Ford Motor Credit Company LLC v. Marco Ventures, Inc, No. 3:2008cv04906 - Document 17 (N.D. Cal. 2008)

Court Description: ORDER GRANTING PLAINTIFF'S APPLICATION FOR WRIT OF POSSESSION AND FOR INJUNCTIVE RELIEF. Signed by Judge Maxine M. Chesney on November 19, 2008. (Attachment: # 1 Exhibits)(mmclc1, COURT STAFF) (Filed on 11/19/2008)
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Ford Motor Credit Company LLC v. Marco Ventures, Inc 1 2 3 4 5 6 7 Doc. 17 DUANE M. GECK (State Bar No. 114823) DONALD H. CRAM (State Bar No. 160004) ANDREW S. ELLIOTT (State Bar No. 254757) SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Email: dhc@severson.com Attorneys for Plaintiff FORD MOTOR CREDIT COMPANY LLC 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 12 FORD MOTOR CREDIT COMPANY LLC, a Delaware Limited Liability Company, 13 Plaintiff, 14 vs. 15 MARCO VENTURES, INC., a California 16 Corporation, dba FORD OF MARIN, Defendant. 17 Case No.: CV08-4906-MMC [PROPOSED] ORDER FOR WRIT OF POSSESSION GRANTING PLAINTIFF’S APPLICATION FOR WRIT OF POSSESSION AND FOR INJUNCTIVE RELIEF Judge: Hon. Maxine M. Chesney Complaint Date: October 27, 2008 18 19 20 21 22 23 24 25 26 27 28 The Application of Ford Motor Credit Company LLC (“Ford Credit”), a Delaware limited liability company, for the issuance of an order for writ of possession and for injunctive relief came on before the Honorable Maxine M. Chesney, United States District Court Judge for the Northern District of California. The Court, having reviewed the application of Ford Credit for writ of possession and injunctive relief, the supporting declarations and memorandum of points and authorities and the complaint on file in this action, and any opposition filed to the application, finds that Ford Credit has established that it is entitled to the issuance of a Writ of Possession and has established the probable validity that there is an immediate danger that the vehicles identified on the attached 10872/0140/695043.1 [PROPOSED] ORDER FOR WRIT OF POSSESSION U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) Dockets.Justia.com 1 Exhibit A, the other personal property described in the attached Exhibit B and the proceeds from 2 the sale of any such vehicle or other personal property (collectively the “Collateral”), may become 3 unavailable to levy and may become substantially impaired in value, and 4 GOOD CAUSE APPEARING, THEREFORE, 5 IT IS HEREBY ORDERED that: 6 1. Defendant Marco Ventures, Inc., dba Ford of Marin (“Ford of Marin”) has received 7 timely and proper notice of this hearing on Plaintiff Ford Credit’s Application for Writ of 8 Possession and Injunctive Relief under the Court’s Local Rules. 9 2. Ford Credit has established the probable validity of its security interest in, and claim 10 to possession of, the vehicles identified on the attached Exhibit A and all of Ford of Marin’s 11 furniture, fixtures, machinery, supplies and other equipment, all motor vehicles, tractors, trailers, 12 implements, service parts and accessories and other inventory of every kind, all accounts, contract 13 rights, chattel paper and general intangibles as described in the attached Exhibit B, that Defendant 14 Ford of Marin is in default on its loan obligations owing to Ford Credit as set forth in the moving 15 papers and that Ford of Marin has not been open for business since October 10, 2008. 16 17 18 19 3. Ford Credit has established that the Collateral is located at Ford of Marin’s place of business at 619 E. Francisco Boulevard, San Rafael, California 94901 (the “Dealership”). 4. The Clerk of this Court shall issue a writ of possession as provided in California 20 Code of Civil Procedure section 512.010, made applicable by Federal Rule of Civil Procedure 64, upon Ford Credit's submission to the Clerk of a proposed writ of possession. 5. The levying officer may enter the following private places at any time or times, using 21 any necessary reasonable force, whether the premises are occupied or unoccupied, to take 22 possession of the Collateral or some part thereof: 619 E. Francisco Boulevard, San Rafael, 23 California 94901. 24 6. The levying officer within whose jurisdiction the Collateral, or some part thereof, is 25 located, is authorized to execute the Writ of Possession and levy on the Collateral in either of the 26 following manners as directed by Ford Credit: 27 28 10872/0140/695043.1 -2- [PROPOSED] ORDER FOR WRIT OF POSSESSION U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 a. The levying officer may seize the Collateral and retain custody of it 2 in the manner provided by California Code of Civil Procedure 3 sections 514.010 - 514.050; or b. 4 The levying officer within whose jurisdiction the Collateral, or some part thereof, is located may maintain the peace while Ford Credit, its 5 agents and employees take and maintain possession of the Collateral 6 in the manner provided by California Code of Civil Procedure 7 sections 514.010 - 514.050. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7. Upon delivery of the Collateral to Ford Credit, the United States Marshal Service shall be held harmless as to the transport, storage, and maintenance of the Collateral. 8. Ford Credit is to store the Collateral in a reasonable manner and either Ford Credit or the storage facility shall carry sufficient insurance to protect the Collateral from loss prior to its sale or disposition. Ford Credit shall dispose of the Collateral in the manner provided under the California Uniform Commercial Code. 9. Ford Credit has established that it has a security interest in all accounts of Ford of Marin. Ford Credit is authorized under this Order and the Writ of Possession to take possession of all Collateral in the deposit accounts of Ford of Marin wherever located. Ford Credit is authorized to have the United States Marshal serve a financial institution levy upon any financial institution with possession of Collateral for turnover of the Collateral in the Accounts to Ford Credit through the United States Marshal in the manner provided under California Code of Civil Procedure section not ^ 704.080. Neither Ford of Marin shall issue checks, drafts or other form of withdrawals from the Accounts from the date of the issuance of this Order except to make payment to Ford Credit. 10. Ford of Marin shall deliver and turn over the Collateral to Ford Credit as provided by California Code of Civil Procedure section 512.070. Ford Credit will then hold the Collateral for not less than 10 days in order to allow Ford of Marin an opportunity to obtain redelivery of the Collateral pursuant to Cal. Code of Civ. Proc. §514.030. 11. Ford Credit is authorized to use a single USM-285 form which will refer to a list including all motor vehicles comprising the Collateral and identifying each motor vehicle 28 10872/0140/695043.1 -3- [PROPOSED] ORDER FOR WRIT OF POSSESSION U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 specifically by make, model, year, and vehicle identification number. The levying officer is directed 2 to accept such form in full compliance with its procedures requiring the use of form USM-285. 3 12. The writ of possession shall issue forthwith. The Court waives any filing or posting 4 of an undertaking or bond by Ford Credit as the Court is permitted and authorized to do under 5 California Code of Civil Procedure section 515.010(b). The Court finds, for the purposes of this 6 Order, that the value of Ford of Marin’s assets is approximately $2,379,219.47 which is less than the 7 principal amounts of the contractual obligations totaling $2,870,856.09 it owes to Ford Credit by 8 $491,636.62. Under California Code of Civil Procedure §515.010(b), Ford Credit is not required to 9 file an undertaking. 10 13. 11 The written undertaking required by Ford of Marin for redelivery or to stay delivery shall be in the amount of $2,870,856.09. 12 14. The Clerk of this Court shall attach a copy of this Order to the writ of possession. 13 15. Ford Credit’s representatives shall, if the levying officer so requests, accompany the 14 levying officer to the business premises described above, to review and examine Ford of Marin’s 15 books and records relating to the vehicles and parts constituting the Collateral in order to determine 16 the status, location and time and date of return of any Collateral. Ford Credit’s representative is 17 authorized to remain at the Ford of Marin Dealership at all times until all the Collateral is removed 18 from the Dealership and until it has completed its inspection of Ford of Marin’s books and records. 19 20 21 16. The levying officer is authorized to remain on Ford of Marin’s business premises at all times until all the Collateral is removed from the Dealership. 17. Brasher’s Sacramento Auto Auction, and/or its authorized agents and assigns, is 22 authorized to act as substitute custodian (“Substitute Custodian”) of any and all items of personal 23 property that is located and seized within the State of California pursuant to this Order, and as 24 Substitute Custodian it shall hold harmless the United States Marshal Service from liability arising 25 from any acts, incidents, or occurrences in connection with the seizure and possession of the 26 personal property located at the Collateral arising in the ordinary, authorized scope of the duties of 27 the United States Marshal (which acts do not include acts arising from negligent or intentional 28 10872/0140/695043.1 -4- [PROPOSED] ORDER FOR WRIT OF POSSESSION U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 tortious conduct), including any third-party claims, and the United States Marshal shall be 2 discharged of his or her duties and responsibilities for safekeeping of the seized goods. Brasher’s 3 Sacramento Auto Auction is located at 6233 Blacktop Road, Rio Linda, CA 95673, (telephone: 4 (916) 991-5555). The United States Marshal shall request proof of insurance from the Substitute 5 Custodian before surrendering the Collateral to the Substitute Custodian. 6 18. The United States Marshal while accomplishing such seizure shall employ whatever 7 reasonable force that is necessary to break open and enter the Subject Property, regardless of 8 whether said premises and/or location is locked or unlocked or occupied or unoccupied, and to 9 inspect the contents of any parking lot, garage, room, vehicle, container or desk or document. 10 IT IS FURTHER ORDERED THAT: 11 19. Ford of Marin, its agents, employees, and all persons acting for it or on its behalf, are 12 hereby immediately restrained and enjoined from transferring any interest in the Collateral by lease, 13 sale, pledge, gift, or grant of security interest or otherwise disposing of, encumbering, secreting or 14 transferring possession of the Collateral, in any manner which would prevent, hinder, or delay the 15 levying officer from taking possession of the Collateral. 16 20. Defendant Ford of Marin, its agents, employees and anyone acting on its behalf, are 17 enjoined and restrained from transferring any interest by sale, pledge, gift or grant of security 18 interest or otherwise disposing of, or encumbering the Collateral identified on the attached Exhibits 19 A and B. 20 21. In the event that Ford of Marin ceases to conduct business, Ford Credit is authorized 21 to have all mail to be delivered to Ford of Marin redirected to a post office box that Ford Credit will 22 maintain for the purpose of receiving Ford of Marin’s mail. Ford Credit will be authorized to open 23 the mail to Ford of Marin and to take possession of all money paid to Ford of Marin and to endorse 24 all checks, money orders, and other forms of payment to Ford Credit and to apply the funds to the 25 contract balances owing by Ford of Marin to Ford Credit. Ford of Marin, its officers, or its 26 appointed employees are agents are permitted to be present when Ford Credit opens any such 27 28 10872/0140/695043.1 -5- [PROPOSED] ORDER FOR WRIT OF POSSESSION U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 redirected mail. The parties shall cooperate in scheduling a reasonable time for the opening of the 2 redirected mail. 3 22. Ford Credit may immediately place a security guard(s) on the Dealership premises 4 who shall be authorized to remain at the Ford of Marin Dealership at all times until all the Collateral 5 is removed from the Dealership and may utilize the assistance of law enforcement agencies in order 6 to deter the removal of any Collateral from the Dealership premises. 7 23. 12 p.m. 19 2008, at ____ This order shall issue November ___, 8 24. This Order shall remain in effect until modified by further order of this Court, or else 9 10 is modified by written agreement signed by Plaintiff Ford Credit and Defendant Ford of Marin filed with and approved by order of this Court. 11 12 DATED: November 19, 2008 13 ____________________________________ Hon. Maxine M. Chesney United States District Court Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10872/0140/695043.1 -6- [PROPOSED] ORDER FOR WRIT OF POSSESSION U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN)