IncredibleBank v. PROVOCATIVE (O.N. 1248080) et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:22-cv-00445-JJM-PAS Document 35 Filed 01/03/24 Page 1 of 3 PagelD #:
<pagelD>

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

)

INCREDIBLEBANK, )

Plaintiff, )

)

v. )

)

PROVOCATIVE (O.N. 1248080), zz )
rem, and JONATHAN COHEN, in ) C.A. No. 22-ev-445-JJM-PAS

personam. )

Defendants, )

)

and )

)

OUTERLIMITS POWERBOAT INC. )

Custodian. )

)

ORDER

Pending before the Court is IncredibleBank’s (“Incredible”) Motion for Final
Judgment on the Pleadings under Fed. R. Civ P. 12(c) asserting its rights under Rule
D of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions, to possession and title to the Secured Property and for interim judgment of
liability against Jonathan Cohen based on his breach of the operative agreements,
with further proceedings to calculate the amount of damages. ECF No. 20.
Outerlimits Powerboat Inc, (“Outerlimits”) was the original manufacturer of the
vessel in question and is the location where the Secured Property is currently located.

Outerlimits was appointed by the Court as the substitute custodian of the Secured

Property.

Case 1:22-cv-00445-JJM-PAS Document 35 Filed 01/03/24 Page 2 of 3 PagelD #:
<pagelD>

This matter was referred to the Magistrate Judge for a report and
recommendation, which she issued on December 14, 2023. ECF No. 34. No objection
has been received to the Report and Recommendation. After consideration of all the
filings, and the Report and Recommendation, the Court accepts in full the Report and
Recommendation for the reasons stated and

ORDERS, ADJUDGES, AND DECREES

The Court GRANTS IN PART AND DENY IN PART Incredible’s Motion for
Judgment on the Pleadings (ECF No. 20) as follows:

(1) The Court ENTERS PARTIAL FINAL JUDGMENT in rem in favor of
Incredible and against Mr. Cohen on Count I for possession of the Secured Property,
with the right to sell and convey title as set out in the Security Agreement;

(2) The Court DENIES the Motion for Judgment of title on Count II; and

(3) The Court ENTERS PARTIAL INTERIM JUDGMENT in personam in
favor of Incredible and against Mr. Cohen on Count III, adjudging Mr. Cohen liable
to Incredible based on his breaches of the Promissory Note, the Modification
Agreement, and the Security Agreement with further proceedings for calculation of
the net damages to be awarded;

(4) The Court DISMISSES without prejudice Incredible’s replevin claim (Count
IV) against the Secured Property and that Mr. Cohen be exonerated from any ongoing
responsibility for the Secured Property, including for ongoing custodia legis fees and

expenses incurred by Outerlimits.

Case 1:22-cv-00445-JJM-PAS Document 35 Filed 01/03/24 Page 3 of 3 PagelD #:
, <pagelD>
(5) Mr. Cohen’s rights under applicable law and the terms of the Promissory
Note and the Security Agreement, including his right to the surplus (if any)
remaining following any sale of the Secured Property and the satisfaction in full of
all liens Gncluding Incredible’s judgment and Outerlimits’ maritime liens and

custodia legis) will not be adversely impacted.

John J. McConnell, Jr.
Chief Judge
United States District Court

January 3, 2024