Custom Homes By Via LLC v. Bank of Oklahoma NA et al

Filing 91

ORDER: IT IS ORDERED denying 90 the Bank's Motion for Reconsideration. (See attached PDF for details). Signed by Senior Judge Frederick J Martone on 11/7/13.(JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Custom Homes By Via LLC,
Plaintiff,

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vs.

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Bank of Oklahoma; Bank of Arizona,
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Defendants.
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No. CV-12-01017-PHX-FJM
ORDER

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Before the court is the Bank’s motion for reconsideration (doc. 90) of our order
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granting partial summary judgment in plaintiff’s favor (doc. 67). Plaintiff sought summary
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judgment on its claim that the Bank breached the loan agreement by failing to fund the entire
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May 27, 2008 draw request. We considered and rejected the Bank’s only argument in
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opposition—that it was not obligated to fund future work.
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The Bank now raises a new argument. It contends that it was not obligated to fund
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the May 27, 2008 draw request because plaintiff had not established that it was not in default,
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and otherwise in compliance with certain conditions precedent, for example guarantor’s
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obligation to maintain a combined net worth of $8 million. We reject the Bank’s argument,
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and thus its motion for reconsideration, for two reasons. First, we will not consider an
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argument raised for the first time in a motion for reconsideration without a showing that the
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argument could not have been asserted before. The Bank has not made, nor could it make,
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such a showing.

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Second, even if we were to consider the merits of the Bank’s new argument, we would

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reject it. The Bank now contends that it was not contractually obligated to fund the draw

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request because plaintiff failed to establish certain conditions precedent. The Bank’s belated

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reliance on conditions precedent is belied by the fact that it funded a portion of the draw

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request. The Bank has not explained how it could, under the terms of the Loan Agreement,

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reject only part of a draw request based on conditions precedent.

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IT IS ORDERED DENYING the Bank’s motion for reconsideration (doc. 90).

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DATED this 7th day of November, 2013.

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