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CNH Industrial Capital America, LLC v. T & P Farms, LLC

United States District Court, N.D. Mississippi, Oxford Division

October 5, 2017

CNH INDUSTRIAL CAPITAL AMERICA, LLC PLAINTIFF
v.
T & P FARMS, LLC and MICHAEL J. MASSEY, JR. DEFENDANTS

          ORDER

          Debra M. Brown UNITED STATES DISTRICT JUDGE.

         Before the Court is CNH Industrial Capital America, LLC's request for immediate possession of collateral equipment specified in Count I of its complaint against T & P Farms, LLC and Michael J. Massey, Jr.

         I

         Procedural History

         On May 2, 2017, CNH Industrial Capital America, LLC filed a two-count verified complaint in this Court against T & P Farms, LLC and Michael J. Massey, Jr. Doc. #1. Count I asserts an action for replevin and seeks immediate possession of collateral used to secure four contracts. Id. at ¶¶ 25-28. Count II seeks recovery for all sums due under the contracts. Id. at ¶ 30.

         On June 14, 2017, CNH filed an “Ex-Parte Motion for Entry of Fiat.” Doc. #3. United States Magistrate Judge Jane M. Virden issued a fiat on the ex parte motion on June 21, 2017, directing the Clerk of the Court to issue summons commanding the defendants to appear for hearing before the undersigned “to determine the rights of the parties as to the possession of the Collateral as described in the Complaint.” Doc. #4. On August 15, 2017, the defendants filed their “Answer and Defenses” to the complaint. Doc. #16. After twice being reset, the evidentiary hearing was held August 23, 2017. Doc. #18. At the conclusion of the hearing, the Court provided the defendants time to submit supplemental authority related to certain equitable defenses raised during oral argument. The defendants submitted no such authority.

         II

         Applicable Law

         “Rule 64(a) of the Federal Rules of Civil Procedure allows courts to seize property to the extent allowed by the laws of the state where the court is located.” A.T.N. Indus., Inc. v. Gross, 632 Fed.Appx. 185, 192 (5th Cir. 2015). Under Mississippi law, “[t]o initiate a replevin action with notice to the adverse party and a hearing, one must ‘file a declaration under oath setting forth the[] matters shown in subparagraphs (a) through (e) Section 11-37-101 ….” Regions Commercial Equip. Fin. LLC v. Performance Aviation, LLC, No. 2:16-cv-110, 2017 WL 354275, at *4 (S.D.Miss. Jan. 24, 2017) (quoting Miss. Code Ann. § 11-37-131).

         Section 11-37-101 of the Mississippi Code provides:

If any person, his agent or attorney, shall file a complaint under oath setting forth:
(a) A description of any personal property;
(b) The value thereof, giving the value of each separate article and the value of the total of all articles;
(c) The plaintiff is entitled to the immediate possession thereof, setting forth all facts and circumstances upon which the plaintiff relies for his claim, and exhibiting all ...

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