United States District Court, N.D. Illinois, Eastern Division
CAPITAL ONE EQUIPMENT FINANCE CORP. f/k/a ALL POINTS CAPITAL CORP, d/b/a CAPITAL ONE TAXI MEDALLION FINANCE, Plaintiff,
ADELA INC., ADRIAN TUDOR, FLORINA TUDOR, et al., Defendants.
MEMORANDUM OPINION AND ORDER
ST. EVE, DISTRICT COURT JUDGE.
Capital One Equipment Finance has moved for a summary
judgment finding that the Defendants Adela Inc., Adrian
Tudor, Florina Tudor, and the additional Defendant entities
described below, collectively, “Defendants, ” are
in default and are jointly and severally liable to Plaintiff.
(R. 62, Mot. for Summ. J.) For the following reasons, the
Court grants Plaintiff's motion for summary judgment.
Capital One Equipment Finance Corp. (“Plaintiff”
or “Capital One”) is incorporated in the State of
New York with its principal place of business in New York.
(R. 65, Pl.'s Statement of Facts ¶ 1.) Defendants
Adela Inc., New Pisces Inc., P.T. Cab Co., Sagittarius 1
Inc., Terra Taxi Three Corp., Rex 1 Inc., Rex 2 Inc., Rex 3
Inc., Rex 6 Inc., Rex 10 Inc., Nect 3 Inc., Nect 5 Inc., Nect
10 LLC, Nect 11 LLC, Nect 12 LLC, Nect 13 LLC, Nect 14 LLC,
Nect 15 LLC, Nect 16 LLC, Nect 17 LLC, Nect 18 LLC, Nect 19
LLC, Nect 20 LLC, Nect 21 LLC, Nect 22 LLC, Nect 23 LLC, Nect
24 LLC, Nect 25 LLC, Nect 26 LLC, Nect 27 LLC, Nect 28 LLC,
and Nect 29 LLC (collectively, “Borrower
Defendants”) are Illinois limited liability companies
and corporations with their principal place of business in
Illinois. (Id. ¶¶ 2-3.) Adriana and
Florina Tudor, both of whom are Illinois citizens, are the
sole members of each of the Nect LLCs. (Id.
¶¶ 4, 6-7.) Defendant Medallion Leasing
(“Medallion”) is an Illinois corporation with its
principal place of business in Illinois. (Id. ¶
5.) Adrian Tudor, Florina Tudor, and Medallion, as well as
Nect 10 LLC, Nect 11 LLC, Nect 12 LLC, Nect 13 LLC, Nect 14
LLC, Nect 15 LLC, Nect 16 LLC, Nect 17 LLC, Nect 18 LLC, Nect
19 LLC, Nect 20 LLC, Nect 21 LLC, Nect 22 LLC, Nect 23 LLC,
Nect 24 LLC, Nect 25 LLC, Nect 26 LLC, Nect 27 LLC, Nect 28
LLC, and Nect 29 LLC, are collectively the “Guarantor
The Loans, Master Joint Participation Agreements, and the
Assignment of the Loans
seeks to recover the aggregate principal, as well as costs,
attorneys' fees, and interest, with respect to 32 mature
and unpaid loans the Borrower Defendants received from
Transit Funding Associates 4, LLC (“Transit
Funding”) and Tri-Global Financial Services, Inc.
(“Tri-Global”) (collectively, the “Original
Lenders”). (Id. ¶¶ 11-12, 15.)
Borrower Defendants executed and delivered a single
Promissory Note (“Note”) for each of the loans.
(Id. ¶ 13.) With respect to each loan, one or
more of the Guarantor Defendants, and with regard to certain
loans, one or more of the Borrower Defendants, executed and
delivered a payment Guaranty (“Guaranty, ”
collectively, the “Guaranties”). (Id.
and the Tri-Global are parties to a Master Joint
Participation Agreement (“Tri-Global MJPA”) dated
August 2, 2010, and Plaintiff and Transit Funding are parties
to a Master Joint Participation Agreement (“Transit
Funding MJPA”) dated March 29, 2012. (Id.
¶¶ 16-17.)The MJPAs give Plaintiff the right to
revoke servicing from the Original Lenders and to enforce the
loans directly against the respective borrowers, guarantors,
and obligors. (Id. ¶ 18.) Pursuant to the
MJPAs, the Original Lenders also were required to deliver to
Plaintiff, among other documents, the original note executed
in connection with the loan, an allonge indorsing the
note to Plaintiff, and a present assignment of the loan,
guarantees, and other documents the borrowers and guarantors
executed in connection with each loan. (Id. ¶
19.) The Original Lenders also authorized Plaintiff to take
certain actions in connection with each loan, including the
right to indorse any notes or instruments given in connection
with the loans on behalf of the Original Lender.
(Id. ¶ 20.) Through two letters, dated November
30, 2016 and April 7, 2016, Plaintiff exercised its rights
pursuant to the MJPAs to terminate the Original Lenders'
rights to enforce the loans and to succeed to their rights to
enforce the loans. (Id. ¶¶ 21-22.)
Additionally, at the closing of each loan, the Original
Lenders executed an assignment and transfer agreement
(“Assignment and Transfer Agreements”), which
assigned and transferred all their rights in the loan to
Plaintiff. (Id. ¶ 23.) Plaintiff also
took possession of the Notes in connection with each loan at
or shortly after closing and the Original Lenders authorized
Plaintiff to indorse the Notes, but all payments Defendants
made on the loans were to the Original Lenders. (Id.
24; R. 84, Defs. Resp. to Pl.'s Statement of Facts ¶
The Tri-Global Loans, Notes, and Guarantees
about September 6, 2013, Tri-Global made loans (the
“Tri-Global Loans”) in varying amounts to Adela,
New Pisces, P.T. Cab, Rex 1, Rex 2, Rex 3, Rex 6, Rex 10,
Saggitarius 1, Terra Taxi Three, Nect 3, and Nect 5
(collectively, the “Tri-Global Borrower
Defendants”). (Pl.'s Statement of Facts ¶ 26.)
Each of the Tri-Global Loans was evidenced by a Promissory
Note (the “Tri-Global Notes”) Adrian Tudor
executed as president of each Tri-Global Borrower Defendant.
(Id. ¶ 27.)
Adrian Tudor had principal responsibility for the execution
of the loans at issue in this lawsuit and was continuously
involved in the operation of the taxi medallions that secure
the loans. (R. 85, Defs.' Statement of Additional Facts
¶¶ 1-2.) Tudor was directly involved in the payment
of the loans, and he negotiated the loans personally with
Tri-Global's employee, Roman Sapino. (Id.
¶¶ 3, 5.) Tudor spoke to Sapino in the fall of 2016
and told him he was having trouble making the loan payments
due to market conditions, and Sapino told him to do his best
to make payments when possible. (Id. ¶¶
6-7.) Tudor, however, continued to make payments in the fall
of 2016. (Id. ¶ 8.)
the Tri-Global Loans has a “Maturity Date” of
November 1, 2016 and each of the Loans states that on the
Maturity Date “there shall be a balloon payment of the
unpaid principal balance of the note, plus any accrued
interested thereon.” (Pl.'s Statement of Facts
¶¶ 29-30.) Prior to initiating this action,
Plaintiff indorsed the Tri-Global Notes to Plaintiff by
executing an allonge (“Tri-Global Allonge”) in
accordance with the Assignment and Transfer Agreements
executed and delivered by Tri-Global in connection with the
Tri-Global Loans. (Id. ¶ 31.) The Tri-Global
Allonges have been firmly affixed to the Tri-Global Notes,
and Plaintiff is in possession and is the holder of the
Tri-Global Notes. (Id. ¶¶ 32-33.)
Tri-Global Notes provide “all persons liable . . . on
this Note, agree, jointly and severally, to pay all costs of
collection, including reasonable attorneys' fees and
disbursements, in case the unpaid principal balance of this
Note, or any payment of principal and/or interest thereon, is
not paid when due.” (Id. ¶ 34.) Illinois
law govern the Tri-Global Notes. (Id. ¶ 35)
Contemporaneously with the execution of the Tri-Global Notes,
Adrian Tudor and Florina Tudor, each individually, executed a
Loan Guaranty (the “Tri-Global Guaranties”) for
the Tri-Global Loans to the Tri-Global Borrower Defendants.
(Id. ¶ 36.) In addition, contemporaneously with
the execution of the Tri-Global Notes, Adrian Tudor executed
an additional Loan Guaranty (“Medallion
Guaranties”) on behalf of Medallion Leasing for the
Tri-Global Loans to the Tri-Global Borrower Defendants.
(Id. ¶ 37.) The Tri-Global and Medallion
Guaranties all provide that Medallion and the Tudors as
primary obligors and not merely as a surety
“unconditionally guarantee to the Lender payment when
due, . . . of any and all liabilities of the Borrower to the
Lender, together with all interest thereon and all
attorneys' fees, costs and expenses of collection
incurred by the Lender in enforcing any of such
liabilities.” (Id. ¶¶ 38-39.)
Guaranties also further provide the following:
• “[n]o invalidity, irregularity, or
unenforceability of all or any part of the liabilities hereby
guaranteed or of any security therefor [sic] or any other
circumstance that might otherwise constitute a legal or
equitable defense of a guarantor shall affect, impair, or be
a defense to this guaranty . . .”
• they are given “in consideration of financial
accommodations given or to be given or continued” to
the Tri-Global Borrower Defendants.”
• “[n]o delay on the part of the Lender in
exercising any of its options . . . shall constitute a waiver
thereof. No waiver of any rights . . . shall be deemed to be
made by the Lender unless the same shall be in writing, duly
signed on behalf of the Lender.”
• Illinois law governs them.
• “the Lender shall have the right, at any time .
. . and without notice, to sell, assign, transfer, or
otherwise dispose of all or any part of its rights under this
guaranty. In such event, each and every immediate and
successive purchaser, assignee, transferee, or holder . . .
shall have the right to enforce this guaranty by legal action
or otherwise, for its own benefit as fully ...