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

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Grant H. Goodman, State Bar #009463 Grant H. Goodman, PLLC 5110 North 44th Street, Suite L200 Phoenix AZ 85018 Phone: (602) 343-1477 [email protected] Attorney for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CITICAPITAL TECHNOLOGY ) Case No.: CV03-01587 PHX JAT FINANCE, INC., formerly known as EAB ) Leasing Corp., a Pennsylvania corporation, ) DEFENDANTS' FINDINGS OF FACTS ) PURSUANT TO Fed.R.Civ.P., 52 and CITICAPITAL COMMERCIAL ) LEASING CORPORATION, formerly ) ) known as Associates Leasing, Inc., an ) Indiana corporation, ) ) Plaintiffs, ) ) ) v. ) ) GRANT H. GOODMAN and TERI B. ) GOODMAN, husband and wife, ) ) ) Defendants. ) 1. CitiCapital has claimed $212,229.79 as an administrative claim relative to

the primary debt (GTI Capital Holdings, LLC) on or about August 30, 2004. (CitiCapital's administrative claim calculation through its authorized agent, David N. Ingrassia, P.C., August 30, 2004.) 2. The leases (hereinafter "TRAC") include ¶2 that the monthly rental shall equal "the product of the monthly rental factors stated in such schedule for such vehicle multiplied by the Schedule "A" value of such vehicle". 3. The TRAC lease requires monthly payments to include depreciation as stated in Schedule "B" appended to the lease.

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4. 5. 6.

The TRAC lease required a finite lease term of sixty (60) months without a TRAC lease ¶3 requires that the term of the lease (60 months) shall be "not ¶4 of the TRAC lease ¶8 under the TRAC lease requires equipment return to lessor at termination;

required release or residual value, or a required purchase. in excess of the maximum term" noted in Schedule "A" (60 months).

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7.

the equipment to a location designated by the lessor "in the same working order, condition and repair as when received by lessee, excepting only reasonable wear and tear caused by normal usage" "if lessee does not surrender the vehicle to lessor as herein provided, lessee will be in default of this lease and lessee shall pay lessor, as liquidated damages and not as penalty, an amount equal to one hundred ten percent (110%) of the monthly rental applicable to such vehicle. Such payment shall commence with the month immediately following the end of the lease term and shall continue thereafter monthly until the vehicle is returned to lessor. Lessee agrees that such liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual value exposure and other losses which are incapable of an exact determination, incurred by lessor as a result of lessee's retaining possession of the vehicle beyond the end of the lease term." 8. ¶9 under the TRAC lease provides "lessor may apply any sums received as proceeds from any vehicle which would otherwise be due to lessee hereunder against any other obligation of lessee and lessor may off-set the amount of any such rental equipment against any claim it may have against lessee. 9. ¶10 under the TRAC lease provides "final adjustment in relation to lost, stolen or destroyed vehicles shall be made as provided in Section 9 promptly after sale of the salvage and/or receipt of insurance proceeds as applicable or within forty five (45) days after such loss, theft, or destruction; whichever is earlier. 10. The plaintiff has not alleged or filed any documents in conformity with the above-referenced provisions claiming damage, destruction, or impairment to the fair market values of said equipment. 11. ¶14B under the TRAC lease provides lessor may obtain vehicle possession at such location as the lessor elects. The lessor may at its option (i) sell the equipment. Or under (ii) the lessor may release the vehicles which require it to apply the proceeds of
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such release for the benefit of the lessee. If the lessor elects option (i) the lessor may claim entitlement to an "Adjusted rental as provided in Section 9". If the lessor releases the vehicles the lessor may "demand, as liquidated damages", "a sum with respect to each such vehicle which represents the excess of the present value at the time of termination of all monthly rentals which would otherwise have accrued hereunder to the end of the

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maximum term for such vehicle over the present value of the aggregate of the rentals to be paid for such vehicle by such third party for such period (new lessee)." "This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the vehicle. 12. ¶14B(2) under the TRAC lease provides and CitiCapital also keeps

"additional rents and adjusted rents then due or owing", and CitiCapital also obtains, in addition to its contract remedies, "liquidated damages" and "all monthly rentals and additional rents and sales proceeds received", and includes that CitiCapital may keep as a liquidated damage any amounts that were to be refunded under the above provisions "and other sums which otherwise would be payable to lessee, and a sum equal to the aggregate of all monthly rentals and other amounts including but not limited to any early termination fee customarily charged by lessor, (the due dates of which rentals and other amounts lessor may accelerate at its option) which would have been due during the period ending", "on the earliest date on which lessee could have effectively terminated this lease as to such vehicle pursuant to Section 3 if lessee had not defaulted." 13. 14. ¶3 under the TRAC lease provides "lessee may terminate this lease as to CitiCapital under 14B (2) above vitiates the prior damage calculations and any vehicle on any anniversary of the delivery date for such vehicle. (See ¶9) collects all contract damages (unpaid and future rents [not reduced to present value] as well as "liquidated damages" in addition to the future lease payments, all "sales proceeds received," [not credited to the lessee in any amount], and fails to credit to the lessee all "other sums" due to the lessor, including the above-referenced post-petition administrative rental/damage claims in the amount of $212,229.79. 15. ¶15 under the TRAC lease provides all defenses, rights of set-off or for breaches and defenses "THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE."

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16. 17. 18.

¶SCHEDULE "A": contains lease term, equipment value, monthly rental Under the contracts at issue the lessor makes no provision for application, The TRAC lease documents and schedules provide no method or manner of

payment, as well as monthly "rental factors" which derive a monthly rental payment. or inclusion upon default of any residual values.

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calculation for a fair market value sale upon commercially reasonable terms to the lessee at expiration of the lease term. 19. The only obligation imposed upon the lessee at termination of the contract is for return of the equipment in reasonably good condition (normal wear and tear excepted) at a location of the lessor's election. DATED this 9th day of January, 2006. GRANT H. GOODMAN, PLLC

/s/ Grant H. Goodman, #009463 Grant H. Goodman Attorney for Defendants Original e-filed, copy e-mailed to [email protected] and copy mailed this 9th day of January, 2006, to: Honorable James A. Teilborg United States District Court 401 West Washington Suite 523 SPC 51 Phoenix AZ 85003 Copy mailed this 9th day of January, 2006, to: David N. Ingrassia, Esq. DAVID N. INGRASSIA, P.C. 1212 East Osborn Road Phoenix AZ 85014 Attorneys for Plaintiffs

/s/ Grant H. Goodman
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