Commercial Credit Group Inc. v. Protege Excavation, Inc.

Filing 49

DEFAULT JUDGMENT by District Judge Kenneth J. Gonzales in favor of Plaintiff against Protege Excavation, Inc. (tah)

Case 1:19-cv-00558-KG-JHR Document 49 Filed 10/13/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
COMMERCIAL CREDIT GROUP INC.,
Plaintiff,
Case No. 1:19-cv-00558-KG-JHR
v.
PROTEGE EXCAVATION, INC.,
Defendant.
DEFAULT JUDGMENT AGAINST DEFENDANT PROTÉGÉ EXCAVATION, INC.
THIS MATTER having come before the Court upon Plaintiff Commercial Credit’s
Group Inc.’s (“Commercial Credit”) Motion for Default Judgment against Defendant Protégé
Excavation, Inc. (“Protégé”), and the Court having examined the pleadings on file herein, having
heard arguments at the September 14, 2020 hearing regarding the same, Commercial Credit
appearing by and through its attorneys Snell & Wilmer L.L.P. (Jeanne Y. Sohn), and Protégé not
appearing, and having issued its Memorandum Opinion and Order on September 15, 2020, and
being otherwise fully advised in the premises, FINDS:
1. The Court has jurisdiction over the parties and the subject matter of this action.
2. On or about May 10, 2017, Protégé executed a Promissory Note and Security Agreement
(Account Number -1701) (the “First Contract”) to finance the purchase of the following
property: 2008 Tigercat M726E 4 wheeled fellerbuncher/mulcher; serial number 726M3561;
value $159,000 (“Collateral 1”).
3. On or about April 25, 2018, Protégé executed a Promissory Note and Security Agreement
(Account Number -1801) (the “Second Contract”) (collectively, with First Contract, the
“Contracts”) to finance the purchase of the following property:

Case 1:19-cv-00558-KG-JHR Document 49 Filed 10/13/20 Page 2 of 5

Equipment Description

Serial Number

Value

-2009 John Deere 770D
Articulated frame grader

DW770DX623991

$ 67,498

-2012 John Deere 350G LC
Crawler mounted hydraulic excavator

1FF350GXCCE808440

$109,000

-2015 John Deere 333E Skid steer

1T0333EKADE248035

$ 54,900

-2014 Kobelco ED160-3
Crawler mounted hydraulic excavator

LH02-01538

$121,900

-2008 Case 1150K Standard crawler dozer

N7DC00207

$ 29,000

-1988 Mitsubishi MG100 Motor grader

1G500072

-2007 John Deere 310J Tractor loader
backhoe

T0310JX143362

$ 26,900

-2014 John Deere 60G Crawler
mounted hydraulic excavator

1FF060GXVEJ285982

$ 52,495

-1990 John Deere 670B Articulated
frame grader

DW670BX527502

$ 29,750

$ 9,500

(“Collateral 2”) (collectively, with Collateral 1, the “Collateral”).
4. The First Contract has an original face amount of $158,306.00.
5. The Second Contract has an original face amount of $574,728.00.
6. Protégé, who is obligated to make monthly payments to repay the amount financed under
both Contracts, failed to make the payments due in accordance with their agreed terms.
7. Commercial Credit has perfected its lien and security interest in the Collateral as listed on the
UCC Financing Statement filed on April 27, 2018 (File #20180063738E) and the UCC
Financing Statement filed on May 9, 2017 (File #20170052358J), as amended by the UCC
Financing Statement filed on May 11, 2017 (File #20179726674B).
8. Commercial Credit has performed all conditions, covenants, and promises required by it on
its part to be performed in accordance with the terms and conditions of the Contracts.

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9. Despite proper notices of defaults, Protégé has failed to make monthly payments pursuant to
the Contracts or cure its defaults. Protégé has not made any payment towards satisfaction of
the amount financed since August 31, 2018 under Contract 1, and no payments were made
under Contract 2, and as such, Protégé is in default under the Contracts.
10. As of May 24, 2019, there is a payoff amount of approximately $106,848.05, which includes
interest, late charges, and other charges allowed under Contract 1, and with interest accruing
at the default rate of 18% under Contract 1, since November 27, 2017.
11. As of May 24, 2019, there is a payoff amount of approximately $552,221.80, which includes
interest, late charges, and other charges allowed under Contract 2, and with interest accruing
at the default rate of 18% under Contract 2, since July 10, 2018.
12. Commercial Credit has been compelled to obtain the services of an attorney to bring this
action and in accordance with the terms of the Contracts, Commercial Credit is entitled to
recover its attorney’s fees and costs incurred herein.
13. Protégé has wholly failed to respond to demands for payments and to deliver the Collateral,
and continues to maintain wrongful possession and/or control of the Collateral, despite
failing to make payments under the Contracts.
14. Protégé has no further right to retain the Collateral belonging to Commercial Credit.
Commercial Credit has a perfected security interest in the Collateral and as a result of the
Protégé’s default under the Contracts, Commercial Credit is lawfully entitled to immediate
and exclusive possession of the Collateral described herein.
15. Commercial Credit reserves the right to assert any additional claims against the Protégé
and/or Guarantor, including but not limited to, a deficiency amount that results from the sale
of the Collateral, in the applicable court of law or forum, once that information becomes

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available.
16. Commercial Credit is further entitled to a Writ of Assistance in the event Protégé refuses to
surrender the Collateral and to have the Court further order that the Writ direct the Sheriff of
Taos County, or any other county where the Protégé and the Collateral may be located, to
remove the Protégé from the premises such that a peaceful repossession of the Collateral may
occur.
17. Except as expressly modified herein, each and every allegation contained in the Complaint is
true and correct, are sustained by the evidence, and Commercial Credit is entitled to the relief
demanded in the Complaint.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED THAT COMMERCIAL
CREDIT’S MOTION FOR DEFAULT JUDGMENT AGAINST PROTÉGÉ IS GRANTED,
AS FOLLOWS:
A.

Commercial Credit is awarded final and permanent possession of the Collateral,

free and clear of any and all liens and/or encumbrances for immediate sale and application of the
proceeds of the sale of the Collateral to the Protégé’s outstanding indebtedness under the
Contracts;
B.

Commercial Credit has the right to pursue any deficiency amount against Protégé

and/or Guarantor in the appropriate court or forum, once the Collateral is sold and the proceeds
are applied to the indebtedness and the deficiency amount is determined;
C.

A Writ of Assistance shall be issued, directing the Sheriff of Taos County, or any

other county where the Collateral may be located, to enter the premises where Protégé may be
located with the Collateral and remove Protégé from the premises such that a peaceful
repossession of the Collateral may occur, using such force as is reasonably necessary, including
the breaking of chains or locks, or forcing open doors or gates; and

Case 1:19-cv-00558-KG-JHR Document 49 Filed 10/13/20 Page 5 of 5

D.

As the prevailing party, Commercial Credit is entitled to and awarded its

attorney’s fees and costs, and Commercial Credit’s request for attorneys’ fees and costs is hereby
granted.

________________________________
UNITED STATES DISTRICT JUDGE
DATED: October 13, 2020

SUBMITTED BY:
/s/Jeanne Y. Sohn
Jeanne Y. Sohn
SNELL & WILMER L.L.P.
201 Third St. NW, Suite 500
Albuquerque, NM 87102
Telephone: [phone]
Facsimile: 602.382.6070
[e-mail]
Attorneys for Plaintiff