Federal District Court Opinions

JP MORGAN CHASE BANK, NA v. WINGET, (E.D.Mich. 11-22-2006)
LARRY WINGET LIVING TRUST, Defendants. Case No. 05-74141.
United States District Court, E.D. Michigan, Southern
Division. November 22, 2006


AVERN COHN, District Judge

This is a commercial finance dispute. Plaintiff JPMorgan
Chase Bank, N.A., is the Administrative Agent (Agent) for a
group of lenders (Lenders) that extended credit to Venture
Holdings Company, LLC (Venture) under a Credit
Agreement.[fn1] Agent is suing defendants Larry Winget and
the Larry Winget Living Trust (collectively, Winget)
seeking specific performance and declaratory relief related
to a written guaranty agreement (Guarantee) in favor of
Agent in connection with the indebtedness of Venture
Holdings Company, LLC (Venture), a company owned by Winget.

The Agent filed a motion for judgment on the pleadings to
(1) strike Winget’s affirmative defenses as they relate to
both counts of the complaint and (2) for judgment on count
I of the complaint. The motion was heard on September 27,
2006 at which time the Court stated that the Agent was
entitled to summary judgment on Count I, Count II would be
dismissed without prejudice and Winget’s affirmative
defenses as Page 2 related to Count II and in particular
as to their counter-claims, would be determined in the 2006
case. Winget v. JP Morgan Chase Bank, NA, 06-13490 (the
“2006 case.”).[fn2]

The Court directed the parties, particularly the Agent, to
prepare an order implementing the decision. The parties have
been unable to agree on the form of order and have
submitted competing orders to the Court. The Court has
reviewed the proposed orders, which differ with respect to
the language in paragraphs 2 and 5.

Paragraph 2 as prepared by the Agent tracks the language of
the September 21, 2005 letter to Winget which sets forth
reasonable compliance procedures for the inspection and
audit. The Agent’s complaint requested performance in
accordance with the letter. The order properly incorporates
the procedures set forth in the letter, which is nothing
more than a structure for facilitating the Agent’s
inspection and audit rights under section 11 of the
Guaranty. Winget’s proposed version of paragraph 2 injects
issues not briefed, argued, or adjudicated.

Paragraph 5 as prepared by the Agent accurately reflects
the Court’s disposition of Count II. Winget’s proposed
language is not necessary and might be interpreted to limit
the Agent’s rights in a manner not adjudicated by the

Accordingly, the Court will enter the order in the form
prepared by the Agent.

[fn1] Bank One, NA, was the Administrative Agent for the
lenders. It merged with JP Morgan in 2004.

[fn2] On October 3, 2006, the Court issued a Memorandum
explaining the Court’s reasons. Page 1