Free Proposed Findings of Fact - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CITICAPITAL TECHNOLOGY FINANCE, INC., formerly known as EAB Leasing Corp., a Pennsylvania corporation, and CITICAPITAL COMMERCIAL LEASING CORPORATION, formerly known as Associates Leasing, Inc., an Indiana corporation, Plaintiffs, vs. GRANT H. GOODMAN AND TERI B. GOODMAN, husband and wife, Defendants. This matter having come on regularly for trial to the Court on June 20, 2006, and June 20, 2006, with closing arguments being heard on June 28, 2006, and the Court having considered the testimony received and the exhibits admitted into evidence, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, pursuant to Rule 52(a), F.R.C.P.: I. FINDINGS OF FACT 1. Under an agreement sometimes designated as Lease No. 005-0515121-000 Case No. CV03-01587 PHX JAT PLAINTIFFS REVISED PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW

("Lease No. 121"), executed by GTI Capital Holdings, LLC, dba Rockland Materials ("GTI"), and thereafter executed by U.S. Bancorp Leasing and Financial ("USB"), USB financed GTI's
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acquisition of certain equipment in exchange for GTI's promise to make sixty (60) monthly payments in the amount of $3,503.18. 2. Under an agreement sometimes designated as Lease No. 005-0515122-000

("Lease No. 122"), executed by GTI, and thereafter executed by USB, USB financed GTI's acquisition of certain equipment in exchange for GTI's promise to make thirty-sixty (36) monthly payments in the amount of $3,550.14. 3. Under Lease Nos. 121 and 122, GTI agreed to lease from USB the following

described personal property: LEASE NO. LEASED EQUIPMENT DESCRIPTION VEHICLE IDENTIFICATION #/ SERIAL NUMBER 5DMDSABD01M000216 5DMDSABD01M000217 5DMDSABD01M000218 5DMDSABD01M000219

005-0515121-000 Four (4) 2001 Benson 27' Aluminum Dump Trailers 005-0515122-000 Four (4)1996 Kenworth T800 Tractors

1XKDDE9X2TJ723029 1XKDDE9X0TJ723031 1XKDDE9XXTJ723473 1XKDDE9X1TJ723474 (sometimes hereafter collectively the "Lease No. 121 and 122 Equipment") 4. In order to induce USB to enter into Lease nos. 121 and 122 (the "Grant Goodman

Guaranty of Lease Nos. 121 and 122"), Defendant Grant Goodman, a principal and member of GTI, guaranteed Lease nos. 121 and 122. By executing said guaranty, Defendant Grant Goodman guaranteed all payments, charges and obligations due under Lease nos. 121 and 122. 5. USB assigned Lease no. 121, the Lease No. 121 Equipment, and the Grant

Goodman guaranty of Lease no. 121 to CitiCapital Technology. CitiCapital Technology is the owner and holder of Lease no. 121, the Lease No. 121 Equipment, and the Grant Goodman guaranty of Lease no. 121.
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6.

USB assigned Lease no. 122, the Lease No. 122 Equipment, and the Grant

Goodman guaranty of Lease no. 122 to CitiCapital Technology. CitiCapital Technology is the owner and holder of Lease no. 122, the Lease No. 122 Equipment, and the Grant Goodman guaranty of Lease no. 122. 7. Lease Nos. 121 and 122 went into default for the failure to pay the monthly rent

due in April, 2003 and remain in default. 8. Pursuant to the terms of Lease Nos. 121 and 122 upon default, CitiCapital

Technology is entitled to immediate possession of the Lease No. 121 and 122 Equipment and is entitled to sell or otherwise dispose of it and apply the proceeds of any such disposition to the indebtedness of GTI to CitiCapital Technology. 9. Following the entry of a bankruptcy Court Order in the case of In re: GTI Capital

Holdings, LLC/G.H. Goodman Investments Companies, L.L.C., pending in the United States Bankruptcy Court for the District of Arizona, Case Nos. 2-03-07923 through 2-03-7924 (the "GTI bankruptcy case") authorizing CitiCapital Technology's recovery of the Lease No. 121 and 122 Equipment, CitiCapital Technology provided notice to all parties of the sale of the Lease No. 121 and 122 Equipment. 10. As of the date of its recovery and sale, the fair market value of the Lease No. 121

and 122 Equipment did not exceed $104,750.00. 11. After extensive remarketing of the Lease No. 121 Equipment, One (1) 2001

Benson 27' Aluminum Dump Trailer bearing serial #5DMDSABD01M000219 was sold at public auction and the balance of said equipment was sold by private sale. The date and gross amount received from said sales is set forth below:
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LEASE NO.

LEASED EQUIPMENT DESCRIPTION

VEHICLE IDENTIFICATION SALE PRICE AND DATE #/ SERIAL NUMBER 5DMDSABD01M000216 5DMDSABD01M000217 5DMDSABD01M000218 5DMDSABD01M000219 $21,000 2/23/04 $21,000 2/23/04 $21,000 2/23/04 $12,500 6/22/04

005One (1) 2001 Benson 27' 0515121- Aluminum Dump Trailer 000 005One (1) 2001 Benson 27' 0515121- Aluminum Dump Trailer 000 005One (1) 2001 Benson 27' 0515121- Aluminum Dump Trailer 000 005515121000 One (1) 2001 Benson 27' Aluminum Dump Trailer

12.

After extensive remarketing of the Lease No. 122 Equipment, it was sold at public

auction. The date and gross amount received from the public auction sale(s) is set forth below:

LEASE NO.

LEASED EQUIPMENT DESCRIPTION

VEHICLE IDENTIFICATION #/ SERIAL NUMBER

SALE PRICE AND DATE $11,500 2/10/04 $5,750 2/10/04 $5,500 2/10/04 $6,500 2/10/04

005One (1) 1996 Kenworth T800 1XKDDE9X2TJ723029 0515122- Tractor 000 0050515122000 0050515122000 One (1) 1996 Kenworth T800 1XKDDE9X0TJ723031 Tractor One (1) 1996 Kenworth T800 1XKDDE9XXTJ723473 Tractor

005One (1) 1996 Kenworth T800 1XKDDE9X1TJ723474 0515122- Tractor 000 13.

CitiCapital Technology's disposition of the Lease No. 121 Equipment and the

Lease No. 122 Equipment was made in a commercially reasonable manner. 14. CitiCapital Technology properly calculated its damages under the express
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provisions of Lease nos. 121 and 122, properly credited all payments made, and properly credited all net sale proceeds from the disposition of the Lease No. 121 Equipment and the Lease No. 122 Equipment. 15. Under the express provisions of Lease nos. 121 and 122 and the Grant Goodman

guaranty of Lease nos. 121 and 122, Defendant Grant Goodman agreed to pay CitiCapital Technology its reasonable attorney's fees, as well as all other expenses incurred by Plaintiff in connection with the enforcement of any of its remedies. Defendant Grant Goodman is therefore liable to CitiCapital Technology for such charges pursuant to the terms of Lease nos. 121 and 122 and the Grant Goodman guaranty of Lease Nos. 121 and 122. 16. Under an agreement sometimes designated as Lease No. 005-0515468-000

("Lease No. 468"), executed by GTI, and thereafter executed by CitiCapital Technology, CitiCapital Technology financed GTI's acquisition of certain equipment in exchange for GTI's promise to make sixty (60) monthly payments in the amount of $5,079.68. 17. Under an agreement sometimes designated as Lease no. 005-0515548-000 ("Lease

No. 548"), executed by GTI, and thereafter executed by CitiCapital Technology, CitiCapital Technology financed GTI's acquisition of certain equipment in exchange for GTI's promise to make fifty four (54) monthly payments in the amount of $2,120.00. 18. To induce CitiCapital Technology to enter into Lease Nos. 468 and 548,

Defendant Grant Goodman executed a guaranty (the "Grant Goodman Guaranty of Lease Nos. 468 and 548"), guarantying the obligations of the GTI to make payments pursuant to the terms of Lease Nos. 468 and 548. 19. Under Lease Nos. 468 and 548, GTI agreed to lease from CitiCapital Technology
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the following described personal property: LEASE NO. 005-0515468-000 005-0515548-000 LEASED EQUIPMENT DESCRIPTION Two (2) 2000 Peterbilt Trucks W/MTM 11 YD Bridgemaster V Mixer Invoice #020969 One (1) Vince Hagan Model VH-10945P Free Standing Jet Pulse Dust Conveyor with baby-buggy style dust shroud, ducting and dust recycle system fully described in Quote #000921H1.R1 dated 9-29-00 Invoice #020970 One (1) 5" Fill Pipe in lieu of a 4" Fill Pipe as quoted Two (2) additional 5" Fill Pipes Invoice #OR000821C1 One (1) Vince Hagan Model 3200BAL Elevated Silo with VH24SJP and 14" Screw Conveyor One (1) Silo Work Platform Option (sometimes hereafter collectively the "Lease No. 468 and 548 Equipment") 20. Lease Nos. 468 and 548 went into default for the failure to pay the monthly rent VEHICLE IDENTIFICATION #/ SERIAL NUMBER INPAL00X1YD493161 W/58419-15606 INPAL00X3YD493162 W/57170-16029

due in April, 2003 and remain in default. 21. Pursuant to the terms of Lease Nos. 468 and 548 upon default, CitiCapital

Technology is entitled to immediate possession of the Lease No. 468 and 548 Equipment and is entitled to sell or otherwise dispose of it and apply the proceeds of any such disposition to the indebtedness of GTI to CitiCapital Technology. 22. Following the entry of bankruptcy Court Orders in the GTI bankruptcy case

authorizing CitiCapital Technology's recovery of the Lease No. 468 and 548 Equipment, CitiCapital Technology notified all parties of the sale of the Lease No. 468 and 548 Equipment. 23. As of the date of its recovery and sale, the fair market value of the Lease No. 468
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and Lease No.548 Equipment did not exceed $148,000. 24. After extensive marketing of the Lease No. 468 Equipment, it was sold at public

auction. The date and gross amount received from the public auction sale is set forth below: LEASE NO. LEASED EQUIPMENT DESCRIPTION VEHICLE IDENTIFICATION #/ SERIAL NUMBER SALE PRICE AND DATE $58,500 2/10/04 $60,000 2/10/04

005One (1) 2000 Peterbilt Truck W/MTM INPAL00X1YD49316 0515468 11 YD Bridgemaster V Mixer 1 W/58419-15606 -000 005Two (2) 2000 Peterbilt Truck 0515468 W/MTM 11 YD Bridgemaster V -000 Mixer 25. INPAL00X3YD49316 2 W/57170-16029

The Lease No. 548 Equipment was sold by private sale. The date and gross

amount received from the private sale is set forth below: LEASE NO. LEASED EQUIPMENT DESCRIPTION SALE PRICE AND DATE

005Invoice #020969 0515548-000 One (1) Vince Hagan Model VH-10945P Free Standing Jet $29,500 Pulse Dust Conveyor with baby-buggy style dust shroud, 10/20/04 ducting and dust recycle system fully described in Quote CitiCapital #000921H1.R1 dated 9-29-00 Technology Finance, Inc. Invoice #020970 One (1) 5" Fill Pipe in lieu of a 4" Fill Pipe as quoted Two (2) additional 5" Fill Pipes Invoice #OR000821C1 One (1) Vince Hagan Model 3200BAL Elevated Silo with VH24SJP and 14" Screw Conveyor One (1) Silo Work Platform Option 26. CitiCapital Technology's disposition of the Lease No. 468 Equipment and the

Lease No. 548 Equipment was made in a commercially reasonable manner. 27. CitiCapital Technology properly calculated its damages under the express

provisions of Lease nos. 468 and 548, properly credited all payments made, and properly
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credited all net sale proceeds from the disposition of the Lease No. 468 Equipment and the Lease No. 548 Equipment. 28. Under the express provisions of Lease Nos. 468 and 548, GTI agreed to pay

CitiCapital Technology its reasonable attorney's fees, as well as all other expenses incurred by CitiCapital Technology in connection with the enforcement of any of its remedies. Defendant Grant Goodman is therefore liable to CitiCapital Technology for such charges, pursuant to the terms of Lease Nos. 468 and 548 and the Grant Goodman Guaranty of Lease Nos. 468 and 548. 29. Under an agreement sometimes designated as Lease no. 211-0106451 ("Lease No.

451"), executed by GTI, and thereafter executed by CitiCapital Commercial, CitiCapital Commercial financed GTI's acquisition of certain equipment in exchange for GTI's promise to make sixty (60) monthly payments in the amount of $1,670.00. 30. Under an agreement sometimes designated as Lease no. 211-0106452 ("Lease No.

452"), executed by GTI, and thereafter executed by CitiCapital Commercial, CitiCapital Commercial financed GTI's acquisition of certain equipment in exchange for GTI's promise to make sixty (60) monthly payments in the amount of $3,188.00. 31. Under an agreement sometimes designated as Lease no. 211-0106453-000 ("Lease

No. 453"), executed by GTI, and thereafter executed by CitiCapital Commercial, CitiCapital Commercial financed GTI's acquisition of certain equipment in exchange for GTI's promise to make sixty (60) monthly payments in the amount of $1,670.00. 32. Under an agreement sometimes designated as 211-0107004-000 ("Lease No.

7004"), executed by GTI, and thereafter executed by CitiCapital Commercial, CitiCapital Commercial financed GTI's acquisition of certain equipment in exchange for GTI's promise to
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make sixty (60) monthly payments in the amount of $3,193.08. 33. To induce CitiCapital Commercial to enter into Lease Nos. 451, 452, 453, and

7004, Defendants Grant Goodman and Teri Goodman each executed a guaranty (the "G and T Guarantys"), guarantying the obligations of the GTI to make payments pursuant to the terms of Lease Nos. 451, 452, 453, and 7004. 34. Under Lease Nos. 451, 452, 453, and 7004, GTI agreed to lease from CitiCapital

Commercial the following described personal property: LEASE NO. 211-0106451-000 11-0106452-000 211-0106453-000 211-0107004-000 LEASED EQUIPMENT DESCRIPTION Two (2) 2002 Vantage P-41-1000 Pneumatic Tank Trailers Two (2) 2002 Peterbilt 357 Conventional Tractors; w/ Gardner Denver Blowers Two (2) 2002 Vantage P-41-1000 Pneumatic Bulk Trailers VEHICLE IDENTIFICATION #/ SERIAL NUMBER 4EPPA41252BBA4130 4EPPA41272BBA4131 1XPAD09X32D574711 1XPAD09X52D574712 4EPPA41292BBA4132 4EPPA41202BBA4133

Two (2) 2002 Peterbilt 357 Tractors 1XPAD09X52D579196 w/ Gardner Denver Blowers 1XPAD09X72D579197 (sometimes hereafter collectively the "Lease No. 451, 452, 453, and 7004 Equipment") 35. Lease Nos. 451, 452, 453, and 7004 went into default for the failure to pay the

monthly rent due in April, 2003 and remain in default. 36. Pursuant to the terms of Lease Nos. 451, 452, 453, and 7004 upon default,

CitiCapital Commercial is entitled to immediate possession of the Lease No. 451, 452, 453, and 7004 Equipment and is entitled to sell or otherwise dispose of it and apply the proceeds of any such disposition to the indebtedness of GTI to CitiCapital Commercial. 37. Following the entry of a bankruptcy Court Order in the GTI bankruptcy case
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authorizing CitiCapital Commercial's recovery of the Lease No. 451, 452, 453, and 7004 Equipment, CitiCapital Commercial notified all parties of the sale of the Lease No. 451, 452, 453, and 7004 Equipment. 38. As of the date of its recovery and sale, the fair market value of the Lease No. 451,

452, 453, and 7004 Equipment did not exceed $307,250.00. 39. After extensive marketing of the Lease No. 451, 452, 453, and 7004 Equipment,

the Lease No. 451, 452, 453, and 7004 Equipment it was sold at public auction. The date and gross amount received from the public auction sale(s) is set forth below: LEASE NO. LEASED EQUIPMENT DESCRIPTION VEHICLE IDENTIFICATION #/ SERIAL NUMBER SALE PRICE AND DATE

211One (1) 2002 Vantage P-41-1000 0106451-000 Pneumatic Tank Trailer 211One (1) 2002 Vantage P-41-1000 0106451-000 Pneumatic Tank Trailer 211One (1) 2002 Vantage P-41-1000 0106453-000 Pneumatic Bulk Trailer 211One (1) 2002 Vantage P-41-1000 0106453-000 Pneumatic Bulk Trailer

4EPPA41252BBA4130 $22,000 11/21/03 4EPPA41272BBA4131 $23,500 11/20/03 4EPPA41292BBA4132 $24,750 11/21/03 4EPPA41202BBA4133 $25,500 11/20/03

211One (1) 2002 Peterbilt 357 1XPAD09X32D574711 $58,500 0106452-000 Conventional Tractor; w/ Gardner 11/21/03 Denver Blower 211One (1) 2002 Peterbilt 357 1XPAD09X52D574712 $51,000 0106452-000 Conventional Tractor; w/ Gardner 11/24/03 Denver Blower 211One (1) 2002 Peterbilt 357 0107004-000 Tractor w/ Gardner Denver Blower
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1XPAD09X52D579196 $51,000 11/21/03

211One (1) 2002 Peterbilt 357 0107004-000 Tractor w/ Gardner Denver Blower
40.

1XPAD09X72D579197 $51,000 11/21/03

CitiCapital Commercial's disposition of the Lease No. 451 Equipment, the Lease

No. 452 Equipment, the Lease No. 453 Equipment, and the Lease No. 7004 Equipment was made in a commercially reasonable manner.
41.

CitiCapital Commercial assigned Lease nos. 451, 452, 453, 7004 (sometimes

collectively the "GE Leases"), and the G and T Guarantys to General Electric Capital Corporation ("GE"). GE is the owner and holder of the GE Leases, and the G and T Guarantys. 42. GE properly calculated its damages under the express provisions of the GE

Leases, properly credited all payments made, and properly credited all net sale proceeds from the disposition of the Lease No. 451 Equipment, the Lease No. 452 Equipment, the Lease No. 453 Equipment, and the Lease No. 7004 Equipment.
43. Under the express provisions of the GE Leases, GTI agreed to pay all reasonable

attorney's fees as well as all other expenses incurred in connection with the enforcement of any of the remedies under the GE Leases. Defendants Grant Goodman and Teri Goodman are therefore liable to GE for such charges pursuant to the terms of the GE Leases and the G and T Guarantees. 44. The basis for this Court's jurisdiction is diversity of citizenship pursuant to 28

U.S.C. §1332. II. CONCLUSIONS OF LAW On the basis of the foregoing Findings of Fact, the Court makes the following Conclusions of Law:
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1.

The Court concludes that: (a) Defendant Grant Goodman personally guaranteed

Citicapital Technology Lease Nos. 121, 122, 468 and 548; and (b) Defendants Grant Goodman and Teri Goodman personally guaranteed General Electric Lease Nos. 451, 452, 453, and 7004. 2. The Court further concludes that: (a) the guaranty of Grant Goodman is in default

because all payments due under Citicapital Technology Lease Nos. 121, 122, 468 and 548 were not made; and (b) the guaranty of Grant Goodman and Teri Goodman is in default because all payments due under GE Lease Nos. 451, 452, 453, and 7004 were not made. 3. 4. The Court further concludes that Plaintiffs have proven their damages. The Court further concludes that: (a) Citicapital Technology Lease Nos. 121, 122,

468 and 548 are valid and enforceable contracts that must be given full force and effect; (b) GE Lease Nos. 451, 452, 453, and 7004 are valid and enforceable contracts that must be given full force and effect; (c) the Grant Goodman guarantees of Citicapital Technology Lease Nos. 121, 122, 468 and 548 are valid and enforceable contracts that must be given full force and effect; and (d) the Grant Goodman and Teri Goodman guarantees of GE Lease Nos. 451, 452, 453, and 7004 are valid and enforceable contracts that must be given full force and effect. 5. Any finding of fact made herein shall also be deemed a conclusion of law, and any

conclusion of law made herein shall also be deemed a finding of fact. 6. The Court further concludes that Citicapital Technology is entitled to judgment in

its favor and against Defendant Grant Goodman as follows: (a) as to Lease no. 121 the amount of $51,213.88 plus interest at the rate of fifteen percent (15%) per annum from April 23, 2005 until paid in full; (b) as to Lease no. 122 the amount of $5,178.14 plus interest at the rate of fifteen percent (15%) per annum from April 23, 2005 until paid in full; (c) as to Lease no. 468
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the amount of $59,716.73 plus interest at the rate of ten percent (10 %) per annum from April 23, 2005 until paid in full; and (d) as to Lease no. 548 the amount of $25,801.26 plus interest at the rate of ten percent (10 %) per annum from April 23, 2005 until paid in full. 7. The Court further concludes that General Electric is entitled to judgment in its

favor and against Defendant Grant Goodman and Teri Goodman as follows: (a) as to Lease no. 451 the amount of $40,723.94 plus interest at the rate of ten percent (10 %) per annum from April 23, 2005 until paid in full; (b) as to Lease no. 452 the amount of $60,834.57 plus interest at the rate of ten percent (10 %) per annum from April 23, 2005 until paid in full; (c) as to Lease no. 453 the amount of $40,268.45 plus interest at the rate of ten percent (10 %) per annum from April 23, 2005 until paid in full; and (d) as to Lease no. 7004 the amount of $73,093.31plus interest at the rate of ten percent (10 %) per annum from April 23, 2005 until paid in full. 8. The Court further concludes that as the prevailing party in this matter, Plaintiffs

are entitled to an award of their reasonable attorney's fees and costs incurred in this action, pursuant to A.R.S. §12-341.01. 9. Accordingly, Plaintiffs shall submit an application for attorney's fees and costs

and a form of Final Judgment within _______ days hereof. DONE IN OPEN COURT this ____ day of ________________, 2006. _________________________________ Honorable James A. Teilborg

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