Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TCF Equipment Finance v. Sitework Specialties Utilities & Excavating LLC

United States District Court, M.D. Tennessee, Columbia Division

December 5, 2019

TCF EQUIPMENT FINANCE
v.
SITEWORK SPECIALTIES UTILITIES & EXCAVATING LLC, BILLY JOE SPEARS AND MANDY SPEARS, Defendants.

          Campbell, Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         A. Writ of Possession

         Rule 64 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).

         Tennessee 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.

         In the 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.

         On 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.

         Based 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:

         1. TCF 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.

         2. 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 and interest.

         3. Loan 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.

         4. 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.

         5. Loan 501 was used to purchase four pieces of equipment collateral, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.