Opinion
3:03-CV-0663-M
November 18, 2003
ORDER
Before the Court are Plaintiff's Motion for Interlocutory Default Judgment, filed on August 26, 2003, and Plaintiff's Motion for Summary Judgment, filed on September 11, 2003.
I. BACKGROUND
Plaintiff MCI Financial Services, Inc. f/k/a Buslease, Inc. ("MCI" or "Plaintiff") is in the business of financing sales of motor coaches for passenger operations. MCI filed this suit on April 1, 2003, stating claims for suit on a promissory note, breach of contract, and foreclosure against Defendants Autobuses Lucano, Inc. ("Autobuses"); Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; Candido Vazquez; Marco L. Vazquez; Maria Esterlina Vazquez; and Transportes Lucano, Inc.
MCI's claims arise from a series of seven security agreements, which MCI asserts are in default, and seven individual guarantees, which MCI seeks to enforce. Three of the security agreements were signed by Marco L. and Alma L. Vazquez, doing business as Transportes Lucano, and then assigned to Autobuses. Three of the security agreements were signed by Fermin and Alma D. Vazquez, doing business as Lucano Transports, and then assigned to Autobuses. One of the security agreements was signed by Fermin Vazquez, doing business as Lucano Transports, and then assigned to Autobuses. Candido Vazquez, Alma D. Vazquez, Fermin Vazquez, Maria Vazquez, Marco L. Vazquez, Alma L. Vazquez, and Ramona Silva signed individual guarantees for Autobuses's obligations. MCI contends that a principal amount of $1,742,325.84 is due under the security agreements; that, as of July 30, 2003, $236,051.12 of interest was due under the security agreements; that, since July 30, 2003, interest has been accruing in the amount of $325.04 per day; and that MCI has incurred $41,000.00 of attorney's fees in the action. MCI asserts that this Court has subject matter jurisdiction over this controversy pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds $75,000, exclusive of interest and costs, and because complete diversity of citizenship among the parties exists. (Compl. ¶ 10).
The following motor coaches are listed as collateral in these seven security agreements: 1998 Dina Viaggio 1000 (VIN: 3ABBBFGA2WS001627); 1998 Dina Viaggio 1000 (VIN: 3ABBBFGA3WS001684); 1998 Dina Viaggio 1000 (VIN: 3ABBBFGA7WS001767); 1999 Dina Viaggio 1000 (VIN: 3ABBBFHA5XS002044); 1999 Dina Viaggio 1000 (VIN: 3ABBBFHA7XS002045); 1999 Dina Viaggio 1000 (VIN: 3ABBBFHA4XS002049); 1999 Dina Viaggio 1000 (VIN: 3ABBBFHA9XS002239); 1999 Dina Viaggio 1000 (VIN: 3ABBBFHA2XS002230); 1999 Dina Viaggio 1000 (VIN: 3ABBBFHAIXS002235); and 1999 Dina Viaggio 1000 (VIN: 3ABBBFHA3XS002236).
On May 20, 2003, Defendants Autobuses and Marco L. Vazquez filed Defendants' Original Answer. In response to MCI's assertion of diversity jurisdiction, the answering Defendants deny that complete diversity of citizenship exists because MCI's "principal place of business, was, and continues to be, as indicated in Plaintiff's Exhibit 'X,' located at 9787 Clifford Dr., Dallas, Texas 75220." (Orig. Ans. ¶ 10). Since Defendants are citizens of Texas, this would destroy diversity. Plaintiff's Exhibit X is a letter dated January 10, 2003 from an MCI financial services representative to Autobuses. The letter is printed on MCI letterhead that lists the Clifford Drive address. The letter demands that Autobuses pay an unpaid balance to MCI at the Clifford Drive address and references an MCI account at a bank in Coppell, Texas.
On August 26, 2003, MCI filed a Request for Entry of Default against non-answering Defendants Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; and Transportes Lucano, Inc. Also on August 26, 2003, MCI filed a Motion for Interlocutory Default Judgment against those same defendants. On September 3, 2003, pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court entered default against each of those defendants. On September 11, 2003, MCI filed a Motion for Summary Judgement against the answering Defendants, Autobuses and Marco L. Vazquez. Defendants Autobuses and Marco L. Vazquez filed a Response to MCI's Motion for Summary Judgment on October 1, 2003, and MCI filed a Reply on October 16, 2003.
II. ANALYSIS
A. Subject Matter Jurisdiction
Subject matter jurisdiction must be established as a threshold matter because, without jurisdiction, the Court cannot proceed at all in any cause. Koshel v. Koshel, 2002 WL 1544681, at *4 (N.D. Tex. July 11, 2002) (citing Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94-95 (1998)). Therefore, although the non-answering Defendants have not appeared in this lawsuit and thus have not raised the issue of subject matter jurisdiction, the Court sua sponte will address the issue of subject matter jurisdiction before ruling on MCI's motions. MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 172 (5th Cir. 1990) (holding that subject matter jurisdiction "may be raised by the parties, or by the court sua sponte, at any time").The answering Defendants' attack on the Court's subject matter jurisdiction is a factual attack rather than a facial attack. See lrwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). "An attack is 'factual' rather than 'facial' if the defendant submits affidavits, testimony, or other evidentiary materials." Id. (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). Here, the answering Defendants do not contend that MCI failed to allege sufficient facts to support subject matter jurisdiction. Rather, the answering Defendants attack MCI's allegation that MCI's principal place of business is located in Cook County, Illinois. In support, the answering Defendants rely on attached evidentiary material, specifically Exhibit X. Therefore, the Court will not presume the truth of MCI's jurisdictional allegations. Rather, MCI is obliged "to submit facts through some evidentiary method" to show by a preponderance of the evidence that this Court has subject matter jurisdiction. Id.
On September 16, 2003, the Court ordered the parties to submit, by September 24, 2003, further evidence, if any, of Plaintiff's principal place of business. No evidence was submitted in response to the Court's order. Upon being advised by MCI's counsel that the Court's September 16, 2003 Order had not been received by MCI's counsel, the Court extended the deadline for all parties to submit evidence to October 10, 2003. On October 9, 2003, MCI submitted the affidavit of Timothy J. Nalepka, Vice President, General Counsel, and Secretary for MCI. The answering Defendants submitted no evidence. Therefore, in determining whether the Court has diversity jurisdiction over this action, the Court will consider the answering Defendants' Exhibit X and the affidavit of Mr. Nalepka.
The Fifth Circuit determines a corporation's principal place of business by applying the "total activity" test, which is a synthesis of the "place of activity" and "nerve center" tests that other courts apply. J.A. Olson Co. v. City of Winona, 818 F.2d 401, 411 (5th Cir. 1987). Determination of the principal place of business begins with the general rules of these component tests. Id. One of these general rules is that, "when considering a corporation whose operations are far flung, the sole nerve center of that corporation is more significant in determining principal place of business." Id. hi this case, MCI has "far-flung operations financing motor coaches nationally." (Nalepka Aff. ¶ 4). Therefore, MCI's nerve center is significant in determining its principal place of business.
The nerve center is the state in which the corporation has its "brain." J.A. Olson Co., 818 F.2d at 404. In determining a corporation's nerve center, the Court should consider "the exclusivity of decision making of the nerve center and the degree of autonomy delegated to other locations." Id. at 412. In this case, MCI's officers "direct, control, and coordinate all of the company's major activities without regard to locale in furtherance of MCI's objectives" in Cook County, Illinois. (Nalepka Aff. ¶ 6). Specifically, the office in Cook County, Illinois "controls labor and employment issues, directs employment benefits and compensation packages, prepares corporate reports, and formulates all policies and procedures to be implemented throughout the United States." (Nalepka Aff. ¶ 10). The answering Defendants' proffered evidence of an MCI office in Dallas, Texas, and a bank account in Coppell, Texas, is not inconsistent with a finding that MCI's nerve center is in Cook County, Illinois. The proffered evidence does not tend to show that MCI's Dallas, Texas office acts as the "brain" of MCI, but merely that it does business in Texas. The Court finds that MCI's nerve center is in Cook County, Illinois. In addition, most of MCI's corporate officers are located in Cook County, Illinois, and thus MCI's most visible presence is in Cook County, Illinois. (Nalepka Aff. ¶ 7). In light of this evidence, the Court finds that MCI's principal place of business is in Cook County, Illinois, and that the Court has diversity jurisdiction over this action. Therefore, the Court will address the merits of Plaintiff's Motion for Interlocutory Default Judgment and Motion for Summary Judgment.
B. Motion for Interlocutory Default Judgment
Plaintiff moves for an interlocutory default judgment pursuant to Rule 55(b)(2) against Defendants Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; and Transportes Lucano, Inc.
Plaintiff filed its complaint on April 1, 2003, and summonses were issued for each Defendant. Alma D. Vazquez was served personally with summons on April 2, 2003. Ramona Silva was properly served with summons pursuant to Federal Rule of Civil Procedure 4(e)(2) on April 3, 2003 when copies thereof were left at her dwelling house or usual place of abode with a person of suitable age and discretion then residing therein. Alma L. Vazquez was served personally with summons on April 4, 2003. Transportes Lucano, Inc. was served with summons on April 4, 2003, by delivering the summons to its secretary, Alma L. Vazquez. Although properly served, these Defendants failed to appear or otherwise respond to the Complaint within 20 days as required by Federal Rule of Civil Procedure 12(a)(1)(A). On September 3, 2003, the Clerk of Court entered these Defendants' defaults pursuant to Rule 55(a). Further, Defendants are not infants, incompetent persons, or members of the United States military. Therefore, the Court has the discretion under Rule 55(b)(2) to enter a default judgment against Defendants Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; and Transportes Lucano, Inc.
Default judgments are a "drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations." Sun Bank of Ocala v. Am. First Mortg. Funding Corp., 874 F.2d 274, 276 (5th Cir. 1989). Rather, a default judgment is "available only when the adversary process has been halted because of an essentially unresponsive party." Id. (citing H.F. Livermore Corp. V. Ahtiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970). Here, Defendants Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; and Transportes Lucano, Inc. are unresponsive parties. Therefore, the Court finds that the Defendants, by their default, have admitted the well pleaded allegations of fact in the complaint. Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Specifically, the Court finds that Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; and Alma L. Vazquez are liable under their Individual Guarantees "to pay upon demand all losses, costs, attorney's fees and expenses which may be suffered by you [MCI] by reason of Buyer's [Autobuses Lucano Inc.'s] default. . . . (Compl. Exs. R, S, V, W). Additionally, the Court finds that Transportes Lucano, Inc., which assigned to Autobuses the Security Agreements that are the subject of this suit, is secondarily liable to MCI under these Security Agreements for the amount of any deficiency under the agreements. OKC Corp. v. UPG, Inc., 798 S.W.2d 300, 305 (Tex.App.-Dallas 1990, writ denied) ("[T]he general rule concerning assigned contracts holds that the assignor does not discharge its liability under the contract upon assignment to the assignee; the assignor remains secondarily liable and must pay under the contract where the assignee is unable to do so."). The Court additionally finds that MCI is entitled to recover "reasonable attorney's fees" from all of the defaulting Defendants pursuant to Texas Civil Practice and Remedy Code § 38.001(8), which allows recovery for attorney's fees in suits founded on a written contract.
However, the Court refuses to find that, as a result of these Defendants' default, the amount of the deficiency owed by these Defendants is established to be the amount alleged in MCI's Complaint. Defendants Autobuses and Marco L. Vazquez in their Original Answer contest the amount of the asserted deficiency. If the Court were to enter a default judgment against the non-answering Defendants for the amount of the deficiency alleged by MCI, the Court would risk entering inconsistent judgments in this case. Therefore, the amount of the deficiency for which the defaulting Defendants are liable will be established when the causes of action against Autobuses Lucano, Inc. and Marco L. Vazquez are resolved on the merits. Additionally, MCI has not submitted sufficient evidence to allow the Court to determine the amount of "reasonable attorney's fees" that MCI is entitled to recover from the defaulting Defendants. The Court directs MCI to file by December 8, 2003 evidence of the "reasonable attorney's fees" incurred in this case.
C. Motion for Summary Judgment
MCI moves for summary judgment against Defendants Autobuses and Marco L. Vazquez on its promissory note claim, its foreclosure claim, its breach of contract claim, and its claim for attorney's fees. Under Federal Rule of Civil Procedure 56, a claimant may "move with or without supporting affidavits for a summary judgment in the party's favor." FED. R. Civ. P. 56(a). "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact." Lynch Properties, Inc. v. Potomac Ins. Co. of III., 140 F.3d 622, 625 (5th Cir. 1998). If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing a genuine issue of material fact exists for trial. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). "[A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e).
The Texas Business and Commerce Code provides that Article 9 of the Uniform Commercial Code applies to "a transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract." TEX. Bus. COM. CODE ANN. § 9.109 (Vernon 2002). A "security interest" is "an interest in personal property or fixtures which secures payment or performance of an obligation." TEX. BUS. COM. CODE ANN. § 1.201(35) (Vernon 2002 Supp. 2003). Here, each Security Agreement states: "The Buyer . . . does hereby grant to BLI [BusLease, Inc., the former name of MCI], its successors and assigns, a security interest in all and singular of the Buyer's right, title and interest in and to the Collateral." Each Security Agreement describes the Collateral as one or more of the motor coaches, described by year, make, model, and vehicle identification number. Since the Security Agreements in this case create security interests in personal property, MCI's rights under the Security Agreements are governed by Article 9 of the Uniform Commercial Code.
Under Article 9, a security interest attaches and is enforceable if (1) value is given, (2) the debtor has rights in the collateral, and (3) the debtor authenticates a security agreement that provides a description of the collateral. TEX. Bus. COM. CODE ANN. § 9.203(a)-(b) (Vernon 2002). First, MCI submits affidavit testimony that it gave value by providing financing to the predecessors-in-interest of Autobuses. (App. to Pl.'s Mot. for Summary Judgment at 2). Second, MCI submits true and correct copies of the title to the Motor Coaches to show that Autobuses has rights in the collateral. (App. to Pl.'s Mot. for Summary Judgment at 2, Exs. 22-31). Third, MCI submits true and correct copies of the Security Agreements, signed by Autobuses's predecessors-in-interest, and true and correct copies of the Assignment and Transfer Agreements listing Autobuses as the Transferee. (App. to Pl.'s Mot. for Summary Judgment at 2-6, Exs. 1-2, 4-5, 7-8, 10-11, 13-14, 16-17, 19-20). The Security Agreements and Assignment and Transfer Agreements are signed and identify the collateral by year, make, model, and vehicle identification number. (App. to Pl.'s Mot. for Summary Judgment at 2-6, Exs. 1-2, 4-5, 7-8, 10-11, 13-14, 16-17, 19-20). MCI has met its initial burden of identifying those portions of the pleadings and discovery in the record that it contends demonstrate the absence of a genuine issue of material fact that MCI's security interests in the Motor Coaches are attached and enforceable.
Since MCI has met its initial burden, Autobuses and Marco L. Vazquez, as the parties opposing summary judgment, must go beyond the pleadings and designate specific facts showing that a genuine issue of fact exists for trial. In their Response to MCI's Motion for Summary Judgment, Autobuses and Marco L. Vazquez state: "Plaintiff has failed to prove that value was given in exchange for the security interest." (Resp. at 5). Because MCI submitted affidavit testimony that it provided financing in exchange for the security interests, this contention is invalid. Autobuses and Marco L. Vazquez do not present any evidence controverting that value was given, that Autobuses has rights in the collateral, that the security agreements are authenticated, or that the security agreements provide descriptions of the collateral. Therefore, the Court finds that MCI has an attached and enforceable security interest in the Motor Coaches.
Since MCI has an attached and enforceable security interest in the motor coaches, MCI is entitled upon Autobuses's default to the remedies provided by Article 9 of the Uniform Commercial Code. The Security Agreements list multiple "Events of Default," one of which is "default in the payment of any installment of principal or interest or any other amount due hereunder when and as the same shall become due and payable." As evidentiary support for Autobuses's default, MCI submits a letter dated January 10, 2003 from MCI to Autobuses, which notifies Autobuses that all amounts due under the Security Agreements are accelerated due to Autobuses's failure to pay past due monthly installments. (Compl. Ex. X). Additionally, MCI submits the MCI account records for each of the Security Agreements, which reflect the principal and interest owed on each account. MCI has met its initial burden of identifying those portions of the pleadings and discovery in the record that it contends demonstrate the absence of a genuine issue of material fact that Autobuses is in default on the Security Agreements. Autobuses does not present any evidence controverting that Autobuses is in default on the Security Agreements. Therefore, the Court finds that Autobuses is in default on the Security Agreements and that MCI is entitled to the remedies provided by Article 9 of the Uniform Commercial Code.
The Security Agreements include the Buyer's promise to pay the Seller, in monthly installments, the principal balance due on the motor coaches and the interest accrued on the principal balance.
After default, a secured party "may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure." TEX. Bus. COM. CODE ANN. § 9.601(a)(1) (Vernon 2002). Here, MCI seeks a judgment for the "[u]npaid principal balance and interest on the Security Agreements." (Compl. at 17). Additionally, MCI seeks to have the security interest "foreclosed, and to take possession and title of the property or to have a sale directed, and to have the proceeds applied to satisfy the debt owing to MCI." (Compl. ¶ 29, 34, 39, 44, 49, 54, 59, 64). Finally, MCI seeks to recover "reasonable attorney's fees" pursuant to Texas Civil Practice and Remedies Code § 38.001. (Compl. ¶ 68-69). Autobuses and Marco L. Vazquez contend that "Plaintiff is not entitled to all of these remedies. Plaintiff must elect a remedy. . . . Without having elected a remedy, Plaintiff cannot receive any type of judgment, much less summary judgment." (Resp. Brief at 5). This contention is incorrect. The remedies in § 9.601(a)(1) are cumulative. TEX. Bus. COM. CODE ANN. § 9.601(c) ("The rights under Subsections (a) and (b) are cumulative and may be exercised simultaneously."). MCI is entitled to only one satisfaction, but MCI may seek it in a number of ways. See Cohen v. Rains, 769 S.W.2d 380, 385 n. 3 (Tex.App.-Fort Worth 1989, writ denied) (interpreting language similar to the current § 9.601(a)(1)).
The first remedy that MCI seeks is a judgment for the unpaid principal balance and interest on the Security Agreements. The MCI account records for each of the Security Agreements clearly state the principal owed on each account. Autobuses does not present any evidence to controvert these principal balances, and the Court therefore holds that MCI is entitled to recover $1,742,325.84 from Autobuses. MCI additionally seeks to recover the interest on the accounts. The Security Agreements provide for fluctuating interest rates, but MCI's summary judgment evidence merely states the interest owed in a conclusory fashion, without showing how the interest is calculated. Therefore, the Court holds that MCI is entitled to recover from Autobuses the amount of interest provided in the Security Agreements, but the Court does not enter judgment for the amount of interest sought by MCI. Rather, the Court directs MCI to file by December 8, 2003 an explanation of the calculation of the interest on these accounts. If Autobuses and Marco L. Vazquez contest MCI's calculation of the interest on these accounts, they shall file by December 22, 2003 an explanation of their opposition.
The second remedy MCI seeks is "to take possession and title of the property." Under § 9.620 of Article 9, a secured party may accept collateral in full or partial satisfaction of the obligation it secures only if, among other requirements, "the debtor consents to the acceptance under Subsection (c)." TEX. Bus. COM. CODE ANN. § 9.620(a)(1) (Vernon 2002). MCI has presented no evidence that Autobuses consents to the acceptance in a "record authenticated after default" as required by § 9.620(c). Therefore, MCI has failed to meet its initial burden of identifying those portions of the pleadings and discovery in the record that it contends demonstrate MCI's entitlement to possession and title of the motor coaches.
The third remedy MCI seeks is "to have a sale directed, and to have the proceeds applied to satisfy the debt owing to MCI." Under Article 9, MCI is entitled to take possession of the motor coaches identified in footnote one of this Order and dispose of them in a non-judicial sale pursuant to the specific requirements of Article 9. TEX. Bus. COM. CODE ANN. §§ 9.609-9.610 (Vernon 2002). MCI would apply the proceeds of that sale to the judgment owed by Autobuses. Alternatively, MCI may enforce its judgment against the Motor Coaches pursuant to a judicial sale. See TEX. R. CIV. P. 649. If MCI chooses to pursue a judicial sale of the Motor Coaches, MCI shall file a Motion for Judicial Sale by December 8, 2003, and specify the steps that the Court must follow to accomplish a judicial sale under the Texas Rules of Civil Procedure.
The fourth remedy MCI seeks is to recover "reasonable attorney's fees" pursuant to Texas Civil Practice and Remedies Code § 38.001, which provides for the recovery of attorney's fees in suits founded on a written contract. Suits founded on a written Security Agreement qualify as suits founded on a written contract. See First City Bank v. Guex, 677 S.W.2d 25, 30 (Tex. 1984). Therefore, the Court finds that MCI is entitled to recover from Autobuses the reasonable attorney's fees it incurred in pursuing this suit. However, MCI has failed to demonstrate the reasonable attorney's fees incurred in this suit. The conclusory affidavit of counsel is insufficient. Therefore, the Court directs MCI to file by December 8, 2003 more detailed evidence of the amount of its reasonable attorney's fees in this case. If Autobuses and Marco L. Vazquez contest MCI's calculation of reasonable attorney's fees, they shall file a response in opposition by December 22, 2003. The Court will determine the amount of reasonable attorney's fees and enter judgment against Autobuses for that amount.
MCI additionally seeks summary judgment on its claims against Marco L. Vazquez. MCI has submitted evidence that Marco L. Vazquez signed an Individual Guarantee, dated June 19, 2001, in consideration for MCI's agreeing to allow the execution of the Assignment and Transfer Agreements. The Guarantee states that "the undersigned, for good and valuable consideration . . . does hereby guarantee to you [BusLease, Inc.], your successors and assigns, the due regular and punctual payment of any sum of money which the Buyer [Autobuses] may owe to you now or at any time hereafter. . . ." The Guarantee is signed with the name "Marco L. Vazquez." MCI has met its initial burden of identifying those portions of the pleadings and discovery in the record that it contends demonstrate the absence of a genuine issue of material fact that Marco L. Vazquez is liable under the Individual Guarantee. Marco L. Vazquez does not present any controverting evidence. Therefore, the Court finds that Marco L. Vazquez is liable pursuant to the Individual Guarantee for the $1,742,325.84 judgment owed by Autobuses in this Order. Additionally, Marco L. Vazquez will be liable pursuant to the Individual Guarantee for the amount of interest and attorney's fees that the Court will assess against Autobuses in future judgments.
Since the Court has now addressed the merits of the claims asserted against Autobuses and Marco L. Vazquez, the Court can enter judgment against the defaulting Defendants without risking the entry of inconsistent judgments. The Court therefore orders that the defaulting Defendants — Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; and Transportes Lucano, Inc. — are liable by default for the $1,742,325.84 judgment owed by Autobuses in this Order. Additionally, the defaulting Defendants will be liable for the amount of interest and attorney's fees that the Court will assess against Autobuses in future judgments.
III. CONCLUSION
Defendants Autobuses; Marco L. Vazquez; Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; and Transportes Lucano, Inc. are liable to MCI for $1,742,325.84. The Court additionally holds that Defendants Autobuses; Marco L. Vazquez; Ramona Silva; Alma D. Vazquez, individually and as executrix of the estate of Fermin Vazquez; Alma L. Vazquez; and Transportes Lucano, Inc. are liable for the interest accrued under the Security Agreements and for MCI's reasonable attorney's fees. The Court directs MCI to file by December 8, 2003 an explanation of the calculation of the interest on these accounts and more detailed evidence of the reasonable attorney's fees incurred by MCI in this case. If Autobuses or Marco L. Vazquez contest MCI's calculation of the interest on these accounts or of MCI's reasonable attorney's fees, they shall file by December 22, 2003 an explanation of their opposition. Finally, the Court finds that MCI is entitled to take possession of the motor coaches identified in footnote one of this Order and to dispose of them in a non-judicial sale pursuant to the specific requirements of Article 9. If MCI chooses, in the alternative, to pursue a judicial sale of the Motor Coaches, MCI shall file a Motion for Judicial Sale by December 8, 2003, specifying the steps it wishes the Court to take to accomplish a judicial sale under the Texas Rules of Civil Procedure.
SO ORDERED.