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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Custom Homes By Via LLC, Plaintiff, 10 11 vs. 12 Bank of Oklahoma; Bank of Arizona, 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-01017-PHX-FJM ORDER 15 16 Before the court is the Bank’s motion for reconsideration (doc. 90) of our order 17 granting partial summary judgment in plaintiff’s favor (doc. 67). Plaintiff sought summary 18 judgment on its claim that the Bank breached the loan agreement by failing to fund the entire 19 May 27, 2008 draw request. We considered and rejected the Bank’s only argument in 20 opposition—that it was not obligated to fund future work. 21 The Bank now raises a new argument. It contends that it was not obligated to fund 22 the May 27, 2008 draw request because plaintiff had not established that it was not in default, 23 and otherwise in compliance with certain conditions precedent, for example guarantor’s 24 obligation to maintain a combined net worth of $8 million. We reject the Bank’s argument, 25 and thus its motion for reconsideration, for two reasons. First, we will not consider an 26 argument raised for the first time in a motion for reconsideration without a showing that the 27 argument could not have been asserted before. The Bank has not made, nor could it make, 28 1 such a showing. 2 Second, even if we were to consider the merits of the Bank’s new argument, we would 3 reject it. The Bank now contends that it was not contractually obligated to fund the draw 4 request because plaintiff failed to establish certain conditions precedent. The Bank’s belated 5 reliance on conditions precedent is belied by the fact that it funded a portion of the draw 6 request. The Bank has not explained how it could, under the terms of the Loan Agreement, 7 reject only part of a draw request based on conditions precedent. 8 IT IS ORDERED DENYING the Bank’s motion for reconsideration (doc. 90). 9 DATED this 7th day of November, 2013. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?