Ford Motor Credit Company LLC v. Marco Ventures, Inc

Filing 11

TEMPORARY RESTRAINING ORDER AND SETTING HEARING ON APPLICATION FOR WRIT OF POSSESSION AND INJUNCTIVE RELIEF. Hearing on plaintiff's application for a writ of possession and injunctive relief is set for November 20, 2008, at 10:00 a.m. Defendant 's responsive papers shall be filed and served no later than November 12, 2008. Plaintiff's reply shall be filed and served no later than November 17, 2008. Signed by Judge Maxine M. Chesney on November 3, 2008. (mmclc1, COURT STAFF) (Filed on 11/3/2008)

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1 2 3 4 5 6 7 8 9 10 11 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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 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, 17 18 19 20 21 22 23 24 25 26 27 28 10872/0140/695077.1 Case No.: CV08-4906-MMC [PROPOSED] TEMPORARY RESTRAINING ORDER AND SETTING HEARING ON APPLICATION FOR WRIT OF POSSESSION AND INJUNCTIVE RELIEF Hearing Date: TBD Judge: Hon. Maxine M. Chesney Complaint Date: October 27, 2008 Defendant. The Application of Ford Motor Credit Company LLC ("Ford Credit"), a Delaware limited liability company, for the issuance of a temporary restraining order 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 temporary restraining order, 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 temporary restraining order and has established the probable validity that there is an immediate danger that the vehicles identified on the attached Exhibit A, the other [PROPOSED] TEMPORARY RESTRAINING ORDER U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personal property described in the attached Exhibit B and the proceeds from the sale of any such vehicle or other personal property (collectively the "Collateral"), may become unavailable to levy and may become substantially impaired in value, and GOOD CAUSE APPEARING, THEREFORE, IT IS HEREBY ORDERED that: 1. Defendant Marco Ventures, Inc., dba Ford of Marin ("Ford of Marin") has received timely and proper notice of this hearing on Plaintiff Ford Credit's Application for Writ of for Temporary Restraining Order Possession and Injunctive Relief under the Court's Local Rules. 2. Ford Credit has established the probable validity of its security interest in, and claim to possession of, the vehicles identified on the attached Exhibit A and all of Ford of Marin's furniture, fixtures, machinery, supplies and other equipment, all motor vehicles, tractors, trailers, implements, service parts and accessories and other inventory of every kind, all accounts, contract rights, chattel paper and general intangibles as described in the attached Exhibit B, that Defendant Ford of Marin is in default on its loan obligations owing to Ford Credit as set forth in the moving papers and that Ford of Marin has not been open for business since October 10, 2008. 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. Ford of Marin may sell or lease the Collateral in the ordinary course of business only as provided in this Order: a. At the time of any retail sale or lease of any Vehicle, Ford of Marin shall immediately notify Ford Credit of such sale or lease via email to the following email address: jpolley@ford.com and by promptly delivering or faxing to Ford Credit a true copy of the written contract of such retail sale or lease. b. Ford of Marin shall turn over possession to Ford Credit and Ford Credit shall maintain physical custody of titles for all vehicles in which Ford Credit has a lien or security interest, whether or not financed by Ford Credit. 10872/0140/695077.1 -2- [PROPOSED] TEMPORARY RESTRAINING ORDER U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10872/0140/695077.1 c. Within the earlier of five business days from retail sale or lease of a Vehicle identified on the attached Exhibit A, or one business day from Ford of Marin's receipt of any of the sale proceeds for any retail sale or lease of a Vehicle, including any Vehicle identified on Exhibit A that has been sold or leased on or before the date of this Order for which defendant Ford of Marin received proceeds before or after the date of this Order, Ford of Marin shall immediately and forthwith remit to Ford Credit by electronic funds transfer all amounts received by Ford of Marin up to the amount advanced by Ford Credit to Ford of Marin to acquire the vehicle (the "Advanced Price"). Any proceeds in excess of the Advanced Price on a particular vehicle may be retained by Ford of Marin to use towards its operating expenses. Ford Credit's security interest continues to attach to the proceeds in excess of the Advanced Price to the extent they are not used to cover operating expenses; d. Within the earlier of five business days from sale or lease of a vehicle not identified on the attached Exhibit A (the "Non-Floored Vehicles"), or one business day from Ford of Marin's receipt of any of the "cash" proceeds of such sale or lease of a Non-Floored Vehicle, Ford of Marin shall immediately and forthwith remit to Ford Credit by electronic funds transfer or other immediately available funds received by Ford of Marin in the amount of 75% of Ford of Marin net sale price of the Non-Floored Vehicle after payment of taxes, registration, and licensing. e. Should Ford of Marin receive any vehicle as a "trade-in" for the payment of a Vehicle or a Non-Floored Vehicle, Ford of Marin shall notify Ford Credit within one business day of receiving the trade-in by email to the following email address: jpolley@ford.com. Furthermore, Ford of Marin shall promptly pay or satisfy any liens or amounts owing against the trade-in -3- [PROPOSED] TEMPORARY RESTRAINING ORDER U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10872/0140/695077.1 Vehicle. Ford of Marin may subsequently sell the trade-in as a Non-Floored Vehicle in accordance with subparagraphs a, b, c and d above; f. Trades or transfers of Vehicles by Ford of Marin with other dealers ("Dealer Trades") are prohibited without the written consent of Ford Credit. Requests for Dealer Trades shall be made via email to the following email address: jpolley@ford.com; g. h. Ford of Marin shall limit the use of Demonstrators to customer test drives. Ford of Marin may sell parts, accessories, or related supplies ("Parts") in the ordinary course of its service department's business only as follows: Ford of Marin shall use the proceeds from the cost of the Parts sold to either (1) buy replacement Parts, or (2) pay Ford of Marin's invoice cost on account of part's sales, in the form of cashier's checks or other immediately available funds to Ford Credit. While Ford of Marin continues to use parts, it must replenish the parts inventory to adequately protect and maintain Ford Credit's collateral position. Ford of Marin shall submit to Ford Credit a written accounting upon its request of the following: (i) (ii) (iii) 5. Parts sold the previous week; Parts ordered as replacements the previous week; and, Payment for any parts not replaced the previous week. Ford of Marin is restrained from removing any of the Collateral in such manner as to make it less available to seizure by levying officer and/or impairing the value of the subject Collateral. Ford of Marin shall permit Ford Credit and its authorized agents and employees to 619 E. Francisco Blvd., San Rafael, California enter upon Ford of Marin's Dealership sales lot at 201 Auto Mall Parkway, Vallejo, California during business operating hours. Ford Credit shall be authorized to hold possession of keys to all vehicles, to be present while all mail and other package deliveries are opened and to review the cash receipts journals on a daily basis. Ford Credit is authorized to conduct audits and inspections of the 6. -4- [PROPOSED] TEMPORARY RESTRAINING ORDER U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Collateral and Ford of Marin's books and records. Ford of Marin shall deliver copies of all bank statements to Ford Credit within one hour of receipt by Ford of Marin of such statements each day. 7. The Court finds, for the purposes of this Order, that the value of Ford of Marin's assets is approximately $2,379,219.47, which is less than the principal amounts of the contractual obligations totaling $2,870,856.09 it owes to Ford Credit by $491,636.62. Under California Code of Civil Procedure 515.010(b), Ford Credit is not required to file an undertaking. The findings in this paragraph 7, in particular, and the finding in this order, generally, are subject to review and reconsideration at the time of the hearing set for the writ of possession and injunctive relief. 8. Hearing on Ford Credit's application for writ of possession and injunctive relief is set November 10 a in this Courtroom on ___________ 20 2008, at _____ __.m. Ford of Marin shall file and serve ___, November 12 any responsive papers no later than ___________ ___, 2008. Ford Credit shall file any reply papers November 17 no later than ___________ ___, 2008. Service of Ford of Marin's response or Ford Credit's reply may be made by facsimile. 9. In the event that Ford of Marin violates any term or terms of this Temporary Restraining Order, Ford Credit may file an ex parte application to enforce the Temporary Restraining Order in the manner provided by the Local Rules. The Court may review such ex parte application prior to the date of the hearing on the writ of possession and injunctive relief and the Court may enter an order to enforce the terms of this Temporary Restraining Order as reasonably necessary, including, but not limited to, issuing an immediate order for writ of possession or turnover of funds or imposition of sanctions. 10. Ford Credit may immediately place a security guard(s) on the Dealership premises who shall be authorized to remain at the Ford of Marin Dealership at all times until all the Collateral is removed from the Dealership and may utilize the assistance of law enforcement agencies in order to deter the removal of any Collateral from the Dealership premises. November 3 4 _.m. 11. This order shall issue October ___, 2008, at ____ p \\\ \\\ 10872/0140/695077.1 -5- [PROPOSED] TEMPORARY RESTRAINING ORDER U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. This Order shall remain in effect until modified by further order of this Court, or modified by written agreement signed by plaintiff Ford Credit and defendant Ford of Marin filed with and approved by order of this Court. November 3, 2008 DATED: ___________________________ ____________________________________ Hon. Maxine M. Chesney United States District Court Judge 10872/0140/695077.1 -6- [PROPOSED] TEMPORARY RESTRAINING ORDER U.S.D.C. CASE NO. CV08-4906-MMC (NORTHERN)

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