Opinion
Case No. 2:03CV-0293
May 2, 2003
Kim R. Wilson, David L. Pinkston, Daryl P. Sam, SNOW, CHRISTENSEN MARTINEAU, Salt Lake City, Utah. Attorneys for the Plaintiff
Ford G. Scalley, David S. Bridge, SCALLEY READING, Attorneys for Defendants
STIPULATED ORDER ON PLAINTIFF'S MOTION FOR ISSUANCE OF PREJUDGMENT WRIT OF REPLEVIN AND MOTION FOR PRELIMINARY INJUNCTION
Plaintiff, New Holland Credit Company, LLC's ("New Holland's") Motion for Issuance of Prejudgment Writ of Replevin and Motion for Preliminary Injunction came on regularly before this Court, pursuant to notice, on May 2, 2003 at 9:00 am. Judge Tena Campbell presiding; New Holland was represented by David L. Pinkston and Daryl P. Sam of Snow, Christensen Martineau; defendants were represented by Ford G. Scalley and David S. Bridge, Scalley Reading. After hearing part of the evidence, the Court urged the parties to discuss possible resolution. The parties having reached a resolution, as embodied herein, and the Court being fully advised in the premises and good cause appearing therefor, it is hereby
ORDERED, ADJUDGED AND DECREED as follows:
1. Defendants, their officers, agents, servants, employees, and all persons acting in concert with them are prohibited and enjoined from encumbering, selling, transferring, delivering or disposing in any manner the property identified as the "Wholesale Collateral" or "Equipment Inventory" (i.e. "Floored Items") in the Verified Complaint in this matter, except as expressly provided herein. The Equipment Inventory (Floored Items) is also set forth in Exhibit "A" hereto.
2. Defendants will immediately make available that portion of its Equipment Inventory (Floored Items) to be returned to the manufacturer for "buyback," upon defendants' receipt of a price list from the manufacturer identifying the amount of the buyback of each item pursuant to state law. Defendants shall submit to the manufacturer all necessary paperwork in connection with the buyback process. New Holland shall cooperate in that process and use its best efforts to ensure that defendants' account with New Holland is credited for the buybacks as soon as possible. Representatives of the parties have agreed to meet during the week of May 12, 2003, to address and attempt to resolve disputes over the unpaid balance. All Equipment Inventory (Floored Items) subject to buyback must remain on defendants' business premises until an authorized representative of the manufacturer has taken possession of the designated items.
3. Defendants shall continue processing its parts inventory ("Parts") for return to the manufacturer. All credits for such Parts returns shall be paid to New Holland or credited to defendants' account with New Holland until the full balance owing by defendants to New Holland is paid in full.
4. Items of Equipment Inventory not being returned to the manufacturer (Floored Non-Buyback Items) may be sold in the ordinary course, provided that upon each such sale, defendants shall immediately remit to New Holland 100% of the amounts owing to New Holland for any such item sold, Defendants may keep the difference between sale price less the current balance owed on each such item, Defendants' accounts will be credited in the amounts remitted to New Holland.
5. All items of Equipment Inventory and Wholesale Collateral shall remain on defendants' business premises, reasonably protected, until sold as provided herein, except that such items may be removed for demonstration purposes by potential purchasers, for a reasonable period of time. Defendants shall keep records of all equipment out on demonstration, including the names, addresses and telephone numbers of those in possession.
6. Defendant may sell, in the ordinary course, items of Wholesale Collateral which are not part of the Equipment Inventory in Exhibit "A", not being returned to the manufacturer, and not Parts Subject to buyback (Non-Floored, Non-Buyback Items) to customers in the ordinary course of business. Immediately upon such sale, defendants shall be entitled to keep 20% and shall be obligated to remit 80% of the sales price of such inventory to New Holland. Defendants' accounts shall be credited by amounts so remitted. Such collateral must remain on defendants' business premises until sold in the ordinary course.
7. Defendants contemplate conducting an auction. Such auction shall be conducted by a recognized, established auction company, and such auction shall include all of the Wholesale Collateral and Equipment Inventory still remaining unsold on that date. The proceeds of such auction shall be deposited with the Court. to be placed into an interest bearing account, to be disbursed only upon further order of the Court, which order may be obtained by stipulation or otherwise. Funds deposited shall be distributed to the parties in accordance with the terms of paragraphs 4 and 6. Once all amounts owing to New Holland have been paid in full, defendants are entitled to all remaining funds.
8. Defendants shall provide to New Holland a monthly accounting, including the following information with respect to any item of the Wholesale Collateral or Equipment Inventory sold: Date of sale, name of purchaser, purchase price, detailed description of property sold (including model, serial number, and type), and disposition of sales proceeds. Defendants shall allow New Holland to inspect defendants' business premises and inventory as requested, and New Holland shall provide to defendants' a periodic accounting, as requested, of the total balance due and owing by defendants to New Holland. Defendants shall immediately provide to New Holland the same inventory list it provides to the auction company.
9. The hearing on New Holland's Motions for Issuance of Prejudgment Writ of Replevin and for Preliminary Injunction shall be continued approximately sixty (60) days until July 2, 2003, at 2:30 P.M.