United States District Court, N.D. Mississippi, Oxford Division
M. Brown UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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