United States District Court, D. Massachusetts
COMMERCE BANK, a division of BERKHIRE BANK, as successor-in-interest to COMMERCE BANK & TRUST COMPANY, Plaintiff,
FIRST STATE TRUCKING, INC., TIMOTHY J. CAMPBELL, and DONALD H. CAMPBELL, Defendants.
ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY
TIMOTHY S. HILLMAN DISTRICT JUDGE.
Plaintiff, Commerce Bank, a division of Berkshire Bank, as
successor-in interest to Commerce Bank & Trust Company
(“Commerce Bank”) has filed a Complaint (Docket
No. 1) against Defendants, First State Trucking, Inc.
(“First State”), Timothy J. Campbell (“T.
Campbell”), and Donald H. Campbell (“D.
Campbell”), for breach of contract as the result of
Defendants' failure to pay Commerce Bank for monies due
in connection with an aircraft loan and/or personal
guaranties. Commerce Bank seeks a preliminary injunction
which would enjoin the Defendants from interfering with its
rights to certain collateral, including a 1980 Sabreliner 65,
FAA Registration No. N42DC, Serial No. 465-25 (the
“Sabreliner”) pledged to Commerce bank as a
security pursuant to an aircraft security agreement.
August 20, 2007, First State executed a demand promissory
note in favor of Commerce Bank in the principal amount of
$500, 000.00 (“Note”). The Note was payable in
eighty-three equal monthly installments, with a final balloon
payment of $402, 357.04 due on or before August 20, 2014. On
August 29, 2014, First State executed an allonge to the Note
extending the maturity date of the Note until August 20,
2019, with fifty-nine monthly payments and a final balloon
payment of all unpaid principal and interest (the
security for the Note, First State granted Commerce Bank a
security interest in the Sabreliner. The parties executed a
security agreement and Commerce Bank perfected its security
interest in the “Collateral”, as defined
therein. T. Campbell and D. Campbell (collectively,
“Guarantors”) executed personal guaranties
unconditionally guaranteeing all obligations of First State
to Commerce Bank under the Note.
State is in default of its obligations under the Note having
ceased to make required payments in September 2017. The
outstanding balance owed on the Note is $160, 867.06
plus interest, late fees, etc. The
Guarantors have also failed to pay the outstanding amounts
due to Commerce Bank, as required. The Security Agreement
grants Commerce Bank the right to take possession of and sell
the Collateral should an “Event of Default”
occur. Failure to make payment when due under the Note is an
“Event of Default.” On July 18, 2018, Commerce
Bank notified First State and the Guarantors that they were
in payment default under the Note and guaranties and that it
was accelerating the full amount due.
evaluating a motion for a preliminary injunction, the Court
considers the following factors: the likelihood the movant
will succeed on the merits, whether the movant is likely to
suffer irreparable harm in the absence preliminary relief,
the balance of equities, and whether an injunction is in the
public interest. Voice Of The Arab World, Inc. v. MDTV
Medical News Now, Inc., 645 F.3d 26, 32
(1st Cir. 2011). While all four factors must be
weighed, the moving party's likelihood of success on the
merits is “the touchstone of the preliminary injunction
inquiry.” Philip Morris, Inc. v. Harshbarger,
159 F.3d 670, 674 (1st Cir.1998). “[I]f the
moving party cannot demonstrate that he is likely to
succeed in his quest, the remaining factors become matters of
idle curiosity.” Maine Educ. Ass'n, 695
F.3d at 152 (quoting New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st
Cir.2002)) (emphasis added). The moving party bears the
burden of proof for each of these four factors.
Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120
(1st Cir. 2003).
case, the Defendants have not disputed that they have
defaulted under the Note and/or personal guarantees.
Furthermore, the Defendants have been served and have not
appeared or otherwise opposed the issuance of a preliminary
injunction in Commerce Bank's favor. Accordingly,
Commerce Bank has established a strong likelihood of
success on the merits, that it will suffer irreparable harm,
that the equities are in its favor and that public policy
favors the issuance of injunctive relief. Therefore, Commerce
Bank's motion for a preliminary injunction is granted.
Court's rules of procedure provide in relevant part that
“[t]he court may issue a preliminary injunction or a
temporary restraining order only if the movant gives security
in an amount that the court considers proper to pay the costs
and damages sustained by any party found to have been
wrongfully enjoined or restrained.” Fed.R.Civ.P. 65(c).
Therefore, Commerce Bank shall post a bond or cash in the
amount of $1, 000 as security for the costs and damages, if
any, sustained by any Defendant if found to have been
wrongfully enjoined or restrained.
Motion For Preliminary Injunction (Docket No. 2) ...