L. Alamos Nat'l Bank v. Lamey (In re Lamey), 14-13729 ta7
| Decision Date | 31 August 2017 |
| Docket Number | Adv. No. 15-1029,No. 14-13729 ta7,14-13729 ta7 |
| Parties | In re: BRYAN A. LAMEY, Debtor. LOS ALAMOS NATIONAL BANK, Plaintiff, v. BRYAN A. LAMEY and ANN LAMEY, Defendants. |
| Court | U.S. Bankruptcy Court — District of New Mexico |
In re: BRYAN A. LAMEY, Debtor.
LOS ALAMOS NATIONAL BANK, Plaintiff,
v.
BRYAN A. LAMEY and ANN LAMEY, Defendants.
No. 14-13729 ta7
Adv. No. 15-1029
UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW MEXICO
August 31, 2017
SUPPLEMENTAL OPINION ON DEFENDANT BRYAN LAMEY'S GUARANTY LIABILITY TO LOS ALAMOS NATIONAL BANK
As part of trial on the merits of this adversary proceedings, Los Alamos National Bank ("LANB") sought to establish defendant Bryan Lamey's liability under a guaranty he signed, as well as the amount of the liability. On July 21, 2017, the Court denied Defendant's discharge but did not rule on his guaranty liability. At a post-trial status conference, LANB and the Trustee asked the Court to rule, as it is the most efficient forum. Defendant Bryan A. Lamey consented object. In the interest of efficiency, therefore, the Court issues this opinion.
Defendant formed six limited liability companies in 2012 (the "United Entities") for the purpose of owning and operating recreational vehicle dealerships in Las Cruces and Albuquerque,
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New Mexico.1 The other owners were Robert Maese, Sr. and Robert Maese, Jr. Defendant owned 51% of the holding companies and was the managing member of all the United Entities.
Note 1. On or about August 30, 2012, three of the United Entities (together, the "Borrowers")2 borrowed $1,650,000 from Plaintiff to buy real estate in Las Cruces for the Las Cruces dealership. The loan, evidenced by a promissory note ("Note 1") and a Commercial Loan Agreement (the "Loan Agreement"), was secured by, inter alia, a mortgage on the purchased land (the "Mortgage"). The Loan Agreement provides in part:
8. DEFAULT. I understand that you may demand payment anytime at your discretion. For example, you may demand payment in full if any of the following occur:
A. Payments. I fail to make a payment in full when due.
...
9. REMEDIES. After I default, you may at your option do any one or more of the following:
A. Acceleration. You may make all or any part of the amount owing by the terms of the Loan immediately due.
B. Sources. You may use any and all remedies you have under state or federal law or in any loan document.
...
10. COLLECTION EXPENSES AND ATTORNEYS FEES. On or after Default, to the extent permitted by law, I agree to pay all expenses of collection, enforcement or protection of your rights and remedies under this Agreement or any other Loan Document. Expenses include, but are not limited to, attorneys' fees, court costs and other legal expenses. The expenses are due and payable immediately.
Note 1 went into payment default on July 1, 2014, whereupon LANB declared all amounts due and owing. Note 1's default interest rate is 16%.
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Credit Card Debt. On August 30, 2012, United Real Estate Holdings, LLC submitted a Business Loan Application to LANB for company credit cards. The credit card limit was $30,000. No additional documentation is in evidence (such as, for example, the Business Bankcard Agreement referred to in the application, or any guaranties). The Borrowers' credit card account currently has a principal balance of $21,827.34, with a total balance as of June 6, 2017, of $30,555.79.
The Guaranty. On August 30, 2012, Defendant signed a Guaranty (Continuing Debt - Unlimited (the "Guaranty"), drafted by LANB, which provides in part:
2. SPECIFIC AND FUTURE DEBT GUARANTY. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and to induce you, at your option, to make loans or engage in any other transactions with the Borrower from time to time, I absolutely and unconditionally agree to all terms of and guaranty to you the payment and performance of each and every Debt, of every type, purpose and description that the Borrower either individually, among all or a portion of themselves, or with others, may now or at any time in the future owe you, including, but not limited to the following described debts including without limitation all principal, accrued interest, attorneys' fees and collection costs, when allowed by law, that may become due from the Borrower to you in collecting and enforcing the Debt and all other agreements with respect to the Borrower.
A promissory note or other agreement, No. 0143703860, dated August 30, 2012, from United Real Estate Holdings, LLC, United RV Holdings, LLC and United Real Estate Las Cruces, LLC (Borrower) to you, in the amount of $1,650,000.
In addition, Debt refers to debts, liabilities, and obligations of the Borrower... whether existing or created or incurred in the future, due or to become due, absolute or contingent . . . .
You may not apply this Guaranty to any other Debt, other than the debt related to the Note as defined above which includes any and all renewals, extensions, modifications and substitutions of said Note, without my prior consent. (italics added)
4. UNCONDITIONAL LIABILITY. I am unconditionally liable under this Guaranty, regardless of whether or not you pursue any of your remedies against the Borrower, against any other maker, surety, guarantor or endorser of the Debt or against any Property. You may sue me alone, or anyone else who is obligated on
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this Guaranty, or any number of us together, to collect the Debt. My liability is not conditioned on the signing of this Guaranty by any other person and further is not subject to any condition not expressly set forth in this Guaranty or any instrument executed in connection with the Debt. My obligation to pay according to the terms of this Guaranty shall not be affected by the illegality, invalidity or unenforceability of any notes or agreements evidencing the Debt, the violation of any applicable usury laws, forgery, or any other circumstances which make the indebtedness unenforceable against the Borrower. I will remain obligated to pay on this Guaranty even if another person who is obligated to pay the Debt, including the Borrower, has such obligation discharged in bankruptcy, foreclosure, or otherwise discharged by law.
11. COLLECTION, EXPENSES AND ATTORNEY FEES. On or after Default, to the extent permitted by law, I agree to pay all expenses of collection, enforcement or protection of your right and remedies under this Guaranty or any other document relating to the Debt. To the extent permitted by law, expenses include, but are not limited to, reasonable attorneys' fees, court costs and other legal fees.... In addition, to the extent permitted by the United States Bankruptcy Code, I agree to pay the reasonable attorneys' fees incurred by you to protect your rights and interests in connection with any bankruptcy proceedings initiated by or against me.
Note 2. On March 12, 2013, LANB extended to the Borrowers a $100,000 line of credit, evidenced by a Credit Agreement ("Note 2"). Note 2 matured on March 12, 2014, was not paid, and went into default. Note 2 has since been paid in full as part of a settlement reached between LANB and the Maeses (see below).
State Court Collection Action. On August 24, 2014, LANB filed a state court complaint against the Borrowers, seeking a money judgment on Note 1 and Note 2 and to foreclose the Mortgage.3 Borrowers answered the complaint and asserted a number of lender liability counterclaims.
On October 17, 2016, the state court entered partial summary judgment, giving LANB a $2,185,161.80 money judgment against the Borrowers on Note 1, and foreclosing the Mortgage.
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The daily interest accrual on the judgment amount was $711.61. The judgment recited that Note 2 had been paid in full through a settlement with the Maeses.
On November 1, 2016, the state court awarded LANB a $65,639.75 supplemental money judgment against the Borrowers, for attorney fees incurred in the state court action.
On November 30, 2016, the state court entered an Order Approving Special Master's Sale and Report, and Awarding...
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