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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CASE NO. 4:16-CV-67
`Judge Mazzant
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`NAVISTAR FINANCIAL
`CORPORATION
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`v.
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`BJG LOGISTICS, L.L.C. and
`BOBBY J. GORMAN
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Plaintiff Navistar Financial Corporation’s Motion for Partial
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`Summary Judgment (Dkt. #18). The Court, having considered the relevant pleadings, finds that the
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`motion should be granted.
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`BACKGROUND
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`Plaintiff filed suit against Defendants BJG Logistics, L.L.C. (“BJG”) and Bobby J. Gorman
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`(“Gorman”) pursuant to a Commercial Loan and Security Agreement (the “Loan”) signed by BJG
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`and guaranteed by Gorman.
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`On or around November 21, 2011, BJG, through its member, Gorman, executed the Loan in
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`the principal amount of $1,040,000, with total interest and charges in the amount of $132,441.12,
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`computed at a rate of 4.9% per annum during the term of the Loan. The Loan was payable by BJG
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`to Navistar in 48 consecutive monthly payments of $19,009.19, beginning December 21, 2011, with
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`a final balloon payment of $260,000. To secure payment of the Loan, BJG, through its member
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`Gorman, granted Navistar a security interest in collateral detailed in Schedule A to the Loan (the
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`“Collateral”). Navistar properly perfected its interest in the Collateral, and holds Certificate of Title
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`liens on the following vehicles, obtained by BJG with Loan proceeds:
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`Case 4:16-cv-00067-ALM Document 20 Filed 09/08/16 Page 2 of 5 PageID #: 158
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`Type
`Manufacturer
`Serial Number
`Year Model
`2012 PROSTAR 122 6X4 3HSDJSJR7CN658229 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJR9CN658247 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJROCN658248 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJR2CN658252 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJR4CN658253 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJR8CN658255 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJRSCN658259 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJRSCN658262 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJR9CN658264 International Sleeper Tractor
`2012 PROSTAR 122 6X4 3HSDJSJR4CN658267 International Sleeper Tractor
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`To induce Navistar into making the Loan, and as further security for BJG's repayment of its
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`indebtedness to Navistar, Gorman, BJG's member, executed a Continuing Unconditional Guaranty
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`dated November 21, 2011. Pursuant to the terms of the Guaranty, Gorman “absolutely and
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`unconditionally guarantee[d]: (a) the prompt payment of all monetary obligations of any sort…”
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`incurred by BJG and owed to Navistar.
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`During fall 2014, BJG defaulted under the terms of the Loan. BJG remained in default under
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`the Loan for months thereafter. On or about August 31, 2015, BJG acknowledged that it was in
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`default of the Loan. In an effort to avoid repossession and foreclosure, BJG proposed modifying the
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`terms of the Loan to facilitate BJG's continued repayment. After negotiations, Navistar and BJG
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`entered into a Retail Loan Modification Agreement extending the Loan maturity date and modifying
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`payment terms (the “Loan Modification”).
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`Pursuant to the terms of the Loan Modification, BJG acknowledged that as of July 31, 2015,
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`it was in default and indebted to Navistar in the principal amount of $484,444.28, plus late fees in
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`the amount of $31,311.21, and interest accruing on all amounts due and owing at a rate of 4.9% per
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`annum. By agreement, Navistar extended the maturity date of the Loan to October 21, 2017, which
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`allowed BJG to continue paying monthly installments of $19,009.19, with a final payment of only
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`2
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`Case 4:16-cv-00067-ALM Document 20 Filed 09/08/16 Page 3 of 5 PageID #: 159
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`$16,557.47.
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`Shortly after entering into the Loan Modification, BJG defaulted on its payment obligations,
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`ceased operations, and fell out of good standing with the state of Louisiana for failing to file its
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`annual report. BJG has failed to cure its defaults, and continues to owe Navistar for all amounts
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`outstanding. As of June 30, 2016, BJG and Gorman,. pursuant to the Guaranty, owe Navistar not
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`less than $576,153.99, plus interest, and all costs, expenses, and attorneys' fees incurred during the
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`enforcement of the Loan and Guaranty.
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`On July 8, 2016, Plaintiff filed a motion for partial summary judgment (Dkt. #18). After no
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`response was filed, the Court gave Defendants the opportunity to file a response on or before August
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`11, 2016. No response was filed.
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`LEGAL STANDARD
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`The purpose of summary judgment is to isolate and dispose of factually unsupported claims
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`or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper
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`if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there
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`is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter
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`of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if the evidence is such
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`that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the
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`party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins.
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`Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which
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`facts are material. Anderson, 477 U.S. at 248.
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`3
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`Case 4:16-cv-00067-ALM Document 20 Filed 09/08/16 Page 4 of 5 PageID #: 160
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`The party moving for summary judgment has the burden to show that there is no genuine
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`issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant
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`bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must
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`come forward with evidence that establishes “beyond peradventure all of the essential elements of
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`the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the
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`nonmovant bears the burden of proof, the movant may discharge its burden by showing that there
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`is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall.
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`Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the
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`nonmovant must “respond to the motion for summary judgment by setting forth particular facts
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`indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at
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`248-49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. No “mere
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`denial of material facts nor…unsworn allegations [nor] arguments and assertions in briefs or legal
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`memoranda” will suffice to carry this burden. Moayedi v. Compaq Comput. Corp., 98 F. App’x 335,
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`338 (5th Cir. 2004). Rather, the Court requires “significant probative evidence” from the nonmovant
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`in order to dismiss a request for summary judgment supported appropriately by the movant. United
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`States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider all of the evidence,
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`but must refrain from making any credibility determinations or weighing the evidence. See Turner
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`v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
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`ANALYSIS
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`Plaintiff seeks summary judgment against Defendants on liability for breach of the contract
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`and the guaranty claim. To prevail on a breach of contract action under Illinois law1, a plaintiff must
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`1 The Loan and Guaranty each provide for Illinois law to be applied in this case.
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`4
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`Case 4:16-cv-00067-ALM Document 20 Filed 09/08/16 Page 5 of 5 PageID #: 161
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`prove: (1) an offer and acceptance; (2) consideration; (3) definite and certain terms of the contract;
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`(4) Plaintiff’s performance; (5) a breach; and (6) damage resulting from the breach. Brown & Kerr,
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`Inc. v. American Stores Props., 306 III. App.3d 1023, 1030, 715 N.E.2d 804, 810 (1st Dist. 1999).
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`The uncontested summary judgment evidence establishes these elements entitling Plaintiff
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`to summary judgment as to the liability of BJG and Gorman under the Loan and Guaranty.
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`It is therefore ORDERED that Plaintiff Navistar Financial Corporation’s Motion for Partial
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`Summary Judgment (Dkt. #18) is hereby GRANTED. The Court finds that liability is now
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`established in favor of Plaintiff against BJG Logistics, LLC and Bobby J. Gorman under the Loan
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`and Guaranty.
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`5