United States District Court, M.D. Tennessee, Columbia Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE
before the Court is the Plaintiff TCF Equipment Finance's
(“TCF”) Motion for Entry of Default Judgment
against Defendants Sitework Specialties Utilities &
Excavating LLC and Billy Joe Spears and a Writ of Possession
against a 2009 Caterpillar D6T XL Dozer. Docket No. 30. The
Court held a hearing on TCF's application for writ of
possession on November 15, 2019. Counsel for TCF appeared at
the hearing and offered the testimony of Roger Adams, Senior
Special Assets Officer at TCF regarding the loans to
Sitework. No one appeared at the hearing on behalf of the
Defendants. For the reasons stated herein, the undersigned
recommends that the Plaintiff's Motion (Docket No. 30) be
GRANTED in part and DENIED in part.
Writ of Possession
of the Federal Rules of Civil Procedure (“Fed. R. Civ.
P.”) provides in relevant part, that “[a]t the
commencement of and throughout an action, every remedy is
available that, under the law of the state where the court is
located, provides for seizing a person or property to secure
satisfaction of the potential judgment.” Fed.R.Civ.P.
64(a). Under Rule 64, the remedies available include,
replevin and other corresponding or equivalent remedies under
Tennessee law. See Fed. R. Civ. P. 64(b).
Code Annotated (“Tenn. Code Ann.”) §§
29-30-101, et. seq. provides a detailed procedure by which
one entitled to possession of personal property held by
another may recover it. Tenn. Code Ann. § 29-30-106 sets
forth the procedure for recovering personal property through
the issuance of a writ of possession. The statute allows for
the court to issue an expedited writ of possession
conditioned upon the posting of a bond and thereafter
directing an officer to take possession of the property and
deliver to the Plaintiff and to summon the Defendant to
appear and answer within 30 days. Id.
instant case, the Plaintiff filed a Verified Complaint and
Motion to Set a Hearing on Application for Writ of Possession
against Defendants Sitework, Mandy Lee Spears and Billy Joe
Spears. The Court scheduled a hearing as a required under
Tenn. Code Ann. § 29-30-106. At that time, Defendant
Mandy Spears appeared to challenge the issuance of the Writ
of Possession. The Court thereafter continued the hearing on
the Writ of Possession and Motion for Default Judgment.
Docket No. 34.
November 15, 2019, the Court held in essence what constituted
a final hearing on the application for Wirt of Possession
filed by Plaintiff, TCF. Counsel for TCF appeared and put on
proof regarding the Writ of Possession. No one appeared at
the hearing on behalf of the Defendants.
on the allegations in the Verified Complaint, Mr. Adams's
testimony at the hearing, the arguments of counsel for TCF
and the entire record in this matter, the Court makes the
following findings of fact:
made two loans to Sitework that were used to purchase certain
equipment collateral. For convenience the Court refers to
these loans, as TCF did, using the last three digits of the
loan contract number - i.e. Loan 500 and Loan 501.
Sitework gave TCF a promissory note ("Note 500")
dated November 25, 2015 in the original principal amount of
$140, 501.51 to evidence Loan 500. Note 500 is signed by
Mandy Spears in her capacity as a member of Sitework. Note
500 calls for a series of 36 monthly payments of principal
500 was used to purchase two pieces of equipment collateral.
Sitework granted TCF a security interest in this collateral
by signing a security agreement, again through Mandy Spears
in her capacity as a member of Sitework.
Sitework gave TCF a second promissory note ("Note
501") dated August 24, 2016 in the original principal
amount of $418, 340.00 to evidence Loan 501. Note 501 is
signed by Mandy Spears in her capacity as a member of
Sitework. Note 501 calls for a series of 36 monthly payments
of principal and interest.
501 was used to purchase four pieces of equipment collateral,