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Orix Financial Services, Inc. v. Leclair

February 27, 2007

ORIX FINANCIAL SERVICES, INC., FORMERLY KNOWN AS ORIX CREDIT ALLIANCE, INC., PLAINTIFF,
v.
LECLAIR, DOING BUSINESS AS TAND D EXCAVATING CO., DEFENDANT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER BRIAN

Before the Court is Plaintiff Orix Financial Services, Inc.'s Motion for Summary Judgment on liability and damages against pro se Defendant Brian LeClair d/b/a T and D Excavating ("T&D"). Plaintiff alleges that Defendant has defaulted on a Conditional Sale Contract Note and seeks payment of the unpaid balance as well as interest and attorneys' fees. For the following reasons, Plaintiff's Motion for Summary Judgment is GRANTED.

I. Background

On September 29, 1998, Defendant, who was then a resident of Rhode Island (Lewis M. Smoley, Esq. Statement Pursuant to R. 56.1 ¶ 2, May 30, 2006 ("56.1 Statement")),*fn1 entered into and executed a Conditional Sale Contract Note (the "Note") with Chadwick-Baross, Inc. for the purchase of a 1997 Link-Belt Quantum Excavator Model 2800 (hereinafter the "Equipment") for a contract price of $161,822. (Yvonne Kalpakoff Aff. in Supp. of Pl.'s Mot. for Summ. J. ¶ 4, Ex. 2 ("Kalpakoff Aff."); 56.1 Statement ¶ 3.) The Note identifies the "Buyer" as "BRIAN LECLAIR DBA T AND D EXCAVATING CO." and the Note bears Brian LeClair's signature. (Kalpakoff Aff. Ex. 1.) Pursuant to the terms of the Note, Defendant granted Chadwick-Baross, Inc. a security interest in the Equipment. (56.1 Statement ¶ 4.) Also on September 29, 1998, Defendant executed a Delivery/Installment Certificate, Waiver, and Agreement ("Delivery Certificate"), whereby Defendant acknowledged complete and satisfactory delivery of the Equipment. (Id. ¶ 5; Kalpakoff Aff. ¶ 6, Ex. 1.)

The security interest in the Note was subsequently sold, assigned, and transferred to Orix Credit Alliance, Inc. on October 29, 1998. (Kalpakoff Aff. ¶ 7, Ex. 1; 56.1 Statement ¶ 6.) Orix Credit Alliance, Inc. is a New York corporation with its principal place of business in Georgia. (Id. ¶ 2.) Nearly one year later, on October 5, 1999, Defendant executed a letter agreement (the "Extension Agreement") addressed to Orix Credit Alliance, Inc., whereby the amounts and due dates of installment payments under the Note changed in accordance with the terms set forth in the Extension Agreement. (Kalpakoff Aff. ¶ 8, Ex. 1; 56.1 Statement ¶ 8.) Defendant subsequently defaulted by failing to make installment payments in accord with the terms of the Extension Agreement on June 29, 2000, and on the 29th day of each month thereafter. (Kalpakoff Aff. ¶ 9, Ex. 2; 56.1 Statement ¶ 9.) Orix Credit Alliance, Inc. then accelerated the balance of the unpaid amount due under the Note and repossessed the Equipment.*fn2 (Kalpakoff Aff. ¶¶ 9-10, Ex. 3; 56.1 Statement ¶¶ 9-10.)

Orix Credit Alliance, Inc. later sold the Equipment at a public sale for a gross sale price of $35,000 on December 13, 2000. (Kalpakoff Aff. ¶ 12, Ex. 3; 56.1 Statement ¶ 12.) In the effort to sell the Equipment, Plaintiff incurred $2415.93 in costs and expenses, which when deducted from the gross sale price, comes to $32,584.07, which was credited to Defendant's unpaid balance on the Note. (Kalpakoff Aff. ¶ 13; 56.1 Statement ¶¶ 13-14.) After this credit was applied, Defendant's balance on the Note totaled $77,287.07. (56.1 Statement ¶¶ 13-14.) In addition to the unpaid balance of $77,287.07 due under the Note, Defendant owes default interest in the amount of one-fifteenth of one percent per diem due from one day after the sale of the Equipment, which was December 14, 2000. (Id.) The Note also provides for Plaintiff's attorneys' fees in an amount equal to twenty percent of all amounts due and owing under the Note. (Id.)

On November 7, 2005, Plaintiff filed a Complaint against Defendant in the Southern District of New York, seeking payment of the balance of all amounts due under the Note, default interest, and attorneys' fees. Plaintiff now moves for summary judgment.*fn3

II. Discussion

A. Standard of Review

Summary judgment may be granted when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must view all evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-movant's favor. See Tufariello v. Long Island R.R., 458 F.3d 80, 85 (2d Cir. 2006). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. 2006). "Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in his favor." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). "The motion 'will not be defeated merely . . . on the basis of conjecture or surmise.'" Id. (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)).

The materiality of the facts considered by the Court will be governed by substantive law.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment, the Court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. See Castro v. Met. Transp. Auth., No. 04 Civ. 1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006); Westinghouse Elec. Corp. v. N.Y. City Transit Auth.,735 F. Supp. 1205, 1212 (S.D.N.Y. 1990). A court's goal should be to "isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24.

Pro se parties are entitled to "extra consideration" and "special latitude" on summary judgment motions. Salahuddin v. Coughlin, 999 F. Supp 526, 535 (S.D.N.Y. 1998). Therefore, this Court must read a pro se litigant's supporting papers liberally, interpreting them "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal quotations and citations omitted); see also Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This does not, however, "relieve [the non-movant] of his duty to meet the requirements necessary to ...


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