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Nissan Motor Acceptance Corp v. Dealmaker Nissan

June 27, 2012

NISSAN MOTOR ACCEPTANCE CORP., PLAINTIFF,
v.
DEALMAKER NISSAN, LLC; DEALMAKER AUTO GROUP, LLC; MARK PICARAZZI; AND PHILIP J. SIMAO, DEFENDANTS.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this breach-of-contract action filed by Nissan Motor Acceptance Corporation ("Plaintiff") against Dealmaker Nissan, LLC, Dealmaker Auto Group, LLC, Mark Picarazzi, and Philip Simao ("Defendants"), is Plaintiff's motion for summary judgment on Counts One, Three, and Four of its Complaint. (Dkt. No. 46.) For the reasons set forth below, Plaintiff's motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Complaint alleges the following facts.

On November 27, 2006, and April 22, 2008, Plaintiff entered into an Automotive Wholesale Financing and Security Agreement ("Wholesale Financing Agreement") with Defendant Dealmaker Nissan, LLC ("Defendant Nissan"). (Dkt. No. 1 at 2 [Plf.'s Compl.].) The Wholesale Financing Agreement provided that Plaintiff would provide secured wholesale inventory floor plan financing to Defendant Nissan. (Id. at 1-2.) To secure its obligations under the Wholesale Financing Agreement, Defendant Nissan granted Plaintiff a security interest in Defendant Nissan's collateral, which included motor vehicles, parts inventory, furniture, fixtures, equipment, investment property, accounts, contract rights, intangible property, accounts receivable, and all of the proceeds of the same. (Id. at 3.) Plaintiff properly perfected its security interest in Defendant Nissan's collateral. (Id.)

As of the date of the filing of Plaintiff's Complaint, Defendant Nissan has been and is in material default of its obligations to Plaintiff under the Wholesale Financing Agreement. (Id.) Plaintiff has made repeated demands on Defendant Nissan to cure its defaults. (Id. at 4.) Defendant Nissan has failed to comply with Plaintiff's demands. (Id.) As a result, Defendant Nissan remains obligated to Plaintiff under the Wholesale Financing Agreement. (Id.)

On November 27, 2006, Defendants Dealmaker Auto Group, LLC ("Defendant Auto Group"), Mark Picarazzi ("Defendant Picarazzi"), and Philip J. Simao ("Defendant Simao") executed Continuing Guaranty Agreements ("Continuing Guaranties") of the obligations of Defendant Nissan to Plaintiff. (Id. at 6.) Defendants Auto Group, Picarazzi, and Simao have subsequently failed and/or refused to make payment of Defendant Nissan's indebtedness to Plaintiff. (Id.)

Based on these factual allegations, Plaintiff claims that Defendant Nissan breached the Wholesale Financing Agreement (id. at 4) and that Defendants Auto Group, Picarazzi, and Simao breached the Continuing Guaranties (id. at 6). As relief, Plaintiff initially sought $1,069,878.04*fn1 in monetary damages, jointly and severally, against all of the defendants. (Id. at 7.) Plaintiff also sought, and still seeks, injunctive relief and attorneys fees and costs. (Id. at 5-6, 7-8.) For a complete recitation of Plaintiff's factual allegations, claims, and requested relief, reference is made to Plaintiff's Complaint. (See generally Dkt. No. 1.)

B. Plaintiff's Motion For Summary Judgment

On March 12, 2010, upon Order of the Court, the Clerk of the Court entered a default judgment as to liability only against Defendant Picarazzi pursuant to Fed. R. Civ. P. 55(b)(1) and Local Rule 55.2(a) of the Local Rules of this Court. (Dkt. No. 40.) The Court declined to enter a default judgment as to damages against Defendant Picarazzi pending a hearing on the matter. (Text Order dated Sept. 8, 2009; Dkt. Nos. 39, 40.) As a result, Plaintiff's pending motion for summary judgment is against the remaining Defendants: Defendants Nissan, Auto Group, and Simao.

Generally, in support of their motion for summary judgment, Plaintiff argues that Defendants breached the terms of the Wholesale Financing Agreement and Continuing Guaranties, both of which are unambiguous, unconditional, written documents, enforceable by their terms without resorting to extrinsic evidence. (Dkt. No. 56, Attach. 9 at 13-16.) Regarding damages, Plaintiff has submitted an affidavit from Todd Voorhies ("Voorhies"), Plaintiff's Manager of Consumer Credit, illustrating Plaintiff's damages in the amount of $316,212.62, plus interest from September 1, 2011, through the date of entry of judgment, plus attorneys fees and costs. (Dkt. No. 46, Attach. 1.)

Generally, in Defendants' response to Plaintiff's motion for summary judgment,*fn2 they argue that there is a genuine dispute of material fact as to whether Plaintiff's conduct was in bad faith and whether that bad faith contributed to Defendant Nissan's default under a theory of "deepening insolvency." (Dkt. No. 48, Attach. 9 at 8-14.) In addition, Defendants argue that, even if the Court were to find Defendants liable under the Wholesale Financing Agreement and Continuing Guaranties, Fed. R. Evid. 1002 would preclude the Court from relying on a document entitled "#3223 Dealmaker Nissan Deficiency Calculation" ("the Worksheet") submitted in support of Voorhies' affidavit, calculating of Plaintiff's damages. (Id. at 17-20.)

Generally, in their reply, Plaintiff argue as follows: (1) Defendants waived the right to assert a defense based on a theory of deepening insolvency; (2) even if Defendants did not waive their right to assert a defense based on a theory of deepening insolvency, the defense does not apply to breach-of-contract actions; and (3) Fed. R. Evid. 1002 does not preclude the Court from relying on Voorhies' affidavit and its supporting documents, including the Worksheet. (See generally Dkt. No. 52.)

C. Undisputed Material Facts

Generally, the following facts are not disputed by the parties. (Compare Dkt. No. 46, Attach. 8 [Plf.'s Rule 7.1 Statement] with Dkt. No. 48, Attach. 10 [Defs.' Rule 7.1 Response].) On November 27, 2006, and April 22, 2008, Defendant Nissan entered into the Wholesale Financing Agreement with Plaintiff pursuant to which Plaintiff agreed to provide secured wholesale inventory floor plan financing to Defendant Nissan. The Wholesale Financing Agreement established the terms under which Plaintiff would provide Defendant Nissan with a wholesale line of credit to finance new and used vehicles, parts, and other merchandise on a discretionary basis. As part of Plaintiff's commitment to extending credit to Defendant Nissan, it required that Defendants Auto Group, Picarazzi, and Simao execute Continuing Guaranties guaranteeing the obligations of Defendant Nissan.

Upon Defendants' alleged default on its obligations under the Wholesale Financing Agreement, Plaintiff made repeated demands for Defendant Nissan to cure its various defaults and pay amounts due and owing to Plaintiff. Pursuant to the Wholesale Financing Agreement's terms, Plaintiff had the option of terminating the Wholesale Financing Agreement and declaring all indebtedness immediately due and payable. On January 14, 2009, Plaintiff delivered notice to Defendants stating that it was suspending credit immediately under the Wholesale Financing Agreement, and that the Wholesale Financing Agreement ...


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