Opinion
1:24-cv-01443
11-05-2024
TBK BANK SSB, Plaintiff, v. CREED TRANSPORT, INC, BRATISLAV MILANOVIC, MILOS MARKOVIC, and BOJAN BLAZIC, Defendants.
TBK Bank SSB, Thomas B. Fullerton, One of its Attorneys, Jessica L. Dagley, Akerman LLP
TBK Bank SSB, Thomas B. Fullerton, One of its Attorneys, Jessica L. Dagley, Akerman LLP
PLAINTIFF'S FEDERAL RULE OF CIVIL PROCEDURE 55(B) MOTION FOR JUDGMENT
Hon. Mary M. Rowland Judge
Plaintiff TBK Bank SSB (“TBK”), by and through its attorneys, and in accordance with this Court's docket entries dated September 17, 2024 (Dkt. 18) and October 23, 2024 (Dkt. 21) hereby files this Federal Rule of Civil Procedure 55(b) Motion for Judgment with supporting affidavit and in support thereof states as follows:
PROCEDURAL HISTORY
1. On February 21, 2024, TBK filed its Verified Complaint against Defendants Creed Transport, Inc., Bratislav Milanovic, Milos Markovic and Bojan Blazic (collectively, the “Defendants”). (Dkt. 1). On February 22, 2024, summons were issued to the Defendants.
2. On March 20, 2024 and April 6, 2024, service was effectuated on Defendants Bojan Blazic and Creed Transport, Inc., respectively.
3. On May 13, 2024, the affidavits of service for Defendants Bojan Blazic and Creed Transport, Inc. were filed with the Court. (Dkt. 9, 10).
4. On May 22, 2024, TBK filed a Status Report Regarding Service of Process and Motion for Alternative Service on Defendants Bratislav Milanovic and Milos Markovic that attached a Declaration by TBK's counsel and affidavits of non-service. (Dkt. 11, 12).
5. On May 24, 2024, the Court granted TBK's Motion for Alternative Service and permitted TBK to serve: (1) Markovic by mailing copies of the summons and complaint by certified mail, return receipt requested and regular mail to his personal address; and (2) Milanovic by mailing copies of the summons and complaint by certified mail, return receipt requested and regular mail. (Dkt. 13).
6. On May 24, 2024, TBK served Milos Markovic and Bratislav Milanovic in accordance with the Court's May 24, 2024 Order. (Dkt. 14).
7. On August 16, 2024, this Court entered a docket entry requiring that Plaintiff file a motion for default judgment or status report on or before September 16, 2024. (Dkt. 16).
8. On September 17, 2024, this Court granted TBK's motion for default. (Dkt. 18).
9. On October 23, 2024, this Court directed TBK to “file a status report or a motion pursuant to FRCP 55(b) with a supporting affidavit attesting to the amount of monetary damages sought against Defendants.” (Dkt. 21).
10. TBK hereby submits the Affidavit of Tulani Ruffin attached hereto as Exhibit A .
RELIEF REQUESTED
11. Pursuant to Federal Rule of Civil Procedure 55(b), TBK requests that the clerk:
a. enter judgment in the amount of $141,226.04, jointly and severally, against defendants (1) Creed Transport, Inc.; (2) Bratislav Milanovic; (3) Milos Markovic; and (4) Bojan Blazic; and
b. enter an order of replevin pertaining to the following personal property: (a) GREAT DANE, DRY VAN, Serial No. 1GRAA0621KT120892; (b) KENWORTH, T680, Serial No. 1XKYDP9X5LJ312317; and (c) KENWORTH, T680, Serial No. 1XKYDP9X4HJ118885.
WHEREFORE, Plaintiff TBK Bank SSB respectfully requests the foregoing relief together with any other relief this Court deems equitable and just.
Exhibit A
AFFIDAVIT OF TULANI RUFFIN IN SUPPORT OF TBK BANK SSB'S MOTION FOR DEFAULT JUDGMENT
I, Tulani Ruffin, being duly sworn, do hereby depose and say:
1. I am over the age of eighteen (18) and understand the obligations of an oath.
2. I am Vice President for TBK Bank SSB (“TBK”) the legal owner and holder of the loan documents set forth herein.
3. TBK is a Texas state savings bank with its principal place of business located in Dallas, Texas.
4. I have personal knowledge of the matters set forth in this Affidavit.
5. Due to my position with TBK, I am familiar with its business and mode of operation. Among other things, I am familiar with documents that TBK keeps in the regular course of its business, including but not limited to loan agreements, promissory notes, guarantees, security agreements, and other loan documents.
6. I am familiar with the way TBK tracks loans and the repayment of loans. I am familiar with the way in which TBK calculates amounts due from its borrowers, keeps track of payments made by borrowers, and handles defaults under loan agreements, promissory notes, and other loan documents.
I. THE LOAN AND SECURITY AGREEMENTS
A. The April Agreement.
7. On April 21, 2021, TBK and its borrower, Creed Transport, Inc. (“Borrower”), entered into a Loan and Security Agreement (the “April Agreement”). A true and correct copy of the April Agreement is attached to the Verified Complaint as Exhibit A. (Dkt. 1-1).
8. Pursuant to the terms of the April Agreement, TBK made a loan to Borrower in the original principal amount of $111,887.00 plus interest (“April Loan”). (Dkt. 1-1, § 1). Borrower agreed to pay to TBK monthly installments of $3,556.90 each month for 35 months, and then one final installment for the balance owed. (Id.). Pursuant to the terms of the April Agreement, payments were to commence on June 1, 2021 and be paid on the first day of the month every month thereafter. (Id., § 2).
9. Pursuant to the terms of the April Agreement, Creed Transport purchased and granted to TBK a security interest in three Freightliner trucks.
10. On May 13, 2021, TBK filed a UCC-1 Financing Statement with the Illinois Secretary of State covering the April Agreement collateral and was assigned filing number 027266061.
B. The July Agreement.
11. On July 26, 2021, Plaintiff and Creed Transport entered into a second Loan and Security Agreement (the “July Agreement”). A true and correct copy of the July Agreement is attached to the Verified Complaint as Exhibit B. (Dkt. 1-2).
12. Pursuant to the terms of the July Agreement, TBK made a loan to Borrower in the original principal amount of $97,887.00 plus interest (the “July Loan”). (Id. at § 1). Borrower agreed to pay to TBK monthly installments of $3,114.31 each month for 36 months. (Id.). Pursuant to the terms of the July Agreement, payments were to commence on September 9, 2021 and be paid on the ninth day of the month every month thereafter. (Id. at § 2).
13. Pursuant to the terms of the July Agreement, Borrower purchased and granted to TBK a security interest in two Kenworth trucks.
14. On July 28, 2021, TBK filed a UCC-1 Financing Statement with the Illinois Secretary of State covering the July Agreement collateral and was assigned filing number 027266061.
C. The December Agreement.
15. On December 16, 2021, TBK and Borrower entered into a third Loan and Security Agreement (the “December Agreement”). A true and correct copy of the December Agreement is attached to the Verified Complaint as Exhibit C. (Dkt. 1-3).
16. Pursuant to the terms of the December Agreement, TBK made a loan to Borrower in the original principal amount of $132,887.00 plus interest (the “December Loan). (Id. at § 1). Borrower agreed to pay to TBK monthly installments of $6,080.79 each month for 23 months. (Id.). Pursuant to the terms of the December Agreement, payments were to commence on February 1, 2022 and be paid on the first day of the month every month thereafter. (Id. at § 2).
17. Pursuant to the terms of the December Agreement, Borrower purchased and granted to TBK a security interest in four Great Dane dry vans.
18. On November 5, 2021, TBK filed a UCC-1 Financing Statement with the Illinois Secretary of State covering the December Agreement collateral and was assigned filing number 027857604.
D. The August Loan.
19. On August 22, 2022, Plaintiff and Creed Transport entered into a fourth Loan and Security Agreement (the “August Agreement”). A true and correct copy of the August Agreement is attached to the Verified Complaint as Exhibit D. (Dkt. 1-4).
The April Agreement, July Agreement, December Agreement, and August Agreement are hereinafter collectively referenced as the “Loan Agreements.”
20. Pursuant to the terms of the August Agreement, TBK made a loan to Borrower in the original principal amount of $85,235.00 plus interest (the “August Loan). (Id. at § 1). Borrower agreed to pay to TBK monthly installments of $2,737.00 each month for 35 months. (Id.). Pursuant to the terms of the August Agreement, payments were to commence on October 1, 2022 and be paid on the first day of the month every month thereafter. (Id. at § 2).
21. Pursuant to the terms of the August Agreement, Borrower purchased and granted to TBK a security interest in a Kenworth truck.
22. On August 25, 2022, TBK filed a UCC-1 Financing Statement with the Illinois Secretary of State covering the August Agreement collateral and was assigned filing number 028819455.
E. The Guaranty Agreements
23. On April 21, 2021, defendants Bratislav Milanovic, Bojan Blazic, and Milos Markovic each made and delivered to TBK an Unconditional Guaranty (the Individual Guaranty”) in which they, jointly and severally, unconditionally guaranteed payment and performance of any and all present and future “Obligations” (as that term is defined in the Individual Guaranty) owed by Borrower to TBK. A true and correct copy of each Individual Guaranty is attached to the Verified Complaint as Group Exhibit E. (Dkt. 1-5).
II. THE DEFAULT
24. Events of Default (as that term is defined in the Agreements) have occurred as a result of, without limitation, Borrower's breach of its obligations to make payments on the loans as required by the Loan Agreements.
25. Upon occurrence of an Event of Default such as nonpayment, TBK is entitled to declare acceleration of the full amounts outstanding under the Loan Agreements. (Dkt. 1-1, 1-2, 1-3 and 1-4).
26. In addition to any amounts outstanding owed in connection with the loans, Borrower is obligated to pay all of TBK's reasonable attorneys' fees and other costs incurred in connection with the enforcement of TBK's rights and remedies under the Loan Agreements. (Id.)
27. Borrower has failed to cure each Event of Default.
III. THE PERSONAL PROPERTY COLLATERAL
28. Upon an Event of Default, pursuant to terms of the Loan Agreements (see Exs. A -D § 14), TBK is entitled to require Borrower to assemble the collateral promptly and surrender and deliver possession of the collateral to TBK.
29. Borrower surrendered and delivered possession of certain items of collateral to TBK but has yet to deliver the following: (a) GREAT DANE, DRY VAN, Serial No. 1GRAA0621KT120892; (b) KENWORTH, T680, Serial No. 1XKYDP9X5LJ312317; and (c) KENWORTH, T680, Serial No. 1XKYDP9X4HJ118885.
30. Asa result of Borrower's wrongful detention of the collateral, TBK has been unable to realize upon the collateral and has thus been damaged.
IV. LIABILITY UNDER THE LOAN AGREEMENTS AND EACH INDIVIDUAL GUARANTY
31. Asa direct and proximate result of Borrower's breach of its obligations under the Loan Agreements and the Events of Default under the Loan Agreements caused by Borrower, TBK has incurred actual damages in an amount of no less than $141,226.04 as of November 5, 2024, including attorneys' fees, interest, and costs.
32. Each Individual Guaranty unconditionally guarantees payment and performance of any and all present and future Obligations owed by Borrower to TBK, including, without limitation, all present and future amounts owed on the loans, and any other fees or charges due under the Loan Agreements. (Dkt. 1-5).
33. As a direct and proximate result of each guarantor's breach of the Individual Guaranty, TBK has incurred and will incur actual damages in an amount of no less than $141,226.04 as of November 5, 2024, including attorneys' fees, interest, and costs.
V. THE BALANCE DUE
34. As part of my duties on behalf of TBK, I am familiar with the computer system, including the hardware and software, used by TBK to track loans and the repayment of loans. I am also familiar with the process TBK implements to track payments made on account of loans and the manner in which TBK determines balances owed under these loans.
35. An employee of TBK inputs certain information into its records, including the date, term, interest rate, default interest rate, and late fees under the loan. It is the regular course of business for TBK to input this information at or near the time it begins servicing the loan. This information is input by an employee of TBK in his or her regular course of business.
36. Information about the Loan Agreements, including the name of the borrower and the date, term, interest rate, default interest rate, and late fees were input into TBK's records in the regular course of TBK's business by an employee of TBK whose job responsibilities in the regular course of business was to input such information. This information was input at or near the time the Loan Agreements were executed.
37. When payments on account of the Loan Agreements were received by TBK, the date and amount of these payments were input by an employee of TBK at or near the time TBK received such payments. One of TBK's employees input this information into TBK's records in the regular course of TBK's business.
38. I personally reviewed the transaction history for each of the loans at issue.
39. Based on this transaction history, TBK's payoff department calculated the balance due as of November 5, 2024.
40. Based on my review of the transaction history and the payoff department's calculation, the following amounts are due as of November 5,2024:
Collective Loan Balance:
$ 34,890.05
Unpaid Accrued Interest:
$20,613.39
Fees and Costs:
$ 48,060.90
Attorneys' Fees and Costs:
$ 37.661.70
Total Amount:
$141,226.04
FURTHER THE AFFIANT SAYETH NAUGHT.
Subscribed and sworn to before me this 5th day of November, 2024.
Notary Public
My Commission Expires: June 29, 2026.
ALEXUS TRENAY PAGE Notary ID #131626518 My Commission Expires June 29, 2026.