Wells Fargo Commercial Distribution Finance, LLC v. McNider Marine, LLC et al
ORDER granting 11 Motion for Writ of Seizure. Plaintiff is ordered to submit a proposed writ of seizure. The alternative motion for order directing the defendants to turn over collateral is denied as moot. Signed by Chief Judge William H. Steele on 1/23/2017. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WELLS FARGO COMMERCIAL
DISTRIBUTION FINANCING, LLC,
MCNIDER MARINE, LLC, et al.,
) CIVIL ACTION 17-0002-WS-N
The plaintiff in this detinue action has filed a motion for prejudgment writ
of seizure or, in the alternative, for an order directing the defendants to turn over
collateral. (Doc. 11). The plaintiff invokes Alabama Rule of Civil Procedure
64(b), by way of Federal Rule of Civil Procedure 64(a).
The plaintiff seeks issuance of a writ of seizure without notice or a hearing.
Alabama Rule 64(b) provides for such relief if certain requirements are met. First,
the plaintiff must file an affidavit: describing the claimed property with sufficient
specificity; confirming the plaintiff’s right to possession and its source and
attaching a copy of any instrument on which the right is based; setting forth
specific facts showing the defendant’s wrongful detention and the cause thereof;
and setting forth specific facts showing a risk of concealment, transfer or other
disposition or damage to the property to the injury of the plaintiff before a hearing
could be had. Ala. R. Civ. P. 64(b)(1)(A)-(D). The plaintiff has filed an affidavit
meeting these requirements. (Doc. 11-1).
Second, the Court, upon examination of the complaint, the motion and the
affidavit and attachments thereto, must find a real risk of concealment, transfer or
other disposition of or damage to the property by permitting it to remain in the
defendants’ possession pending a hearing. Ala. R. Civ. P. 64(b)(2)(A)-(B). For
the reasons stated in these materials, the Court finds such a risk of transfer or other
disposition of the plaintiff’s collateral before a hearing could be held.1
The procedures of Rule 64(b) “are superimposed over the statutory
procedure that otherwise exists in such cases.” Ala. R. Civ. P. 64 committee
comments. Thus, in a detinue action such as this one, “the requirement of posting
a bond as a necessary step in obtaining prejudgment seizure as set forth at Code of
Ala., § 6-6-250, remains in effect ….” Id. The plaintiff has posted a bond
compliant with Section 6-6-250. (Doc. 12).
For the reasons set forth above, the motion for prejudgment writ of seizure
is granted. The plaintiff is ordered to submit a proposed writ of seizure that
includes all the provisions and language required by Alabama Rule 64(b) and
other applicable law.2 The plaintiff’s alternative motion for an order directing the
defendants to turn over collateral is denied as moot.3
DONE and ORDERED this 23rd day of January, 2017.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
Most importantly, but not exclusively, the Court notes the plaintiff’s evidence
that the defendants, after objection from the plaintiff, have continued to sell inventory out
of trust, including almost $70,000 in a single week prior to Christmas and over $11,000
since then. (Doc. 11-1 at 3-4, 16).
In submitting the proposed order to chambers, the plaintiff is to comply with the
District’s Administrative Procedure for Filing, Signing and Verifying Documents by
Electronic Means, available on the District’s website under the tab, “Electronic Case
Were it not moot due to the granting of the principal motion, the alternative
motion would be denied for failure to provide any briefing in support thereof.
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