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Ge Capital Commercial of Utah, LLC v. Prendiville

United States District Court, D. Arizona

February 6, 2015

GE CAPITAL COMMERCIAL OF UTAH, LLC, Plaintiff,
v.
KEVIN JOHN PRENDIVILLE and MARIA ANN PRENDIVLLE, as husband and wife and as co-trustees of THE PRENDIVLLE REVOCABLE TRUST created by the trust agreement dated October 20, 1989, Defendants.

ORDER

H. RUSSEL HOLLAND, District Judge.

Motion for Summary Judgment

Plaintiff moves for summary judgment.[1] This motion is unopposed. Oral argument has been requested but is not deemed necessary.

Facts

Plaintiff is GE Capital Commercial of Utah, LLC. Defendants are Kevin John Prendiville and Maria Ann Prendiville, individually and as co-trustees of The Prendiville Revocable Trust.

The Prendivilles are the sole members of MAP, which is a Louisiana limited liability company.[2] On December 12, 2006, General Electric Capital Corporation (GECC) predecessor-in-interest to plaintiff, agreed to loan $3, 890, 000.00 to MAP and the Trust.[3] "The MAP Loan is evidenced by, among other things, [a] certain Promissory Note (the MAP Note')... in the original principal amount of $3, 890, 000.00."[4] "In conjunction with the MAP Loan, the Prendivilles each executed [a] certain Unconditional Guaranty of Payment and Performance... (the MAP Guaranty')."[5] "Pursuant to the MAP Guaranty, each of the Prendivilles absolutely and unconditionally guarantied full performance and repayment of all obligations owing by MAP to GECC under the MAP Loan Documents...."[6]

"All of GECC's rights and interests in and under the MAP Loan Documents were assigned to" plaintiff.[7] Thus, plaintiff is current holder of the MAP Note, the entity entitled to enforce the MAP Guaranty, and the owner and beneficiary of the MAP Loan Documents.

"Prior to MAP's bankruptcy, [8] MAP and [the] Trust defaulted on their obligations under the MAP Loan Documents."[9] "After MAP and [the] Trust defaulted, " plaintiff, MAP, the Trust, and the Prendivilles "entered into [a] Forbearance Agreement dated March 21, 2102...."[10] "In the MAP Forbearance Agreement, MAP, [the] Trust, and the Prendivilles acknowledged the validity and enforceability of the MAP Loan Documents, their liability for the MAP Indebtedness, " which is currently calculated to be $2, 020, 842.81, [11] "and the existence of events of default under the MAP Loan Documents."[12] Plaintiff "did not waive any existing defaults under the MAP Loan Documents" but "agreed to forebear from enforcing its rights under the MAP Loan Documents...."[13] Plaintiff's "agreement to forbear expired by the terms of the MAP Forbearance Agreement on September 15, 2012."[14]

On October 12, 2012, plaintiff notified MAP and the Trust that it would declare all amounts due and owing under the MAP Note unless all existing defaults were cured.[15] "MAP and [the] Trust failed to cure the existing defaults."[16] On October 25, 2012, plaintiff notified MAP and the Trust that it had declared all amounts under the MAP Note immediately due and payable.[17] "Despite demand, MAP, [the] Trust, and the Prendivilles failed or refused to cure the defaults or pay the MAP Indebtedness...."[18]

The Prendivilles are also the sole members of Nederland, which is a Texas limited liability company.[19] On February 16, 2007, GECC, as predecessor-in-interest to plaintiff, loaned $3, 150, 000.00 to the Trust and Nederland.[20] "The Nederland Loan is also evidenced by, among other things, [a] certain Promissory Note (Nederland Note 1')... in the original principal amount of $3, 150, 000.00."[21] "On April 30, 2008, GECC extended additional funds to Nederland and [the] Trust as evidenced by, among other things, [a] certain Promissory Note, (Nederland Note 2'...) in the original principal amount of $1, 300, 000.00."[22] "In conjunction with the Nederland Loan, the Prendivilles each executed [a] certain Unconditional Guaranty of Payment and Performance...."[23] "Pursuant to the Nederland Guaranty, each of the Prendivilles absolutely and unconditionally guarantied full performance and repayment of all obligations owing by Nederland to GECC under the loan documents."[24] "All of GECC's rights and interests in and under the Nederland Loan Documents were assigned to" plaintiff.[25] Thus, plaintiff is current holder of the Nederland Notes, the entity entitled to enforce the Nederland Guaranty, and the owner and beneficiary of the Nederland Loan Documents.

"Prior to Nederland's bankruptcy, [26] Nederland, [the] Trust, and the Prendivilles defaulted on their obligations under the Nederland Loan Documents."[27] "After Nederland's default, [plaintiff, ] Nederland, [the] Trust, and Prendivilles entered into [a] certain Forbearance Agreement dated March 21, 2012...."[28] "In the Nederland Forbearance Agreement, Nederland, [the] Trust, and the Prendivilles acknowledged the validity and enforceability of the Nederland Loan Documents, their liability for the Nederland Indebtedness, " which is currently calculated to be $3, 093, 178.30, [29] "and the existence of events of default under the Nederland Loan Documents."[30] Plaintiff "did not waive any existing defaults under the Nederland Loan Documents" but it "agreed to forebear from enforcing its rights under the Nederland Loan Documents under the terms and conditions of the Nederland Forbearance Agreement."[31] Plaintiff's "agreement to forbear expired by the terms of the Nederland Forbearance Agreement on September 15, 2102."[32]

On October 12, 2012, plaintiff "notified Nederland, [the] Trust, and the Prendivilles that it would accelerate the maturity date of the Nederland Notes unless all existing defaults were cured."[33] On October 25, 2012, plaintiff notified Nederland, the Trust, and the Prendivilles that it had declared all amounts under the Nederland Notes immediately due and payable.[34] "Despite demand, Nederland, [the] Trust, and the Prendivilles failed or refused to cure the defaults or pay the Nederland Indebtedness...."[35]

On September 4, 2013, plaintiff commenced this action. In Count I, plaintiff alleges a breach of contract claim based on allegations that the Trust breached the MAP Note. In Count II, plaintiff alleges a breach of contract claim based on allegations that the Prendivilles breached the MAP Guaranty. In Count III, plaintiff alleges a breach of contract claim based on allegations that the Trust breached the Nederland Notes. In Count IV, plaintiff alleges a breach of contract claim based on allegations that the Prendivilles breached the Nederland Guaranty.

On August 26, 2014, plaintiff attempted to depose Kevin Prendiville. Prior to the start of the deposition, plaintiff and defendants entered into a Settlement Agreement. The Settlement Agreement was read on the record before a certified court reporter.[36] Defendants agreed "to stipulate to a judgment in the full amount owed to GE" and that the judgment would "include all of the remaining principle, interest, ...


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