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CIT Communications Finance Corp. v. Wes-Tech Automation Solutions

August 17, 2010

CIT COMMUNICATIONS FINANCE CORPORATION, F/K/A AT&T CREDIT CORPORATION, PLAINTIFF,
v.
WES-TECH AUTOMATION SOLUTIONS, LLC, F/K/A WES-TECH AUTOMATION SYSTEMS, LLC; RALLY CAPITAL SERVICES, LLC; AND HOWARD B. SAMUELS, DEFENDANTS.



The opinion of the court was delivered by: Judge David H. Coar

MEMORANDUM OPINION AND ORDER

On November 10, 2008, Plaintiff CIT Communications Finance Corporation, f/k/a AT&T Credit Corporation ("Plaintiff" or "CIT") brought this action against Defendants Wes-Tech Automation Solutions, LLC, f/k/a Wes-Tech Automation Systems, LLC ("Wes-Tech"), Richard Gilchrist, Rally Capital Services, LLC ("Rally"), and Howard B. Samuels ("Samuels"), alleging nine counts. On December 16, 2008, CIT voluntarily dismissed Gilchrist. On December 2, 2009, the remaining parties proceeded to a bench trial on CIT's claims of conversion against Wes-Tech and Samuels (Counts I and IX respectively), quantum meruit against Wes-Tech (Count II), implied contract against Wes-Tech (Count VII), and personal liability for rent against Samuels, as assignee (Count VIII). Based on the trial, and the parties' pre-trial and post-trial submissions, the Court makes the following findings of fact and conclusions of law. To the extent that any findings may be deemed conclusions of law, they shall also be considered conclusions; to the extent that any conclusions may be deemed findings of fact, they shall also be considered findings. See Miller v. Fenton, 474 U.S. 104, 113-14 (1985).

FINDINGS OF FACT

Parties

1. Plaintiff CIT Communications Finance Corporation is a Delaware corporation.

2. Before Plaintiff became known as CIT Communications Finance Corporation, it went through a series of name changes. Initially known as AT&T Credit Corporation, the company changed its name to NewCourt Communications, and subsequently, to CIT Communications Finance Corporation.

3. CIT is also known as Lucent Technology Product Finance and Avaya Financial Services.

4. CIT is in the business of leasing and financing telephone equipment. This equipment consists primarily of private branch exchange systems, which are fully integrated telephone systems.

5. Wes-Tech, Inc. ("Old Wes-Tech") is an Illinois corporation that did business as Wes-Tech Automation Systems until its involuntary dissolution.

6. Old Wes-Tech's principal place of business was located at 720 Dartmouth Lane; Buffalo Grove, Illinois.

7. Defendant Wes-Tech Automation Solutions, LLC ("New Wes-Tech") is formerly known as Wes-Tech Automation Systems, LLC.

8. New Wes-Tech's principal place of business is located at the premises formerly occupied by Old Wes-Tech-720 Dartmouth Lane; Buffalo Grove, Illinois.

9. Rally Capital Services, LLC is an Illinois limited liability company with its principal place of business located in Chicago, Illinois.

10. Howard B. Samuels is a principal at Rally.

Telephone System Lease by Old Wes-Tech

11. CIT leased a Merlin Legend telephone system to Old Wes-Tech pursuant to a lease agreement (the "Lease Agreement") dated February 25, 1998. (Pl. Ex. 1.)

12. A Merlin Legend system is a private branch exchange system that includes a switch, telephone sets, and various peripherals such as voicemail, a paging system, and a call tracking system.

13. The Lease Agreement provides for an automatically renewable lease term of 60 months and requires Old Wes-Tech to make monthly payments to CIT of $1,459.93 plus applicable taxes.

14. Paragraph 1 of the Lease Agreement provides that CIT may "adjust the Lease Payment by not more than 15% if the Total Cash Price (which is all amounts we have paid in connection with the purchase, delivery and installation of the Equipment, including any upgrade and buyout amounts) differs from the estimated Total Cash Price." (Pl. Ex. 1 at ¶ 1.) Pursuant to this provision, the monthly rent was ultimately adjusted to $1,629.68 per month.

15. The Lease Agreement describes the equipment leased as "(1) Merlin Legend w/ intuity and all associated equipment." (Pl. Ex. 1.)

16. After the parties entered into the initial Lease Agreement, CIT leased additional telephone equipment to Old Wes-Tech pursuant to paragraph 15 of the Lease Agreement.

17. On March 11, 1998, Old Wes-Tech leased additional equipment under a supplemental lease agreement that provides for 57 months at $59.15 per month plus applicable taxes. (Pl. Ex. 2.) The additional equipment covered by the supplemental lease agreement is described as "(1) merlin legend." (Id.)

18. On June 16, 1998, Old Wes-Tech leased additional equipment under another supplemental lease agreement that provides for 56 months at $138.12 per month plus applicable taxes. (Pl. Ex. 3.) The additional equipment covered by this supplemental lease agreement is described as "(5) Merlin Legend, 408 GS/LS MLX Module." (Id.)

19. The initial February 1998 Lease Agreement governs all additional equipment leased by Old Wes-Tech. (The phone system and additional equipment together will be referred to hereinafter as the "Equipment.")

20. Under the Lease Agreement, all communication with Old Wes-Tech must be in writing directed to 720 Dartmouth Lane; Buffalo Grove, Illinois.

21. The Lease Agreement provides that it may not be assigned or sold by Old Wes-Tech. (Pl. Ex. 1.)

22. The Lease Agreement provides that failure to make lease payments or an assignment by Old Wes-Tech constitutes a default. (Pl. Ex. 1.)

23. The Lease Agreement provides that an assignment for the benefit of creditors constitutes a default. (Pl. Ex. 1.)

24. Under the Lease Agreement, CIT is entitled to immediate possession of the Equipment in the event of a default. (Pl. Ex. 1.)

25. At trial, CIT introduced into evidence three UCC financing statements concerning the Equipment it leased to Old Wes-Tech. (Pl. Ex. 7.) None of the statements indicate where it was filed. Only the second statement has a signature. Only the third statement indicates that it was, in fact, filed and lists a filing date of February 11, 1998.

26. As of November 2004, Old Wes-Tech had defaulted on its payments for the Equipment it leased from CIT.

27. CIT still owns the Equipment that it leased to Old Wes-Tech.

Transfer of New Wes-Tech's Assets

28. On December 3, 2004, Old Wes-Tech transferred all of its assets to a trust administered by Samuels pursuant to an agreement entitled "Trust Agreement and Assignment for the Benefit of Creditors" (the "Trust Agreement"). (Pl. Ex. 5.)

29. The assets conveyed by Old Wes-Tech to the trust included the Equipment leased from CIT.

30. Samuels acted as trustee/assignee for the benefit of creditors under the trust.

31. The Trust Agreement provides: "It is understood and agreed that the Trustee/Assignee shall have no personal liability or responsibility for his acts as Trustee/Assignee, but his obligation shall be limited to the performance of the terms and conditions of the [Trust Agreement], in good faith and in the exercise of his best judgment." (Pl. Ex. 5 at 4.)

32. Since 1992, Samuels has served as an assignee for the benefit of creditors over one hundred times.

33. In Wes-Tech's case, Samuels facilitated the assignment for the benefit of creditors by performing the same process he always performs when he acts as an assignee for the benefit of creditors. Once the Trust Agreement was executed, Samuels took control of the premises and accessed all books and records of the company to generate a list of creditors.

34. Samuels performed a lien search to determine whether any third parties had asserted an ownership interest in property on Old Wes-Tech's premises. The search did not reveal any recordings by CIT or any other name CIT uses.

35. After reviewing Old Wes-Tech's financial records, Samuels became aware that CIT (under the name Avaya Financial Services) ...


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