Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hill v. Bobby Eugene Guess

United States District Court, N.D. Georgia, Atlanta Division

December 1, 2017

AL B. HILL, as Receiver for Credit Nation Capital, LLC, Credit Nation Acceptance, LLC, Credit Nation Auto Sales, LLC, American Motor Credit, LLC, and Spaghetti Junction, LLC, Plaintiffs,
v.
BOBBY EUGENE GUESS, DAVID SAVAGE, and MICHAEL SWEET, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Receiver Al B. Hill's, as Receiver for Credit Nation Capital, LLC, Credit Nation Acceptance, LLC, Credit Nation Auto Sales, LLC, American Motor Credit, LLC, and Spaghetti Junction, LLC (“Receiver”) Motion for Default Judgment as to Liability Against Defendant Bobby Eugene Guess and Request for an Evidentiary Hearing on Damages [13] (“Motion for Default Judgment”).

         I. BACKGROUND

         A. The Underlying SEC Litigation

         On November 10, 2016, the United States Securities and Exchange Commission (“SEC”) filed a complaint seeking injunctive relief and damages against James A. Torchia (“Torchia”) and his companies Credit Nation Capital, LLC (“CN Capital”), Credit Nation Acceptance, LLC, Credit Nation Auto Sales, LLC, American Motor Credit, LLC, and Spaghetti Junction, LLC (collectively, the “Receivership Companies”). The SEC also sought appointment of a receiver for the Receivership Companies and Torchia. That case is pending in the Northern District of Georgia as Civil Action No. 1:15-cv-3904-WSD (the “SEC Litigation”).

         The SEC Litigation involved allegations that Torchia and the Receivership Companies participated in two fraudulent investment schemes through the sale of unregistered securities to the investing public. One involved the alleged sale of millions of dollars of promissory notes with a supposed nine percent return to investors, and the other involved the sale of fractional interests in life settlement contracts whereby the purchasers were promised shares of life insurance proceeds when the insureds passed away. On April 25, 2016, the Court entered an order granting a preliminary injunction and freezing the assets of Torchia and the Receivership Companies, and appointing the Receiver to oversee the Receivership. (No. 1:15-cv-3904-WSD [66]).

         B. The Receiver's Instant Action and Motion for Default Judgment

         On December 28, 2016, as part of his duties under the Receivership, the Receiver filed the Complaint [1] in this action seeking to recover sales commissions that CN Capital paid to Defendants for allegedly selling promissory notes and/or fractional interest in insurance policies to investors. The Complaint alleges that these payments “constituted fraudulent transfers of the assets of CN Capital at the direction of Torchia, ” and the “payments to [] [D]efendants unjustly enriched them and constituted money had and received, which in equity and good conscience [] [D]efendants may not retain.” ([1] at 3). The Complaint asserts claims of fraudulent transfers, unjust enrichment, and money had and received. The Complaint also prays for a money judgment against Defendant Guess in the amount of $1, 542, 024.16. ([1] at 14).

         On January 10, 2017, Defendant Guess was served with the Complaint. ([13] at 2; [13.1] ¶ 5). On March 7, 2017, as the result of Defendant Guess's failure to plead, defend, or otherwise respond to the Complaint, the Clerk of Court entered default against him. On July 5, 2017, the Receiver filed his Motion for Default Judgment arguing that Defendant Guess's failure to plead or otherwise respond to the Complaint resulted in Defendant Guess's admission of each paragraph of the Complaint, including those paragraphs and statements concerning fraudulent transfers, unjust enrichment, money had and received, and the amounts claimed. ([13] at 3-4).

         II. DISCUSSION

         A. Legal Standard

         Rule 55(b) of the Federal Rules of Civil Procedure provides that default judgment may be entered against defaulting defendants as follows:

(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk-on the plaintiff's request, with an affidavit showing the amount due-must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. . . . If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.