United States District Court, W.D. Arkansas, Hot Springs Division
BMO HARRIS BANK N.A. PLAINTIFF
ALTON BEAN TRUCKING, INC. and GARY BEAN DEFENDANTS
O. Hickey, United States District Judge
the Court is Plaintiff BMO Harris Bank N.A.
(“Plaintiff”)'s Motion for Default Judgment.
(ECF No. 12). Defendants Alton Bean Trucking, Inc.
(“ABT”) and Gary Bean (“Bean”) have
not responded to the motion, and the time to do so has
passed. On April 6, 2017, the Court held a hearing on
Plaintiff's motion. (ECF No. 17). The Court finds the
matter ripe for consideration.
November 23, 2016, Plaintiff filed this lawsuit against ABT
and Bean, alleging that ABT and Bean are in default under
certain loan agreements and guaranties for failure to pay the
amounts due thereunder, and seeking replevin, specific
performance, injunctive relief, and breach-of-contract
damages. Despite valid service of the complaint, ABT and Bean
failed to file an answer or other responsive pleading. On
April 4, 2017, the Clerk of Court entered default against ABT
and Bean. (ECF No. 16). Plaintiff now asks the Court to
render default judgment against ABT and Bean. (ECF No. 12).
district court may enter a default judgment when a party
fails to appropriately respond in a timely manner. See,
e.g., Inman v. Am. Home Furniture Placement,
Inc., 120 F.3d 117, 119 (8th Cir. 1997). If the court
determines that a defendant is in default, the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true. Everyday
Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir.
2001). However, the court must ensure that “the
unchallenged facts constitute a legitimate cause of
action” prior to entering final judgment. See
Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010).
entered into loan agreements (the “Agreements”)
with General Electric Capital Corporation
(“GECC”) in 2011, 2012, and 2013, and with GE
Capital Commercial, Inc. in 2012 (“GE Commercial,
” and together with GECC, “GE Capital”) for
the purchase of certain tractors and trailers. The tractors
and trailers identified in the Agreements served as
collateral (collectively, the “Collateral”). ABT
granted GE Capital a first-priority security interest in the
Collateral, which GE Capital properly perfected by possessing
the Certificates of Title. Bean guaranteed the past, present,
and future performance of ABT under the Agreements, including
the payment of all amounts owed (the
December 1, 2015, GE Capital transferred and assigned to
Plaintiff all of their rights, titles, and interests in and
to their accounts with ABT, including without limitation, the
Agreements, the Guaranties, and GE Capital's security
interest in the Collateral. Plaintiff is GE Capital's
successor-in-interest with respect to all rights, claims, and
interests related to ABT and Bean in this action. Thus, the
Agreements are valid and fully enforceable contracts between
Plaintiff and ABT.
performed all terms and conditions to be performed under the
Agreements. ABT defaulted under the Agreements for its
failure to pay the amounts due thereunder. Bean defaulted
under the Guarantees for his failure to pay the amounts due
under the Agreements and the Guarantees. The Agreements
provide that, upon default, ABT is obligated to immediately
turn over possession of the Collateral to Plaintiff.
Plaintiff has recovered some, but not all, of the Collateral.
The Agreements also provide that, upon default, Plaintiff is
entitled to recover interest on all unpaid amounts; late
charges and other fees; costs of retaking, holding, and
disposing of the Collateral; and reasonable attorneys'
fees and costs incurred in enforcing Plaintiff's rights.
Court has read the pleadings and the papers on file and
accordingly finds that Plaintiff has demonstrated sufficient
facts to support legitimate causes of action against ABT and
determining that a judgment by default should be entered, the
Court should determine the amount and character of the
recovery. Fed.R.Civ.P. 55(b)(2)(B); see also Am. Red
Cross v. Cmty. Blood Ctr., 257 F.3d 859, 864 (8th Cir.
2001) (“[W]hen a default judgment is entered on a claim
for an indefinite or uncertain amount of damages, facts
alleged in the complaint are taken as true, except facts
relating to the amount of damages, which must be proved in a
supplemental hearing or proceeding.”) (internal
quotation marks omitted). Because the damages in this case
were uncertain, the Court held a hearing to determine the
appropriate recovery. At the hearing, Plaintiff's counsel
presented the Court with an Affidavit of Indebtedness, as
well as affidavits regarding attorneys' fees and costs.
Agreements provide that, upon default, ABT is obligated to
immediately turn over to Plaintiff possession of the
Collateral. Pursuant to the Agreements, upon default,
Plaintiff has the right to “enter any premises where
the [Collateral] may be without judicial process and take
possession thereof.” Certain Collateral has been
returned to or repossessed by Plaintiff. The items have been
liquidated and the net proceeds applied to the indebtedness
owed. ABT ...