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Caterpillar Financial Services Corp. v. Charter Connection Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 5, 2008

CATERPILLAR FINANCIAL SERVICES CORPORATION, PLAINTIFF,
v.
CHARTER CONNECTION CORPORATION, IN PERSONAM, ET AL., DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER

(1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR CREDIT BID AUTHORITY AND FOR AWARD OF ADDITIONAL COSTS; AND (2) DENYING AS MOOT EX PARTE APPLICATION FOR ORDER SHORTENING TIME

Pending before the court in this admiralty action is Plaintiff Caterpillar Financial Services Corporation's ("Caterpillar") Motion for Credit Bid Authority on the Judicial Sale of the Defendant Vessel and for Award of Additional Costs Not Contemplated in the Order for Sale of the Defendant Vessel. For the reasons stated below, Caterpillar's motion is GRANTED IN PART AND DENIED IN PART.

Pursuant to orders filed August 6 and August 21, 2008, Caterpillar is the only remaining claimant to the Defendant vessel. Caterpillar's motion for judicial sale of the Defendant vessel was granted on August 12, 2008. Accordingly, Caterpillar's request for credit bid authority at the sale is granted. However, the court is not inclined to enter a deficiency judgment against in personam Defendants for an amount exceeding the difference between the a fair market value of the vessel and the amount owing Caterpillar.

Caterpillar's request for custodia legis expenses accrued since November 30, 2007 is denied because Caterpillar has not submitted any invoices in support of the request. Exhibit 1 to the declaration of Michael E. Thompson was not included. In light of the fact that Caterpillar's custodia legis expenses have continued to accrue since November 30, 2007 and will continue to accrue until the sale, and that Caterpillar's expenses cannot until then be fully quantified, Caterpillar shall promptly after the sale and confirmation file with the court a motion, supported by evidence, and a proposed order, which shall reflect Caterpillar's custodia legis expenses accrued since November 30, 2007.

For the foregoing reasons, IT IS HEREBY ORDERED:

1. Caterpillar's request for credit bid authority at the sale is granted.

2. Caterpillar's request for custodia legis expenses accrued since November 30, 2007 is denied without prejudice. Caterpillar shall promptly after the sale and confirmation file with the court a motion, supporting evidence, and a proposed order, which shall reflect Caterpillar's custodia legis expenses accrued since November 30, 2007.

3. Caterpillar's ex parte application for an order to shorten time is denied as moot.

IT IS SO ORDERED.

20080905

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