Center Capital Corporation v. Apex Homes, Inc. et al

Filing 10

ORDER granting 2 Motion for claim and delivery of property. Signed by District Judge Frank D. Whitney on 7/2/2012. (blf)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION DOCKET NO. 3:12-CV-404 CENTER CAPITAL CORPORATION, n/k/a WEBSTER CAPITAL FINANCE, INC., Plaintiff, vs. APEX HOMES, INC. and LEONARD R. WATTS, Defendants. ) ) ) ) ) ) ORDER and NOTICE OF HEARING ) ) ) ) ) ) THIS MATTER is before the Court upon Plaintiff’s Motion for Claim and Delivery of Property (Doc. No. 2). Plaintiff’s make their motion pursuant to Fed. R. Civ. P. 64 and N.C. Gen. Stat. § 1-472 to 1-484.1. TAKE NOTICE that this matter is hereby referred to The Honorable Magistrate Judge David S. Cayer for a hearing on Plaintiff’s Motion (Doc. No. 2). Judge Cayer will issue a notice of hearing specifying a date and time pursuant to N.C. Gen Stat. § 1-474.1(a). Plaintiff is ORDERED to serve this Order and the Notice herein upon Defendants in the manner prescribed by Fed. R. Civ. P. 4. and shall file proof of service or waiver thereof prior to the hearing. See N.C. Gen. Stat. § 1-474.1(a). As permitted under N.C. Gen. Stat. § 1-474.1 (b), Plaintiff may seek a waiver of hearing to be mailed to Defendants. Plaintiff should also be prepared to post a bond in the amount of $2,800,000 should their motion be granted. See N.C. Gen. Stat. § 1-475 (noting that Plaintiff must post a bond in double the value of the property, as stated in the affidavit); (Doc. No. 4, ¶ 11) (“The actual value of the Equipment is believed to be approximately $1,400,000"). ************************************************ NOTICE TO: APEX HOMES, INC. / LEONARD R. WATTS WARNING: DO NOT WILLFULLY DISPOSE OF, REMOVE, OR PERMIT THE REMOVAL FROM THE STATE OF NORTH CAROLINA, OR CAUSE OR PERMIT WILLFUL DAMAGE OR DESTRUCTION OF THE PROPERTY DESCRIBED BELOW OR YOU MAY BE HELD IN CONTEMPT OF COURT AND MAY BE FINED AND IMPRISONED. PLEASE TAKE NOTICE that Center Capital Corporation, n/k/a Webster Capital Finance, Inc. (“Center Capital”) has applied to this Court for an Order for Claim and Delivery of the property described below. If you want to present reasons why you should not have the property taken from you, then you should appear at a hearing before The Honorable Magistrate Judge David S. Cayer1 because Center Capital has sworn that you wrongfully hold the following property (“The Property”) and that it is entitled to The Property. DESCRIPTION OF THE PROPERTY: One (1) 2003 Cessna model 208B airplane bearing manufacturer’s serial number 208B1253 and FAA registration number N208AH along with one (1) Pratt and Whitney model PT6A-114 engine bearing manufacturer’s serial number PCE-PC1395 (generically described on the International Registry as Pratt & Whitney Canada PT6A Series PC1395) as further described in Schedule A attached hereto and made a part hereof and any and all equipment financed by Secured Party, from time to time, pursuant to that certain Aviation Master Loan and Security Agreement No. 57327 dated January 17, 2008, including any and all rotors, propellers, engine(s), instruments, avionics and all equipment attached thereto or connected therewith, whether connected to one another or not, all accessories, accessions, substitutions, replacement parts, replacements, attachments, logs, manuals, flight records, maintenance records, proceeds and insurance proceeds, plus any and all chattel paper, accounts, contract rights, payment intangibles and general intangibles arising from the sale, lease, or other disposition thereof. At the hearing, Center Capital will present evidence, and you are allowed to present evidence. You may bring an attorney to this hearing. Upon the basis of the evidence presented, the 1 Judge Cayer will file a notice of hearing setting the exact date and time at a later date. Magistrate Judge will decide whether or not to issue an order directing the U.S. Marshall to take The Property until a trial on the merits is held. You are hereby ORDERED: (a) Not to willfully dispose of The Property in any manner; (b) Not to remove or permit removal of The Property from the State of North Carolina; (c) Not to operate the subject aircraft in any manner; and (d) Not to cause or permit damage or destruction of any part of The Property. If you fail to comply with this Order, and it is finally determined that Center Capital is entitled to the possession of the property, you may be found guilty of contempt of court and may be filed or imprisoned as provided by law. If you have any questions about the hearing, you may contact an attorney or the clerk of court prior to the hearing. IT IS SO ORDERED. Signed: July 2, 2012