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LAWYERS WEEKLY – COMMERCIAL FINANCING AGREEMENT

Posted by David Katz | Jul 10, 2015 | 0 Comments

Where a plaintiff has brought suit claiming to be owed money under an agreement to finance construction equipment, a judgment for the plaintiff is appropriate despite the defendant's claim that the plaintiff 's agents negotiated a new agreement.

Credibility issue
“The plaintiff, Wells Fargo Equipment Finance, Inc., (Wells Fargo) has brought the present action in a multi-count complaint seeking a judgment for monies owed arising out of the financing by the plaintiff of certain commercial
equipment purchased by the defendant, Jennifer Martin. The defendant has answered the complaint and asserted a
counterclaim alleging that Wells Fargo in its conduct violated Chapter 93A. …

“On or about June 12, 2008 Jennifer Martin entered into a contract with Wells Fargo, entitled a combination loan and security agreement for the purchase of a 2006 OM Apollo Jaw Crusher. As of that time, Ms. Martin was a principal in a construction company which did primarily excavating and landscaping services entitled Sentry Services Inc. Ms.
Martin purchased this equipment for use in Sentry Services, Inc's business and Sentry's operations manager, Steven Koeninger used the equipment in various jobs on behalf of Sentry.

“The contract provided for a principal sum 0[$397,900.00 to be paid with interest based on a 6.5% per annum basis with 72 consecutive monthly installments of $6,688.67. “Soon after the equipment was purchased by Ms. Martin, Sentry
ran into some financial difficulties. These difficulties were primarily associated with the fact that Sentry was not being
paid on a regular basis on a job that it had contracted in Hampden County…. Thus, Ms. Martin fell behind on the payments and loan went into a default status.

“In January of2010 Mr. Koeninger, at the direction and under the authority of Ms. Martin, engaged in a number of discussions with Wells Fargo. These discussions involved discussions with James McMullen and Melissa Harris…. Ms. Harris is a vice-president for Wells Fargo and served in a supervisory capacity in their Arizona office overseeing
the Wells Fargo business of collections. I find Ms. Harris's testimony credible. The primary issue in dispute involves the plaintiff's contention that the original agreement, marked as Exhibit 1in the agreed exhibits, is the operative agreement between the parties, Alternatively, the defendant alleges that Steven Koeninger, on behalf of Ms. Martin, negotiated a new agreement between Jennifer Martin and Wells Fargo as of February 2010; which agreement supercedes the original contract.

“The Court, on this issue, credits the testimony of Melissa Harris and does not find credible testimony of Steven Koeninger. Wells Fargo, as a sophisticated lender, had in place in 2010 policies and procedures which required contract be in writing. Further,in the event of original contract being revised said new or substitute contract would require
various levels of approval through the Wells Fargo structure. Ms. Harris credibly testified that no such policies and procedures were followed or implemented in this case since there was no new or substitute agreement.

“In addition, while Ms. Martin and Mr. Koeninger allege that an oral agreement was arrived at between the parties, at no lime did Ms. Martin or Mr. Koeninger ever reduce that agreement to writing. Mr. Koeninger and Ms. Martin had a number of written, oral and electronic communications with Wells Fargo subsequent to the time of the alleged
agreement; however, at no time did either of them reference this new or subsequent .agreement, nor did they provide any documentation to support that agreement.

“As set forth in the stipulation of facts and the supplemental stipulation of facts proper notices were sent by Wells Fargo to Jennifer Martin and ultimately the equipment was repossessed by Wells Fargo. Once repossessed, the equipment was sold at auction for $127,500.00.

“The Court finds that the sale of the property was done in a commercially reasonable fashion and that the costs incurred in facilitating that sale were reasonable, such that the net proceeds from the sale amount to $113,075.00. As of the date of the sale the total balance due on the equipment was $353.119.14, leaving a deficiency balance $240,044.14.

“The Court finds that the legally operative and binding contract between the parties is the June 12, 2008 combination loan and security agreement referenced at paragraph one of the stipulation of facts and entered into evidence as agreed Exhibit 1. .., The evidence in this matter establishes that the subject equipment was sold at auction on June 24, 2010 and the net proceeds from that sale were $113,075.00. As of the date of sale the total amount due to Wells Fargo from the defendant was $353,119.14. Thus, subsequent to the sale and applying the net proceeds of the sale to the outstanding
balance the (alai deficiency balance as of that date was $240,044.14….

“Based on the above Court findings, discussion and analysis, judgment shall enter in favor of the plaintiff as to Count I and Count Ill of the plaintiffs complaint in an amount $240,044.14 plus statutory interest. Counts II, IV and V are dismissed. In addition as to the defendant's counterclaim, judgment shall enter in favor of the defendant-in-counterclaim Wells Fargo Equipment Finance, Inc. and the defendant, Jennifer Martin's counterclaim is herewith dismissed.”

Wells Fargo Equipment Finance, Inc. v. Martin (Lawyers Weekly
No.12-065-13) (6 pages) (Wrenn, J.) (Worcester Superior Court)
David S. Katz for the plaintiff. Fred McCoy for the defendant (Civil
Action No. 2010-00738A) Aug. 22, 2013).

About the Author

David Katz

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Westborough, Massachusetts...

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