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Park & Flanders, LLC v. Brewster

United States District Court, D. Oregon, Portland Division

September 17, 2014

PARK & FLANDERS, LLC, a Delaware limited liability company, Plaintiff,
v.
ROBERT C. BREWSTER, JR., individually, Defendant. ROBERT C. BREWSTER, JR., individually, Counter-Plaintiff,
v.
BRIAN PEARCE, individually, UNICO, INC., and PARK & FLANDERS, LLC, a Delaware limited liability company, Counter-Defendants.

Michael G. Halligan, Thomas W. Stilley, Timothy A. Solomon, Sussman Shank, LLP, Portland, OR, Attorneys for Plaintiff.

Michael G. Halligan, Thomas W. Stilley, Sussman Shank, LLP, Portland, OR, Attorneys for Counter-Defendants.

Michael J. Esler, Kim T. Buckley, Esler, Stephens & Buckley, LLP, Portland, OR, Andrew L. Paris, Portland, OR, Attorneys for Defendant and Counter-Plaintiff.

FINDINGS AND RECOMMENDATION

JOHN JELDERKS, Magistrate Judge.

Plaintiff Park & Flanders, LLC brings this action to enforce personal guaranties signed by Robert C. Brewster, Jr. Brewster brings counterclaims against Park & Flanders, Unico, Inc. and Brian Pearce seeking damages for alleged breaches of a confidentiality agreement, fraudulent transfer of information and interference with a contractual relationship. Brewster now moves for summary judgment against Park & Flanders' claims.

For the reasons set out below, Defendant's motion for summary judgment should be denied.

Claims

Park & Flanders' Complaint sets out two claims.

Park & Flanders' first claim alleges Brewster breached his personal guaranty obligations under a loan agreement between General Auto Building, LLC (GAB) and HomeStreet Bank (HomeStreet). Park and Flanders is the current owner and holder of the HomeStreet loan to GAB.

Park & Flanders' second claim alleges that Brewster breached his personal guaranty obligations under a loan agreement between GAB and the Portland Development Commission (PDC). Park & Flanders is the current owner and holder of the PDC loan to GAB.

Background

GAB is the owner of an office building located on N.W. Park Avenue in Portland, Oregon. Brewster is the former managing member of GAB. Although he no longer has an ownership interest in GAB, he is the current Manager of GAB and the building at N.W. Park Avenue.

On June 13, 2008, GAB entered into a loan agreement and associated documents with HomeStreet for a loan in the principal amount of $10, 200, 000. As part of the HomeStreet loan agreement, Brewster, acting in his individual capacity, signed an "Unconditional Guaranty of Payment and Performance" agreeing to guarantee GAB's payments under the HomeStreet loan agreement.

Also on June 13, 2008, GAB entered into a loan agreement and associated documents with the City of Portland, through the PDC, for a loan in the principal amount of $1, 400, 000. As part of the PDC loan agreement, Brewster, acting in his individual capacity, signed a Guaranty, agreeing to guarantee GAB's payments under the PDC loan agreement.

In a letter dated September 22, 2011, counsel for HomeStreet notified GAB that it was in default under the HomeStreet loan. The letter also notified GAB that HomeStreet was accelerating the loan and making a "formal demand jointly and severally upon Borrower and Guarantor... for immediate payment to Lender of the full amount of the indebtedness."

In a letter dated January 10, 2012, the PDC notified GAB that GAB was in default under the PDC loan. In its letter, the PDC notified GAB that as a result of the default, it was declaring "the entire unpaid principal, unpaid interest, and unpaid late fees and all other charges payable by GAB under the PDC loan documents to be immediately due and payable."

On or about February 10, 2012, HomeStreet commenced non-judicial foreclosure proceedings by filing a Notice of Default and Election to Sell real property of GAB subject to the HomeStreet Loan. HomeStreet also filed a Complaint for Appointment of Receiver for the property.

On March 2, 2012, GAB filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Oregon. As a result of the filing, all further action in the non-judicial foreclosure and receivership proceedings were stayed.

On April 17, 2012, HomeStreet sold to Park & Flanders all of its rights, title and interest in the HomeStreet Loan Documents, including the HomeStreet Guaranty. On April 18, 2012, PDC sold to Plaintiff Park & Flanders all of its rights, title and interests in the PDC Loan Documents, including the PDC Guaranty.

On September 11, 2012, Park & Flanders filed the current action in the U.S. District Court.

On February 11, 2013, GAB filed its Fifth Amended Plan of Reorganization with the Bankruptcy Court (the "Plan"). Park & Flanders filed objections to the Plan on March 26, 2013. A hearing on confirmation of the Plan was held and the Bankruptcy Court issued a letter ruling on July 5, 2013. On July 11, 2013, the Bankruptcy Court entered an Order amending and confirming the Plan (Confirmation Order).

Under the Plan, as modified by the Confirmation Order, GAB is obligated to pay Park & Flanders on the HomeStreet loan secured claim the amount of $11, 108, 079 at a fixed interest rate of 5.5% per annum. Payments in the first year are interest only. Payments over the subsequent nine years are to be principal plus interest based on a ...


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