Cape Haze Investments Ltd v. Richard Eilers

MEMORANDUM

Richard D. Eilers (“Eilers”) appeals from the district court’s grant of summary judgment in favor of Cape Haze Investments, Ltd. (“Cape Haze”) and Thomas C. Scott (“Scott,” and together with Cape Haze, “Lenders”). Eilers is a guarantor under two guarantees (“Guarantees”) executed in favor of Lenders.

We vacate and remand because a triable issue of material fact exists regarding (1) whether Lenders colluded with Eilers’ business partner, Chris Allender (“Allen-der”); (2) whether Lenders were entitled to repossess assets not secured by the parties’ original agreements of October 1999; and (3) if Lenders did collude with Allender or if Lenders did impermissibly repossess certain assets, whether such conduct materially increased Eilers’ risk as guarantor. We affirm the district court’s ruling that, as a matter of law, Eilers was not entitled to receive earlier notice of default from Lenders.

As the parties are familiar with the factual and procedural history in this case, we will not recount it here.

A grant of summary judgment is reviewed de novo. Delta Sav. Bank v. United States, 265 F.3d 1017 , 1021 (9th Cir.2001). Summary judgment is appropriate where, when viewing…