CNH Industrial Capital America, LLC v. Parden Farms, Inc. et al

Filing 22

AMENDED FINAL CONSENT JUDGMENT OF REPLEVIN Signed by Chief District Judge Louis Guirola, Jr. on 3/27/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CNH INDUSTRIAL CAPITAL AMERICA, LLC
V.

PLAINTIFF

CIVIL ACTION NO.: 1:16-cv-00330-LG-RHW

PARDEN FARMS, INC. AND
HARVEY D. PARDEN

DEFENDANTS

AMENDED FINAL CONSENT JUDGMENT OF REPLEVIN
THIS DAY this cause came on for hearing on the Joint Motion to Amend Final Consent
Judgment of Replevin of CNH Industrial Capital America, LLC (“CNH”) and Parden Farms, Inc.
(“Borrower”) and Harvey D. Parden (DK#21), and the Court, having considered same, and having
been advised that Plaintiff and Defendants agree to the entry of this Amended Final Consent
Judgement of Replevin, is of the opinion that final judgment as to Count I: Replevin, should be
entered, and, based upon the agreement of the Plaintiff and the Defendants, makes the following
findings of fact and conclusions of law:
1.

This Court has jurisdiction over the subject matter of, and the parties to this action.

Venue is proper in this Court.
Loan No. 48121001
2.

On February 28, 2013, Borrower executed a Retail Installment Sale Contract and

Security Agreement (“Contract 1") in favor of CNH in the original principal amount of $37,801.50,
bearing interest at a rate of 10.74% per annum with a maturity date of March 1, 2018. Contract 1
is secured by a purchase money security interest in one Case IH Disk Harrows Model No. 340 (S/N.
YCD062486) (the “Contract 1 Collateral”).
3.

CNH perfected its purchase money security interest in the Contract 1 Collateral by

UCC-1 Financing Statement, Filing Number 20130973174A filed with the Secretary of State on

March 19, 2013.
4.

On February 22, 2016, Borrower agreed to a Payment Schedule Change Agreement

whereby the terms of Contract 1 were amended to extend date of the 2016 annual payment from
March 1, 2016 to May 1, 2016 and to adjust the amount of the 2016 payment.
5.

Borrower is in default under the terms of Contract 1. As of the date of the entry of

this Consent Judgement, Borrower is past due in the amount of $9,402.01, the amount required to
be paid under Contract 1, as modified, on May 1, 2016.
Loan No. 48121004
6.

On September 24, 2013, Borrower executed a Retail Installment Sale Contract and

Security Agreement (“Contract 2") in favor of CNH in the original principal amount of $19,920.70,
bearing interest at a rate of 10.74% per annum with a maturity date of September 24, 2018. Contract
2 is secured by a purchase money security interest in one Amadas Peanut Digger Model Number
830 (S/N 0590) (the “Contract 2 Collateral”).
7.

CNH perfected its purchase money security interest in the Contract 2 Collateral by

UCC-1 Financing Statement, Filing Number 20131147779A filed with the Secretary of State on
September 25, 2013.
8.

Borrower is in default under the terms of Contract 2. As of the date of the entry of

this Consent Judgement, Borrower is past due in the amount of $5,720.30, the amount requited to
be paid under Contract 2 on September 24, 2016.
Loan No. 48121006
9.

On December 26, 2013, Borrower executed a Retail Installment Sale Contract and

Security Agreement (“Contract 3") in favor of CNH in the original principal amount of $213,696.50,
bearing interest at a rate of 6.15% per annum with a maturity date of January 1, 2019. Contract 3

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is secured by a purchase money security interest in one Case IH Magnum Tractor Model No. 290
(S/N ZDRD03634) (the “Contract 3 Collateral”).
10.

CNH perfected its purchase money security interest in the Contract 3 Collateral by

UCC-1 Financing Statement, Filing Number 20131231727A filed with the Secretary of State on
December 31, 2013.
11.

On February 22, 2016, Borrower agreed to a Payment Schedule Change Agreement

whereby the terms of Contract 1 were amended to extend date of the 2016 annual payment from
January 1, 2016 to May 1, 2016 and to adjust the amount of the 2016 payment.
12.

Borrower is in default under the terms of Contract 3. As of the date of the entry of

this Consent Judgement, Borrower is past due in the amount of $41,500.89, the amount required to
be paid under Contract 3, as modified, on May 1, 2016.
Loan No. 6117011
13.

On December 31, 2014, Borrower executed a Retail Installment Sale Contract and

Security Agreement (“Contract 4") along with an Multiple Unit Addendum in favor of CNH in the
original principal amount of $276,273.92, bearing interest at a rate of 2.90% per annum with a
maturity date of January 1, 2020. Contract 4 is secured by a purchase money security interest in two
Case IH Tractors Model No.’s MAG275 (S/N ‘s Z9RZ06523 and Z9RZ04263), two Case IH
FM1000 Monitors Model No. RTK (S/N 5444501487 and 5444501488) and two Case IH
Controllers Model No. NAVII (S/N 5413500338 and 5428500537 (the “Contract 4 Collateral”).
14.

CNH perfected its purchase money security interest in the Contract 4 Collateral by

UCC-1 Financing Statement, Filing Number 20151553353A filed with the Secretary of State on
January 9, 2015 and then filed an Amended UCC-1 on March 3,2015, Filing Number
20151590657B.

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15.

On February 22, 2016, Borrower agreed to a Payment Schedule Change Agreement

whereby the terms of Contract 4 were amended to extend date of the 2016 annual payment from
January 1, 2016 to May 1, 2016 and to adjust the amount of the 2016 payment.
16.

Borrower is in default under the terms of Contract 4. As of the date of the entry of

this Consent Judgement, Borrower is past due in the amount of $52,852.01, the amount required to
be paid under Contract 4, as modified, on May 1, 2016.
Loan No. 61117012
17.

On May 21, 2015, Borrower executed a Retail Installment Sale Contract and

Security Agreement (“Contract 5") in favor of CNH in the original principal amount of $175,179.82,
bearing interest at a rate of 4.49% per annum with a maturity date of May 21, 2020. Contract 5 is
secured by a purchase money security interest in one Case IH Combine Model No. 8120AF (S/N
Y9G206745) and one Case IH 30 Foot Header Model No. 2162 (S/N YAZN12885)(the “Contract
5 Collateral”).
18.

CNH perfected its purchase money security interest in the Contract 5 Collateral by

UCC-1 Financing Statement, Filing Number 20151660714A filed with the Secretary of State on
May 27, 2015.
19.

Borrower is in default under the terms of Contract 5. As of the date of the entry of

this Consent Judgement, Borrower is past due in the amount of $36,315.09, the amount required to
be paid under Contract 5 on May 21, 2016.

Loan No. 62038007
20.

On February 28, 2014, Borrower executed a Retail Installment Sale Contract and

Security Agreement (“Contract 6") in favor of CNH in the original principal amount of $120,982.85,

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bearing interest at a rate of 7.99% per annum with a maturity date of March 1, 2019. Contract 6 is
secured by a purchase money security interest in one Case IH Planters Model No. 1230 (S/N
YCS029910) and one Bigham Brothers Strip Till Model No. 16R30 (S/N 1402025)(the “Contract
6 Collateral”).
21.

CNH perfected its purchase money security interest in the Contract 6 Collateral by

UCC-1 Financing Statement, Filing Number 20141285534A filed with the Secretary of State on
March 14, 2014.
22.

On February 22, 2016, Borrower agreed to a Payment Schedule Change Agreement

whereby the terms of Contract 6 were amended to extend date of the 2016 annual payment from
March 1, 2016 to May 1, 2016 and to adjust the amount of the 2016 payment.
23.

Borrower is in default under the terms of Contract 6. As of the date of the entry of

this Consent Judgement, Borrower is past due in the amount of $24,843.26, the amount required to
be paid under Contract 6, as modified, on May 1, 2016.
Loan No. 62038009
24.

On May 22, 2014, Borrower executed a Retail Installment Sale Contract and

Security Agreement (“Contract 7") in favor of CNH in the original principal amount of $174,423.88,
bearing interest at a rate of 2.95% per annum with a maturity date of May 22, 2019. Contract 7 is
secured by a purchase money security interest in one Case IH Magnum Tractor Model No. 340 (S/N
ZBRD06397 (the “Contract 7 Collateral”)
25.

CNH perfected its purchase money security interest in the Contract 7 Collateral by

UCC-1 Financing Statement, Filing Number 20141352509A filed with the Secretary of State on
June 2, 2014.
26.

On June 25, 2015, Borrower agreed to a Payment Schedule Change Agreement

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whereby the terms of Contract 7 were amended to extend date of the 2015 annual payment from May
22, 2015 to September 22, 2015 and to adjust the amount of the 2015 payment.
27.

Borrower is in default under the terms of Contract 7. As of the date of the entry of

this Consent Judgement, Borrower is past due in the amount of $38,597.46, the amount required to
be paid under Contract 7, as modified, on May 22, 2016.
28.

Pursuant to the terms and conditions of Contract 1, Contract 2, Contract 3,

Contract 4, Contract 5, Contract 6 and Contract 7 (collectively the “Contracts”) Borrower is liable
for reasonable costs and attorneys fees incurred by CNH in connection with the collection of sums
due under the Contracts.
29.

The Contracts are cross-collateralized. Contract 4, Contract 5, Contract 6 and

Contract 7 state:
Buyer hereby grants to Seller and its successors and assigns (including Assignee) a
first priority purchase money security interest in the Equipment, and in all
improvements, parts and accessories belonging to the Equipment, and al
substitutions, replacements, products, proceeds (including an insurance proceeds)
thereof and premium refunds, refunds of any other charges hereunder and all
accessions related to the Equipment . . . to secure payment and performance of all
existing and future obligations of Buyer under this Agreement or any other
agreement between Buyer and Seller, between Buyer and Assignee or any affiliate
of Assignee, or where Buyer, under another agreement in favor of Seller or Assignee,
is a guarantor or obligor.
30.

The Borrower is in default under the terms of the Contracts. The Plaintiff and the

Defendants have agreed that CNH is entitled to possession of the Contract 1 Collateral, Contract 2
Collateral, Contract 3 Collateral, Contract 4 Collateral, Contract 5 Collateral, Contract 6 Collateral
and Contract 7 Collateral (collectively the “Collateral”), but only on the terms and conditions of this
Consent Judgment.
31.

On November 1, 2016, the Court entered a Final Consent Judgment of Replevin (DK

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#20) which, among other things, required Parden Farms, Inc. to deliver $209,231.02 in past due
payments, $121,308.51 in payments becoming due in 2017 and $7,750.00 for reimbursement of an
agreed upon amount of attorneys fees incurred by CNH, for a total amount of $338,289.23. The
Consent Judgment required the payments to be made on or before November 17, 2016.
32.

On November 16, 2016 counsel for Parden Farms, Inc. contacted counsel for CNH

and advised that Parden Farms, Inc. had unexpected repairs that needed to be made to the equipment
and requested CNH to accept payment for the past due amounts and the attorneys fees, but to defer
all payments on all of the Contracts until December 1, 2017.
33.

CNH agreed to those terms on the following additional conditions:

(a)

The parties would enter into an Amended Consent Judgment reflecting the
modifications to the Consent Judgment agreed to by the Parties.

(b)

Adequate casualty insurance coverage would be in place on the subject equipment.
If adequate proof of insurance is not provided by Parden Farms, Inc., CNH may
declare Parden Farms, Inc. in default after written notice and a 14 day period to cure.

(c)

The balance of all legal fees, expenses and other charges incurred by CNH above
$7,750.00 shall be reflected in the business records of CNH as a portion of the
indebtedness until all Contracts are paid in full. Upon payment in full on all
Contracts, the attorneys fees, expenses and other charges above $7,750.00 will be
waived.

(d)

No further requests for extensions, deferrals or for Payment Schedule Changes will
be made by Parden Farms, Inc..

(e)

If there is a default under an Amended Consent Judgment or under the terms of the
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Contracts, as modified pursuant to an Amended Consent Judgment, no legal fees,
expenses or other charges incurred by CNH will be waived and will be due and
payable along with all other amounts due.
34.

Parden Farms, Inc. agreed to the additional conditions proposed by CNH. Thereafter,

Parden Farms, Inc. delivered the $219,446.33 to counsel for CNH.
IT IS THEREFORE ORDERED AND ADJUDGED that within a reasonable time after
the entry of this Amended Consent Judgment, CNH shall prepare and deliver to Defendants Payment
Schedule Changes to the Contracts reflecting the application of the $219,446.33 to the Contracts and
the modifying the Contract as follows: (i) deferring the next scheduled payment until no earlier than
December 1, 2017, (ii); deferring the annual payments under such Contracts thereafter to the same
day of each year following the 2017 deferred payment dates and extending the final maturity date
of the Contracts as appropriate; (iii) making annual payment adjustments to the Contracts as may
be appropriate to account for application of the past due payments and deferred payments; (iv)
where applicable, increasing the interest rate on any extensions of a Contract beyond the original
maturity date to the then current CNH standard rate, provided, however, that in the event the current
standard rate is in excess of 8.49% per annum, the rate on such extensions shall not exceed the rate
of 8.49% per annum; and (v) nothing contained in this paragraph shall require CNH to lower the
current rate of interest provided for in the Contracts, as modified; and
IT IS FURTHER ORDERED AND ADJUDGED that Defendant, Parden Farms, Inc. shall
ensure that the Collateral has casualty insurance coverage as required under the Contracts and
provide CNH evidence of such coverage. Should Parden Farms, Inc. fail to provide proof of such
insurance coverage, CNH may provide notice of the default to Parden Farms, Inc. If the default has
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not been cured within fourteen days of mailing of said notice, CNH may declare all of the Contracts
in default; and
IT IS FURTHER ORDERED AND ADJUDGED that the balance of attorneys fees,
expenses and other charges incurred previously or in the future in excess of the $7,750.00 previously
paid by Parden Farms, Inc. shall be reflected in the business records of CNH as a portion of the
indebtedness until all Contracts are paid in full. Upon payment in full on all Contracts, the attorneys
fees, expenses and other charges above $7,750.00 will be waived; and
IT IS FURTHER ORDERED AND ADJUDGED that in the event Defendants fail to
properly make and timely deliver all of the funds as provided for pursuant to the Payment Schedules
Changes on or before December 1, 2017 or to make any annual payment due under any one or more
of the Contracts, CNH shall entitled to immediate possession of the Collateral and Defendants shall
deliver the Collateral to dealers with whom CNH has entered into Master Storage Agreements and
will accept delivery of same, the identity of which shall be provided to Defendants, with such
delivery to take place within fourteen days of an event of default; and
IT IS FURTHER ORDERED AND ADJUDGED that should Defendants fail to properly
make and timely deliver the Collateral within fourteen days of the event of default, the United States
Marshall Service, or other lawful officer, shall seize the Collateral and deliver said Collateral to
CNH or its agent, and in the event the Collateral is located outside of the jurisdiction of the United
States District Court for the Southern District of Mississippi, the Defendants shall cause the
Collateral to be transported within the jurisdiction of the United States District Court for the
Southern District of Mississippi, Southern Division, within 5 calendar days of execution of this
Amended Consent Judgment; and
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IT IS FURTHER ORDERED AND ADJUDGED that failure of the Defendants to comply
with the preceding paragraph of this Amended Consent Judgment shall subject the Defendants to the
contempt powers of this Court, after notice and an opportunity for a hearing; and
IT IS FURTHER ORDERED AND ADJUDGED that upon obtaining possession of the
Collateral, CNH shall proceed with disposition of the Collateral pursuant to applicable Mississippi
law and the rights and obligations of the Plaintiff and the Defendants shall be governed accordingly,
provided, however, that Defendants acknowledge and agree that the redemption rights provided for
in Miss. Code Ann. §79-9-623 do not allow Defendants to redeem the Collateral on certain Contracts
and not others on account of the cross-collateralization provisions in the Contracts; and
IT IS FURTHER ORDERED AND ADJUDGED that no further requests for payment
schedule changes or deferral of payments shall be considered by CNH regardless of the reason for
the request and, in the event of an event of default, the balance of attorneys fees due to CNH under
the Contracts shall become due and payable along with all other amounts due under the Contracts;
and
IT IS FURTHER ORDERED AND ADJUDGED that there is no just reason for delay as
to entry of a final judgment as to Count I of the Complaint and the Court hereby certifies this Final
Judgment as a final judgment as to Count I pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure; and
IT IS FURTHER ORDERED AND ADJUDGED that as to Count II of the Complaint for
a monetary Judgment, this civil action is hereby held in abeyance pending further order of the Court
and the clerk is ordered not to dismiss the case for lack of prosecution; and
IT IS FURTHER ORDERED AND ADJUDGED that if no event of default occurs prior
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to December 15, 2017, counsel shall file a Rule 41 stipulation of dismissal in this civil action
dismissing same, without prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that if an event of default occurs prior
to December 15, 2017, upon motion of CNH, this civil action shall be returned to the active docket
of the Court for the enforcement of this Amended Consent Judgment and for such proceedings as
may be necessary for disposition of Count II of the Complaint.
SO ORDERED AND ADJUDGED this the 27th day of March, 2017.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
AGREED AND APPROVED:
BY:/s/William J. Little, Jr
William J. Little, Jr. MSB# 1287
Attorney for Plaintiff
BY:/s/Nathan A. Dickson, II
Nathan A. Dickson, II, MSB# 102186
Attorney for Defendants
Presented by:
William J. Little, Jr., MSB #1287
W. Jarrett Little, MSB #104812
LENTZ & LITTLE, P.A.
2505 14th Street, Suite 100
Gulfport, MS 39501
[phone]
[e-mail]
[e-mail]

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