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<b>Decision of Note<b> Film Loan Note Is Breached

By Stan Soocher
February 28, 2011

The U.S. District Court for the District of Utah decided that a production company breached the repayment terms of a promissory note for a $3 million loan to support prints and ads for a nationwide theatrical film release. 3 Mark Entertainment LLC v. Abrams-Schiller Living Trust, 2:09CV780.

When James Abrams lent the money to 3 Mark for the film The Other Side of Heaven, 3 Mark agreed to pay Abrams back the loan by Sept. 25, 2003. But 3 Mark gave Abrams occasional, rather than full payment, and filed suit for a declaratory ruling that it hadn't breached the terms of the note. 3 Mark also asked the court to rule that Abrams' resulting breach counterclaim was time-barred. In his opinion, District Judge Dale A. Kimball observed that 3 Mark argued “the Note was hastily written and has multiple internal inconsistencies that make the introduction of extrinsic evidence a necessity.” But granting partial summary judgment for Abrams, the district judge found “the language of the Note is clear and explicit, and the terms are not ambiguous.” Judge Kimball also ruled that Abrams' breach counterclaim was timely under Utah's six-year statute of limitations for suits over written instruments because it “began to run from the date of [3 Mark's] last payment on the Note, which was on October 27, 2008.”

The U.S. District Court for the District of Utah decided that a production company breached the repayment terms of a promissory note for a $3 million loan to support prints and ads for a nationwide theatrical film release. 3 Mark Entertainment LLC v. Abrams-Schiller Living Trust, 2:09CV780.

When James Abrams lent the money to 3 Mark for the film The Other Side of Heaven, 3 Mark agreed to pay Abrams back the loan by Sept. 25, 2003. But 3 Mark gave Abrams occasional, rather than full payment, and filed suit for a declaratory ruling that it hadn't breached the terms of the note. 3 Mark also asked the court to rule that Abrams' resulting breach counterclaim was time-barred. In his opinion, District Judge Dale A. Kimball observed that 3 Mark argued “the Note was hastily written and has multiple internal inconsistencies that make the introduction of extrinsic evidence a necessity.” But granting partial summary judgment for Abrams, the district judge found “the language of the Note is clear and explicit, and the terms are not ambiguous.” Judge Kimball also ruled that Abrams' breach counterclaim was timely under Utah's six-year statute of limitations for suits over written instruments because it “began to run from the date of [3 Mark's] last payment on the Note, which was on October 27, 2008.”

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