UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

Tallahassee Division

VFS US LLC,

Plaintiff,

vs.

MICHAEL PITTS, and

MARK THOMAS, 

Defendants.

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COMPLAINT

Plaintiff, VFS US LLC, by and through the undersigned counsel, sues 

Defendants, Michael Pitts and Mark Thomas, and allege:

PARTIES, JURISDICTION AND VENUE

1. VFS US LLC (“VFS US”) is a Delaware limited liability company with 

its principal place of business in Greensboro, North Carolina. The sole Member of 

VFS US is VNA Holding, Inc., a Delaware corporation with its principal place of 

business in Greensboro, North Carolina. VFS US does business as (a) Mack 

Financial Services (“Mack Financial”) for purposes of offering wholesale and retail 

financing and (b) North American Transaction Services (“NATS”) for offering parts 

and service financing to customers.

20-cv-000389

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2. Michael Pitts (“Pitts”) is an individual domiciled in Tallahassee, 

Florida and a citizen of the State of Florida.

3. Mark Thomas (“Thomas”) is an individual domiciled in Tallahassee, 

Florida and a citizen of the State of Florida. 

4. Jurisdiction of this action is proper under 28 U.S.C. § 1332 because 

Plaintiff VFS US, a limited liability company, is a citizen of a different state and has 

members whom are all citizens of different states than each of the Defendants. The 

amount in controversy in this matter exceeds $75,000 exclusive of interest and costs. 

5. Venue is proper in the Northern District of Florida under 28 U.S.C. § 

1391(a)(2) because a substantial part of the events giving rise to the facts alleged in 

this Complaint occurred within this district. 

NATURE OF THE ACTION

6. This Complaint arises out of non-party Capital Truck, Inc.’s (currently 

in a Chapter 11 bankruptcy) (“Capital Truck”) breach of (a) financing agreements 

through which Mack Financial financed inventory for Capital Truck, a Mack truck 

dealership in Tallahassee, Florida, and (b) parts and service financing agreements 

with NATS. Defendants Pitts and Thomas guaranteed all obligations owed to VFS 

US (including Mack Financial and NATS) by Capital Truck and are in breach thereof 

for nonpayment. This action is for breach of those guaranties and for contractual 

damages. 

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FACTS COMMON TO ALL COUNTS

A. Floor Plan Financing and Security Agreement

7. On or about September 19, 2011, Capital Truck entered into a Floor 

Plan Financing and Security Agreement and Promissory Note (collectively, 

“FPFA”) with Mack Financial. A copy of the Floor Plan Financing Security 

Agreement and the Promissory Note are attached as Exhibits 1 and 2, respectively.

8. Pursuant to the FPFA, in exchange for the extension of credit and other 

advances provided by Mack Financial, Capital Truck agreed to remit payments to 

Mack Financial as required under the FPFA. 

9. Pursuant to the FPFA, in exchange for the extension of credit and other 

advances provided by Mack Financial, Capital Truck granted to Mack Financial a 

security interest in, inter alia: (i) all inventory held for sale by Capital Truck financed 

by Mack Financial, (ii) all vehicles acquired from manufacturers, distributors or any 

seller by way of as replacement, substitution, addition or otherwise; and (iii) all 

proceeds of any of the foregoing (collectively, the “Secured Assets”).

10. From 2011 through 2020, Mack Financial financed inventory and 

equipment for Capital Truck under to the FPFA. 

11. Capital Truck is party to a FleetPreferred Accountholder Application 

and Agreement with NATS, attached as Exhibit 3, for participation in the 

MVPreferred parts and service financing program (the “NATS Agreement”). 

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12. Pursuant to the NATS Agreement, Capital Truck made certain 

purchases related to its parts and service business, which it financed using its NATS 

account.

B. Guaranties of Pitts and Thomas

13. On or about September 2011, Pitts and Thomas each entered into a 

Guaranty and Subordination Agreement with Mack Financial. A copy of the 

Guaranty and Subordination Agreement of Pitts and Thomas (the “Guaranties”) are

attached as Exhibits 4 and 5, respectively.

14. Pursuant to the Guaranties, in exchange for Mack Financial entering 

into the FPFA and other credit agreements with Capital Truck, Pitts and Thomas 

each agreed to guarantee the full and timely payment, performance, and obligations, 

both “now or hereafter entered into,” by Capital Truck to Mack Financial, which 

extended to all divisions of VFS US, including NATS obligations, both “now or 

hereafter entered into” by Capital Truck to VFS US.

15. Subsequent to Pitts and Thomas executing their Guaranties, Mack 

Financial extended credit and provided financing for Capital Truck pursuant to the 

FPFA, and NATS extended additional credit to Capital Truck.

C. Default Under the FPFA, NATS Agreement and Guaranties

16. Capital Truck has defaulted under the FPFA as a result of Capital 

Truck’s breach of various obligations and covenants set forth in the FPFA.

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17. In February 2020, Capital Truck sold certain secured assets of Mack 

Financial (specifically, Mack trucks with VIN numbers ending in 1218 and 1219) 

without remitting the sales proceeds thereof to Mack Financial until July 13, 2020.

Through and including June 2020, Capital Trucks represented to Mack Financial that 

it had not collected sales proceeds for VIN numbers ending in 1218 and 1219. 

18. Additionally, in March 2020, Capital Truck sold certain Secured Assets 

of Mack Financial (specifically, Mack trucks with VIN numbers ending in 8515 and 

8516) without timely remitting the sales proceeds thereof to Mack Financial under 

the terms of the FPFA. When Mack Financial demanded payment for VIN numbers 

ending in 8515 and 8516 in July 2020, Capital Trucks initially promised to pay, 

initiated an ACH payment, but stopped payment on the ACH payment. 

19. Upon information and belief, Capital Truck has also sold additional 

Secured Assets of Mack Financial without remitting sales proceeds to Mack 

Financial under the terms of the FPFA. 

20. On or about July 14, 2020, Capital Truck filed a Chapter 11 bankruptcy 

in the United States Bankruptcy Court for the Northern District of Florida. 

21. Such failures and acts as alleged in the preceding paragraphs are events 

of default pursuant to the FPFA. 

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22. Additionally, Capital Truck has failed to pay certain amounts to NATS 

under the NATS Agreement, including without limitation charges related to 

customer parts orders. 

23. Pursuant to each of the Guaranties, upon the occurrence of any breach 

or default by Capital Truck under the FPFA, Pitts and Thomas are obligated to pay 

all amounts due and owing to VFS US, including Mack Financial and NATS, within 

5 days of demand. 

24. As of July 20, 2020, VFS US was owed $1,834,679.24 pursuant to the 

FPFA and the Guaranties.

25. VFS US has performed all of its obligations pursuant to the FPFA and 

the Guaranties. 

COUNT I: BREACH OF GUARANTY – PITTS

26. VFS US repeats and realleges allegations one through twenty-five as 

set forth above.

27. Demand has been made by VFS US to Pitts to pay the amount due and 

owing under the FPFA and his Guaranty thereof, but Pitts has failed and refused to 

pay such amounts as required.

28. Due to the default of Capital Truck under the FPFA and the default of 

Pitts under his Guaranty, VFS US has been damaged in the amount no less than 

$1,834,679.24, plus continuing interest, late fees and other amounts as provided for 

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in the FPFA and the Guaranty.

29. Under the FPFA and Guaranty of Pitts, VFS US is entitled to all of its 

costs and attorneys’ fees in the enforcement of the FPFA and Guaranty. 

WHEREFORE, VFS US, respectfully requests Judgment in its favor and 

against the Defendants Michael Pitts and Mark Thomas, jointly and severally, for 

damages in the amount no less than $1,834,679.24, plus continuing interest, late fees, 

attorneys’ fees and costs, and for such other legal and equitable relief this Court 

deems just.

COUNT II: BREACH OF GUARANTY – THOMAS

30. VFS US repeats and realleges allegations one through twenty-five as 

set forth above.

31. Demand has been made by VFS US to Thomas to pay the amount due 

and owing under the FPFA and his Guaranty thereof, but Thomas has failed and 

refused to pay such amounts as required. 

32. Due to the default of Capital Truck under the FPFA and the default of 

Thomas under his Guaranty, VFS US has been damaged in the amount no less than 

$1,834,679.24, plus continuing interest, late fees and other amounts as provided for 

in the FPFA and the Guaranty.

33. Under the FPFA and Guaranty of Thomas, VFS US is entitled to all of 

its costs and attorneys’ fees in the enforcement of the FPFA and Guaranty. 

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WHEREFORE, VFS US, respectfully requests Judgment in its favor and 

against the Defendants Michael Pitts and Mark Thomas, jointly and severally, for 

damages in the amount no less than $1,834,679.24, plus continuing interest, late fees, 

attorneys’ fees and costs, and for such other legal and equitable relief this Court 

deems just.

Dated: August 4, 2020

Respectfully Submitted,

NELSON MULLINS BROAD AND 

CASSEL

Counsel for Volvo financial Services and 

Mack Financial Services

/s/ Nicolette Vilmos 

NICOLETTE C. VILMOS, ESQ. 

Florida Bar No. 0469051

390 North Orange Avenue, Suite 1400

Orlando, Florida 32801

Telephone: (407) 839-4200

Facsimile: (407) 425-8377

Nicolette.vilmos@nelsonmullins.com

Nancy.haarmann@nelsonmullins.com

Christine.Howard@nelsonmullins.com 

and

JOHN F. LOAR, ESQ. (FBN: 110386)

215 S. Monroe Street, Ste. 400

Tallahassee, FL 32301

Tel 850-681-6810, Fax 850-681-9792

John.Loar@nelsonmullins.com

Merriejo.Norman@nelsonmullins.com

Cassandra.Finn@nelsonmullins.com

201469092.1 39119/171538

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