The Highland Consulting Grp. v. Soule

ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE.

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION ON MOTION TO RELEASE VEHICLES

ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on the Motion of Plaintiff, The Highland Consulting Group, Inc. (“Plaintiff” or “Highland”) for an order directing the United States Marshal to release eight vehicles that were seized by writ of execution and sold at a public auction on February 22, 2023 (“Motion”). DE 520. The Motion was referred to the Honorable Bruce E. Reinhart for a Report and Recommendation. Judge Reinhart issued a Report and Recommendation recommending that the Motion be granted in part and denied in part. DE 549.

The Report and Recommendation recommends that the Motion be granted and the United States Marshal issue a bill of sale to the buyer and release physical possession of the following five vehicles to the purchasers: (1) 2021 Ford Mustang Mach-E, (2) 2016 BMW M4, (3) 2020 Land Rover SE Defender, (4) 2019 Porsche Panamera, and (5) 2017 Porsche Panamera. Id. at 10. The Report and Recommendation notes that “[n]othing in this Report and Recommendation precludes a lienholder from pursuing other legal process to obtain possession of one or more of these vehicles.” Id.

The Report and Recommendation recommends that the Motion be denied as to the (1) 2016 Aston Martin Vantage and (2) 2017 BMW M2, as disposition of those vehicles should be controlled by writs of replevin issued by the Miami-Dade County Court. Id. at 11; DE 541-1, 5412. The Report and Recommendation further recommends that a bill of sale be issued for the 2017 BMW M2 as the purchase price had been paid, and that the United States Marshal should retain all auction proceeds until further order of the Court and should file with the Court an accounting of the amounts it requests as reimbursable costs under Florida Statute § 56.27(1) and/or 28 U.S.C. § 1921(c)(1). Id. at 11. The Report and Recommendation recommends that, as to the 2020 Ford Mustang, the purchaser had not yet paid the full winning bid, so no bill of sale should be issued and possession should not be surrendered. Id. at 9.

Third-party purchaser Southwest Foundation, LLC (“Southwest”) filed Objections to the Report and Recommendation on March 13, 2023. DE 550. Southwest (1) seeks clarification that the 2020 Ford Mustang will be released into Southwest's possession upon payment of the bid balance, and (2) objects to the Report and Recommendation's determination that “[d]isposition of the vehicles should be controlled by the Writs of Replevin from the Miami-Dade County Court.” Id. at 1. There is no indication in the record that Southwest paid the purchase price; rather the record reflects that Southwest requested an extension of time to pay the purchase price, which was denied. DE 554-55.

On March 23, 2023, Driverz Financial, LLC (“Driverz”), the first priority lienholder for one vehicle at issue, the 2019 Porsche Panamera (“2019 Panamera”), also objected to the R&R. DE 556. Driverz contends that it complied with Florida law requirements for release of the 2019 Panamera and is also in the process of obtaining a state court writ of replevin to establish further entitlement to the 2019 Panamera. Id. Then, on March 30, 2023, Driverz filed a Notice of Filing Evidence of State Court Writ of Replevin (“Notice”), which attaches a writ of replevin for the 2019 Panamera that Driverz obtained in Case No. 2023-004277-CA-01 in the Eleventh Judicial Circuit for Miami-Dade County, Florida. DE 558. Driverz asks the Court to either release the 2019 Panamera to Driverz or enter an order requiring the disposition of the 2019 Panamera to be controlled by the writ of replevin. Id. at 2.

Intervenors TD Bank N.A. and Santander Consumer USA, Inc. filed notices of their intentions not to object to the Report and Recommendation. No other party filed objections or notices of intent not to object. DE 551-52.

The Court has thoroughly reviewed the Report and Recommendation, the parties' briefing on the Motion, Southwest's Objections, Driverz's Objections, Driverz's Notice, and the record, and is fully advised in the premises. Upon review, the Court finds Judge Reinhart's recommendations to be well-reasoned and correct, and the Court agrees with the factual recitation and the analysis in the Report and Recommendation. The Court adopts the Report and Recommendation with the exception of the recommendation that the 2019 Porsche Panamera should be released. The Court recognizes that the circumstances relating to the 2019 Panamera have changed since the Report and Recommendation was issued, as Driverz obtained a writ of replevin for the 2019 Panamera, which now controls the disposition of that vehicle. DE 558. All other objections are overruled.

For the foregoing reasons, it is hereby ORDERED and ADJUDGED that:

1. Magistrate Judge Reinhart's Report and Recommendation, [DE 549], is ADOPTED IN PART.

2. For the following vehicles, Plaintiff's Motion is GRANTED and the United States Marshal shall issue a bill of sale to the buyer and release physical possession of each vehicle to the purchaser: (1) 2021 Ford Mustang Mach-E, (2) 2016 BMW M4, (3) 2020 Land Rover SE Defender, and (4) 2017 Porsche Panamera.

3. Plaintiff's Motion is DENIED as to the 2017 BMW M2, but the United States Marshal

shall issue a bill of sale to the purchaser of that vehicle.

4. Plaintiff's Motion is DENIED as to the (1) 2016 Aston Martin Vantage and (2) 2020 Ford Mustang.

5. Plaintiff's Motion is DENIED as to the 2019 Porsche Panamera, but the United States Marshal shall issue a bill of sale to the purchaser of that vehicle.

6. It is ORDERED that the United States Marshal shall retain all auction proceeds until further order of the Court and shall file with the Court an accounting of the amounts it requests as reimbursable costs under Florida Statute § 56.27(1) and/or 28 U.S.C. § 1921(c)(1).

7. Nothing in this Order precludes a lienholder from pursuing other legal process to obtain possession of one or more of the vehicles.

DONE and ORDERED.