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Texas 1845 LLC v. Wu Air Corporation

February 3, 2012

TEXAS 1845 LLC, PLAINTIFF,
v.
WU AIR CORPORATION, WU AVIATION CORPORATION, MAINE AVIATION AIRCRAFT MAINTENANCE LLC, MAIN AVIATION AIRCRAFT CHARTER LLC AND ALLYN CARUSO, DEFENDANTS.



The opinion of the court was delivered by: Seybert District Judge:

MEMORANDUM & ORDER

Plaintiff Texas 1845 LLC sued Defendants Wu Air Corporation ("Wu Air"), Wu Aviation Corporation ("Wu Aviation"), Maine Aviation Aircraft Maintenance LLC ("Maine Maintenance"), Main Aviation Aircraft Charter LLC ("Maine Charter"), and Allyn Caruso to recover on promissory notes that were used to finance two airplanes. Pending before the Court are three motions. First, Plaintiff moves to dismiss Wu Air and Wu Aviation's (together, the "Wu Defendants") counterclaims and certain of their affirmative defenses. (Docket Entry 12.) Second, Plaintiff moves to dismiss Main Maintenance, Main Charter, and Allyn Caruso's (collectively, the "Maine Defendants") counterclaims and one of their affirmative defenses. (Docket Entry 13.) Third, Plaintiff moves the Court to appoint a receiver for certain collateral and for the Wu Defendants' businesses. (Docket Entry 25.)

BACKGROUND

The following discussion draws from Plaintiff's Complaint, the Wu Defendants' Answer and Counterclaims, and Plaintiff's motion to appoint a receiver.

I. Plaintiff's Allegations

The Wu Defendants borrowed millions of dollars to

finance two airplanes. In December 2006, Wu Aviation executed a promissory note (the "Aviation Note") in the principal amount of $6,600,000 payable to Key Equipment Finance, Inc. ("Key Equipment"). (Compl. ¶ 11.) Pursuant to a security agreement (the "Aviation Security Agreement"), the Aviation Note was secured, in part, by a British Aerospace model BAE 125-1000A airplane (the "Hawker") and its engines and accessories, including its logbooks (the "Hawker Logbooks"). (Id. ¶ 19.)

Among other things, the Aviation Security Agreement provided that the secured party will have the right to inspect the Hawker and the Hawker Logbooks. (Id. ¶ 21.) The secured party's remedies included court action, self-help, or any other lawful remedy, and the Aviation Security Agreement provided that the secured party's remedies were cumulative. (Id. ¶¶ 21-24.)

In October 2007, Wu Air executed a promissory note in the principal amount of $8,342,505 payable to Key Equipment. (Id. ¶ 15.) In December 2008, Wu Air executed a second note, this time in the principal amount of $5,000,000, which was also payable to Key Equipment. (Id. ¶ 16.) The Court will refer collectively to the Wu Air promissory notes as the "Air Notes." Pursuant to a security agreement (the "Air Security Agreement"), the Air Notes were secured in part by a Bombardier model CL-600-2B19 aircraft (the "CRJ") and its engines and accessories, including its logbooks (the "CRJ Logbooks"). (Id. ¶¶ 25-26.) Among other things, the Air Security Agreements provided the secured party with the right to inspect the CRJ and the CRJ Logbooks. (Id. ¶¶ 28-29.) The secured party's remedies--which were cumulative--included court action and self-help. (Id. ¶¶ 30-31.)

In September 2007, Wu Air entered into an aircraft charter and lease agreement with Maine Charter (the "CRJ Charter Agreement") to allow Maine Charter to use the CRJ in its air charter service. (Id. ¶ 32.) The agreement provided, among other things, that Wu Air was entitled to 85% of the monthly gross charter flight revenues attributable to the CRJ. (Id. ¶ 34.) In turn, Maine Charter entered into charter contracts (the "Charter Contracts") under which at least three companies agreed to pay Maine Charter for charter services associated with the CRJ. (Id. ¶ 36.)

The CRJ Charter Agreement was assigned to Key Equipment in October 2007. (Id. ¶ 34.) The assignment provided that, in the event of a default under the Wu Air Security Agreement, Key Equipment would be entitled to take any action to collect rents or other amounts due under the CRJ Charter Agreement. (Id. ¶ 35.)

The Wu Defendants failed to make the payments required by the Aviation Note and the Air Notes, respectively, and Key Equipment accelerated the balance due under the notes. (Id. ¶ 37-38.)

In December 2010, Key Equipment assigned their interest in the Aviation Note, Air Notes, Security Agreements, and CRJ Charter Agreement to Plaintiff. (Id. ¶ 41.) Following this assignment, Plaintiff demanded that it be allowed to inspect the CRJ, the Hawker, and the logbooks for each aircraft. (Id. ¶ 43.) Wu Defendants refused this demand and moved the collateral to an undisclosed location. (Id. ¶ 45.) Plaintiff was eventually able to repossess the CRJ, but it has not been able to locate the Hawker or the Logbooks for either the CRJ or the Hawker. (Id. ¶ 49.)

II. The Wu Defendants' Counterclaims The Wu Defendants allege that on February 9, 2011, "employees or agents" of Plaintiff went to Teterboro Airport in New Jersey, where the CRJ was being prepared for a chartered flight. These employees or agents "made false representations with respect to the CRJ," including that Plaintiff "had the right to repossess the plane" and that "title to the CRJ would be transferred in 15 minutes." (Wu Countercls., Docket Entry 10 ¶ 9.) Through "intimidation," the employees attempted to coerce Maine Maintenance's and Maine Charter's employees to turn the CRJ over to Plaintiff. (Id.) Although Plaintiff's efforts to reclaim the CRJ were ultimately unsuccessful, Plaintiff's actions caused Maine Charter to lose its charter contracts. (Id. ¶ 10.) The contract cancellations were to the ultimate detriment of Wu Air. (Id. ¶ 10.)

According to the Wu Defendants, Plaintiff made false statements to the Federal Aviation Administration (the "FAA") on February 10, 2011. Specifically, the Wu Defendants claim that Plaintiff filed a Certificate of Repossession of Encumbered Aircraft that falsely claimed that (1) Plaintiff had repossessed and foreclosed on the CRJ on February 10, and (2) the Wu Defendants had been "divested of ownership of the airplane." (Id. at 13.)*fn1

The Wu Defendants further allege that on March 22, 2011, the CRJ was being stored at MacArthur Airport in Islip, New York. On that day, Plaintiff's agents travelled to the airport, presented unspecified "documentation" to airport personnel in order to persuade them that Plaintiff had a right to repossess the airplane, and falsely stated that Jeffrey Wu--presumably a principal of the Wu Defendants--had authorized Plaintiff to take the airplane. (Id. at 14.) In fact, Jeffrey Wu had not authorized Plaintiff to take the CRJ and, pursuant to an order from New York Supreme Court, Wu Air owned the CRJ and had the right to use it within the continental United States. (Id. ¶ 13.) Nevertheless, Plaintiff's agents took possession of the CRJ at MacArthur Airport and flew it to Texas. (Id. ¶ 14.)

III. Plaintiff's Motion to Appoint a Receiver In addition to the allegations set forth in its Complaint, discussed supra, Plaintiff asserts in its motion to appoint a receiver that the Wu and Maine Defendants "engaged in a course of conduct to purposefully evade and divert [P]laintiff from taking the [c]ollateral." (Pl. Receiver Br. 2.) According to Plaintiff, the aircraft logbooks--without which the value of the planes decreases dramatically--have not been properly secured, thus creating a risk that they will be lost, stolen, or damaged. (Id. at 6.) It also claims that the Wu Defendants misled Plaintiff about the Hawker's location (Pl. Receiver Reply 4), ...


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