TCF Inventory Finance, Inc. v. Marker Oil Company, Inc., 2:17-cv-01768

TCF Inventory Finance, Inc. v. Marker Oil Company, Inc.

2:17-cv-01768

E.D. Cal.

Sep 1, 2017

Check Treatment

Docket

Case Information

FILED

SEP 012017 CLERK, U.S. DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA BH

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TCF INVENTORY FINANCE, INC.

Plaintiff,

MARKER OIL COMPANY, INC.

and BILLY LEON MARKER, JR.

The application of Plaintiff TCF Inventory Finance, Inc. ("TCFIF") for temporary restraining order and preliminary injunction having been considered by this Court, this Court GRANTS the Motion for temporary restraining order and finds:

Based on allegations made by TCFIF in the Verified Complaint, Defendant Marker Oil Company, Inc. ("Borrower") is in default of its obligations under the Security Agreement described in and attached to the Verified Complaint. As of August 15, 2017, the outstanding balance due under the Security Agreement was not less than $1,108,475.17. TCFIF has presented evidence that the Borrower has possession, custody and control of Subject Property in which TCFIF has properly perfected security interests. Borrower has, to date, refused to voluntarily surrender the Subject Property to TCFIF. The Subject Property is easily movable, readily marketable, and can be easily damaged by misuse or intentional acts. This Court finds

*2 evidence that this temporary restraining order is necessary for the preservation of the Subject Property in which TCFIF has a security interest. The Subject Property, identified in Exhibit 1 attached hereto, has a total value of not more than $$ 1, 081, 004.21$ , based on the original invoice price of the Subject Property.

Based on a review of the Security Agreement and other exhibits attached to the Verified Complaint, this Court finds that TCFIF has a substantial likelihood of prevailing on the merits of its claims,.

This Court further finds that TCFIF has no adequate remedy at law because as the Subject Property is sold, hidden, destroyed, concealed, disposed of, transferred, and/or abandoned, TCFIF loses its security. There is an immediate danger that TCFIF will be unable to obtain possession over the Subject Property or that the value of such property may become substantially impaired, destroying the bargained-for security. TCFIF has further alleged and presented evidence that TCFIF will lose its agreed security absent immediate relief. This Court therefore finds that TCFIF will be severely and irretrievably damaged absent the requested relief. This harm outweighs the harm that such relief will cause Borrower.

Finally, this Court finds that a temporary restraining order will not disserve the public interest. To the contrary, the public interest in promoting the enforcement of contracts and encouraging financing will be aided by issuing this injunction. Issuance of the requested relief promotes judicial efficiency and minimizes the potential for the improper disposition of the Subject Property and the need for exercise of contractual self-help remedies, all of which will benefit the public.

WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Borrower and its officers, directors, agents, representatives, and employees, as well as any others acting on their behalf, are restrained

*3 from doing the following:

Transferring any interest by sale, pledge, or grant of security interest, or otherwise disposing of, transferring, or encumbering the Subject Property identified in Exhibit 1, except that Borrower is permitted to sell the inventory to customers in the ordinary course of business, provided that Borrower notify TCFIF prior to completing the sale of inventory and all proceeds of the unit of Subject Property are paid to TCFIF;
Concealing, hiding, or otherwise removing the Subject Property identified in Exhibit 1;
Impairing the value of any of the Subject Property identified in Exhibit 1; and
Removing the Subject Property identified in Exhibit 1 from the principal place of business of Borrower or otherwise outside of the jurisdiction of this Judicial District;
Disposing of the proceeds from the transfer of any interest of the Subject Property identified in Exhibit 1 that may have occurred prior to issuance of this Order.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Borrower and its officers, directors, agents, representatives, and employees, as well as any others acting on their behalf, are required to do the following:

Return the Subject Property identified in Exhibit 1 to the principal place of business of Borrower at 205 N. Main Street, Alturas, California 96101 or such other location within the Judicial District agreeable to the parties for delivery to TCFIF; and
Maintain Borrower's books and records and provide TCFIF full access to such books and records.

IT IS FURTHER ORDERED as a condition precedent to the effectiveness of this Order, TCFIF shall post a bond in the amount of

*4 | 1 | $1, 000, 000.00$ (one million dollars). | | :--: | :--: | | 2 | IT IS FURTHER ORDERED, ADJUDGED AND DECREED that | | 3 | this Temporary Restraining Order shall expire on September 13, , 2017, unless otherwise extended by this Court. | | 4 | This matter is set for a hearing on a preliminary injunction on | | 5 | September 12, 2017 at 1:30 p.m. in Courtroom 6 at the Robert Matsui | | 6 | The Court will also hear TCFIF's application for writ of possession on September 12 at 1:30 p.m. | | 7 | Any response to the application and entry of a preliminary | | 11 | Injunction and to the application for writ of possession shall be filed and | | 12 | served on or before Wednesday, September 6, 2017 at 5:00 p.m. TCFIF | | 13 | may file a reply by Friday, September 8, 2017 at 5:00 p.m. | | 14 | Borrower is hereby notified that Borrower has a right to apply to | | 15 | the Court for modification or dissolution of this Temporary Restraining Order | | 16 | on two (2) days' notice or such shorter notice as the Court may allow. | | 17 | Counsel to TCFIF are instructed promptly to service this order on | | 18 | Borrower and to file proof of service with the Court. | | 19 | SO ORDERED THIS 31st DAY OF August, 2017 (date) AT | | 20 | PM (time). | | 21 | | | 22 | DATED: $$ 31.3017$ | | 23 | | | 24 | UNITED STATES DISTRICT COURT JUDGE | | 25 | | | 26 | | | 27 | |

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