3d at 786; Belk, 15 F.3d at 815. The reason for rejection of such an exception in favor of de novo review, even where only general objections are made, is the need for “retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate.” Belk, 15 F.3d at 815; see also Hudson, 46 F.3d at 786 (quoting Belk). Thus, this first exception to de novo review cannot be invoked in the courts of this circuit. The second exception to de novo review of a magistrate judge’s ruling disposing of a claim obtains when no timely objections at all are filed. The advisory committee notes on subdivision (b) of the rule state, “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b), Notes Of Advisory Committee on Rules, 1983 Addition (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974), and noting that this case was quoted in House Report No. 94-1609, 94th Cong.2d Sess. (1976) at 3). The Eighth Circuit Court of Appeals has recognized that only “clear error” review is required when no objections to the magistrate judge’s disposition are filed. See, e.g., Grinder, 73 F.3d at 795 (if no objections have been filed, district judge “would only have to review the findings of the magistrate judge for clear error”). Although David Garst’s objection that “[t]he discovery sanction imposed is inappropriate under the circumstances” is vague and conelusory, this court will follow the rule of Belk and Hudson, rejecting the first exception to de novo review based on failure to make sufficiently specific objections. The court finds that the distinction between a flawed effort to bring objections to the district court’s attention and no effort to make such objections at all is appropriate. The district court retains ultimate responsibility for disposition of a party’s claim, and therefore should make a de novo review when presented with any objections, however ineffectually those objections may be expressed. Where no objections have been made, however, the court believes the second exception to de novo review may be invoked, because the court may reasonably conclude that no objections can be offered, and only clear legal error should preclude adoption of the magistrate’s recommendations. That circumstance, however, does not obtain here, because some objections have been made. The court will therefore conduct a de novo review of Judge Jarvey’s ruling striking David Garst’s counterclaim as a discovery sanction and sanction for failure to comply with a court order. 3. Propriety of striking the counterclaim CFA sought sanctions against David Garst for failure to respond to its first set of interrogatories and request for production of documents, which it propounded to David Garst on December 29, 1994. Judge Jarvey imposed a sanction of striking David Garst’s counterclaim after first concluding that David Garst’s failure to comply with CFA’s discovery requests was willful. Under the applicable discovery rules, Fed.R.Civ.P. 33(b)(5) and Fed.R.Civ.P. 34(b), which provide for discovery by way of interrogatories or requests for documents, respectively, a party may move for an order compelling responses to unanswered discovery requests pursuant to Fed.R.Civ.P. 37(a). If the motion to compel is granted, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(4)(A). Rule 37(b)(2) in turn provides for sanctions in addition to attorneys fees for failure to comply with an order compelling discovery under Rule 37(a). The sanctions available to the court under Fed.R.Civ.P. 37(b)(2) include, inter alia, entry of an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence, and an order striking out pleadings or parts thereof, or rendering a judgment by default against the disobedient party. Fed.R.Civ.P. 37(b)(2)(B) & (C); see also Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir.1993) (“Rule 37(b)(2)(C) grants a district court the authority to enter a default judgment against a party who abuses the discovery process,” and entry of such a default judgment is reviewed for abuse of discretion); Boogaerts v. Bank of Bradley, 961 F.2d 765, 768 (8th Cir.1992) (“Rule 37(b)(2)(C) authorizes the Court to exercise discovery abuse sanctions by dismissing a party’s action, or striking pleadings or entering a default judgment against the abusive litigant.”). As the Eighth Circuit Court of Appeals recently observed, a district court has wide latitude in imposing sanctions for failure to make discovery. Aziz v. Wright, 34 F.3d 587, 589 (8th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 752, 130 L.Ed.2d 652 (1995). Furthermore, when the facts show willfulness and bad faith in the failure to permit discovery, the selection of a proper sanction is entrusted to the sound discretion of the district court. Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (8th Cir.1992) (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976) (per curiam)). As Judge Jarvey correctly observed, the district court’s discretion in imposing sanctions is bounded by the requirement of Rule 37(b)(2) that the sanction be “just,” and relate to the claim at issue in the order compelling discovery. Id.; see also Comiskey, 989 F.2d at 1009 (“Any sanction imposed under Rule 37 must be ‘just,’ ” citing Shelton v. American Motors Corp., 805 F.2d 1323, 1329-30 (8th Cir.1986), in turn citing Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 2106-07, 72 L.Ed.2d 492 (1982)); Fed.R.Civ.P. 37(b)(2). In assessing the “justice” of a sanction, relevant factors include the materiality of the issue on which discovery is withheld and the difficulty posed to the seeking party by the withholding. Avionic Co., 957 F.2d at 558. A party is prejudiced if the failure to make discovery impairs the party’s ability to determine the factual merits of the opponent’s claim or defense. Id. Entry of default judgment, or the dismissal or striking of a claim, as a sanction for failure to permit discovery is “only appropriate where there has been a clear record of delay or contumacious conduct.” Taylor v. City of Ballwin, Mo., 859 F.2d 1330, 1332 (8th Cir.1988). Entry of default judgment or dismissal should be a “rare judicial act,” but is appropriate as a discovery sanction, under Fed.R.Civ.P. 37(b)(2)(C), when a party’s failure to comply has been “due to ... willfulness, bad faith, or any fault of [the party].” Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir.1993) (quoting Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255 (1958)). Such fault is apparent where the party who has failed to comply with the discovery request was able to comply, because, for example, the information requested was not unknown to or unavailable to it. Comiskey, 989 F.2d at 1009-10 (citing National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781). Fault is also apparent where no claim of privilege is or can be asserted, and thus the failure to comply with a legitimate discovery request amounts to “flagrant bad faith” or “callous disregard” of the party’s counsel’s professional responsibilities. Id. Similarly, the Eighth Circuit Court of Appeals has found a sufficient record upon which to base a conclusion that failure to make discovery had been willful and in bad faith where the non-complying party had repeatedly failed to produce discovery in response to counsel’s repeated requests and court orders. Boogaerts, 961 F.2d at 766 & 768. Judge Jarvey found that David Garst’s failure to make discovery in this case had indeed been willful. Judge Jarvey based this finding on the long record of delays, unfulfilled assurances that discovery would be forthcoming, and lack of any legitimate explanation for the delay. Such a finding comports with applicable law. See Comiskey, 989 F.2d at 1009-10. David Garst’s objections to this finding seem to be that since mid-December of 1995, he has been recovering from hip surgery, and prior to that time he had other “legitimate” scheduling conflicts involving his travels abroad as a representative of government affiliated and private organizations. David Garst’s argument, so far as the court can glean it from his objections, appears to be that a finding of “willfulness” is inappropriate in these circumstances. However, this court finds, upon de novo review and in light of the objections, that David Garst’s failure to comply with discovery requests and a court order compelling discovery was “willful.” The court cannot countenance a failure to comply with discovery requests for over a year on the basis of recuperation from surgery that, by David Garst’s own statement, did not take place until more than eleven months after those discovery requests were first made. Nor can occasional travel outside of the United States remove the “willfulness” of failure to comply with discovery where David Garst failed to comply with the discovery requests for over a year, did not comply with the discovery request for several months even when faced with a court order compelling discovery and a motion for sanctions, and breached each of his promises to make that discovery when those promises were made to forestall an order compelling discovery or the imposition of sanctions. These excuses do not rise to the level of either inability to comply or assertion of privilege that might be sufficient to take the sting of willfulness out of failure to comply with discovery. See, e.g., Comiskey, 989 F.2d at 1009-10. This court finds that David Garst has still offered no legitimate explanation for his failure to comply with CFA’s discovery requests, and still has not complied with the outstanding discovery requests in light of the court order and CFA’s motion for sanctions. Boogaerts, 961 F.2d at 766 & 768. Therefore, this court concludes, David Garst’s non-compliance with the discovery requests and the court order compelling discovery can only be characterized as “willful” under the circumstances. Before imposing dismissal or the striking of a claim or counterclaim as a sanction for discovery abuses, under the law of this circuit, “the [district] court must investigate whether a sanction less extreme than dismissal would suffice, unless the party’s failure was deliberate or in bad faith.” Avionic, 957 F.2d at 558 (citing Denton v. Mr. Swiss of Missouri, Inc., 564 F.2d 236, 240-41 (8th Cir.1977), and citing generally Shelton v. American Motors Corp., 805 F.2d 1323, 1329-30 (8th Cir.1986)). Although he had expressly found David Garst’s conduct to be willful, Judge Jarvey nonetheless considered whether a sanction less extreme than striking David Garst’s counterclaim would suffice. However, Judge Jarvey found that an award of attorney fees, authorized when an order compelling discovery is granted pursuant to Fed.R.Civ.P. 37(a), would give CFA “nothing that it does not already have.” This conclusion was based on the outcome of the state court receivership as the result of which CFA currently has a lien on David Garst’s property that covers the debt owed CFA, interest on the debt, and CFA’s attorney fees in this action. This court finds, upon de novo review, that an award of attorneys fees would be merely duplicative of rights CFA already holds. Therefore, this court affirms the striking of David Garst’s counterclaim as a “just” alternative sanction for the court to consider, and overrules David Garst’s objection that the sanction was “inappropriate” in the circumstances so far as that objection can be read to relate to the question of whether some other sanction was more appropriate. However, Judge Jarvey did not rest there, nor will this court upon review. Judge Jarvey also considered whether the sanction was “just” in that it properly related to the misconduct and the claim at issue. David Garst objects to Judge Jarvey’s conclusion in this regard, asserting that CFA has not been prejudiced by his failure to make discovery, because CFA’s motion for summary judgment on the counterclaim is currently pending. David Garst has, however, identified precisely the prejudice CFA has suffered as the result of his misconduct. In this case, the materiality of the issue on which discovery was withheld, Avionic Co., 957 F.2d at 558, was precisely the information necessary for CFA to understand the nature of David Garst’s counterclaims. Furthermore, David Garst’s refusal to respond to the discovery in question posed considerable difficulty to CFA in attempting to mount a defense to that counterclaim, where the nature of the counterclaim was not apparent from the pleadings, when faced with such claims either at trial or on a motion for summary judgment. Id. Finally, a party is prejudiced if the failure to make discovery impairs the party’s ability to determine the factual merits of the opponent’s claim or defense, id., and, without responses to the basic discovery requested by CFA, CFA suffered precisely this prejudice, in both its defense to the counterclaim and in its assertion of entitlement to summary judgment on the counterclaim. Because all of the discovery withheld related directly to David Garst’s counterclaim and impaired CFA’s ability to assess the factual basis for that counterclaim and to mount a defense to it, striking the counterclaim was directly related to David Garst’s misconduct. Id. The court, upon de novo review, reaches the same conclusion as did Judge Jarvey that the sanction of striking David Garst’s counterclaim bore a proper relationship to David Garst’s misconduct in discovery. The court also finds without merit David Garst’s assertion that there has been no prejudice as the result of his non-compliance with discovery, because this case had been “held in abeyance” prior to the entry of a trial scheduling order in December of 1995. The court finds no order holding this case in abeyance. Rather, during that period, CFA’s motion for summary judgment has been pending before this court. Nothing about the pendency of that summary judgment motion excused David Garst from complying with a prior discovery request or an order compelling discovery entered during the pendency of the motion. David Garst’s failure to comply with discovery prior to and during the pendency of a motion to which the requested discovery was directly related confirms rather than negates the prejudice suffered by CFA in its efforts to litigate this matter. The court is tempted to pass over David Garst’s objection based on the purported inadequacy of his counsel’s opportunity to prepare for the sanctions hearing owing to trial conflicts without comment, because it finds the objection to be without merit. However, in the interest of answering each objection, as the court believes it should do on de novo review, the court finds that David Garst had over a year to address the matters raised in the motion for sanctions by complying with the discovery requests, over nine months to comply with discovery after the filing of a motion to compel, over three months to comply with the order compelling discovery, and over three months to respond to the motion for sanctions. If counsel was too busy the week prior to the sanctions hearing to marshal arguments effectively in defense of the motion for sanctions, that week of conflict must be considered in light of over a year’s neglect of responsibilities. David Garst was given a full and fair opportunity to argue against the motion for sanctions with fully a week’s notice prior to the hearing. David Garst was in no way prejudiced by Judge Jarvey’s refusal to continue the sanctions hearing when David Garst’s compliance with discovery requests and a court order was so long overdue. The court concludes that David Garst’s counterclaim has properly been stricken pursuant to Fed.R.Civ.P. 37(b)(2)(C) as a sanction for discovery misconduct, and therefore that counterclaim no longer forms any part of this litigation. Consequently, CFA’s motion for summary judgment on David Garst’s counterclaim is moot. 4. Striking of “defenses” Furthermore, the court concludes that the contentions of the counterclaim cannot be raised as “defenses” to CFA’s motion for summary judgment on CFA’s own claim. In his brief in support of his resistance to CFA’s motion for summary judgment, David Garst states that he “believes the acts of CFA [alleged in his counterclaim, discovery responses, and depositions] provide a defense as a result of the impairment of his surety position or a violation of the duty of good faith. Alternatively, these affirmative acts may entitle him to an affirmative claim. Even if these actions do not provide a defense, the existence of a counterclaim provides him protection against enforcement of the underlying claim until his counterclaim is adjudicated.” David Garst’s Memorandum In Support Of Resistance To Motion For Summary Judgment, p. 8. Thus, it appears that David Garst is no more certain than anyone else whether his allegations of “misconduct” on CFA’s part constitute defenses or counterclaims to CFA’s claim on the 1993 Revolver Note. However, it is apparent that the same allegations that supported the stricken counterclaim also supported the defenses David Garst asserted against CFA’s principal claim. Judge Jarvey struck those allegations as “defenses,” pursuant to Fed. R.Civ.P. 37(b)(2)(B), as well as striking them as a “counterclaim,” pursuant to Fed.R.Civ.P. 37(b)(2)(C). See Order of September 28, 1995, p. 7. For the same reasons this court affirmed striking those allegations as a counterclaim, pursuant to Fed.R.Civ.P. 37(b)(2)(C), the court affirms striking them as “defenses,” pursuant to Fed.R.Civ.P. 37(b)(2)(C), as a sanction for discovery misconduct. As the result of the striking of David Garst’s “counterclaims” and “defenses,” the questions remaining are whether genuine issues of material fact preclude the entry of summary judgment in this case on CFA’s own claim, and whether, if there are no such genuine issues of material fact, CFA is enti-tied to judgment as a matter of law on its claim against either David or Marilyn Garst. B. CFA’s Claim In the court’s view, analysis of CFA’s entitlement to summary judgment must proceed in two steps: (1) determination of whether CFA is entitled to judgment on the 1993 Revolver Note; and (2) if CFA is entitled to such a judgment, determination of who can be held liable for that judgment. There is no dispute that the 1993 Revolver Note matured prior to CFA’s bringing this lawsuit, and, although there are disputes as to liability, there are no disputes as to the outstanding balance due on that note. Therefore, the first step of the court’s analysis, determination of whether CFA is entitled to judgment on the note, involves the questions of whether Orben Greenwald could properly draw against the line of credit established by the 1993 loan documents and whether CFA can properly seek judgment on the 1993 Revolver Note without first pursuing the collateral or some other remedy. The second step in the analysis, determination of who is hable if CFA is entitled to judgment on the note, involves the questions of whether David Garst is liable as a partner on DGR’s obligation and whether Marilyn Garst