45194 Motion to Term Auto Stay PLG

1 Jeffrey A. McKee (#012279) DAVIS, McKEE, P.L.L.C. 2 1650 North First Avenue Phoenix, AZ 85003 3 (602) 266-7667; Fax (602) 277-9839 Email: [email protected] 4 Attorneys for Defendants 5 MARICOPA COUNTY SUPERIOR COURT 6 STATE OF ARIZONA 7 ALAN TRABILCY, 8 Case No. CV2012-007873 9 Plaintiff, 10 DEFENDNATS’ CONFIDENTIAL vs. SETTLEMENT CONFERENCE 11 PHILLIP D. ROUX and LISA ROUX, MEMORANDUM 12 husband and wife; and SHOOTER’S WORLD OF PEORIA, LLC, an Arizona Conference: March 6, 2013 at 9:00 a.m. limited liability company, 13 Settlement Judge: Kenneth Fields 14 Defendants. 15 16 17 18 Pursuant to the Minute Entry issued by the Settlement Judge on January 31, 2013,

19 Defendants submit their Confidential Settlement Statement. The parties have stipulated to 20 confidential settlement statements. 21 Introduction 22 Plaintiff alleges in his complaint, at ¶ 2, that: “All of the acts alleged herein on the 23 24 part of Phillip D. Roux were carried out for the benefit of his marital community with Lisa 25 Roux.” Plaintiff further alleges, at ¶ 4, that: “During the Spring of 2011, Mr. Trabilcy

26 agreed to loan and did loan the sum of $1,025,000.00 to Mr. Roux.” The clear implication 27 of the second sentence in ¶ 4 is that the loan is a community debt of the Rouxs, because the 28 1 promissory note was executed after the marriage. Finally, in Plaintiff’s prayer for relief, he 2 requests judgment against both “Defendants” (not limited to Mr. Roux and his contribution 3 4 to the marital community). 5 The Rouxs were married in November 2011, and therefore the subject loan was

6 made to Mr. Roux before their marriage. The fact that the loan was “memorialized” after 7 the marriage does not change the fact that the loan was made to Mr. Roux before his 8 marriage to Mrs. Roux. 9 In addition, Mr. Trabilcy foisted the subject promissory note on Mr. Roux 10 11 immediately before Mr. Trabilcy was scheduled for an emergency medical procedure. Mr. 12 Trabilcy pleaded with Mr. Roux to sign the note he prepared and presented to him because

13 there would be no memorialization of the funds Trabilcy loaned Roux if he were to pass 14 away during the medical procedure. There is no dispute that Trabilcy loaned money to 15 Roux, but Trabilcy coerced Roux to sign a note with payment terms that was not able to 16 consider and consult with his counsel about. Furthermore, there is a dispute about certain 17 18 credits Mr. Trabilcy has claimed without adequate supporting documentation that were 19 added to the amount of the note.

20 Under A.R.S. § 25-215, Mrs. Roux and the Rouxs’ marital community are not liable 21 for the loan, except for Mr. Roux’s contribution to the marital community. In Flexmaster 22 Aluminum Awning Co., Inc. v. Hirschberg, 173 Ariz. 83, 839 P.2d 1128 (App. 1992), the 23 Court of Appeals held that it was proper to join both spouses as defendants regarding a 24 25 pre-marital obligation of one of the spouses. The Court of Appeals stated that under 26 A.R.S.§ 25-215(B) the nondebtor spouse is a necessary and proper party in a suit to

27 establish the limited liability of the marital community for the separate, premarital debt of 28 2 1 the other spouse and the debtor spouse’s contribution to the marital community. 2 In addition, based on Trabilcy’s coercion of Roux discussed above, Defendants 3 4 have affirmative defenses to claims based on duress/coercion and estoppel. 5 Prospects for Resolution

6 There is no dispute that Phil Roux borrowed money from Trabilcy. The aggregate amount 7 of the loans is approximately $1,025,000. However, Defendants dispute that the aggregate 8 principal amount of the “Loan” is $1,025,000.00, because Plaintiff has failed to provide an 9 accounting of approximately $80,000 of the Loan amount (including supporting 10 11 documentation for Plaintiff’s purchase of computer equipment for the benefit of Defendant 12 Shooter’s World of Peoria, LLC).

13 The above defenses are admittedly weak and therefore we expect Trabilcy to prevail 14 for some amount. However, as Phil Roux is now married to Lisa Roux, he has little or no 15 assets from which to collect any such judgment. If, and when, Trabilcy obtains a judgment 16 against Shooter’s World of Peoria, LLC, all of the assets of the company are or will be 17 18 pledged to a lender. 19 As a result, it is in the best interests of all parties that we settle the case. The form

20 of settlement should include a new promissory note by Shooter’s World of Peoria, LLC, 21 which would be personally guaranteed by Roux, and a pledge of assets of Shooter’s World 22 in a security agreement. The note would require a down payment of a certain amount with 23 payments over a reasonable time at the market rate, perhaps with a balloon payment in, 24 25 say, 5 years.

th 26 Dated this 27 day of February, 2013. 27 DAVIS, McKEE, P.L.L.C. 28 3 1 /s/ Jeffrey A. McKee By: ______2 Jeffrey A. McKee 3 Attorneys for Defendants 4 5 The foregoing was emailed this 27th day of February, 2013, to: 6 Hon. Kenneth Fields, Ret. 7 via email: [email protected] 8 /s/ Jeffrey A. McKee 9 ______10 11 12 13 14 15 16 17 18 19

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