CNH Industrial Capital America LLC v. Able Contracting Inc et al

Filing 77

ORDER AND OPINION granting 57 Plaintiff's Motion for Judgment on the Pleadings; granting as to liability only 58 Plaintiff's Motion for Summary Judgment. The amount of damages is reserved for trial. Signed by Honorable Richard M Gergel on 9/28/2017.(sshe, )

IN THE UNITED STATES DISTRICT COUR'ftCt~i\'l ~)
DISTRICT OF SOUTH CAROLINA
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CHARLESTON DIVISION

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Civil Action No.~9:H,~lW-i1io; J -,

CNH INDUSTRIAL CAPITAL
AMERICA, LLC f/k/a CNH CAPITAL
AMERICA, LLC,

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Plaintiff,
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V.
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ABLE CONTRACTING, INC. and
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CHANDLER M. LLOYD,
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Defendants.
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ORDER AND OPINION

This matter is before the Court on Plaintiff CNH Capital Industrial America, LLC's f/k/a
CNH Capital America, LLC ("CNH"), motion for judgment on the pleadings under Rule 12(c)
of the Federal Rules of Civil Procedure and for summary judgment under Rule 56. (Dkt. Nos. 57,
58.) For the reasons set forth below, the motion for judgment on the pleadings is granted and the
motion for summary judgment is granted as to liability only.
I.

Background and Relevant Facts
Plaintiff CNH is a Delaware limited liability company with its principal place of business
in Wisconsin. Defendant Able Contracting, Inc. ("Able") is a South Carolina corporation that
does business in Ridgeland, South Carolina. Defendant Chandler Lloyd is the President of Able.
Former third-party defendant G, J & L Inc. d/b/a/ Border Equipment ("Border") is a dealer in
heavy machinery and equipment.
A. The Retail Installment Sales Contracts
This dispute arises out of Border's sale to Able of several pieces of heavy construction
machinery (including excavators, a wheel loader, and a tractor) in 2013 and 2014. Those sales
were executed pursuant to three retail installment sales contracts ("RISCs"). The First RISC was
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executed on or about October 25, 2013 for Able's purchase of a new Case Excavator. (Dkt. No.
1-1.) Defendant Lloyd, the President of Able, executed a Personal Guaranty with Border to
guarantee payment under the First RISC. (Dkt. No. 1-1 at 5.) The Second RISC was executed on
or about November 19, 2013 for Abie's purchase of a Case Wheel Loader, a Case Excavator, a
used John Deere tractor, and several attachments for larger pieces of equipment (for example, the
bucket that attaches to the end of an excavator). (Dkt. No. 1-5.) The Third RISC was executed on
or about September 28, 2014 for Abie's purchase of a new Case Excavator. (Dkt. No. 1-9.)
With the exception of price and equipment covered, the RISCs contain the same general
terms and grant Border and any contractual assignees a "first priority purchase money security
interest" in the piece(s) of equipment covered by the contracts.

B. Assignment to CNH
Each of the RISCs includes a provision assigning the contract to CNH. (Dkt. No. 1 at 3,
5, 8.) The RISCs specify that upon assignment "all rights and benefits but no obligations (if any)
of Seller" are transferred to CNH; that Able "will not assert against Assignee any claim or
defense which [Able] may have against Seller, the manufacturer of the equipment, or any other
person"; and that the equipment is sold "as is and with all faults" and "seller and manufacturer
make no other representation or warranty, express or implied, and specifically disclaim the
implied warranties of merchantability and fitness for particular purposes." (Dkt. No. 1-1 at 3.)

C. Alleged Default and Breach
The RISCs indicate that a default occurs when the "Buyer fails to pay when due any of
the Obligations." (Dkt. No. 1-1 at 4.) Upon default, the seller or assignee can, among other
things, "declare all obligations immediately due" and "sell ... all Collateral at public or private
sale." (Dkt. No. 1-1 at 4.) CNH alleges that Able defaulted when it failed to make required

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payments under all three RISCs. (Dkt. No. 1 at 3, 6, 9.) Able does not dispute that it stopped
making payments under the three RISCs shortly before restoring possession to CNH of all of the
equipment except for the John Deere tractor covered by the November 19, 2014 RISC. (Dkt. No.
1 at 3, 6, 9; Dkt. No. 59 at 3.) Able claims it is not responsible for any additional payments
because it revoked acceptance by returning the equipment to CNH. 1 (Dkt. No. 18 at 22.) CNH
claims Abel's return of equipment was "voluntary repossession." (Dkt. No. 18 at 13)
CNH filed this lawsuit in July 2016 alleging that Able is in default under all three RISCs
for failure to pay and that Lloyd had breached his Personal Guaranty by failing to pay the
balance on the first RISC. (Dkt. No. 1.) CNH claims that Able must return the John Deere
Tractor and owes $93,017.89 under the first RISC, $209,772.38 under the second RISC, and
$178,590.48 under the third RISC. (Dkt. No. 1 at 3, 6, 9.) CNH also claims it is entitled to
interest on the balance of the RISCs and attorney's fees and costs. CNH claims Defendant Lloyd
is also responsible under the Personal Guaranty for the remaining balance on the first RISC of
$93,017.89. CNH acknowledges that it had a duty to mitigate damages and claims it has taken
steps to sell the repossessed equipment in private sales. (Dkt. No. 1 at 4, 6, 9).
CNH has moved for summary judgment based on Able's failure to comply with the terms
of the RISCs and Lloyd's failure to perform under the Personal Guaranty. (Dkt. No. 58.) Able
and Lloyd have asserted several counterclaims. (Dkt. No. 18.) CNH has moved for judgment on
the pleadings on Defendants' counterclaims. (Dkt. No. 57.)

II.

Legal Standard
A. Judgment on the Pleadings
A Rule 12(c) motion for judgment on the pleadings is assessed by "applying the same
1

Able has alleged that the equipment was defective and frequently broke down and that Border
failed to provide agreed-upon repair services.

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standard ... as motions made pursuant to Rule 12(b)(6)." Burbach Broad. Co. of Delaware v.

Elkins Radio Corp., 278 F.3d 401,406 (4th Cir. 2002) (citing Edwards v. City of Goldsboro, 178
F.3d 231,243 (4th Cir. 1999)). Rule 12(b)(6) permits the dismissal of an action if the complaint
fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Such a
motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the
facts, the merits of the claim, or the applicability of defenses. . . . Our inquiry then is limited to
whether the allegations constitute 'a short and plain statement of the claim showing that the
pleader is entitled to relief."' Republican Party of NC v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citation omitted). In a Rule 12(b)( 6) motion, the Court is obligated to "assume the truth
of all facts alleged in the complaint and the existence of any fact that can be proved, consistent
with the complaint's allegations." E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P 'ship, 213 F.3d 175,
180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to
the non-moving party, it "need not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face."

Bell At!. Corp. v. Twombly, 550 U.S. 544, 570

(2007). Although the requirement of plausibility does not impose a probability requirement at
this stage, the complaint must show more than a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id.
B. Summary Judgment

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To prevail on a motion for summary judgment, the movant must demonstrate that there is
no genuine issue of any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying
the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file,
together with the affidavits, if any, which show there is no genuine issue as to any material fact
that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The Court will construe all inferences and ambiguities against the movant
and in favor of the non-moving party. US. v. Diebold, Inc., 369 U.S. 654, 655 (1962). The
existence of a mere scintilla of evidence in support of the non-moving party's position is
insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242,252 (1986). However, an issue of material fact is genuine if the evidence is such that a
reasonable jury could return a verdict in favor of the non-movant. Id. at 257.
"When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language

of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a
genuine issue for trial."' Id. at 587. "Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no 'genuine issue for trial."' Id. (quoting
First Nat'l Bank ofAriz. v. Cities Serv. Co., 391 U.S. 253,289 (1968))

III.

Discussion
A. Able and Lloyd's Defenses and Counter-Claims
Able and Lloyd have filed responses in opposition to CNH's motions for summary

judgment and judgment on the pleadings. (Dkt. Nos. 62, 63.) They argue that CNH is not entitled

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to summary judgment because (1) there is a genuine issue of material fact about whether Able
seasonably revoked acceptance; (2) the warranties in the RISCs failed in their essential purpose;
(3) Able was fraudulently induced to enter the RISCs; (4) Border was acting as CNH's agent; (5)
the contractual terms waiving defenses and claims were unconscionable; and (6) CNH is not a
holder in due course of the RISCs.
1. Holder in Due Course

CNH alleges it is a holder in due course of the RISCs and so is immune from all but a
select few of Defendants' affirmative defenses and claims. (Dkt. No. 41 at 19.) A holder in due
course is a holder that took the instrument: "(i) for value, (ii) in good faith, (iii) without notice
that the instrument is overdue or has been dishonored or that there is an uncured default with
respect to payment of another instrument issued as part of the same series, (iv) without notice
that the instrument contains an unauthorized signature or has been altered, (v) without notice of
any claim to the instrument described in Section 36-3-306, and (vi) without notice that any party
has a defense or claim in recoupment described in Section 36-3-305(a)." S.C. Code§ 36-3-302.
Defendants claim CNH is not a holder in due course because CNH had notice of an
uncured default with respect to payment of another instrument issued as part of the same series.
(Dkt. No. 62 at 9-10.) Specifically, Defendants argue that as there were outstanding late fees on
the First RISC as of April 2014, and CNH had notice of that uncured default before it accepted
assignment the Third RISC in September 2014. (Dkt. No. 62 at 10.) Defendants' argument
relies on the assumption that the three RISCs form a "series." The three RISCs were executed
months apart in three separate transactions for three different pieces of equipment; they do not
form a series. See, e.g., Frederick M. Hart and William F. Willier, Negotiable Instruments Under
the Uniform Commercial Code § 11.05 (2017) (defining a series as, for example, "twelve

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separate note[ s issued] each payable in the amount of one-twelfth of the purchase price and due
on twelve different dates"); Corporacion Venezolana de Fomento v. Vintero Sales Corp., 452 F.
Supp. 1108, 1111 (S.D.N.Y. 1978) (eight promissory notes based on a single loan agreement that
matured at six-month intervals constituted a series of notes). Defendants have not asserted any
other challenge to CNH's being a holder in due course of the RISCs, and the Court has not
independently identified any. For these reasons, CNH holds the RISCs in due course and is
immune from all but a select few of Defendants' defenses and claims.
2. Revocation of Acceptance
The right of a holder in due course to enforce obligations of an instrument is subject only
to certain defenses under S.C. Code § 36-3-305(b), including "a defense of the obligor based on
(i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal
capacity, or illegality of the transaction which, under other law, nullifies the obligation of the
obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor
reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the
obligor in insolvency proceeding." S.C. Code§ 36-3-305(a)(l).
Able claims it revoked acceptance of the pieces of equipment when it returned them CNH.
(Dkt. No. 18 at 22.) Defendants argue that although S.C. Code § 36-3-305(a)(l) does not
specifically list revocation of acceptance as an allowable defense, it includes defenses based on
"duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies
the obligation of the obligor."
Defendants' argument rests on the assumption that revocation of acceptance renders a
contract illegal.

However, revocation of acceptance simply voids a contract and gives the

obligor "the same rights and duties with regard to the goods involved as if he had rejected them."

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S.C. Code § 36-2-608(3). A contract might be illegal when, for example, bribery is involved, the
Constitution is violated, or a statute is violated. See, e.g., Berkebile v. Outen, 426 S.E.2d 760,
763 n.2 (S.C. 1993); Jackson v. Bi-Lo Stores, Inc., 437 S.E.2d 168, 171 (S.C. Ct. App. 1993);

White v. JM Brown Amusement Co., 601 S.E.2d 342, 345 (S.C. 2004). Because Defendants'
alleged revocation of acceptance does not render the RISCs illegal, CNH' s status as a holder in
due course insulates it from this claim.

3. Breach of Express and Implied Warranties
Defendants also claim that Plaintiff breached express and implied warranties and that the
warranties failed in their essential purpose. (Dkt. No. 62 at 3; Dkt. No. 18 at 14.) Again, as a
holder in due course, CNH's right to enforce obligations of the RISCs is subject only to S.C.
Code § 36-3-305(a)(l), which does not include warranty-related claims. The RISCs also
expressly state that the Buyer (Able) "will not assert against Assignee any claim or defense
which Buyer may have against Seller, the manufacturer of the Equipment, or any other person"
and that the equipment is sold as-is with "no other representation or warranty, express or
implied, and specifically disclaim the implied warranties of merchantability and fitness for
particular purposes." (Dkt. No. 1-1 at 3.) Defendants argue that the waiver provisions in the
RISCs are unconscionable and are thus unenforceable. (Dkt. No. 62 at 8.) The Court does not
need to reach this issue because, as explained above, Defendants cannot bring a breach of
warranty claim against CNH.

4. Fraudulent Inducement
Most of Defendants' remaining claims and defenses are based on their claim that Marty
Ward, an employee of Border, fraudulently induced them to execute the RISCs. (Dkt. No. 18 at
15-16.) "In alleging fraud or mistake, a party must state with particularity the circumstances

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constituting fraud or mistake." Fed. R. Civ. P. 9(b). To prevail on a cause of action for fraud in
South Carolina, a party must show: "(l) a representation; (2) its falsity; (3) its materiality; (4)
either knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the
representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on
its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate
injury." Moseley v. All Things Possible, Inc., 694 S.E.2d 43, 45 (S.C. Ct. App. 2011) (citing
Regions Bank v. Schmauch, 582 S.E.2d 432, 444 (S.C. Ct. App. 2003)). In addition to these nine

elements of fraud, to prevail on a cause of action for fraud in the inducement, a party must show:
"( 1) that the alleged fraudfeasor made a false representation relating to a present or preexisting
fact; (2) that the alleged fraudfeasor intended to deceive him; and (3) that he had a right to rely
on the representation made to him." Id. (citing Darby v. Waterboggam of Myrtle Beach, Inc.,
344 S.E.2d 153, 155 (S.C. Ct. App. 1986)) (finding contract for the sale of land was fraudulently
induced when seller knew there was an easement, misrepresented that there was not an easement,
and falsified a plat to induce the sale).
Defendants allege that Ward represented to Defendants that: (1) various pieces of
equipment could operate in dusty environments and for eight to ten hours a day; (2) Border had
spare parts and competent technicians that would be available to Defendants; (3) a Case Wheel
Loader 621F had a differential lock; and (4) the equipment was covered by manufacturer's
warranty and Able could finance the equipment through CASE. (Dkt. No. 47-1 at 2-3; Dkt. No.
18 at 2, 11-12.) Able alleges that these representations induced it to execute the RISCs, and that
these representations were false because the equipment broke down, service calls were not timely
returned, and there was not a differential lock on the Wheel Loader. (Dkt. No. 47-1 at 2.)

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First, Defendants cannot base a fraud action on a Marty Ward's opinion about the future
performance of equipment, for example, his statement that an excavator would operate fine in
dusty environments for eight to ten hours per day. Bishop Logging Co. v. John Deere Indus.
Equip. Co., S.E.2d 183 (S.C. Ct. App. 1995) (Statements made by logging equipment seller

concerning expected performance of fully mechanized swamp logging system were "opinions as
to future performance" and, thus, could not be basis of fraud action or basis for claim of
negligent misrepresentation.). Marty Ward's statement was an opinion about future performance,
not a statement of fact that was "susceptible of exact knowledge when the statement [was]
made." Id.
Second, Defendants' complaints about the delayed response to service calls and availability
of spare parts also fail to establish a claim for fraud in the inducement because the allegedly false
statements did not relate to a present or preexisting fact. See Moseley., 694 S.E.2d at 45 (claim
must allege a false representation about a present or preexisting fact). A claim for fraudulent
inducement cannot be based on a representation about some future event. At most, these are
broken promises.
Third, Mr. Ward's allegedly false representations about the presence of a differential lock
on the Case Wheel Loader cannot support a claim for fraud in the inducement because the
absence of the lock was discoverable by lifting the floor mat (Dkt. No. 47-1 at 2), and
Defendants "cannot rely upon misstatement of facts, if the truth is easily within his reach." King
v. Oxford, 318 S.E.2d 125 (S.C. 1984) (citing Flowers v. Price, 3 S.E.2d 38, 39 (S.C. 1939))

(holding that evidence was insufficient to establish fraud as the plaintiff could have easily
accessed facts needed to make an accurate valuation of the business transaction). Further, that
the absence of the differential lock was easily discoverable and Defendants used the Wheel

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Loader for about two years before returning it to CNH suggests that the presence of the
differential lock was not material to their decision to enter the contract.
Finally, Defendants have made conclusory allegations about Border's representations
about the manufacturer's warranty and financing but failed to allege facts to show the falsity of
these representations, the materiality of these representations, or that Mr. Ward had knowledge
of the falsity of the representations. (Dkt. No. 18 at 11-12.) For all of these reasons, Defendants
have failed to state a claim for fraud in the inducement.

5. Agency Relationship Between Border and CNH2
Able supports several of its claims and defenses by arguing that CNH is responsible for
the actions of Border and its employees because Border was an Agent of CNH. Specifically,
Defendants have alleged that Marty Ward, an employee of Border, misrepresented various facts
that induced Border to execute the RISCs (fraudulent inducement and breach of contract with
fraudulent intent claims) and that he made express or implied warranties to Defendants that were
subsequently breached by Border and, by extension, CNH. (Dkt. No. 18 at 8-9, 13-15.) For the
reasons already discussed above, these claims and defenses fail on independent grounds. Able
seems to argue that CNH is not immune from claims and defenses as a holder in due course if
Border was acting as its agent. 3 The Court noes not reach this argument because, as set forth

2

This Court issued a previous order asking the parties to submit supplementary pleadings about
the alleged agency relationship between CNH and Border. The Court has reviewed each party's
supplemental pleadings. (Dkt. Nos. 72, 73.)

3

Earlier in this litigation, Able filed a third-party complaint against Border alleging ten different
causes of action that generally mirrored the claims at issue in the instant motion. The Court
dismissed Abie's claims against Border for improper impleader. Defendants' allegation that there
is an agency relationship between CNH and Border is an effort to revive their claims against
Border by imputing the actions of a single Border employee, Marty Ward, to CNH based on the
theory that Border is an agent of CNH.

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below, Defendants have failed to sufficiently allege an agency relationship between CNH and
Border.

i.

Actual Authority

Defendants initially argued only that Border was an agent of CNH because CNH had the
"right and ability to control Border via Retail Finance Agreements, Program Procedures, Dealer
Handbooks, Retail Installment Sales Contracts, and other indicia of control." (Dkt. No. 18 at
11.) In their supplemental pleading, Defendants argue that Border was an agent of CNH because
(1) Border acted as CNH's debt collector; (2) Border engaged in contract negotiation,

explanation, and modification on behalf of CNH; (3) Border undertook repair work on the
equipment in question "with the assistance of CNH"; and (4) CNH had the right to control
Border through their Retail Financing Agreement. (Dkt. No. 73 at 3-6.)
"A party asserting agency as a basis of liability must prove the existence of the agency."
Rosemond v. Campbell, 343 S.E.2d 641, 644 (S.C. Ct. App. 1986). The standard for determining

actual agency is "whether the purported master has the right or power to direct and control the
servant in the performance of his work and in the manner in which the work is to be done."
Jamison v. Morris, 684 S.E.2d 168, 171 (S.C. 2009) (quoting Watkins v. Mobil Oil Corp., 352
S.E.2d 284, 286 (S.C. Ct. App. 1986)). "Agency is a question of fact ... [and] may be, and
frequently is, implied from the words and conduct of the parties and the circumstances of the
particular case." Gathers v. Harris Teeter Supermarket, Inc., 317 S.E.2d 748, 752 (S.C. Ct. App.
1984).

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Defendants' allegations4 establish only that CNH and Border are separate entities who
have a contractual arrangement through which CNH provides financing for equipment that
Border sells. To the extent that CNH "controls" any of Border's activities by, for example,
requiring Border to make debt collection calls in a certain manner, that control is contractually
limited to issues connected to the financing arrangements. Defendants have not made allegations
that create a genuine dispute of material fact about whether Border was a general agent of CNH
such that CNH should be held responsible for representations that a Border employee made
about the equipment.
ii.

Apparent Authority

Able argues that Border had apparent authority to act as Agent for CNH even if it did not
have actual authority. (Dkt. No. 73 at 9-10.) To establish apparent authority, three elements must
be met: (1) the "purported principal [must] consciously or impliedly represent[] another to be his
agent"; (2) there must be "reliance upon the representation"; and (3) there must be a "change of
position to the relying party's detriment." Froneberger v. Smith, 748 S.E.2d 625, 630 (S.C. Ct.
App. 2013) (citing Graves v. Servin Farms, Inc., 409 S.E.2d 769, 771 (S.C. 1991)). The focus is
"on the principal's manifestation to a third party that the agent has certain authority." Rickborn
v. Liberty Life Ins. Co., 468 S.E.2d 292, 296 (S.C. 1996).
Defendants' apparent authority argument fails because it relies solely on the
representations made by Border and its employees and statements made by the alleged agent
alone cannot establish that an agent had apparent authority. See Frasier v. Palmetto Homes of

4

Some of Defendants' allegations mischaracterize the evidence. For example, Defendants' claim
that CNH "assisted" Border with repair work is not supported by the evidence provided to the
Court. (Dkt. No. 73 at 6.) The communications Defendants rely on show only that when CNH
was making a collection call the client complained about some equipment breaking down. This is
not evidence that Border was an agent of CNH.

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Florence, Inc., 473 S.E.2d 865, 868 (S.C. Ct. App. 1996) ("Moreover, an agency may not be

established solely by the declarations and conduct of an alleged agent."); Town of Kingstree v.
Chapman, 747 S.E.2d 494 (S.C. Ct. App. 2013) ("Apparent authority must be established based

upon manifestations by the principal, not the agent.")

6. South Carolina Unfair Trade Practices Act
Defendants allege that Border made various misrepresentations while acting as an agent
of CNH and that these misrepresentations constituted unfair or deceptive trade practices in
violation of the South Carolina Unfair Trade Practices Act ("SCUTPA"). (Dkt. No. 18 at 17.)
However, Defendants again fail to allege that CNH made misrepresentations, instead focusing
only on the representations made by Border employee Marty Ward. As explained above, the
Court finds that Defendants' have insufficiently pled their agency theory. Defendants' SCUPTA
claim against CNH fails because they have made no allegations of unfair trade practices by CNH
directly.
IV.

Plaintiff's Breach of Contract Claims
For the reasons discussed above, Defendants' defenses and counterclaims fail. The Court
now turns to Plaintiffs claims. There is no dispute that Border and Defendants entered into
three RISCs which were assigned to CNH. Plaintiffs claim, and Defendants do not dispute, that
Defendants did not make payments pursuant to the agreed payment schedule. (Dkt. No. 1 at 29.) As failure to pay is defined as a default in the RISCs (Dkt. No. 1-1 at 4), Plaintiff is entitled
to summary judgment on these claims. Plaintiff also claims it is entitled to possession of the John
Deere Tractor described in the Second RISC executed on November 19, 2013. (Dkt. No. 1 at 7;
Dkt. No. 1-5 at 5.) Because the RISC granted Border and assignees a "first priority purchase

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money security interest" in the pieces of equipment, Plaintiff is entitled to summary judgment on
this claim.

5

Finally, Plaintiff claims that Lloyd breached the Personal Guaranty. (Dkt. No. 1 at

9-10.) The personal guaranty stated that Lloyd "unconditionally and irrevocably guarantee[d]
the payment, performance and complete fulfillment of all Obligations" under the first RISC,
dated October 25, 2013. (Dkt. No. 1-12 at 2.) For the same reasons discussed above, Plaintiff is
entitled to summary judgment on this claim.

V.

Relief
In addition to return of the John Deere Tractor, CNH claims that Able owes it $93,017.89
under the First RISC, $209,772.38 under the Second RISC, and $178,590.48 under the Third
RISC. 6 (Dkt. No. 1 at 3, 6, 9.) CNH claims that under the Personal Guaranty, Defendant Lloyd
is responsible for the remaining balance on the First RISC of $93,017.89. CNH also claims it is
entitled to interest on the balance of the RlSCs and attorney's fees and costs. The Court cannot
determine the actual amount Able or Lloyd owes CNH under any contract because CNH has had
the continuing obligation to mitigate damages.

VI.

Conclusion
For the foregoing reasons, Plaintiffs motion for judgment on the pleadings (Dkt. No. 57)
is granted, and Plaintiffs motion for summary judgment is granted as to liability only (Dkt. No.
58). The amount of damages is reserved for trial.

5

In its motions for summary judgement and for judgment on the pleadings, CNH asked the
Court to take judicial notice ofUCC Financing Statements (Dkt. No. 57-1 at 23-27; Dkt. No. 581 at 23-27) which it says show that the John Deere tractor listed in the second RISC was owned
by Able as early as 2008. The serial number listed on the RISC for the John Deere tractor is
T0410JX145813, while the John Deere equipment on the UCC Financing Statement is described
as a Wheel Loader Backhoe with serial number 145572. With this limited information, the Court
cannot take judicial notice of any irrefutable fact with regard to the relationship between these
two apparently separate pieces of equipment.
6
These figures are from the 2016 complaint.

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AND IT IS SO ORDERED.

United States District Court Judge

_ll,

September
2017
Charleston, South Carolina

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