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BMO Harris Bank N.A. v. Potter

United States District Court, D. Massachusetts

September 24, 2019

BMO HARRIS BANK N.A., Plaintiff,
v.
DANIEL A. POTTER, Defendant.

          OPINION AND ORDER

          George A. O’Toole, Jr. United States District Judge.

         This suit arises out of the defendant Daniel Potter’s alleged default under a settlement agreement. The plaintiff BMO Harris Bank N.A. (“BHB”), claiming to be the assignee of rights under the settlement agreement, contends that Potter breached the agreement by failing to make monthly installment payments as required under its terms. BHB has moved for summary judgment.

         I. Factual Background

         The following facts are undisputed in the record unless otherwise noted:

         On or about June 24, 2014, Daniel Potter entered into a Confidential Settlement Agreement (the “Settlement Agreement” or “Agreement”) with General Electric Capital Corporation in the total amount of $200, 000 (“Settlement Amount”) to resolve a civil action filed in state court. According to the Settlement Agreement, GE Capital and Blue Water HLD Corp. had entered into a series of loan and security agreements by which GE Capital financed Blue Water’s purchase of certain commercial use motor vehicles. GE Capital maintained a perfected security interest in the vehicles as first lienholder. Potter, along with another individual, executed two guaranties in connection with GE Capital’s financing of Blue Water’s purchase. In October 2010, Blue Water defaulted, and GE Capital brought suit against Potter and the other individual as co-guarantors. The parties mediated the dispute, resulting in the Settlement Agreement.

         Under the terms of the Settlement Agreement, Potter was obligated to make the following monthly payments: (1) thirty-six payments of $1, 000 per month commencing on June 1, 2014; (2) eighty-three payments of $1, 500 per month commencing on June 1, 2017; and (3) one final payment of $39, 500 on June 1, 2024. Each payment was due and payable on the first day of each month.

         Pursuant to the Agreement, the failure to make any monthly payment

shall constitute a default of Potter’s payment obligations . . . . GE Capital shall provide written notice of default to Potter in the manner and at the address set forth in paragraph 10 of the Agreement. Upon the failure by Potter to cure any Payment Default within ten (10) calendar days of the mailing of written notice of Payment Default . . ., Potter shall be immediately and unconditionally liable for the entire accelerated balance of the Settlement Amount minus any payments made up to and including the date of the [default].

(Aff. of Debb White in Supp. of Mot. for Summ. J. (“White Aff.”), Ex. B ¶ 5 (dkt. no. 21-2).)

         Under paragraph 10 of the Settlement Agreement, “[a]ll notices required to be given under the Agreement shall be considered complete when mailed via certified mail, postage prepaid, and sent to the following address or such other address as a party may provide to the other in writing.” (Id. ¶ 10.) For Potter, notice was to be mailed to his address at 8 Marshall Way, Weston, MA 02493 with a copy to his attorney, Joseph Bodoff of the law firm Rubin and Rudman.

         GE Capital subsequently executed a document entitled “Assignment, ” assigning certain rights to Transportation Truck and Trailer Solutions, LLC, which was “originally a wholly owned company of” GE Capital’s Transportation Finance Division. (Suppl. Aff. of Debb White in Supp. of Mot. for Summ. J. (“White Suppl. Aff.”) ¶ 7 (dkt. no. 25-1).) Specifically, the Assignment provided:

General Electric Capital Corporation (“Assignor”) hereby acknowledges and confirms that, effective as of 12:00 a.m. on October 1, 2015, Assignor transfers, assigns, and sets over to Transportation Truck and Trailer Solutions, LLC, its successors and assigns (“Assignee”) all of the Assignor’s right, title and interests in and to the accounts listed below (the “Assigned Accounts”), including without limitation, all documents, loans, leases, security agreements, or other instrument, together with any promissory notes, guaranties, property rights, other instruments related thereto, and other writings in any way relating to the Assigned Accounts (the “Financing Documents”), all property and property rights owned by Assignor in connection with its interests in the Assigned Accounts, and property and property rights held by Assignor as collateral for either or both of the payment and performance of certain obligations under the Financing Documents.

(White Aff. Ex. A.) The only Assigned Account “listed below” on the Assignment is Blue Water Holding Corp. with an Account Number of 2001. (Id.)

         On December 1, 2015, BHB purchased the Transportation Finance Division of GE Capital. Subsequently, Transportation Truck and Trailer Solutions executed a document entitled “Transfer Acknowledgment” ...


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