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Millennium Bank v. UPS Capital Business Credit

Court of Appeals of Colorado, Third Division

March 13, 2014

Millennium Bank, a Colorado corporation, Plaintiff-Appellant,
v.
UPS Capital Business Credit, a Connecticut corporation, Defendant-Appellee

Arapahoe County District Court No. 12CV1161. Honorable Charles M. Pratt, Judge.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS.

Bieging Shapiro & Barber, LLP, Duncan E. Barber, Stacey S. Dawes, Denver, Colorado, for Plaintiff-Appellant.

Frascona, Joiner, Goodman and Greenstein, P.C., Jordan C. May, Corey T. Zurbuch, Boulder, Colorado, for Defendant-Appellee.

Opinion by JUDGE DAILEY. Terry and Miller, JJ., concur.

OPINION

Page 336

DAILEY, JUDGE.

[¶1] In this dispute over creditors' rights, plaintiff, Millennium Bank (Millennium), appeals the district court's entry of summary judgment in favor of defendant, UPS Capital Business Credit (UPS). We affirm and remand for further proceedings.

I. Background

[¶2] This dispute arose out of a series of agreements involving two secured creditors, Millennium and UPS, and a debtor, Superior Plaster and Drywall, Inc. (Superior).

[¶3] UPS loaned Superior $1,027,000 secured by Superior's assets. Millennium loaned Superior $1,500,000, also secured by Superior's assets. Millennium and UPS entered into an Intercreditor Agreement to establish the respective priority of their secured interests in Superior's assets. Under the Intercreditor Agreement, (1) Millennium had first priority, and UPS second priority,

Page 337

in Superior's accounts receivable; and (2) UPS had first priority, and Millennium second priority, in Superior's general intangibles.

[¶4] This case arose when Millennium and UPS disputed their rights to funds awarded to Superior in an arbitration proceeding.

A. The Arbitration Award

[¶5] Superior had subcontracted with general contractor Beck Development, LLC (Beck), to perform drywall and paint work as part of the construction of two condominium towers. After Superior had completed a substantial amount of painting, it began noticing problems with the paint provided to it by a company named Akzo Nobel Paints, LLC (Akzo). Superior claimed that Akzo had supplied defective paint, while Akzo argued that Superior's application techniques were to blame. After Superior repainted the project four times at Beck's insistence, without fixing the paint problem, Beck terminated the work ...


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