On 10/12/2016 EVERBANK COMMERCIAL FINANCE, INC filed a Contract - Other Contract lawsuit against LOVE FREIGHTWAYS, INC. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARGARET M. BERNAL, TORRIBIO, JOHN A., RAUL A. SAHAGUN, MARGARET MILLER BERNAL and LORI ANN FOURNIER. The case status is Pending - Other Pending.
****5860
10/12/2016
Pending - Other Pending
Los Angeles County Superior Courts
Norwalk Courthouse
Los Angeles, California
MARGARET M. BERNAL
TORRIBIO, JOHN A.
RAUL A. SAHAGUN
MARGARET MILLER BERNAL
LORI ANN FOURNIER
EVERBANK COMMERCIAL FINANCE INC.
TIAA COMMERCIAL FINANCE INC.
MAKSIMOVIC ANA
LOVRE NEMO
NEMANJA LOVRE AN
LOVE FREIGHTWAYS INC. A CALIFORNIA CORP
LOVRE NEMANJA AKA NEMO LOVRE AN INDIVIDUAL
GE CAPITAL COMMERCIAL INC.
EVERGREEN COMMERCIAL FINANCE INC.
NAVISTAR CORP
NAVISTAR INC.
NAVISTAR FINANCIAL INC.
NAVISTAR CORP.
HEMAR ROUSSO & HEALD LLP
KHATCHADOURIAN RAFFI
MCKENDRICK ROBERT VANCE
IKONTE CHIJIOKE OBINNAYA
IWUCHUKU DON
AKUDINOBI EMMANUEL CHUKWUEMEK
HARRINGTON FOXX DUBROW & CANTER LLP
OGIKE METU CHIKEZIE
12/26/2019: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
3/18/2020: Order - ORDER RULING ON SUBMITTED MATTER
3/18/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)
4/1/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (FINAL STATUS CONFERENCE; MANDATORY SETTLEMENT CONFERENCE (MSC)) OF 04/01/2020
4/16/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER ADVANCING AND CONTINUING FUTURE HEARING DATES.) OF 04/16/2020
6/10/2020: Minute Order - MINUTE ORDER (COURT ORDER)
7/15/2020: Order - ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
9/4/2020: Status Report
12/16/2016: Legacy Document - LEGACY DOCUMENT TYPE: CROSS-COMPL FLD - SUMMONS ISSUED
1/17/2017: Proof of Service (not Summons and Complaint)
6/5/2017: Notice of Ruling
7/31/2017: Minute Order - Minute order entered: 2017-07-31 00:00:00
7/31/2017: Legacy Document - LEGACY DOCUMENT TYPE: Deft's Ntc of Hrng on Demurrer
8/15/2017: Legacy Document - LEGACY DOCUMENT TYPE: Order
11/30/2017: Minute Order - Minute order entered: 2017-11-30 00:00:00
8/13/2018: Notice -
11/15/2018: Order - Order to Continue Trial Dates
3/12/2019: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER COMPELLING DEPOSITION OF PLANTIFF'S PMQ AND REQUEST FOR PRODUCTION OF DOCUMENTS AND FOR MONETARY SANCTIONS IN THE AMOUNT OF $2000
Hearing04/06/2021 at 10:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Status Conference Re: Bankruptcy
Hearing04/06/2021 at 10:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Trial Setting Conference
DocketNotice (Re: Entry of Judgment); Filed by TIAA COMMERCIAL FINANCE, INC. (Plaintiff)
DocketJudgment (Re Motion for Summary Judgment); Filed by TIAA COMMERCIAL FINANCE, INC. (Plaintiff)
DocketProof of Service by Mail; Filed by TIAA COMMERCIAL FINANCE, INC. (Plaintiff)
DocketNotice of Ruling; Filed by EVERBANK COMMERCIAL FINANCE, INC. (Plaintiff); TIAA COMMERCIAL FINANCE, INC. (Plaintiff)
Docketat 10:00 AM in Department F; Trial Setting Conference - Held - Continued
Docketat 10:00 AM in Department F; Status Conference Re: Bankruptcy (as to defendant/cross complainant Love Freightways) - Held - Continued
Docketat 08:30 AM in Department F; Non-Appearance Case Review (ReBankruptcy) - Not Held - Advanced and Vacated
Docketat 08:30 AM in Department F; Trial Setting Conference - Not Held - Advanced and Continued - by Court
DocketRtn of Service of Summons & Compl; Filed by EVERBANK COMMERCIAL FINANCE, INC. (Plaintiff)
DocketRtn of Service of Summons & Compl; Filed by EVERBANK COMMERCIAL FINANCE, INC. (Plaintiff)
DocketRtn of Service of Summons & Compl (BY SUBSTITUTED SERVICE ON 10/19/16 Proof of Service by Mail attached ); Filed by Attorney for Plaintiff
DocketSummons; Filed by Plaintiff
DocketComplaint filed-Summons Issued; Filed by EVERBANK COMMERCIAL FINANCE, INC. (Plaintiff)
DocketNotice of Case Management Conference; Filed by Clerk
DocketNotice-Case Management Conference; Filed by Clerk
DocketSummons Filed; Filed by Attorney for Plaintiff
DocketComplaint filed-Summons Issued; Filed by Attorney for Plaintiff
DocketCivil Case Cover Sheet; Filed by EVERBANK COMMERCIAL FINANCE, INC. (Plaintiff); TIAA COMMERCIAL FINANCE, INC. (Plaintiff)
Case Number: VC065860 Hearing Date: March 12, 2020 Dept: SEC
EVERBANK COMMERCIAL FINANCE, INC. v. LOVE FREIGHTWAYS, INC.
CASE NO.: VC065860
HEARING: 03/12/2020
JUDGE: OLIVIA ROSALES
#6
TENTATIVE ORDER
Plaintiff EVERBANK COMMERCIAL FINANCE, INC.’s motion for summary judgment or alternatively summary adjudication is GRANTED. CCP § 437c.
Moving Party to give Notice.
No Opposition has been filed as of March 10, 2020. The Court notes, however, that it has received and considered Defendant’s “Response to Plaintiff’s Separate Statement” and the Declaration of Nemanja Lovre in Support of Opposition to Plaintiff’s Motion for Summary Judgment.
This action for breach of contract was filed by Plaintiff on October 12, 2016. In its Complaint, Plaintiff alleges, in pertinent part, “On or about October 18, 2013, Defendant LOVE FREIGHTWAYS, INC….entered into a written Loan and Security Agreement (hereinafter the ‘Agreement’) with Plaintiff’s predecessor in interest, GE CAPITAL COMMERCIAL, INC. to finance the purchase of three (3) 2012 International Prostar Tractor Trucks.” (Complaint ¶8.) “On or about June 12, 2014, GE CAPITAL COMMERCIAL, INC. sold and assigned all of its rights, title and interest in the Agreement and the Trucks to Plaintiff….” (Complaint ¶11.) “On or about January 10, 2016, and continuing thereafter, Defendants breached the terms of the Agreement by failing to make the monthly payment then due and owing. In addition, Defendants failed and refused and continue to fail and refuse to make any further payments coming due thereunder. [¶] Plaintiff subsequently recovered the Truck with VIN ending in 5296 and sold it in a commercially reasonable manner and recovered net proceeds in the amount of $9,722.50, which ahs been credited to the amounts owing herein. Plaintiff is informed and believes, and thereon alleges, that the Trucks with VIN ending in 5303 and 5330 were subsequently sold at a Mechanic’s Lien Sale, without Plaintiff’s consent or knowledge, and through no fault of Plaintiff, thus rendering said collateral of Plaintiff’s worthless. [¶] Pursuant to the terms of the Agreement, upon Defendants’ default, Plaintiff elected to accelerate the balance due thereunder…. [¶] No party of said sum has been made….” (Complaint ¶¶ 13-16.)
Plaintiff’s Complaint asserts the following causes of action: (1) Breach of Written Agreement; (2) Account Stated; (3) Unjust Enrichment (4) Open Book Account; and (5) Breach of Guaranty.
Although not articulated in a substantive Opposition Brief, it appears as though Defendant is arguing that there can be no breach of contract because the trucks were defective—therefore, Plaintiff/Plaintiff’s assignor has failed to fully perform under the Agreement, and Defendant should owe Plaintiff nothing.
Defendant’s argument lacks merit. As argued in Reply, page one of the Loan and Security Agreement states, in all upper-case print: “LENDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, WORKMANSHIP, DESIGN, MERCHANTABILITY, SUITABILITY, OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS O IMPLIED.” (McGovern Decl., Ex. 1.)
The following facts are undisputed: Plaintiff’s assignor and Defendant entered into the Loan and Security Agreement for the purchase of three trucks; the Loan and Security Agreement was assigned to Plaintiff; Defendant received and accepted the three trucks; and Defendant made monthly payments until the time of default.
The Motion for Summary Judgment is GRANTED.