Commission Receivables Fund 1, LLC v. McIlwain et al

Filing 61

ORDER AND JUDGMENT - Judgment is entered in favor of the plaintiff and against defendant Seniors Choice Insurance Group, Inc. in the amount of One Hundred Eighty-Five Thousand, Three Hundred Thirty-Two Dollars ($185,332.00), together with int erest at the legal rate accruing from this date. The Clerk of Court is directed to shall mail a copy of this order to Seniors Choice Insurance Group, Inc., 1716 E. Ozark Ave., Gastonia, North Carolina 28054 and Tommie E. McIlwain, Sr., 2300 Shady Pine Court, Gastonia, North Carolina 28054. Ordered by Judge Joseph F. Bataillon. (Copies mailed as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COMMISSION RECEIVABLES FUND 1,
LLC, a Nebraska Limited Liability
Company;

8:11CV131

Plaintiff,
ORDER AND JUDGMENT
vs.
TOMMIE E. MCILWAIN, SR., SENIORS
CHOICE INSURANCE GROUP, Inc., an
Agency;
Defendants.
THIS MATTER is before this court on the plaintiff’s motion for default judgment against
defendant Seniors Choice Insurance Group, Inc. (“Seniors Choice”). This is an action for
breach of contract. The court has jurisdiction under 28 U.S.C. § 1332.
Defendant Seniors Choice Insurance Group, Inc. (“Seniors Choice”) was afforded an
opportunity to obtain substitute counsel or show cause why entry of default should not be filed.
Filing No. 39. Seniors Choice failed to respond or obtain substitute counsel and the court
ordered the Clerk of Court to enter default against it. Filing No. 47, Order; Filing No. 48,
Clerk’s entry of default. The action was referred to the bankruptcy court after a suggestion in
bankruptcy was filed. Filing No. 55, Suggestion in Bankruptcy; Filing No. 56, Order. The
bankruptcy court recommended that the court stay the action against defendant Tommie E.
McIlwain, Sr., the debtor, under 11 U.S.C. § 362, but withdrew the reference of the proceeding
against the nondebtor defendant, Seniors Choice. Filing No. 57, Report & Recommendation.
Thereafter, the plaintiff reasserted its motion for default judgment.
The evidence offered in support of the motion for default judgment shows that on or
about July 3, 2009, Seniors Choice executed a Commission Receivables Purchase Agreement
(“2009 RPA”) with Commission Receivables under the terms of which it agreed to sell and
assign to Commission Receivables future renewal commissions on certain designated
insurance policies. Filing No. 60, Index of Evid., Ex. 3, Supplemental Affidavit of Bryan Neary.
Paragraph 2.2 of the 2009 RPA prohibited defendant from soliciting, marketing or causing any
insured of the assigned policies to terminate, cancel, or lapse the policies or engage in any

activity whatsoever that could reasonably cause or encourage an insured to cancel, lapse or
terminate the assigned policies. The plaintiff has shown that as a proximate result of Seniors
Choice’s breach of the 2009 RPA, Commission Receivables has been damaged in the amount
of One Hundred Eighty-Five Thousand, Three Hundred Thirty-Two Dollars ($185,332.00) in
lost commissions through the life of the 2009 RPA. Id., Neary Aff. at 3, Ex. A; see also Filing
No. 51, Index of Evid., Ex. 2, Affidavit of Bryan Neary.
The record shows that notice of the motion for default judgment was delivered by mail to
Tommie E. McIlwain, Sr., at 2300 Shady Pine Court, Gastonia, NC 28054, and to defendant
Seniors Choice by mail to Tommie E. McIlwain, Sr., as an officer of Seniors Choice Insurance
Group, Inc., at its principal place of business, 1716 E. Ozark Avenue, Gastonia, North Carolina
28054. See Filing No. 59, Notice of Electronic Filing; Motion at 3 (certificate of service). No
response to the motion has been filed. Accordingly, the court finds the plaintiff is entitled to
default judgment.
IT IS ORDERED:
1.

Judgment is entered in favor of the plaintiff and against defendant Seniors

Choice Insurance Group, Inc. in the amount of One Hundred Eighty-Five Thousand, Three
Hundred Thirty-Two Dollars ($185,332.00), together with interest at the legal rate accruing
from this date.
2.

The Clerk of Court is directed to shall mail a copy of this order to
Seniors Choice Insurance Group, Inc.
1716 E. Ozark Ave.
Gastonia, North Carolina 28054
Tommie E. McIlwain, Sr.
2300 Shady Pine Court
Gastonia, North Carolina 28054

DATED this 14th day of June, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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