Blacker v. Spring Arbor Senior Living, LLC et al, No. 3:2008cv00977 - Document 23 (D. Or. 2009)

Court Description: OPINION AND ORDER: Plaintiff's motion for summary judgment 15 on the breach of contract claims is GRANTED as to defendants Spring Arbor and Fisher. The motion is STAYED as to defendant Harder. Plaintiffs Motion for Entry of Judgment (i ncorrectly docketed as Motion for Default Judgment) 18 and plaintiffs Motion for Entry of Order Granting Plaintiffs Motion for Summary Judgment 17 are DENIED as moot. A separate Judgment will be entered. (see formal 4-page order) Signed on 2/19/09 by Judge Anna J. Brown. (kb)

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 12 13 14 15 16 RICHARD BLACKER, ) ) Plaintiff, ) ) v. ) SPRING HARBOR SENIOR LIVING, ) LLC, an Oregon Limited ) Liability Company; JON M. ) HARDER; and DARRYL E. FISHER, ) ) Defendants. ) ) No. CV-08-977-HU OPINION & ORDER 17 18 19 20 21 Gary I. Grenley Paul H. Trinchero Grenley, Rotenberg, Evans, Bragg & Bodie, PC 1211 S.W. Fifth Avenue, Suite 1100 Portland, Oregon 97204 Attorneys for Plaintiff 23 James Streinz MCEWEN GISVOLD, LLP 1100 S.W. Sixth Avenue, Suite 1600 Portland, Oregon 97204 Attorney for Defendants 24 BROWN, District Judge: 22 25 Plaintiff Richard Blacker brings this breach of contract 26 action against defendants Spring Arbor Senior Living, LLC (Spring 27 Arbor), Jon Harder, and Darryl Fisher. Blacker moves for summary 28 judgment on the breach of contract claims. The case has been stayed 1 - OPINION & ORDER 1 with regard to Harder due to his bankruptcy filing on December 31, 2 2008. With that one exception, I grant the motion. 3 BACKGROUND 4 Pursuant to Local Rule 56.1(f), the facts asserted by Blacker 5 in his summary judgment motion, and supported by the Declaration of 6 Gary I. Grenley and accompanying exhibits, are deemed admitted by 7 Fisher and Spring Arbor because those defendants failed to respond 8 to those asserted facts. Thus, the well-pleaded factual allegations 9 in the Complaint regarding those defendants liability are also 10 deemed true. Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th 11 Cir. 2002). 12 Blacker lent $100,000 to Spring Arbor at the request of 13 Harder and Fisher. Spring Arbor executed a Promissory Note in favor 14 of Blacker for the sum of $100,000, plus interest at the rate of 15 12% per annum, with monthly interest payments due until the loan 16 was payable in full. Grenley Declaration, Exhibit 1. As further 17 consideration 18 Personal Guaranty for the Promissory Note. Id. at Exhibit 2. Spring 19 Arbor failed to make the interest payment due on July 10, 2008, and 20 a Notice of Default was given to each defendant on July 30, 2008. 21 Id. at Exhibit 3. No further payments were made; consequently, the 22 full, unpaid balance of the Promissory Note became due and payable, 23 including an obligation under the terms of the Promissory Note to 24 pay default interest at the rate of 15% per annum, on July 30, 25 2008. Id. at Exhibit 1, Section 5. The terms of the Promissory Note 26 and the Personal Guaranty provide for the payment of attorney s 27 fees and costs. Id. at Exhibit 1, Section 10 and Exhibit 2, Section 28 14. for 2 - OPINION & ORDER the loan, Harder and Fisher each signed a 1 2 Harder filed for bankruptcy on December 31, 2008, and a notice of automatic stay was filed in this Court on January 12, 2009. 3 STANDARDS 4 Summary judgment is appropriate if there is no genuine issue 5 of material fact and the moving party is entitled to judgment as a 6 matter of law. 7 initial responsibility of informing the court of the basis of its 8 motion, and identifying those portions of "'pleadings, depositions, 9 answers to interrogatories, and admissions on file, together with 10 the affidavits, if any,' which it believes demonstrate the absence 11 of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 12 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Fed. R. Civ. P. 56(c). The moving party bears the 13 "If the moving party meets its initial burden of showing 'the 14 absence of a material and triable issue of fact,' 'the burden then 15 moves to the opposing party, who must present significant probative 16 evidence tending to support its claim or defense.'" Intel Corp. v. 17 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 18 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th 19 Cir. 1987)). 20 designate facts showing an issue for trial. 21 322-23. The nonmoving party must go beyond the pleadings and 22 Celotex, 477 U.S. at DISCUSSION 23 The record establishes that Spring Arbor and Fisher breached 24 the Note when they failed to make any interest payments after June 25 2008, and failed to make any payments after receiving the Notice of 26 Default. 27 the principal and interest were immediately due and collectible. 28 Blacker is entitled to summary judgment on the breach of contract At that point, under the terms of the Promissory Note, 3 - OPINION & ORDER 1 claims against Spring Arbor and Fisher. The motion for summary 2 judgment against Harder is stayed as a result of the bankruptcy. 3 CONCLUSION 4 Plaintiff's motion for summary judgment (doc. #15) on the 5 breach of contract claims is GRANTED as to defendants Spring Arbor 6 and 7 Plaintiff s Motion for Entry of Judgment (incorrectly docketed as 8 Motion for Default Judgment) (doc. #18) and plaintiff s Motion for 9 Entry of Order Granting Plaintiff s Motion for Summary Judgment 10 (doc. #17) are DENIED as moot. A separate Judgment will be entered. Fisher. The motion is STAYED as to defendant Harder. 11 12 IT IS SO ORDERED. 13 14 Dated this 19th day of February, 2009. 15 16 /s/ Anna J. Brown 17 Anna J. Brown United States District Judge 18 19 20 21 22 23 24 25 26 27 28 4 - OPINION & ORDER

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