Trafalgar Capital Specialized Investment Fund v. Hartman

878 F. Supp. 2d 1274, 2012 WL 2579932, 2012 U.S. Dist. LEXIS 93790
CourtDistrict Court, S.D. Florida
DecidedJune 22, 2012
DocketCase No. 11-24084-CIV
StatusPublished
Cited by17 cases

This text of 878 F. Supp. 2d 1274 (Trafalgar Capital Specialized Investment Fund v. Hartman) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trafalgar Capital Specialized Investment Fund v. Hartman, 878 F. Supp. 2d 1274, 2012 WL 2579932, 2012 U.S. Dist. LEXIS 93790 (S.D. Fla. 2012).

Opinion

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court on Defendants’ Motion to Transfer Action [1278]*1278from the United States District Court for the Southern District of Florida to the United States District Court for the District of Nevada, Las Vegas Division (“Motion”) [ECF No. 32], filed May 4, 2012. The Court has carefully reviewed the parties’ written submissions and applicable law.

I. BACKGROUND

Plaintiff, Trafalgar Capital Specialized Investment Fund (In Liquidation) (“Plaintiff’ or the “Fund”), is an investment company incorporated under the laws of the Grand Duchy of Luxembourg. (See Am. Compl. ¶ 1 [ECF No. 5]). Defendants are Scott W. Hartman (“Hartman”), a Pennsylvania resident; David S. Montoya (“Montoya”), a Connecticut resident; and Seaview Mezzanine Fund Advisors, Inc. (“Seaview”), a Delaware corporation. (See id. ¶¶ 2-4). On November 10, 2011 Plaintiff filed a Complaint [ECF No. 1] against Defendants seeking to recover damages for breach of a guaranty agreement. On February 14, 2012, Plaintiff filed its Amended Complaint, which the Court summarizes below.

A. The Deal

During 2008 and most of 2009, Hartman and Montoya were owners and officers of Lumax Gaming, Inc. (“Lumax”), a Nevada corporation. (See Am. Compl. ¶ 7). On February 28, 2008, Lumax entered into an asset purchase agreement with Silver Saddle, Inc. (“SSI”), a Nevada corporation, to purchase certain assets of SSI including a gaming establishment known as the Silver Saddle Saloon (the “Property”), located in Las Vegas, Nevada. (See id. ¶ 8). On April 30, 2008, Lumax and the Fund entered into, among other things, a securities purchase agreement (the “Securities Purchase Agreement”) whereby the Fund agreed to purchase $6.5 million of senior secured redeemable debentures for an aggregate purchase price of $6.5 million. (See id. ¶ 9). The proceeds obtained from the Securities Purchase Agreement were then used to fund Lumax’s purchase of the Property from SSI. (See id.).

Contemporaneously with the execution of the Securities Purchase Agreement, Lumax and the Fund also executed the following documents on April 30, 2008: a senior secured redeemable debenture (the “Debenture”); a deed of trust (the “Deed of Trust”); an assignment of leases and rents (the “Assignment of Leases and Rents”); and a security agreement (the “Security Agreement”) (collectively, the “Loan Documents”). (See id. ¶ 10). The Deed of Trust, the Assignment of Leases and Rents, and the Security Agreement encumbered all of Lumax’s assets, including the Property, in order to secure Lu-max’s obligations and the Fund’s rights under the Securities Purchase Agreement and the Debenture. (See id. ¶ 11). To further guarantee the full and timely payment of Lumax’s obligations under the Securities Purchase Agreement and the Senior Secured Debenture, Hartman, Montoya, and Seaview each executed a personal and corporate guaranty (the “Guaranty”) that same day. (See id. ¶ 12). Pursuant to the Guaranty, Hartman, Montoya and Seaview jointly and severally agreed to become surety to the Fund. (See id. ¶ 13). The Guaranty specifically states that the liability of each Defendant is “absolute, unconditional, continuing, primary, direct and independent of the obligations of ... the other Guarantors.” (Guaranty 1 [ECF No. 37-1]).

The Guaranty also contains the following forum selection and consent to jurisdiction clause:

Forum Selection and Consent to Jurisdiction. Any litigation based on or arising out of, under, or in connection [1279]*1279with, this Guaranty shall be brought and maintained exclusively in the federal courts of the State of Florida. Each Guarantor hereby expressly and irrevocably submits to the jurisdiction of the federal courts of the State of Florida for the purpose of any such litigation as set forth above and irrevocably agrees to be bound by any final judgment rendered thereby in connection with such litigation. Each Guarantor irrevocably consents to the service of process by registered mail, postage prepaid, or by personal service within or without the State of Florida. Each Guarantor hereby expressly and irrevocably waives, to the fullest extent permitted by law, any objection which Guarantor may have or hereafter may have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any litigation has been brought in an inconvenient forum....

(Id. 4).

Thereafter, on June 30, 2009, the Fund and Lumax entered into a restructuring agreement (the “Restructuring Agreement”), which modified the payments due to the Fund under the Loan Documents. (See id. ¶ 14). Additionally, Lumax acknowledged that as of June 30, 2009, the amount outstanding under the Loan Documents was $6,530,052.36. (See id.).

B. The Default

After Lumax acquired the Property, Hartman and Montoya were unable to obtain the requisite Nevada gaming license to operate the casino because the Nevada Gaming Commission determined, in part, that it had concerns regarding their behavior. (See id. ¶ 15). As a result of their inability to operate the casino establishment located on the Property, Hartman and Montoya conveyed and relinquished ownership and control of Lumax to another individual, Saeed Shakeri (“Shakeri”), on December 7, 2009. (See id.).

In November 2010, Lumax defaulted on its obligations under the Loan Documents. (See id. ¶ 16). On November 30, 2010, a notice of event of default and acceleration (the “Notice of Default”) was sent to Lu-max informing it that an Event of Default had occurred pursuant to section 3.01 of the Debenture and that full payment of all outstanding debt, in the sum of $10,751,593.29, was due as of November 30, 2010 with interest accruing at 12.25% per annum. (See id. ¶ 16). On December 2, 2010, Lumax received a Notice of Foreclosure accompanied by a Notice of Breach and Election to Sell Under the Deed of Trust (collectively, the “Notice of Foreclosure”). (See id. ¶ 17). The Notice of Foreclosure provided that Lumax had defaulted on payments required under the terms of the Debenture and that Lumax’s debt to the Fund was due immediately. (See id. ¶ 17). Lumax was unable to cure the default. (See id. ¶ 18).

Thereafter, on April 20, 2011, Lumax, executed and delivered a deed in lieu of foreclosure (the “Deed”), effectively transferring ownership of the Property to Silver Saddle Acquisition Corporation (“SSAC”), which holds legal title to the Property on behalf of the Fund, the equitable, and true owner of the Property. (See id.). The Deed was recorded in the Clark County Recorder’s Office on May 17, 2011. (See id.). The Deed does not release Hartman, Montoya or Seaview — the Guarantors— from their obligations under the Guaranty. (See id.)

As of August 2011, the Property was valued at $800,000. (See id. ¶ 20). The Fund never assigned its rights under the Guaranty, and it has exclusive ownership and control of its rights under the Guaranty. (See id. ¶ 18). There remains a substantial deficiency owed to the Fund, [1280]*1280which continues to increase due to the accumulation of interest and attorneys’ fees and costs. (See id ¶20).

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878 F. Supp. 2d 1274, 2012 WL 2579932, 2012 U.S. Dist. LEXIS 93790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trafalgar-capital-specialized-investment-fund-v-hartman-flsd-2012.