JPMorgan Chase Bank, N.A. v. Meritage Homes Corp. et al
Filing
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ORDER Granting 100 Motion for Summary Judgment. Granting 109 Motion for Leave to File Supplement to Record on Summary Judgment. Proposed Order due by 7/8/2013. Signed by Judge Philip M. Pro on 6/17/2013. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ISG INSOLVENCY GROUP, INC.,
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Plaintiff/Counterdefendant,
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v.
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MERITAGE HOMES CORPORATION )
and MERITAGE HOMES OF NEVADA, )
INC.,
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Defendants/Counterclaimants. )
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___________________________________ )
2:11-CV-01364-PMP-CWH
ORDER
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Presently before the Court is Plaintiff’s Motion for Summary Judgment (Doc.
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#100), filed on January 7, 2013. Defendants Meritage Homes Corporation and Meritage
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Homes of Nevada, Inc. filed an Opposition (Doc. #104) on February 4, 2013. Plaintiff filed
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a Reply (Doc. #105) on February 22, 2013.
Also before the Court is Defendants’ Motion for Leave to File Supplement to
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Record on Summary Judgment (Doc. #109), filed on May 15, 2013. Plaintiff filed an
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Opposition (Doc. #110) on May 23, 2013. Defendants filed a Reply (Doc. #111) on June 3,
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2013.
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The parties are familiar with the facts in this case and the Court will not repeat
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them here except where necessary. Plaintiff ISG Insolvency Group, Inc. moves for
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summary judgment on the amount owed by Defendants Meritage Homes Corporation and
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Meritage Homes of Nevada, Inc. (“Meritage”) on a Repayment Guaranty. Plaintiff
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contends that following discovery, no genuine issue of fact remains that Meritage owes
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$15,053,857.17 as of December 6, 2012, which was the date the parties deposed JPMorgan
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Chase Bank, N.A.’s (“JPMorgan”) corporate designee, William Austin (“Austin”).
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Additionally, Plaintiff contends the only matter left for the Court to resolve is the proper
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interest rate to apply, either the New York statutory rate or the Credit Agreement rate.
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Meritage opposes, arguing that it is not liable on the Repayment Guaranty for a variety of
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reasons. Alternatively, Meritage asserts that even if it is liable, genuine issue of fact remain
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regarding the amount of damages.
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I. MERITAGE’S LIABILITY
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Meritage argues it is not liable under the Repayment Guaranty because Austin
admitted that after the bankruptcy Plan was confirmed, JPMorgan and the other Prepetition
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Lenders had no claims or damages against Meritage under the Repayment Guaranty.
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Meritage thus contends Plaintiff, as JPMorgan’s sub-agent, has no claims or damages
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against Meritage either. Meritage also contends JPMorgan and the Prepetition Lenders
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agreed that any remaining deficiency was satisfied by a $500,000 payment under the Plan.
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Meritage further argues that Plaintiff cannot perform its obligation under the Repayment
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Guaranty because the property was transferred free and clear of all liens under the Plan, but
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Meritage was to succeed to JPMorgan’s lien rights in the property upon satisfaction of the
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Repayment Guaranty. Meritage therefore contends there is a material failure of
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consideration which relieves Meritage of its obligation to perform.
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Plaintiff replies that the Court already has rejected Meritage’s arguments
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regarding liability, and Meritage is liable on the Repayment Guaranty without any rights to
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setoffs and without regard to JPMorgan’s release of the lien. Plaintiff contends Meritage
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has not established reconsideration of this Court’s prior Orders on these issues is warranted.
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Plaintiff further argues that the fact that JPMorgan released its lien on the property does not
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absolve Meritage of its liability or create an offset based on the value of the property
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because Meritage is liable under the Repayment Guaranty irrespective of any release of
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collateral. Plaintiff thus contends that Meritage’s liability on the Repayment Guaranty does
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not depend on Meritage’s receipt of JPMorgan’s lien rights. Plaintiff further argues that
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Meritage breached the Repayment Guaranty in June 2011, and thus any subsequent failure
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to perform by JPMorgan is excused.
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The Court previously has rejected Meritage’s argument that it is not liable on the
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Repayment Guaranty because JPMorgan or its sub-agent have no remaining claims against
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Meritage. (Order (Doc. #86) at 10-11.) The Court likewise rejects Meritage’s contention
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that JPMorgan and the Prepetition Lenders agreed that any remaining deficiency was
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satisfied by a $500,000 payment under the Plan. Section 3.5(C) of the Plan provides that
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each holder of an unsecured prepetition loan deficiency claim against South Edge’s estate
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“shall receive in full and complete settlement, release, and discharge of such claim vis-a-vis
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the Estate and its Assets, a ratable share of $500,000, to be funded from the Settling
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Builders’ Total Plan Contribution.” (Defs.’ Opp’n to Pl.’s Mot. Summ. J. (Doc. #104)
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[“Defs.’ Opp’n”], Ex. B, the Plan at § 3.5(C).) However, the release was only “vis-a-vis the
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Estate and its Assets.” As is made clear by other provisions in the Plan, neither section
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3.5(C) nor any other Plan provision releases Meritage’s liability for any remaining
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deficiency.
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Meritage next argues it is released from liability because Plaintiff cannot perform
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its obligation under the Repayment Guaranty due to the property being transferred free and
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clear of all liens under the Plan. However, the Repayment Guaranty provides that Meritage
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agreed “absolute[l]y, irrevocabl[y] and unconditional[ly]” to pay on demand Meritage’s
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Guaranteed Share, “irrespective of . . . any exchange, release or non-perfection of any
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Collateral [or] any present or future law, regulation or order of any jurisdiction . . .
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purporting to reduce, amend, restructure or otherwise affect any term of any Facility
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Document or Liabilities.” (Defs.’ Opp’n, Ex. A at § 3.) Consequently, Meritage agreed it
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would be liable on the Repayment Guaranty even if the liens on the property were released
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or the terms of the Facility Documents were modified by judicial order, such as through a
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confirmed bankruptcy plan. No genuine issue of material fact remains that Meritage is
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liable on the Repayment Guaranty.
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II. DAMAGES
Meritage disputes the amount of damages, to the extent it owes any damages.
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First, Meritage argues Plaintiff failed to provide evidence regarding the amount of money
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JPMorgan and the Prepetition Lenders received for Meritage’s portion of the property
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through Plan confirmation. Meritage contends this amount should be offset against the
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Repayment Guaranty amount because it was, in effect, a foreclosure sale of the property.
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Second, Meritage argues its obligation is only its guaranteed share of 3.51% of $47 million,
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the amount the Court previously identified as the remaining deficiency following Plan
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confirmation.
Third, Meritage contends the evidence is unclear as to the proper amount owed
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by JPMorgan’s own calculations. For example, Meritage contends the Plan estimated
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Meritage’s repayment obligation at between $12.4 and $12.8 million, which is less than the
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$13,256,110 which Plaintiff now asserts was Meritage’s repayment obligation as of June 6,
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2011. Meritage also notes that JPMorgan’s demand letter of June 6, 2011 listed a different
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amount. Additionally, Meritage contends Austin was unsure whether the calculations
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included Major Infrastructure payments made by South Edge member Focus and Meritage’s
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own Major Infrastructure deposit was not credited to Meritage. Fourth, Meritage contends
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that none of the evidence Plaintiff offered is admissible, as it is based on hearsay exhibits
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and Austin’s testimony, but Austin did not work for JPMorgan during part of the relevant
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time period and he lacked personal knowledge of the facts set forth in the exhibits. Finally,
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Meritage contends that even if it owes damages, Plaintiff has used an incorrect interest rate,
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as the Repayment Guaranty provides that the Credit Agreement rate should be used, not the
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New York statutory rate.
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Plaintiff argues Meritage does not dispute any of the material facts regarding the
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amounts owed or the calculations made. Plaintiff asserts the Court already properly rejected
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Meritage’s arguments that it owes only its share of the $47 million deficiency because the
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Repayment Guaranty provides that Meritage is not entitled to any setoff and payments by
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other guarantors do not reduce Meritage’s obligations. Plaintiff also contends Focus’s
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Major Infrastructure deposit is irrelevant because it was transferred as part of the Plan,
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which occurred after Meritage’s obligations under the Repayment Guaranty came due, and,
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regardless, Meritage is not entitled to offsets based on another guarantor’s payment.
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Plaintiff contends Austin testified Meritage’s Major Infrastructure deposit was credited to
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Meritage. Plaintiff also argues that the alleged discrepancies in the stated amount of
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Meritage’s liability are irrelevant because the undisputed facts show Meritage’s actual
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liability as of June 2011. Plaintiff contends its motion is based on competent evidence
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because it is admissible at trial and the product of a person most knowledgeable deposition.
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Finally, Plaintiff argues the New York statutory rate should apply because neither the
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Repayment Guaranty nor the Credit Agreement expressly set forth an interest rate for
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damages arising from a breach of the Repayment Guaranty.
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A. Offsets
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This Court already has rejected the basis for Meritage’s arguments that it is
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entitled to an offset for the amount JPMorgan received through Plan confirmation and that
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its obligation is only 3.51% of $47 million. (Order (Doc. #86) at 28-30).) The Court will
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not revisit those issues here. Meritage’s argument regarding Focus’s Major Infrastructure
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deposit is rejected for the same reasons. Focus’s Major Infrastructure deposit was resolved
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through Plan confirmation months after JPMorgan made demand on Meritage’s Repayment
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Guaranty, and Meritage is not entitled to a setoff under the Repayment Guaranty’s terms.
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(Defs.’ Opp’n, Ex. B, the Plan at § 1.1 (definition of “MI Funds,” “MI Litigation,” and
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“Resolved MI Amount”), § 3.4; Decl. of William A. Austin in Support of Appellee’s Mot.
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for Dismissal of Appeal (Doc. #18 in 2:11-CV-01963-PMP-PAL) at 12.) Further, Austin
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testified at his deposition that Meritage’s Major Infrastructure deposit was credited to
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Meritage. (Defs.’ Opp’n, Ex. C at 28-29.) Therefore, Meritage has not presented evidence
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raising a genuine issue of material fact that Meritage is entitled to any offsets.
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B. Austin’s Testimony
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Meritage’s argument that Plaintiff’s motion is not supported by admissible
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evidence because Austin lacks personal knowledge fails for two reasons. First, at the
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summary judgment stage, the Court does “not focus on the admissibility of the evidence’s
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form. [The Court] instead focus[es] on the admissibility of its contents.” Fraser v.
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Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Evidence is admissible for summary
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judgment purposes it if could be presented “in an admissible form at trial.” Fonseca v.
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Sysco Food Servs. of Ariz., Inc. 374 F.3d 840, 846 (9th Cir. 2004) (quotation omitted).
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Because Plaintiff could present the evidence in an admissible form at trial, including
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through the testimony of JPMorgan employees who kept the records and made the relevant
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entries in JPMorgan’s accounting of Meritage’s obligations, or possibly through a records
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custodian as business records under Federal Rule of Evidence 803(6), Austin’s testimony is
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admissible on summary judgment.
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Second, Austin testified as JPMorgan’s person most knowledgeable in response
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to deposition notices from both Plaintiff and Meritage pursuant to Federal Rule of Civil
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Procedure 30(b)(6). (Pl.’s Mot. Summ. J., Exs. D, E.) Under Rule 30(b)(6), a party may
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name as the deponent an entity, and in response, the entity must designate one or more
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employees to testify on its behalf about “information known or reasonably available to the
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organization.” Testimony from a Rule 30(b)(6) deposition thus represents the entity’s
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knowledge, not the individual deponent’s knowledge. Accordingly, a Rule 30(b)(6)
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deponent must prepare to respond on the designated topics “beyond matters personally
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known to that designee or to matters in which that designee was personally involved.”
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Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006) (quotation
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omitted). The entity “must prepare the designee to the extent matters are reasonably
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available, whether from documents, past employees, or other sources.” Id. Because a Rule
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30(b)(6) deponent’s testimony reflects the entity’s personal knowledge, rather than the
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individual deponent’s personal knowledge, “if a certain fact is within the collective
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knowledge or subjective belief of [the entity], [the individual deponent] should be prepared
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on the issue by [the entity], and allowed to testify as to it, even if it is not within his direct
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personal knowledge, provided the testimony is otherwise permissible lay testimony.” Id. at
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434; see also PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894-95 (7th Cir. 2004)
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(stating the Rule 30(b)(6) deponent was “free to testify to matters outside his personal
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knowledge as long as they were within the corporate rubric”). Accordingly, Austin’s
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testimony as JPMorgan’s Rule 30(b)(6) person most knowledgeable is admissible as within
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JPMorgan’s personal knowledge.
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As to the discrepancies between JPMorgan’s demand letter, the Plan, and
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Plaintiff’s motion for summary judgment regarding the amount of Meritage’s liability, no
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genuine issue of material fact remains. By its own terms, the Plan’s stated amount was an
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estimate, which was arrived at with the Settling Builders through negotiation to set the
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amount the Settling Builders would have to contribute to settle their own claims with
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JPMorgan and the Prepetition Lenders. As to any discrepancy with the June 2011 demand
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letter, Meritage does not dispute a single entry, charge, addition, or calculation, other than
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the interest rate discussed below, nor present any related evidence, to create a genuine issue
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of material fact that Plaintiff’s present calculation is incorrect. Therefore, no genuine issue
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of material fact remains that Meritage’s liability as of June 6, 2011 was $13,256,110.66.
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C. Interest Rate
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Meritage contends that even if it owes damages, Plaintiff has used an incorrect
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interest rate, as the Repayment Guaranty provides that the Credit Agreement rate should be
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used, not the New York statutory rate. Plaintiff responds that neither the Repayment
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Guaranty nor the Credit Agreement set forth the rate for a breach of the Repayment
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Guaranty, and consequently the New York statutory rate should apply.
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The Repayment Guaranty is governed by New York law. (Defs.’ Opp’n, Ex. A at
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§ 18.) Under New York law, a prevailing party in a breach of contract action is entitled to
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prejudgment interest. N.Y. C.P.L.R. § 5001(a). Prejudgment interest runs “from the
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earliest ascertainable date the cause of action existed.” Id. § 5001(b). New York provides a
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statutory interest rate of nine percent per annum. Id. § 5004. However, where parties
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contractually agree to a different interest rate, “that rate is used to calculate interest on
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principal prior to loan maturity or a default in performance.” NML Capital v. Republic of
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Argentina, 17 N.Y.3d 250, 258 (2011).
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Section 2(a) of the Repayment Guaranty provides that the “Liabilities shall
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include . . . interest accruing after the commencement of a proceeding under bankruptcy . . .
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at the rate or rates provided in the Facility Documents.” (Defs.’ Opp’n, Ex. A at § 2(a).)
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“Liabilities” are defined as “an amount equal to the Guaranteed Share of all principal of the
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Loans, all interest on the Loans and all commitment fees and Letter of Credit fees now
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owing or which may in the future be owing by the Borrower under the Credit Agreement
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and all payments which may in the future be owing, under any Approved Swap Agreement
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with one or more Lenders or Affiliates of Lenders, when such sums are due and payable,
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whether on demand, at stated maturity, by acceleration or otherwise.” (Id.) The Repayment
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Guaranty does not define “Liabilities” to include interest on a breach of the Repayment
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Guaranty itself. The Repayment Guaranty does not otherwise set forth an interest rate for a
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breach of the Repayment Guaranty. Because the Repayment Guaranty does not set forth an
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interest rate for a default in performance of the Repayment Guaranty, no genuine issue of
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material fact remains that the New York statutory interest rate applies, running from the
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date of demand, June 6, 2011. Consequently, no genuine issue of fact remains that
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Meritage owes Plaintiff $15,053,857.17 as of December 6, 2012, the date of Austin’s
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deposition.
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III. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment
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(Doc. #100) is hereby GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File
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Supplement to Record on Summary Judgment (Doc. #109) is hereby GRANTED.
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IT IS FURTHER ORDERED that Plaintiff ISG Insolvency Group, Inc. shall
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submit a proposed form of judgment in conformity with this Order on or before July 8,
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2013.
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DATED: June 17, 2013
_______________________________
PHILIP M. PRO
United States District Judge
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