Sunday, November 12, 2017

Justice’s aviation company wants $4 million helicopter lawsuit to be dismissed

Gov. Jim Justice describes a budget proposal under consideration by his administration and the state Legislature.

CHARLESTON, W.Va. — A company owned by Gov. Jim Justice and his family says it wanted to settle a $4 million debt by selling a helicopter, but the lender hasn’t been cooperating.

James C. Companies, Justice Aviation — and the governor personally — were sued in the Southern District of New York in September over default on a loan for the companies’ private helicopter.

A little more than $4 million is remaining on the loan. The plaintiff, Citizens Asset Finance, wants to foreclose and take back the helicopter.

In an answer filed on Friday, lawyers for Justice and his companies ask for the complaint to be dismissed. They also ask to be granted a counterclaim.

The lawyers said Justice Aviation had been trying to resolve the matter by selling the helicopter.

“In an effort to minimize potential exposure to Citizens, in 2017 JA began investigating the possibility of selling the Aircraft on the secondary market and using the proceeds to pay down its obligation to Citizens,” lawyers for Justice wrote.

“The secondary market for helicopters is fluid and fast moving, with aircraft becoming available regularly and decisions about purchases made quickly.”

The lawyers wrote that this past July 6, Justice Aviation received a written, signed offer to purchase the aircraft for $2.2 million but still needed Citizens Asset to agree.

The lawyers for Justice wrote that the deal was communicated to Citizens Asset that day and then again on July 11. By July 12, Citizens Asset communicated its assent.

“Unfortunately, by July 12, the offeror had decided to pursue another aircraft and had rescinded the offer,” wrote the lawyers for Justice.

After that, the lawyers wrote, Citizens Asset consented to selling the helicopter for $2.1 million. That sale closed.

“As a result of the lower sale price for the Aircraft, Citizens has increased its demands against the defendants, including JA,” the lawyers wrote.

The lawyers argue Citizens Assent had an obligation not to act unreasonably.

“By failing to promptly determine whether it would consent to the $2.2 million sale, Citizens breached its duty of good faith and fair dealing in its agreements with JA, and JA has been damaged as a result,” the lawyers wrote.

Justice Aviation took out a loan on Dec. 30, 2009, for an AgustaWestland S.p.A. model A109S helicopter and two Pratt and Whitney Canada model PW207C helicopter engines.

Justice Aviation then leased the aircraft to James C. Justice Companies.

The full amount was $6.6 million.

James Justice II, who was elected governor of West Virginia last year, also signed a 2009 guaranty agreement on the loan.

“As set forth therein, the guaranty is absolute and unconditional, and guarantees all payment and performance obligations of the borrower under the loan agreement and the note,” wrote the lawyers for the lender.

Before the loan matured, Justice aviation and Jim Justice, as the guarantor, defaulted, the lender claims.

“Prior to the maturity of the note, the lender notified the borrower and the guarantor of these defaults under the loan documents, demanded that the borrower and guarantor cure all defaults and reminded the borrower and guarantor of lender’s rights and remedies under the loan documents,” the lawsuit states.

Earlier this year, Jan. 11, the lender and Justice’s businesses entered into a forbearance agreement, which is a special agreement to delay a foreclosure. That was five days before Justice’s inauguration as governor.

Under the agreement, “defendants acknowledged and admitted, among other things, the existence of the initial defaults and their liability to lender under the loan documents.”

At that point, the debt was no less than $4,283,631.73, the lawsuit claims.

The forbearance agreement expired on May 31. At that point, Justice was deep into separate “mediator-in-chief” negotiations with legislators in hopes of reaching an agreement on the state budget.

After the forbearance expired, the lender reminded Justice and his companies that the initial defaults continued to exist and that additional defaults had piled up in the meantime. The lender sent a letter on Sept. 6.

“Despite repeated demands, the borrower and guarantor have failed to pay the lender all the amounts due under the loan documents,” the lawsuit states. “In addition, the defendants continue to use the aircraft and have not made a payment to lender since April 2017.”

The lawyers for Citizens Asset Finance say the company is now due $4,290,297.33 plus other costs such as attorneys fees.

Because he’s the guarantor, Justice himself is being held responsible by the company.

Here’s how the lawsuit puts it:

“Wherefore, Plaintiff Citizens Asset Finance Inc. prays for judgment in its favor and against defendant James C. Justice II in the amount of not less than $4,290,297.33, in addition to all costs, charges, and expenses, including attorneys’ fees accrued (and accruing) through and after the dates set forth above, all other amounts due under the loan documents and such other and further relief as this court shall deem just and appropriate.”

The company wants to foreclose against Justice and his companies and take back possession of the aircraft.

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