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LEASING SERV. CORP. v. CARBONEX

April 15, 1981

LEASING SERVICE CORPORATION, Plaintiff,
v.
CARBONEX, INC., Defendant



The opinion of the court was delivered by: CONNER

OPINION AND ORDER

This action is before the Court on the motion of plaintiff Leasing Service Corporation for summary judgment pursuant to Rule 56, F.R.Civ.P. Defendant Carbonex, Inc. ("Carbonex") filed an answer to the complaint but has not filed any affidavits, answering papers or other response to plaintiff's motion. Thus, under Rule 56(c) and (e) and Local Rule 3(g), the facts set forth in plaintiff's affidavit, Rule 3(g) Statement and documentary submissions are deemed admitted and plaintiff is entitled to the relief it seeks if its claims are good as a matter of law.

 Background

 Plaintiff is a New York financing corporation with its principal place of business in New York. Carbonex, a Delaware corporation, operates a coal mine in Kentucky. In the course of its operation, Carbonex leased certain heavy mining equipment. Four such equipment leases are at issue here.

 The first lease, dated September 19, 1979, between Carbonex and Miller & Miller, Auctioneers, covers thirteen pieces of equipment, primarily "tractor dozers" and "wheel loaders." The lease indicates that Miller & Miller intended to assign their rights to plaintiff, and Miller & Miller did subsequently make such an assignment. The lease covers total payments of $ 1,094,280, to be made, after an initial advance payment of $ 97,000, in twenty-three equal monthly installments of $ 43,360 beginning on October 25, 1979. It does not include a purchase option at the end of the term of the lease, but rather states that "title to equipment shall at all times remain in lessor." It further recites that:

 
"In any jurisdiction where the Uniform Commercial Code is in effect Lessee grants to Lessor a security interest in the Equipment ... and agrees that any security interest created by this agreement secures any and all obligations of lessee at any time owing to Lessor, now existing and/or hereafter incurred.
 
"If Lessee fails to pay any rent ... when due or fails to pay when due any (other) indebtedness to Lessor ... then Lessor may, without notice or demand, declare the entire amount of rent then unpaid ... together with delinquency charges, collection charges and attorneys' fees and all other sums owing to Lessor by Lessee ... immediately due and payable ... and Lessor may, at its option and without notice ..., to the extent permitted by law: (1) recover the Balance; (2) take possession of the Equipment wherever same may be located ... and (a) retain Equipment and all prior payments of rent; or (b) retain all prior payments and either (i) sell Equipment at public or private sale ... applying any net proceeds less 15% of Total Rent to all charges and expenses incurred by Lessor in connection with or incidental to the retaking ... and sale, including attorneys' fees, then to the Balance and then to any other amounts owing by Lessee to Lessor; or (ii) retain Equipment and credit Lessee with the reasonable re-leasing value of the Equipment; Lessee remaining in any event liable for any deficiency."

 The agreement additionally provides that Carbonex agrees to pay expenses of collection and reasonable attorneys' fees "no less than 20% of any amount sought," agrees to submit to the jurisdiction of any court located in the state of New York, agrees that venue is properly laid in any such court, and agrees to pay a delinquency charge on any unpaid rent or other sum due under the contract and not paid of 1/15 of 1% per day "from the date when such payment was due until paid." Finally, the agreement contains a flexibly broad choice of law clause: "intending that each and every provision of this agreement be fully effective according to its terms, the parties hereto specifically agree that the validity, enforceability and effectiveness of each provision shall be determined by the law of the state of residence or principal place of business of lessee or lessor ... whichever may render each such provision effective."

 The next three leases, substantially identical in terms, are between Carbonex and plaintiff directly. The first of these leases, dated October 11, 1979, covering lease of a Caterpillar Model 988 Rubber Tired Loader, provides for payment of a total rent of $ 34,252 for a term of 23 months commencing on October 11, 1979. The next, dated November 26, 1979, covering the same model number Caterpillar "Wheel Loader," provides for payment of a total rent of $ 90,454 in equal monthly installments of $ 3,479 for 26 months starting on November 26, 1979. The third, dated January 21, 1980, a lease of a truck drill mounted on a crane carrier, is for a total rent of $ 199,394 over a term of 26 months starting on January 21, 1980. Each lease provides, in relevant part:

 
"In any jurisdiction where the Uniform Commercial Code is in effect Lessee grants to Lessor a security interest in any ... equipment ... in which Lessee has any interest and agrees that any security interest created by this agreement secures any and all obligations of Lessee ... to Lessor ....
 
"Should Lessee fail to pay when due any part of the rent ... or any other sum required to be paid to Lessor by Lessee, Lessee shall pay to Lessor a late charge of 1/15th of 1% per day on such delinquent payment ... from the date when such payment was due until paid, and expenses of collection, including attorneys' fees.
 
"If Lessee fails to pay rent or other amount herein provided when due ... then ... the full amount of Total Rent then unpaid hereunder and all other obligations of Lessee to Lessor shall become due and payable forthwith ... and Lessor may, at its option: ... without notice or demand and without legal process, take possession of equipment ... (but Lessee shall not be released from its obligations under this agreement until the full amount of unpaid Total Rent and all other sums payable hereunder have been paid in full) and Lessor may retain all payments of rent and (i) retain the equipment; or (ii) sell the equipment (applying net proceeds of such sale less 20% of the Actual Cost to the unpaid balance of Total Rent); or (iii) retain equipment and attempt release of same ...; Lessee remaining unconditionally liable for any deficiency under (ii) and (iii) above.
 
"(the) parties ... do hereby agree to the venue and jurisdiction of any court in the state and County of New York ...

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