PRODUCERS CREDIT CORPORATION v. FOOTE

Filing 14

ORDER granting 12 Motion for Default Judgment; Plaintiff shall have judgment and recover from Defendant the sum of $175,339.79 and $15,994.00 is attorneys' fees and costs. Signed by Judge Renee Marie Bumb on 9/26/2017. (tf, )

Sean C. Sheely
Sean P. Barry
HOLLAND & KMGHT LLP
3 1 West 52nd Street
New York, New York 10019
Telephone: [phone]
Telefax: 212-385-9010
Email: [e-mail]
[e-mail]

Attorneys for Plaint ‘if
Producers Credit Corporation
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PRODUCERS CREDIT
CORPORATION,
Civil Action No.
1 7-cv-02553-RMB-AMD

Plaintiff,
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against

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MICHAEL A. FOOTE,
Defendant.

DEFAULT JUDGMENT
Whereas, the Summons and Complaint of Plaintiff Producers Credit
Corporation (“Plaintiff’) in this action have been duly served on defendant Michael
A. Foote (“Defendant”). See Doc. # 8.

Whereas, Defendant has failed to plead or otherwise defend this action within

the time prescribed by the Federal Rules of Civil Procedure. See Does. # 11 at 2,
11-1 ¶2.
Whereas, on or about June 26, 2017, the Clerk of Court entered a Clerk’s

Entry of Default as to Michael A. Foote for failure to plead or otherwise defend.
THIS MATTER having come before the Court upon the motion of Plaintiff

Producers Credit Corporation (“Plaintiff’ or “Lender”) for default judgment against
Defendant, and based on the Complaint and other papers filed in this action,
It is onthis

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dayof

ORDERED that Plaintiffs Motion for Default Judgment is hereby

GRANTED; and it is
FURTHER ORDERED AND ADJUDGED that:

1.

On Plaintiffs First and Second Claims, Plaintiff shall have judgment

and recover from Defendant the sum of $175,339.79, which is comprised of
principal and interest due and owing under the underlying loan agreements, plus
-4—__—ifr interest from April 11, 2017 ath rae f4S6.

4—per day up to

and until the date of entry ofjudgment,alLthsun—n&that—

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2.

On Plaintiffs First and Second Claim, Plaintiff shall have judgment

and recover from Defendant the sum of $15,994, which is comprised of Plaintiffs
attorneys’ fees and costs associated with bringing this action.
3.

This judgment will bear interest at the rate applicable to judgments

issued by federal courts from the date of entry of judgment until the judgment is
satisfied.
4.

On Plaintiffs Third Claim, Robert D. Katz of Eisner Amper LLP (Katz

and EisnerArnper referred to herein as “Receiver”) is hereby appointed by the Court
to act as receiver of t4 epei&ena1 property pledged as security for repayment of the
loans from Plaintiff to Defendant Michael A. Foote (“Defendant” or “Borrower”)

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LIU All farm and business machinery, equipment and tools.
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Before performing its duties, the Receiver shall take a receiver’s oath

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in a form acceptable to the Court.
Unless agreed otherwise in writing by the Parties and filed under notice

6.

with this Court, the Receiver shall obtain a surety bond in the amount of $10,000 to
be provided by a corporate surety, guaranteeing the performance by him of the duties
and obligation of the oath of receivership, the bond shall be payable to this Court in
order to provide coverage to the Parties as their respective interests may appear for
loss due to acts of all agents, servants, and/or employees of the Receiver, and the
Bond shall be submitted to the Clerk of this Court for filing and approval by the
Clerk of the Court within twenty (20) days from the date of this Order.
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7.

The Receiver shall be and is hereby is empowered to take immediate

possession and control of uJithe Property,
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The Receiver shall prepare and file, within thirty (30) days from the

date he takes possession ofthe Property, a fill and detailed inventory to the best of
his knowledge, all the property and assets ofwhich he is hereby given custody.
9.

The Receiver shall immediately take possession of the Property and

shall retain custody of the Property until further order of this Court All persons or
entities now or hereafter in possession of the Property, or any part thereof, or any
other ofthe items entrusted to the Receiver shall forthwith surrender such possession
to the Receiver and shall not interfere in any way with the Property or the Receiver’s
efforts to safeguard or sell the Property. The Receiver is authorized to employ
agents, servants and employees, and to otherwise contract as necessary, for the
purpose of taking possession of; managing, and selling the Property, and carrying
out the terms ofthis Order.
10.

The Receiver shall use his best efforts to manage, preserve, protect and

maintain the Property in a reasonable, prudent diligent and efficient manner, and
may engage such employees or agents as are necessary or appropriate to accomplish
the foregoing. Without limitation of this general duty, the Receiver shall have the
following specific duties, rights and powers:

5

a. The Receiver shall not suffer, cause or permit: (i) any removal of any
of the Property; or (ii) any waste of the Property except as necessary to
cLlaid sell th

ps-aiiether Property.

b. Following entry of this Order and recovery of cash proceeds from the
Property, the Receiver shall establish and maintain, at a bank or savings
and loan association whose deposits are insured by the FDIC, a separate
operating account (the “Operating Account”).

The Receiver shall

deposit all proceeds from the Property and all monies received in
connection with the issuance of First Lien Certificates of Indebtedness
provided for under Paragraph 8 of this Order into the Operating
Account, from which the Receiver shall have the authority to withdraw
funds for the purpose of managing, preserving, protecting, and
maintaining the Receivership Property, and paying expenses pursuant
to the terms of this Order.
c. The Receiver is authorized to ia

iideetaml sell the Property in

a manner as the Receiver deems appropriate, to engage a broker or to
serve as broker or as auctioneer for the sale of the Property, to advertise
the sale of the Property and incur expenses the Receiver deems
necessary and appropriate to market and sell the Property. Receiver
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may otherwise sell cipan4-ether Property in the ordinary course of

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business. Unless otherwise ordered by this Court proceeds from the
any sale of any of the Property shall be held by the Receiver in the
Operating Account.
11.

Without further order of this Court, the Receiver may, upon written

agreement with Plaintiff; borrow up to $25,000 from Plaintiff for the performance
of his duties hereunder, and may issue First Lien Certificates of Indebtedness in
accordance with the provisions of this paragraph, the principal and interest
evidenced by each Certificate shall be a first and prior lien and security interest upon
the Property, and upon all monies generated by the Property. The lien of each
Certificate shall be prior and superior to the rights, titles and interests in the Property
of all parties to this action, as well as to the lien of Plaintiff (the “Security
Documents”). The lien of each Certificate shall be prior and superior to the interest
or lien or all judgment holders, mechanics’ lien claimants, stockholders and creditors
of Defendant Nothing in this Order shall limit any right of Plaintiff to advance
fluids under its Security Documents to the Receiver or other persons for the
maintenance, preservation and/or protection of the Property, which advances shall
be secured by Plaintiff’s existing liens. Nothing in this Order shall obligate Plaintiff
to advance all or any part ofthe borrowings authorized herein.

12.

The Receiver is directed to prepare on or before the 20th day of every

third month, commencing on the 20th day ofthe third full calendar month beginning
7

after the date of this Order, so long as all or any portion of the Property shall remain
in his possession, a full and complete report, under oath, setting forth all receipt and
disbursements, cash flow, and reporting of all material changes in the Property
during the period covered by the report. Each quarterly report shall include: (a) a
summary of all monies collected in that month specifying the date, source, and
amount of each payment received; (b) a monthly operating report showing all
expenditures from each trust account for that month broken down into categories
shown in the Budget; (c) a check listing showing all disbursements from each
account for that month; and (d) copies of the most recent statements for the
Operating Account. The Receiver is directed to serve a copy of each report on all
counsel of record in this action. The first quarterly report shall include an accounting
of receipts and disbursements related to the Property and a summary of
disbursements to any insiders or affiliated persons or entities within the last two
years that were not utilized for the operation or maintenance of the Property.

13.

Nothing herein shall be deemed to authorize the Receiver to undertake

any activity not specifically authorized in this Order, but if such activity is required
or permitted to be undertaken pursuant to further order of this Court, the Receiver
shall conduct such activity, in accordance with the terms of such further order.
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15.

Except as otherwise requested or authorized by the Receiver, Defendant

Michael A. Foote, his agents, employees, and anyone else is hereby prohibited from
interfering in any manner with the management of the Property by the Receiver.
Defendant may, however, cooperate and assist the Receiver, if requested by the
Receiver.

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tet to saiisW any1TNThy, anJ neiTher the Receiver norThis
nysuuhbga.

17.

The Receiver shall be entitled to collect a reasonable feejfor the time

expended and services rendered in connection with this receivership as follows:

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The Receiver shall
make application to this Court for payment of his fees.

persons

èxtent
Such fees and costs may also be paid by
Plaintiff and included under First Lien Certificates of Indebtedness under Paragraph

8 of this Order. If there is a timely written objection, then payment shall only be
made upon Order of this Court after notice to all parties.
18.

The Receiver is hereby empowered to employ independent legal

counsel to furnish legal advice and provide representation to the Receiver for such
purposes as may be necessary during the period of receivership. All the Receiver’s
attorneys’ fees to be paid by the Receiver shall be by application to the Court

Oder Alternatively, if appropriate, the Receiver may choose to use Plaintiffs
counsel.
19.

The Receiver may at any time upon notice to all parties, apply to this

Court for further or other instructions or powers, whenever such instructions or
additional powers shall be deemed necessary in order to enable him to perform
properly and legally the duties of his Receivership and to maintain, operate, protect
and preserve the Property.

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22.

This Court retains jurisdiction to resolve any controversy arising from

or relating to the provisions of this Order.
BY THE COURT:

Hon. Renée Marie Bumb, U.S.D.J.

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