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Capital Development Affiliates LLC v. Thigpen

United States District Court, N.D. Oklahoma

March 21, 2018

CAPITAL DEVELOPMENT AFFILIATES, LLC, Plaintiff,
v.
ZELAND BENJAMIN THIGPEN III, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is plaintiff Capital Development Affiliates, LLC's, amended motion for summary judgment (Dkt. # 16).

         I.

         For purposes of summary judgment, the following facts are undisputed: plaintiff is a limited liability company organized and existing under the laws of the State of New York. Dkt. # 16-3, at 1. Defendant Zeland Benjamin Thigpen III is a resident of the State of Oklahoma. Id. Defendant and his wife, Cheryl Thigpen, were the sole members of Julimar Trading, LLC (Julimar), a now defunct company that conducted business “in the international purchase and sale of industrial metallic alloys.” Id.; Dkt. # 7, at 4.

         In and around 2014, Julimar and ICD Metals, LLC (ICD Metals)-a company affiliated with plaintiff through common ownership-had a business relationship; Julimar identified opportunities for the purchase and resale of metallic alloys, and, as an August 15, 2014 joint venture agreement between Julimar and ICD Metals states, ICD Metals had the “right of first refusal” to finance these opportunities. Id.; Dkt. # 33, at 52. On or about June 26, 2015, Julimar, as security for its existing or thereafter arising indebtedness, executed a security agreement (the agreement) wherein it, inter alia, granted ICD Metals a security interest in Julimar's right, title, and interest in certain property. Dkt. # 16-3 at 2, 8-16. At some time prior, Julimar became indebted to ICD Metals for outstanding accounts receivable in the amount of $2, 933, 356. Id. at 2-3.

         To evidence its indebtedness to ICD Metals, on or about September 30, 2015, Julimar executed and delivered to ICD Metals a demand note, wherein Julimar acknowledged its obligation to pay ICD Metals the principal sum of $2, 933, 356 (due and payable on demand) together with interest at the rate of 12% per annum calculated on the basis of a 360 day year (12 months of 30 days each) (interest rate). Id. at 3, 18-22. Under the demand note, Julimar is obligated to make interest payments, with any payment of principal, on the first day of each month beginning October 1, 2015. Id. at 3. In addition, the demand note provides for late payment charges of 5% of any interest or required principal payment made more than ten days after the due date of such payment. Id. And, “upon the stated or accelerated maturity” of the demand note, it bears interest at a per annum rate of 5% in excess of the interest rate until the principal is fully paid. Id.[1] The demand note also provides that, should the indebtedness it represents be collected at law, plaintiff is entitled to all costs of collection, including reasonable attorney fees and expenses. Id. at 20.

         Also on or about September 30, 2015, defendant executed and delivered a guaranty to ICD Metals wherein he, inter alia, guaranteed the punctual and full payment of all present and future indebtedness, liabilities, and obligations of Julimar to ICD Metals. Id. at 3-4, 23-27. On or about February 12, 2016, defendant executed and delivered an amended and restated guaranty agreeing to same. Id. at 3-4, 39-53. The amended guaranty contains the following provisions:

         2. Guaranty. Guarantor hereby unconditionally, directly and absolutely guarantees to Lender the payment and performance of Borrower's Obligations. [...]

         3. Nature of Guaranty. This Guaranty is an absolute, unconditional, continuing, direct and immediate guaranty of payment and not just of collection and is no way conditioned upon or limited by or in any other way affected by:

(a) any attempt by Lender to pursue Lender's rights against Borrower or any Obligor;
(b) any attempt by Lender to pursue Lender's rights against any of Borrower's real or personal property or any other Obligor's real or personal property;
(c) any recourse against or foreclosure of any security or collateral now or hereafter pledged, assigned or granted to Lender under the provisions of any of the loan documents;
(d) any action taken or not taken by Lender;
(e) the partial or complete unenforceability or invalidity of any other guaranty or surety agreement, pledge, assignment or other security ...

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