Crestmark v. Simon Automotive, LLC et al

Filing 5

ORDER denying without prejudice 3 Plaintiff's Ex Parte Motion to Appoint Receiver.. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
CRESTMARK,
Plaintiff,
v.

Case No. 20-11396

SIMON AUTOMOTIVE, LLC, et al.,
Defendants.
__________________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S EX PARTE MOTION TO
APPOINT RECEIVER
Plaintiff Crestmark brings this action for breach of contract against Defendants
Simon Automotive, LLC, Simonxpress Pizza, LLC, Simon Stores Corporation, SE
Corporation of Michigan, Simon’s Enterprise Inc., 643 Telegraph, LLC, Pinkney
Petroleum, LLC, Cactus Shell, LLC, Simon Land Development Group, LLC, and Fawzi
Simon. (ECF No. 1.) Plaintiff alleges that it provided two separate loans, one to
Defendant Simon Automotive and one to Defendant Simonxpress Pizza, for the
purchase of equipment. (Id., PageID.4-5, ¶¶ 16, 19.) Defendants Simon, Simon Stores
Corporation, SE Corporation of Michigan, Simon’s Enterprise, 643 Telegraph, Pinkney
Petroleum, Cactus Shell, and Simon Land Development Group allegedly guaranteed
the loans. (Id., PageID.4-5, ¶¶ 17-18, 20-21.) Plaintiff claims Defendant Simon controls
Defendant companies, intermingles funds, and uses the entities “as his own personal
checkbook.” (Id., PageID.10, ¶ 35.)

Plaintiff has filed an ex parte “Motion to Appoint Receiver over the Businesses of
Defendants Simon Automotive, LLC and Simonxpress Pizza, LLC.” (ECF No. 3.)
Plaintiff asserts “[i]t is beyond dispute that all Defendants have defaulted in their to
contractual obligation to repay the [debts owed Plaintiff],” and further argues a receiver
is necessary to protect and preserve assets secured by the loan agreements. (Id.,
PageID.67, 74, 85-86.)
Plaintiff admits Defendants have not been served. (Id., PageID.67.) Plaintiff does
not claim service is impractical, nor does it assert it has made good faith, yet failed,
attempts to complete service.
The court will deny without prejudice Plaintiff’s ex parte motion. After Plaintiff has
completed service of Defendants, it may refile its motion. Defendants will then have an
opportunity to respond. Accordingly,
IT IS ORDERED that Plaintiff’s “Ex Parte Motion to Appoint Receiver over the
Businesses of Defendants Simon Automotive, LLC and Simonxpress Pizza, LLC” (ECF
No. 3) is DENIED WITHOUT PREJUDICE.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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Dated: June 8, 2020
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 8, 2020, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\20-11396.CRESTMARK.ExParteMotiontoAppointReciever.RMK.docx

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