Judge: Curtis A. Kin, Case: 23STCV31128, Date: 2024-03-07 Tentative Ruling

Case Number: 23STCV31128    Hearing Date: March 7, 2024    Dept: 82

APPLICATIONS (2) FOR RIGHT TO ATTACH ORDERS

Date:               3/7/24 (1:30 PM)

Case:                           Bank of America, N.A. v. Performance Engineered Products, Inc. et al. (23STCV31128)

TENTATIVE RULING:

Plaintiff Bank of America, N.A.’s UNOPPOSED applications for right to attach order with respect to defendants (1) Dinesh V. Savalia and (2) Babulal A. Savalia are GRANTED.

Pursuant to CCP §484.090, the Court finds:

1)      the claim is one upon which attachment may be issued;

2)      plaintiff has established the probable validity of the claim;

3)      attachment is not sought for any purpose other than recovery on the claim;

4)      the amount to be attached is greater than zero.

Plaintiff disbursed money to Performance Engineered Products, Inc. (“Performance Engineered”) pursuant to a Loan Agreement (comprised of a Note, Master Credit Agreement, and Financial Covenant Agreement) between plaintiff Bank of America, N.A. and defendant Performance Engineered Products, Inc. (“Performance Engineered”), as well as an Equipment Agreement (comprised of a Master Loan and Security Agreement and Equipment Security Note) between plaintiff and Honor Plastics & Molding, Inc. (the former fictitious name of Performance Engineered). (Corkery Decl. ¶¶ 8, 12 & Exs. 1, 3.)

The Loan Agreement defines a default to include a failure to make a payment under the agreement when due. (Corkery Decl. ¶ 8 & Ex. 1, Loan Agreement at § 5.1(a).) The Equipment Agreement defines a default to include when Performance Engineered defaults under any other agreement to which Performance Engineered and plaintiff are parties. (Corkery Decl. ¶ 12 & Ex. 3 at Master Loan and Security Agreement, § 10(8).)

Performance Engineered defaulted under the Loan Agreement by failing to pay amounts due purportedly totaling $776,814.50. (Corkery Decl. ¶¶ 8, 11, 19, 20, 22, & Ex. 5.) Based on Performance Engineered’s default under the Loan Agreement, it is also in default under the Equipment Agreement in the amount of $5,665.24. (Corkery Decl. ¶¶ 14, 15, 23 & Ex. 6.)

Defendants Dinesh V. Savalia and Babulal A. Savalia signed guaranties for the Loan Agreement and the Equipment Agreement, pursuant to which they guaranteed the amounts owed by Performance Engineered. (Corkery Decl. ¶¶ 16, 17 & Exs. 2, 4.) Defendants have failed to pay the amounts owed by Performance Engineered. (Corkery Decl. ¶ 18.) Accordingly, plaintiff has established the probability of the breach of guaranties claim against defendants Dinesh V. Savalia and Babulal A. Savalia.

However, with respect to the Loan Agreement, plaintiff claims that, as of December 22, 2023, interest had accrued in the amount of $3,862.83. (Corkery Decl. ¶ 11.) Plaintiff also claims that, as of the same date, default interest had accrued in the amount of $2,951.67. (Ibid.) Based on the Statement of Account for the Loan Agreement provided by plaintiff, it is unclear whether these interest figures, totaling $6,814.50 are accurate. (Corkery Decl. ¶ 22 & Ex. 5.) There is no end date of December 22, 2023 reflected in the statement. Further, the interest balance as of December 31, 2023 was $5,702.27. Moreover, it appears as of January 8, 2024, the balance of interest was $1,471.55, after an interest payment was applied. Accordingly, the amount to be attached for amounts owed under the Loan Agreement shall be $771,471.55, the sum of the $770,000 principal and $1,471.55 in interest, as reflected in the Statement of Account.

Based on the foregoing, the applications will be granted in the amount of $777,136.79 ($771,471.55 Loan Agreement + $5,665.24 Equipment Agreement).

Writ will issue upon the posting of two separate bonds in the amount of $10,000 each for the two defendants. (CCP §489.220.)