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 11, 2017

Check Treatment

Docket

Case Information

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TCF INVENTORY FINANCE, INC. Plaintiff, v.

MARKER OIL COMPANY, INC. and

BILLY LEON MARKER, JR. Defendants.

The Court now considers the application of Plaintiff TCF Inventory Finance, Inc. ("TCFIF") for issuance of a writ of possession. On August 23, 2017, TCFIF filed an application for issuance of a writ of possession of certain property. (Dkt. No. 3) On August 26, 2017, TCFIF caused the application for writ of possession and the application for temporary restraining order, memorandum in support, and declaration of Sandra Borring to be served with the summons and verified complaint. (see Dkt. No. 13) On August 27, 2017, TCFIF filed its ex parte application for temporary restraining order. (Dkt. No. 8) The Court ordered that any responses to the application for temporary restraining order be filed on or before August 30, 2017. (Dkt. No. 11) TCFIF served the scheduling order on August 28, 2017. No response was filed. On September 1, 2017, the Court entered a Temporary Restraining Order (the "TRO"). (Dkt. No. 14) The TRO was served on September 1, 2017. (Dkt. No. 15). A copy of the $$ 1, 000, 000.00$ bond required for the TRO was submitted on September 6,

(Dkt. No. 16) The TRO required any response to the continuance of the TRO and the application for writ of possession be filed by September 6, 2017. (see Dkt. No. 14). No response was filed.

After considering the pleadings and other papers on file with the Court, the evidence presented through declarations and the argument of counsel in the memorandum in support, the Court finds and concludes that the Plaintiff is entitled to a Writ of Possession issued regarding Marker Oil Company Inc. ("Marker Oil") for the reason that Marker Oil acquired possession of this property in the ordinary course of the defendant's trade or business for commercial purposes, and (1) the property is not necessary for the support of the defendant or the defendant's family; (2) there is an immediate danger that the property will become unavailable to levy by reason of being transferred, concealed or removed from the state, or will become substantially impaired in value by acts of destruction, or by failure to take care of the property in a reasonable manner; and (3) the issuance of a writ of possession is necessary to protect the property.

IT IS THEREFORE ORDERED (a) Defendant Marker Oil Company Inc. is ordered to transfer possession of the property described in Exhibit 1 and any keys, titles, manufacturer's statement or certificate of origin, and other documentation relating to the property described in Exhibit 1 to TCFIF without delay. (Code Civ. Proc., section 512.070.) (b) The Clerk shall issue a Writ of Possession as provided in Code of Civil Procedure section 512.020, directing the United States Marshal within whose jurisdiction the property described in Exhibit 1, or some part of it, is located, to seize and deliver the property described in Exhibit 1 (and any keys, titles, manufacturer's statement or certificate of origin, and other documentation relating to the property described in Exhibit 1) to TCFIF or its

*3 agents to keep subject to further order of this Court as provided in Code of Civil Procedure sections 514.010-514.050. (c) The clerk is directed to issue the Writ of Possession immediately. (d) The clerk is directed to issue the Writ of Possession upon the plaintiff submitting a written undertaking as required by Code of Civil Procedure section 515.010 or surety bond in the amount of $$ 2, 200, 000.00$ , which will be satisfied by TCFIF posting a $$ 1, 200, 000.00$ bond in addition to the existing $$ 1, 000, 000.00$ bond that TCFIF posted for the TRO and preliminary injunction, which prohibits defendants from taking certain actions with respect to the property to be recovered and requires the defendants to return the property to 205 N. Main Street, Alturas, California 96101 to facilitate the recovery of the property from the defendants under the Writ of Possession. (e) The written undertaking required by the defendant for redelivery or to stay delivery is in the amount of $$ 2, 200, 000.00$ . (f) The clerk of this court is directed to attach a copy of this order and a copy of the plaintiff's undertaking(s) to the Writ of Possession. (g) The United States Marshal may enter the following private place(s) to take possession of the property or some part of it: 205 N. Main Street, Alturas, California 96101, and such other locations within the jurisdiction of this court controlled by the defendants, on which the property identified in Exhibit 1 is located. The United States Marshal may use whatever force is reasonably necessary, including without limitation gaining entry into any locked or secured premises using any or all means reasonably necessary to take possession of the property. The defendants are ordered to return the property described on Exhibit 1 to 205 N. Main Street, Alturas, California 96101 to make the property available for recovery by the levying officer.

*4 NOTICE TO DEFENDANT: Failure to comply with an order of the court to turn over possession of such property to the plaintiff may subject you to being held in contempt of court.

SO ORDERED THIS I'T DAY OF SEPTEMBER, 2017.

*5 | MFG | Serial Number | Model | | :--: | :--: | :--: | | BRP | 3JBPEAR27GJ002169 | 0007FGA00 | | BRP | 3JBPDAR25GJ003307 | 0006UGA00 | | BRP | YDV41356E616 | 00039GA00 | | BRP | YDV02139F616 | 00033GA00 | | BRP | YDV01853E616 | 00018GA00 | | BRP | 3JBUKAN27HK000001 | 0008FHE00 | | BRP | 3JBKKAP22HJ000367 | 0006EHA00 | | BRP | 3JBKBAP22HJ000014 | 0006HHA00 | | BRP | 3JBKKAN29HJ000191 | 0006DHBOO | | BRP | 3JBPEAR29HJ000229 | 0007FHA00 | | BRP | YDV33206J617 | 00036HA00 | | BRP | 3JBLWAU26HJ000580 | 0004KHA00 | | BRP | RFGUB2518HS022379 | 0003JHA00 | | BRP | 3JBLWAJ21HJ000300 | 0005EHA00 | | BRP | 3JBMWAX27HJ000457 | 0004FHC00 | | BRP | 3JBLKAJ21HJ000521 | 0002PHC00 | | BRP | 3JBRKAP28HJ000159 | 0001DHBOO | | BRP | 3JBVDAW29HK001406 | 0007SHFOO | | BRP | 3JBPDAR23HJ000178 | 0006UHC00 | | BRP | 3JBVGAW26HK000429 | 0007XHC00 | | BRP | 3JBLKAJ29HJ000640 | 0002PHE00 | | BRP | 3JBKKAP26HJ000842 | 0006BHC00 | | BRP | 3JBVDAW23HK001482 | 0007SHA00 | | BRP | 3JBKKAN24HJ000602 | 0006DHBOO | | BRP | 3JBUKAP28HK000036 | 0008CHGOO | | BRP | 3JBKKAP20HJ001016 | 0006YHA00 | | BRP | 3JBUGAR29HK001324 | 0008WHFOO | | BRP | 3JBVDAW21HK002307 | 0007SHA00 | | BRP | 3JBVGAW21HK000791 | 0007XHC00 | | BRP | 3JBLGAR26HJ002948 | 0005AHA00 | | BRP | YDV06988J617 | 00044HA00 | | BRP | YDV09408A717 | 00026HA00 | | BRP | 3JBKKAP24HJ001780 | 0006YHA00 | | BRP | 3JBLGAR28HJ003115 | 0002WHA00 | | BRP | YDV70229B717 | 00064HBOO | | BRP | 3JBUGAR25HK002194 | 0008WHJOO | | BRP | 5KTWS1314HF544146 | 000T5HD00 | | BRP | 5KTWS1316HF544147 | 000T5HD00 | | BRP | 5KTWS1418HF544150 | 000T5HT00 | | BRP | 5KTWS1310HF544158 | 000T7HD00 | | BRP | 5KTWS141XHF544151 | 000T5HT00 | | BRP | 3JBLKAJ28HJ001150 | 0002PHE00 | | BRP | YDV73871C717 | 00065HA00 | | BRP | YDV45570C717 | 00037HA00 | | BRP | 3JBUGAN27HK000050 | 0006WHC00 | | BRP | 3JBKGAN20HJ001070 | 0006THCOO |

Exhibit 1