Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People's United Equipment Finance Corp. v. Tak, LLC

United States District Court, E.D. Louisiana

December 26, 2018

PEOPLE'S UNITED EQUIPMENT FINANCE CORP., Plaintiff
v.
TAK, LLC, ET AL., Defendants

         SECTION: “E” (1)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion for Issuance of a Writ of Seizure and Sale[1] and Motion for Alternate Keeper, [2] filed by Plaintiff People's United Equipment Finance Corp. (“People's United”). For the reasons that follow, the Motion for Issuance of a Writ of Seizure and Sale is DENIED, and the Motion for Alternate Keeper is DENIED AS MOOT.

         BACKGROUND

         On November 29, 2018, People's United filed a Complaint and Request for Seizure and Sale and the instant motions.[3] In its Amended Complaint, Plaintiffs invoke the jurisdiction of this Court in diversity, pursuant to 28 U.S.C. § 1332, and establish that the parties are completely diverse and that the amount-in-controversy exceeds $75, 000.[4]People's United alleges Defendants have failed to meet their obligations pursuant to loan documents they executed with People's United.[5] People's United requests that the Court issue a writ of seizure and sale pursuant to Article 2638 of the Louisiana Code of Civil Procedure, which governs executory proceedings.[6] People's United argues that, pursuant to Rule 64 of the Federal Rules of Civil Procedure, any remedy available under Louisiana law is available in federal court.[7] Accordingly, it argues that this Court has jurisdiction to issue a writ of seizure and sale.[8]

         The Court has issued summonses as to Defendants.[9] The summonses have not been returned executed, and Defendants have yet to appear.

         People's United filed the instant motions ex parte in connection with its request for executory process.[10] In its Motion for Issuance of a Writ of Seizure and Sale, Plaintiff requests that the Court issue a writ of seizure and sale on the collateral to which People's United alleges it is entitled, pursuant to the provisions in the Louisiana Code of Civil Procedure governing executory proceedings.[11] In its Motion for Alternate Keeper, Plaintiff requests that, following the service of the writ of seizure and sale, Bobby A. Walker serve as alternate keeper for the collateral.[12]

         In its Amended Complaint, People's United requests that, if the Court determines the instant action cannot be brought as an executory proceeding, that the action be converted to an ordinary proceeding.[13] Although the request is included in a pleading, the Court construes the request as a motion requesting conversion to an ordinary proceeding if the Court does not grant Plaintiff's Motion for Issuance of a Writ of Seizure and Sale.

         LAW AND ANALYSIS

         I. This Court cannot issue a writ of seizure and sale in an executory proceeding.

         The Court turns to the question of whether it has the authority to grant Plaintiff's motion for a writ of seizure and sale.

         Pursuant to Rule 64(a) of the Federal Rules of Civil Procedure, “[a]t the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.” The remedies available under this rule include arrest and attachment.[14]

         Under the Louisiana Code of Civil Procedure, executory proceedings allow for the sale of property “without previous citation and judgment.”[15] Defenses must be asserted either by a separate injunction proceeding or a suspensive appeal, not an answer.[16] This directly contradicts the procedural requirements imposed by the Federal Rules of Civil Procedure. As the court in BancBoston Mortg. Corp. v. Wilson explained,

F.R.C.P. 3 provides that a civil action is commenced by the filing of a complaint. F.R.C.P. 4(a) provides in part that “[u]pon the filing of the complaint the clerk shall forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff's attorney, who shall be responsible for prompt service of the summons and a copy of the complaint.” F.R.C.P. 12(a) gives a defendant twenty days to answer a complaint.[17]

         Executory proceedings under the Louisiana Code of Civil Procedure do not comport with the Federal rules of Civil Procedure. As a result, “[a] federal court cannot issue a writ of seizure and sale in an executory proceeding, because under Louisiana law an executory proceeding is not commenced and prosecuted pursuant to the Federal Rules of Civil Procedure.”[18]

         People's United argues Thermo Credit does not address Rule 64 of the Federal Rules of Civil Procedure and notes that the current version of Rule 64 had been in effect for less than a year before the briefing in that case.[19] BancBoston and FDIC v. Saxena, the cases on which the Thermo Credit court based its holding that a federal courts “may not entertain a Louisiana executory proceeding, ”[20] in turn based their holdings on Rule 64. The version of Rule 64 interpreted by the BancBoston and FDIC v. Saxena courts provided that “the action in which any of the foregoing remedies is used shall be commenced and prosecuted . . . pursuant to these rules.”[21] BancBoston and FDIC v. Saxena quoted this language in support of their holdings. Although the 2007 amendment to Rule 64 eliminated this language, the notes to the amendment clarify that any “changes are intended to be stylistic only.”[22] It further clarified that the provision that the Rules “govern from the time the action is commenced if filed in federal court . . . [is] deleted as redundant [because] Rule 1 establishes that the Civil Rules apply to all actions in a district court.”[23] Rule 64, as amended, does not allow for actions to proceed in federal court contrary to the Federal Rules of Civil Procedure. As a result, the Court does not have the authority to grant Plaintiff's Motion for Issuance of a Writ of Seizure and Sale.[24]

         II. The Court converts the case to an ordinary proceeding consistentwith the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.