SunTrust Banks, Inc v. Be Yachts, LLC et al

Filing 52

ORDER granting in part and denying in part Defendants' 32 Motion for Sanctions; denying Plaintiff's Request for Judicial Notice (Dkt. No. 31 , Ex. 3); denying Defendants' 25 Motion for Partial Summary Judgment; granting in part and denying in part Plaintiff's 30 Motion for Summary Judgment; denying Plaintiff's Motions to Strike (Dkt. Nos. 38 , 42 ). Signed by Judge Marsha J. Pechman. (PM) (Main Document 52 replaced on 5/5/2020 - order corrected. NEF regenerated to counsel) (PM).

Case 2:18-cv-00840-MJP Document 52 Filed 05/05/20 Page 1 of 13

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SUNTRUST BANKS, INC.,
Plaintiff,

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CASE NO. C18-840
ORDER ON DEFENDANTS’
MOTION FOR SANCTIONS;

v.

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BE YACHTS, LLC et al.,

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DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY
JUDGMENT;

Defendants.

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PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT

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THIS MATTER comes before the Court on Defendants Be Yachts, LLC and Edward

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Balassanian’s Motion for Sanctions (Dkt. No. 32), Plaintiff SunTrust Banks Motion for

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Summary Judgment (Dkt. No. 30), and Defendants’ Motion for Partial Summary Judgment (Dkt.

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No. 25). The Court has reviewed the Motions, the Responses (Dkt. Nos. 39, 43, 31), the Replies

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(Dkt. Nos. 40, 44, 36), Plaintiff’s Surreplies (Dkt. Nos. 38, 42), and all related papers.

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//

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//

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ORDER ON DEFENDANTS’ MOTION FOR SANCTIONS; - 1

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Background

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On January 9, 2013, Defendants Edward Balassanian and Be Yachts, LLC borrowed

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$1,800,000 from Plaintiff, SunTrust Banks, Inc., to purchase a 2012 Sunseeker International

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Manhattan 63 Motor Yacht, which was named the “Just Be.” (Dkt. No. 30, Ex. 2, declaration of

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Brandy Thore (“Thore Decl.”), ¶ 4.) On February 12, 2016, after Defendants defaulted on the

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loan, SunTrust repossessed the Yacht. (Dkt. No. 25, Declaration of Anna Johnsen, (“Johnsen

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Decl.”), Ex. 5.) The unpaid principal balance at the time was $1,689,187.97. (Thore Decl., ¶ 5,

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Ex. 5.)

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1. Storage and Care
Plaintiff hired Nielsen Beaumont Marine, Inc. (“Nielsen Beaumont”) to manage the

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repossession. (Id., ¶ 6.) In turn, Nielsen Beaumont hired Marine Lender Services, LLC, d.b.a.

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Waypoint Marine Group (“Waypoint Marine”) to move the Yacht to their dock in Seattle. (Dkt.

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No. 30, Ex. 4, Declaration of Buck Fowler (“Fowler Decl.”), ¶¶ 8-10.) When Waypoint Marine

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took possession, it noted the overall condition of the Yacht was excellent. (Id., Ex. 3.) But when

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Mr. Balassanian visited the Yacht in February and August, he observed that it was disconnected

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from power and noticed the “stench of mildew” as he walked onto the boat. (Dkt. No. 43, Ex. 4,

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Declaration of Edward Balassanian in support of Defendants’ Response to Plaintiff’s Motion for

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Summary Judgment (“2d. Balassanian Decl.”), ¶¶ 2-5, 14.)

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Several of Mr. Balassanian’s employees also noticed mold, dirt, or “steamy windows,”

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when visiting the Yacht while it was in Waypoint Marine’s care. (Dkt. No. 43, Ex. 2

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(Declaration of Fred Robinson (“Robinson Decl.”), ¶¶ 8-9; Dkt. No. 43, Ex. 3, Declaration of

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John Brandenfels (“Brandenfels Decl.”) at 2; Dkt. No. 43, Ex. 5, Declaration of Cathryn

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Carpenter, (“Carpenter Decl.”), Ex. 1.) From April 2016 to May 2017 Waypoint Marine ran the

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2

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Yacht’s engine and generator and cleaned the vessel once a month. (Id., ¶ 16, Ex. 6.) In January

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2017, the Yacht’s generator began to overheat, and Nielsen Beaumont paid to have it repaired.

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(Id., Ex. 7.)

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2. Initial Survey and Marketing

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Upon Mr. Balassanian’s request, SunTrust commissioned his preferred surveyor, Bill

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Evans, to conduct a survey of the Yacht. (Thore Decl., Ex. 8.) Mr. Evans determined the Yacht

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was “apparently well kept” and in “above average” condition, estimating its fair market value to

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be between $1,500,000 and $1,700,000. (Thore Decl., Ex. 8.) Mr. Evans estimated that a sale

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could take place in six months to a year and bring 90% of a conservative asking price, but

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“[d]istress sales or forced liquidation sales vessels may entertain offers 60 to 70 percent of

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asking price.” (Id., Ex. 8 at 9.)

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Nielsen Beaumont then appointed Rick Young of Silver Seas Yachts as sales broker for

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the Vessel. (Dkt. No. 30, Ex. 3, Declaration of Rick Young (“Young Decl.”), ¶ 19.) Mr. Young

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is licensed in California and Florida, but contends he is not required to obtain a license in

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Washington because he brokered less than five yachts in the State for the years 2016 and 2017.

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(Young Decl., ¶ 7.) Mr. Young listed the Yacht on several websites including Yachtworld, Boat

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Trader, Silver Sea Yachts, Skipperbud, Sea Magazine, and Boats.com. (Young Decl., ¶ 17.)

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3. Offers and Final Survey

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Between March 17 and July 22, 2016 SunTrust received four offers between $1,000,000

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and $1,225,000, but all of them fell through. (Thore Decl., ¶¶ 21-22, 25-26.) SunTrust then

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entered the Yacht in the Seattle Boat Show on September 10-19, 2016. (Thore Decl. ¶ 27.)

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During the show, SunTrust received offers from Arthur Aslanian for $1,000,000 and from Dean

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3

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and Stacy Jones for $1,050,000. (Thore Decl. ¶ 28.) SunTrust accepted the Jones’ offer. (Thore

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Decl. ¶ 29, Ex. 24.)

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In January 2017, the Jones’ commissioned a pre-purchase condition and valuation survey

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by Bill Evans. (Dkt. No. 30, Ex. 5, Declaration of Isaak Hurst (“Hurst Decl.”), ¶ 3, Ex. 3 at

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4-26.) Mr. Evans again rated the Yacht “above average” and valued it at $1,500,000. (Id. at 5.)

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While again noting that the Yacht was “apparently well kept,” Mr. Evans wrote that the guest

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room units cool but do not heat and the generator would not stay running. (Id. at 5, 13.) The

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sale of the Yacht was finalized on March 10, 2017 for $1,050,000. (Thore Decl. ¶ 30.) On

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March 24, 2017 SunTrust informed Mr. Balassanian that the Yacht had been sold and he owed

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$857,979.60. (Id., Ex. 25.)
On June 11, 2018, Plaintiff filed a complaint, asserting claims for breach of contract and

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breach of the implied duty of good faith and fair dealing. (Dkt. No. 1 (“Compl.”), ¶¶ 30-40.)

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Defendants Mr. Balassanian and his company, Be Yachts, LLC, asserted counterclaims for

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failure to use reasonable care in the preservation of collateral, failure to hold a commercially

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reasonable sale, and for damages and rights under RCW 62A.9A-625 or UCC § 9-625. (Dkt.

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No. 8, ¶¶ 4.1-5.11.)

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Discussion
This Order will address the Parties’ five pending motions: (1) Plaintiff’s Request for

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Judicial Notice (Dkt. No. 31, Ex. 3); (2) Defendants’ Motion for Sanctions (Dkt. No. 32); (3)

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Plaintiff’s Motion for Summary Judgment (Dkt. No. 30); (4) Defendants’ Motion for Partial

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Summary Judgment (Dkt. No. 25); and (5) Plaintiff’s Motions to Strike (Dkt. Nos. 38, 42.)

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I.

Judicial Notice

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4

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As a preliminary matter, Plaintiff requests that the Court take judicial notice of the Initial

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Report of the entity Be Yachts, LLC, filed on January 28, 2013 with the Washington Secretary of

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State. (Dkt. No. 31, Ex. 3.) The document includes a notation that the Yacht was “Service

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Investment Related” and is signed by Mr. Balassanian. (Id. at 6.)

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The Court may take judicial notice of facts that are “not subject to reasonable dispute,”

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Fed. R. Evid. 201(b), as well as documents that are referred to in the complaint, that are central

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to the Plaintiffs’ claims, and whose authenticity is undisputed. See, e.g., Branch v. Tunnell, 14

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F.3d 449, 454 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara,

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307 F.3d 1119, 1127 (9th Cir. 2002). Here, Plaintiff presents an “Initial” document presumably

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created by Defendant, not an “official record of the Washington Secretary of State,” as argued.

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(Dkt. No. 31, Ex. 3 at 1.) Just as the Court will not take judicial notice of a party’s filing on this

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Court’s docket, the Court will not take judicial notice of Defendant’s Initial Report because it is

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not a government record and the information contained within is “subject to reasonable dispute.”

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Plaintiff’s request is DENIED.

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II.

Motion for Sanctions

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Defendants move for sanctions based on Plaintiff’s “knowingly incorrect, misleading,

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and incomplete” discovery responses and fruitless 30(b)(6) deposition, asking the Court to rule:

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(1) that SunTrust’s claims be dismissed; (2) that the lately disclosed evidence be excluded;

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and/or (3) the Court impose monetary sanctions in the form of attorney’s fees and costs. (Dkt.

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No. 32 at 1.) Defendants also request that the Court either bind SunTrust to its original 30(b)(6)

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deposition testimony or compel it to provide an additional 30(b)(6) witness at its own expense.

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A. Discovery Requests

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5

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Defendants allege that Plaintiff failed to disclose Rick Young as the broker or to produce

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relevant documents regarding the storage, maintenance, and repair history of the Yacht until the

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night before the deadline for discovery motions. (Dkt. No. 32 at 2-3.) According to Defendants,

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Plaintiff produced these documents for the first time on December 16, 2019 even though

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Defendants requested this information in September 2018. (Id. at 3. n. 7-10.) But Plaintiff

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presents ample evidence that the “newly” produced documents were in fact produced no later

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than February 2019, providing a list of the Bates numbers for each of these documents that show

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Defendants had the relevant information eight months earlier than claimed. (Dkt. No. 39 at 5-6;

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2d. Hurst Decl., ¶¶ 9-11; Fowler Decl., Ex. 4.)

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In particular, Defendants make much of Plaintiff’s failure to identify Rick Young as the

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broker in response to Defendants’ September 2018 interrogatories. (2d. Johnsen Decl., Ex. 1 at

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2.) But SunTrust’s initial disclosures included the Jones’ purchase agreement listing Rick Young

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as the broker. (2d Hurst Decl., Ex. 1 at 3.) Indeed, Defendants knew that Mr. Young was the

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broker on February 18, 2019, when Defendants’ counsel confirmed that Plaintiff’s counsel had

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“verbally identified two new entities (Rick Young and Denison) . . . that had not been disclosed

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previously, stating that [he] believed these two new entities were actually the brokers.” (Dkt.

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No. 40, Ex. 1 at 13.) And on February 19, Plaintiff’s counsel rejected Defendants’ assertion that

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they just learned the identity of the broker, writing, “Rick Young, the broker of the JUST BE, is

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specifically named in multiple documents from the initial disclosures which you’ve possess[ed]

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since August 2018.” (Dkt. No. 31 at 80; Dkt. No. 40, Ex. 3.) Defendants’ assertion in their

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Motion that “[l]ast night SunTrust finally disclosed its unlicensed broker” is not supported by the

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record. (Dkt. No. 32 at 2)

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6

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Because Defendants have not demonstrated that Plaintiff failed to produce the requested
information, Defendants’ Motion for Sanctions is DENIED.

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B. 30(b)(6) Witness

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On February 22, 2019 Defendants conducted a Rule 30(b)(6) deposition of SunTrust’s

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witness. (2d Johnsen Decl., ¶¶ M, Q.) It did not go well. SunTrust’s witness answered “I don’t

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know” 75 times and was unable to provide any relevant information. (Id.; Dkt. No. 43, Ex. 1,

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Declaration of Anna Johnsen ISO Response to Plaintiff’s Motion for Summary Judgment (“3d

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Johnsen Decl.”), Ex. 1.) She was unable to identify the brokerage firms SunTrust used, did not

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know the sales commission SunTrust paid, did not know the date when the Yacht was sold, and

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had no familiarity with any repairs done to the Yacht. (Id. Ex. 1; 2d Hurst Decl, Ex. 5 at 69:22

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24, 71:6 9.) Defendants have asked SunTrust if it would provide an additional 30(b)(6) witness

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at least five times since the deposition; SunTrust has not done so. (Id., ¶ R.)

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Federal Rule of Civil Procedure 30(b)(6) allows a party to depose a corporate entity

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through a designated representative. “When a corporation designates a person to testify on its

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behalf and the agent is not knowledgeable about relevant facts, then the appearance is, for all

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practical purposes, no appearance at all.” Discovery Proceedings in Federal Court § 22:9 (3d

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ed.) Because Plaintiff’s witness was not prepared to answer even basic questions about the facts

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here, Plaintiff must provide one or more additional 30(b)(6) witnesses at its expense who will

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testify for the corporation. See, e.g., Treemo, Inc. v. Flipboard, Inc., No.-1218-JPD, 2014 WL

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12029197, at *1 (W.D. Wash. Jan. 14, 2014) (holding that when a 30(b)(6) witness demonstrates

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a “lack of knowledge on relevant topics” the corporation must produce another witness at its

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expense). The additional depositions should occur as soon as possible but not later than 21 days

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from the date of this Order.

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7

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III.

Motions for Summary Judgment

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A. Legal Standard

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Summary judgment is proper if the pleadings, depositions, answers to interrogatories,

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admissions on file, and affidavits show that there is no genuine issue of material fact and that the

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moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears

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the initial burden to demonstrate the absence of a genuine dispute of material fact. Celotex Corp.

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v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute over a material fact exists if there is

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sufficient evidence for a reasonable jury to return a verdict for the non-movant. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). On a motion for summary judgment, “[t]he

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evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his

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favor.” Id. at 255. But Conclusory, nonspecific statements in affidavits are not sufficient, and

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missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

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B. Defendants’ Motion for Summary Judgment

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Defendants ask the Court to determine, as a matter of law, that the sale of the Just Be was

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not commercially reasonable on either of the following grounds: (1) The broker, Rick Young,

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was not licensed in the State of Washington making the sale illegal, or (2) SunTrust lacks the

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evidence to establish that the sale was commercially reasonable. (Dkt. No. 25.) The Court finds

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that neither argument is supported by the relevant law or the record.

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First, Defendants have not demonstrated that Mr. Young’s failure to hold a license made

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the sale per se unreasonable. Under RCW 62A.9A-627(b), a disposition of collateral is made in

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a commercially reasonable manner if the disposition is made:

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1) In the usual manner on any recognized market;

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2) At the price current in any recognized market at the time of the disposition; or

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8

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3) Otherwise in conformity with reasonable commercial practices among dealers in
the type of property that was the subject of the disposition.

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Defendants’ brief fails to link broker licensing requirements to any of the items on this list. Nor
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have they explained how Mr. Young’s license would relate to the fundamental purpose of the
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commercial reasonableness requirement, which is to obtain a fair sales price in order to reduce
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the deficiency judgment. Sec. State Bank v. Burk, 100 Wash. App. 94, 99 (2000) (quoting 4
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James J. White and Robert S. Summers, Uniform Commercial Code § 34-10, at 430 (4th
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ed.1995)).
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Plaintiff has also submitted enough evidence showing that the sale of the Yacht was
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commercially reasonable. “When the propriety of the disposition of collateral by the secured
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party is contested, the issue of commercial reasonableness is a question of fact to be determined
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by the trier of fact.” Mount Vernon Dodge, Inc. v. Seattle–First Nat’l Bank, 18 Wash.App. 569,
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587 (1977) (citing Jones v. Morgan, 58 Mich.App. 455 (1975). “Such traditionally factual
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questions should be determined as a matter of law only in the ‘clearest of cases.’” Service
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Chevrolet, Inc., 99 Wash.2d at 205, 660. This is not “the clearest of cases.”
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In determining whether a sale was commercially reasonable, the Court will evaluate
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Plaintiff’s “efforts to reach segments of the public reasonably expected to have an interest in
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bidding” and determine whether the creditor “engaged in an analysis to determine a fair market
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price.” Rotta v. Early Indus. Corp., 47 Wash. App. 21, 25 (1987). Plaintiff has presented
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significant evidence of both elements. The Yacht was listed on several websites including
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Yachtworld, Boat Trader, Silver Sea Yachts, Skipperbud, Sea Magazine, and Boats.com, and
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SunTrust entered the Yacht in the Seattle Boat Show. (Young Decl., ¶ 17; Thore Decl. ¶ 27.)
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Plaintiff also commissioned a survey by Defendants’ preferred surveyor. That survey
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estimated the Yacht’s price to be between $1,500,000 and $1,700,000 but noted that “[d]istress
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sales or forced liquidation sales vessels may entertain offers 60 to 70 percent of asking price.”

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(Thore Decl, Ex. 8 at 9.) Plaintiff obtained a final sale price of $1,050,000, which fell within the

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surveyor’s estimated price range for a distressed sale of $900,000 to $1,190,000. (Thore Decl.

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¶ 30.) And the other offers also support the surveyor’s estimated range. Although initially

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listing the Yacht at $1,700,000 (Thore Decl., ¶ 20, Ex. 12) and then lowering the price to

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$1,400,000 (Id., Ex. 9 at 5), five of the six offers SunTrust received were between $1,000,000

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and $1,100,000. (Thore Decl., ¶¶ 21-22, 25-26, 28-29.) The highest offer, $1,225,000 from

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Alberto Kamhazi, fell through when Mr. Kamhazi could not obtain the necessary financing. (Id.,

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¶ 22.)

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Because Plaintiff has produced sufficient evidence that the sale was commercially
reasonable, Defendants’ Motion is DENIED.

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C. Plaintiff’s Motion for Summary Judgment

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Plaintiff moves for summary judgment on its claim for breach of contract and on

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Defendants’ counterclaims for failure to use reasonable care in the preservation of collateral and

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failure to hold a commercially reasonable sale. (Dkt. No. 30.)

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1. Breach of Contract
Plaintiff argues it is entitled to summary judgment on its breach of contract claim because

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Defendants have admitted to defaulting on the loan. (Dkt. No. 32 at 2.) But as discussed below,

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Defendants present evidence that creates a genuine issue of material fact regarding the

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commercial reasonableness of the sale of the Yacht. Plaintiff’s Motion is therefore premature

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because Plaintiff cannot establish damages until the “deficiency is determined by deducting the

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proceeds of sale from the outstanding debt.” Burk, 100 Wash. App. at 99.

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2. Preservation of Collateral

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 10

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Plaintiff also seeks summary judgment on Defendants’ counterclaim for failure to

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preserve the Yacht. Under RCW 62A.9A-207 Plaintiff was required to use reasonable care in

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the custody and preservation of the Yacht while it was in Plaintiff’s possession. Defendants have

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presented testimony that the Yacht was not tied up correctly (Robinson Decl., ¶ 5), was left

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unplugged, had steamy windows (Brandenfels Decl. at 2; Carpenter Decl. at 2), and had grown

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mold (Robinson Decl., ¶¶ 8-9; 2d. Balassanian Decl., ¶¶ 2-5, 14; Carpenter Decl. at 2).

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But Defendants have not demonstrated that Plaintiff’s alleged lack of care diminished the

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Yacht’s value. Defendants have also failed to rebut Plaintiff’s evidence that the Yacht was

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well-preserved, with Defendants’ hand-picked surveyor estimating that the Yacht was worth

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$1,500,000 to $1,700,000 immediately after repossession, and worth $1,500,000 after it was in

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the Plaintiff’s care for a year. (Compare Thore Decl., Ex. 8 with Hurst Decl., ¶ 3, Ex. 3 at 5; see

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also 3d. Johnsen Decl., Ex. 1 at 29 (Defendants’ expert opining that the Yacht depreciates six

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percent a year, or $102,000 from the initial survey.) The pre-purchase survey also includes

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pictures of the Yacht without any visible mold and rates the Yacht in “above average” condition,

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just as it was when repossessed. (Id. at 5.) Because the Court finds that Defendants have not

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presented evidence of damages, Plaintiff’s Motion for Summary Judgment on Defendants’

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counterclaim for Failure to Use Reasonable Care in the Preservation of Collateral is GRANTED.

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3. Commercially Reasonable Sale
Plaintiff also moves to dismiss Defendants’ counterclaim for failure to hold a

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commercially reasonable sale. The Court finds that Defendants’ evidence creates a genuine issue

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of material fact. First, by Plaintiff’s own admission “confirm[ing] the brokerage is properly

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licensed in the state” is an element of a commercially reasonable sale. (Dkt. No. 36, Ex. 1 at 4.)

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As discussed above, Mr. Young, who appears to have handled much of the brokerage, was not

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licensed. (Young Decl., ¶ 7.) Second, Defendants present evidence that Plaintiff did not

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appropriately advertise the Yacht. Mr. Brandenfels testified that in his experience it is not

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reasonable to list a boat without simultaneously showing it. (Brandenfels Decl. at 2.) Mr.

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Reisner concluded the sale was not reasonable here because the broker did not, among other

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things, have a targeted client list or have the freedom to offer sales commissions in line with the

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industry standard. (3d. Johnsen Decl., Ex. 1 at 16.) And Defendants’ other expert concluded

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that “the overall advertising effort SunTrust describes is not sufficient.” (Id. at 27.) The Court

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therefore finds that Defendants have presented sufficient evidence in support of their

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counterclaim.

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D. Plaintiff’s Motions to Strike

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Plaintiff moves to strike (1) sections of Defendants’ Reply brief and supporting

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declarations regarding Defendants’ Motion for Partial Summary Judgment and (2) portions of

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Defendants’ Reply regarding their Motion for Sanctions. (Dkt. No. 38 at 3.)

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Under Rule 12(f), the Court “may order stricken from any pleading any insufficient

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defense or any redundant, immaterial, impertinent, or scandalous matter.” “A Motion to Strike

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generally will not be granted simply because an allegation is offensive.” Luken v. Christensen

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Grp. Inc., No. C16-5214-RBL, 2016 WL 5920092, at *2 (W.D. Wash. Oct. 11, 2016). “A court

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must deny the motion to strike if there is any doubt whether the allegations in the pleadings

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might be relevant in the action.” Id. When a court considers a motion to strike, it “must view

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the pleading in a light most favorable to the pleading party.” In re TheMart.com, Inc. Sec Lit.,

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114 F Supp.2d 955, 965 (C.D. Cal. 2000). The decision to grant or deny a motion to strike is

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vested in the trial judge’s sound discretion. Warshawer v. Tarnutzer, No. C14-1042 RSM, 2015

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WL 11921413, at *1 (W.D. Wash. Oct. 30, 2015).

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Here, Plaintiff’s Motions to Strike are almost exclusively arguments in support of its

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interpretation of the facts and seek to strike material that is relevant to the Court’s analysis.

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Further, because Plaintiff was able to file additional substantive briefing after the contested

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Replies, it had ample opportunity to respond to Defendants’ arguments. (See Dkt. Nos. 43, 48.)

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For those reasons, Plaintiff has not met its burden under Rule 12(f) and its Motions to Strike are

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DENIED.

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Conclusion
Accordingly, the Court:
(1) GRANTS in part DENIES in part Defendants’ Motion for Sanctions (Dkt. No. 32):
a. Plaintiff must provide an additional 30(b)(6) witness at its own expense within
21 days of the date of this Order; and
b. The remainder of Defendants’ Motion for Sanctions is DENIED;
(2) DENIES Plaintiff’s Request for Judicial Notice (Dkt. No. 31, Ex. 3);

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(3) DENIES Defendants’ Motion for Partial Summary Judgment (Dkt. No. 25);

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(4) GRANTS in part DENIES in part Plaintiff’s Motion for Summary Judgment:

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a. Defendants’ Counterclaim for Failure to Use Reasonable Care in the
Preservation of Collateral is DISMISSED;

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b.

The remainder of Plaintiff’s Motion for Summary Judgment is DENIED;

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(5) Plaintiff’s Motions to Strike are DENIED (Dkt. Nos. 38, 42).
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The clerk is ordered to provide copies of this order to all counsel.
Dated May 5, 2020.

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A

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Marsha J. Pechman
United States District Judge

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