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Western Alliance Bank v. Jefferson

United States District Court, D. Arizona

July 23, 2015

Western Alliance Bank, Plaintiff,
v.
Richard Jefferson, Defendant. Richard Jefferson, Counter-claimant
v.
Western Alliance Bank, Counter-defendant. Richard Jefferson, Third-party plaintiff,
v.
Theodore Kritza & Michelle Lee Kritza, Third-party defendants.

ORDER AND OPINION [Re: Motions at Dockets 81 and 96]

JOHN W. SEDWICK, Senior District Judge.

I. MOTIONS PRESENTED

At docket 81 third-party defendants Theodore Kritza and Michelle Lee Kritza (collectively, "Kritza") move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure or, alternatively, an order establishing certain material facts as undisputed pursuant to Rule 56(g). Kritza supports his motion with a statement of facts at docket 82. Before responding to Kritza's motion, defendant, counter-claimant, and third-party plaintiff Richard Jefferson ("Jefferson") filed two motions at docket 96: a motion to amend the scheduling order to extend the deadline for amending pleadings and a motion for leave to amend his answer, counterclaim, and third-party complaint. At docket 97 Jefferson opposes Kritza's summary judgment motion, and at docket 99 he provides a separate statement of facts and controverting statement of facts. At docket 98 Jefferson's counsel, Bryan L. Saalfeld ("Saalfeld"), submits a declaration pursuant to Rule 56(d).

Kritza opposes Jefferson's two motions at docket 106; plaintiff and counter-defendant Western Alliance Bank ("Alliance") opposes them at docket 107. Kritza replies in support of his summary judgment motion at docket 111. Jefferson replies in support of his motions at docket 117. Oral argument was requested but would not assist the court.

II. BACKGROUND

This case began as a breach-of-contract action that Alliance brought against Jefferson in state court in February 2014. Alliance alleges that on October 5, 2004 it issued Jefferson a revolving line of credit in an original principal amount not to exceed $500, 000 ("LOC") that Jefferson failed to pay by its maturity date.[1] Alliance attached to its complaint the following documents as evidence of the parties' contractual relationship:

1. An October 5, 2004 Consumer Revolving Line of Credit agreement (loan number XXXXXXXXXX, "loan 4825") with an October 5, 2005 maturity date;[2]
2. A September 13, 2005 Change in Terms Agreement to loan 4825 that extended the LOC's maturity date to October 5, 2006;[3]
3. A September 25, 2006 Change in Terms Agreement to loan 4825 that extended the LOC's maturity date to October 5, 2007;[4]
4. An August 13, 2007 Change in Terms Agreement to loan 4825 that extended the LOC's maturity date to October 5, 2008;[5]
5. An August 5, 2008 Change in Terms Agreement to loan 4825 that extended the LOC's maturity date to August 15, 2009;[6]
6. An August 15, 2009 Change in Terms Agreement to loan 4825 that extended the LOC's maturity date to August 15, 2010;[7]
7. An August 16, 2010 Consumer Revolving Line of Credit agreement (loan number XXXXXXXXX, "loan 5289") with an August 15, 2011 maturity date;[8]
8. A December 23, 2011 Promissory Note[9] and Business Loan Agreement[10] (loan number XXXXXXXXXX, "loan 9169") with a November 15, 2012 maturity date;
9. A November 15, 2012 Change in Terms Agreement to loan 9169 that extended the loan's maturity date to January 15, 2013;[11]
10. A January 15, 2013 Change in Terms Agreement to loan 9169 that extended the loan's maturity date to November 15, 2013.[12]

Alliance also attached to its complaint a December 20, 2013 document that it alleges is a forbearance agreement between Alliance and Jefferson regarding loan 9169, [13] under which Jefferson would make a $50, 000 principal reduction payment in exchange for Alliance's promise to forbear from exercising its remedies under the loan documents through January 15, 2014. Alliance alleges that after entering into this agreement Jefferson failed to repay the LOC by this maturity date.[14]

Jefferson removed the case to this court, [15] filed his answer, and brought two negligence counterclaims against Alliance. In his answer Jefferson admits that he is the borrower listed on the paperwork for above-referenced loans, but he claims that his signature was forged.[16] Jefferson's first counterclaim alleges that Alliance was negligent in failing "to implement and/or follow appropriate procedures to verify the authenticity of the signatures on documents purporting to name ...


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