Opinion
No. 502387/2012.
2013-05-31
PENY & CO., Plaintiff, v. FOOD FIRST HOUSING DEVELOPMENT FUND COMPANY, INC., Knox Homes, L.P ., United States of America Internal Revenue Service, New York State Department Of Taxation and Finance, Commissioner of Labor of The State of New York, New York City Parking Violations Bureau, New York City Environmental Control Board, New York City Department of Finance, and John and Jane Does 1–50, Defendants.
Windels Marx Lane & Mittendorf, LLP, New York, for Plaintiff. Elan Layliev, Esq., New Start Development, LLC, Brooklyn, for Defendants Food First Housing Development Fund Company, Inc. and Knox Homes, L.P.
Windels Marx Lane & Mittendorf, LLP, New York, for Plaintiff. Elan Layliev, Esq., New Start Development, LLC, Brooklyn, for Defendants Food First Housing Development Fund Company, Inc. and Knox Homes, L.P.
CAROLYN E. DEMAREST, J.
In this action to foreclose on commercial property, plaintiff PENY & Co. (“PENY”) moves for summary judgment, and for the appointment of a referee and receiver.
BACKGROUND
On December 20, 2001, defendant Food First Housing Development Fund Company Inc. (“Food First”) and defendant Knox Homes L.P. (“Knox”) (hereinafter referred to collectively as “Mortgagors”) entered into a Note Consolidation Modification and Extension Agreement (the “Consolidated Note”) with mortgagee JPMorgan Chase Bank (“JPMC”), which consolidated and modified the repayment of various loans totaling $2,600,000 issued by JPMC on December 27 1999. The Consolidated Note provided for the payment of $1,785,000 owed to JPMC, and to secure repayment of the Consolidated Note, Mortgagors executed a mortgage, also dated December 20, 2001 (the “Mortgage”), on property located at Block 1148, Lots 5 and 80, in Brooklyn, New York, commonly known as 399 St. Mark's Avenue (Lot 5), and 575–577, 579–87, and 591–593 Grand Avenue (Lot 80), Brooklyn, New York (the “Premises”). The Mortgage also granted JPMC a security interest in the chattel and “intangibles” on the Premises, as defined by New York's Uniform Commercial Code. The Consolidated Note and Mortgage were executed to finance a low income housing project that Mortgagors were developing. Plaintiff PENY is a pension fund.
The Mortgage and Consolidated Note were assigned to plaintiff also on December 20, 2001, and both the Mortgage and assignment were recorded on June 08, 2002.
The Mortgage provides, at paragraph 1.7(a), that the Mortgagors will “pay taxes of every kind and nature ... including ... all water and sewer rents and charges” and gives Mortgagee the option to require, along with each payment of principal and interest, funds sufficient to cover such taxes.
The Mortgage also establishes that failure to pay any taxes required by paragraph 1.7(a) for twenty days after written notice constitutes an Event of Default, and upon continuance of such an Event, Mortgagee may declare the entire principal of the Consolidated Note, along with any accrued and unpaid interest and other Indebtedness, due and payable immediately.
Paragraph 1.7(a) reads, in part:
The Mortgagor, from time to time when the same shall become due and payable, will pay and discharge all taxes of every kind and nature, all insurance premiums, including, but not limited to SONYMA insurance premiums, general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, and all other public charges whether of a like or different nature, imposed upon or assessed against the Mortgaged Property, or any part thereof.... The Mortgagor will, upon the request of the Mortgagee and/or SONYMA, deliver to the Mortgagee receipts evidencing the payment of all such taxes, assessments, levies, fees, rents, and other public charges imposed upon or assessed against the Mortgaged Property, or any part thereof.
The Mortgagee and/or SONYMA may, at its option to be exercised by thirty (30) days prior written notice to the Mortgagor require the deposit by the Mortgagor at the time of each payment of an installment of interest or principal under the Note, of an additional amount sufficient to discharge the obligations under this subsection (a) when they become due....
The Mortgage further provides for the appointment of a receiver upon the commencement of an action by the Mortgagee, “without regard to the adequacy or inadequacy of any security for the Indebtedness.”
Paragraph 2.1 reads, in part:
If one or more of the following Events of Default shall happen, that it is to say:
(a) if ... (iii) default shall be made in the payment of any tax required by Section 1.7 to be paid and said default shall have continued for a period of twenty (20) days after written notice thereof ...
then and in every such case:
(i) During the continuance of any such Event of Default, the Mortgagee, by written notice given to the Mortgagor, may declare the entire principal of the Note then outstanding (if not then due and payable), and all accrued and unpaid interest thereon, together with all other Indebtedness, to be due and payable immediately, and upon any such declaration the principal of the Note, said accrued and unpaid interest thereon, and all other Indebtedness shall become and be immediately due and payable, anything in the Note or in this Mortgage to the contrary notwithstanding....
The following facts are not in dispute. Mortgagors have never missed a payment for principal or interest under the Consolidated Note. However, beginning in 2002, Mortgagors failed to pay real estate taxes and water and sewer charges on the Premises. Accordingly, by November 2012, unpaid taxes in excess of $400,000, and as of February 7, 2013, unpaid water and sewer charges in excess of $400,000, were assessed against the Premises. It appears that Mortgagors were making some payments on the taxes as early as 2004.
However, as a result of the unpaid taxes, tax liens were placed on the Premises, and two actions to foreclose on those liens were commenced in May and July of 2012, under Kings County index numbers 10170/2012 and 14543/2012.
Mortgagors claim payments began as early as 2002 and attach “Property Tax Payment History” logs for both properties, which indicate that Property Taxes were paid as early as July 28, 2004, and an entry for “Housing–Rent Stabilization” was paid as early as September 12, 2002. Whether or not payments began in 2002 or 2004 is not relevant to the disposition of this motion.
Mortgagors entered into a payment agreement on January 2, 2013, with the New York City Department of Environmental Protection (“DEP”) whereby Mortgagors are to pay for the water/sewer back charges over a ten year period, with interest accruing at 9% per year, compounded monthly.
No Requests for Judicial Intervention have yet been filed in those actions.
When Mortgagors failed to pay the tax and water/sewer obligations, plaintiff sent a notice dated July 17, 2012, informing Mortgagors that an Event of Default had occurred, and that it was accelerating the amount due under the Consolidated Note, which was immediately due and accruing interest at the Involuntary Rate, as provided in the Mortgage. When the amount due was not paid, PENY initiated this action on August 16, 2012, seeking foreclosure of its mortgage on the Premises, among other relief. On October 19, 2012, Mortgagors answered and asserted a number of affirmative defenses.
Plaintiff attaches a December 3, 2012, letter from Mortgagors to one of their tax lien holders, stating that they had attempted to pay off the tax lien but that Wells Fargo, a limited partner of Knox, had withheld consent to make the loan to do so. Plaintiff also attaches a February 19, 2013, letter from First Union, another limited partner of Knox, authorizing a loan to Knox to pay off the tax liens.
By motion filed February 1, 2013, PENY moved for summary judgment and for an Order of Reference, and on February 12, 2013, for the appointment of a receiver. PENY also moves to dismiss the affirmative defenses asserted by Food First and Knox, for default judgment against defendants New York City Parking Violations Bureau, New York City Environmental Control Board, and United States of America Internal Revenue Service, for attorneys fees, costs, and disbursements, and to amend the caption of this action to eliminate the “Doe” tenant defendants.
DISCUSSION
Upon motion for summary judgment, the moving party bears the initial burden to produce affidavits and documentary evidence sufficient to “warrant the court as a matter of law in directing judgment in [its] favor” (CPLR 3212[b]; see Friends of Animals, Inc. v. Assoc. Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 [1979] ). Once the movant establishes its prima facie entitlement to judgment, the burden shifts to the opposing parties to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action” (Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980];seeCPLR 3212 [b]; Friends of Animals, Inc. v. Assoc. Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067–68 [1974] ). While all “facts must be viewed in the light most favorable to the non-moving party” ‘ (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ), mere conclusory allegations or defenses are insufficient to preclude summary judgment ( see Zuckerman, 49 N.Y.2d at 562).
Plaintiff argues that Mortgagors' failure to pay the taxes and water/sewer charges for more than 20 days after written notice constituted an Event of Default, which entitled plaintiff to accelerate the debt, pursuant to the Mortgage, and demand immediate payment of the principal, as well as default interest and attorneys fees. As these facts are not disputed, plaintiff argues, it is entitled to summary judgment on its foreclosure claim.
Clauses in mortgages providing for the acceleration of principal and interest upon default for failure to pay taxes or water or other utility assessments have generally been upheld ( see Beubauer v. Smith, 40 A.D.2d 790 [1st Dept 1972] )(as there was no showing of excusable default by inadvertence or otherwise, summary judgment should have been granted to mortgagee in its foreclosure action when mortgagor failed to cure default in payment of taxes and water charges); City Bank Farmers Trust Co. v. Heckmann, 164 Misc. 234 [Sup Ct, Westchester County 1937]; Martin v. Clover, 17 NYS 638 [Sup Ct, Kings County 1892] ). Under principles of equity, however, a court should not enforce an acceleration provision if a default was neither willful nor continuous ( see Bay v. Bay, 9 N.Y.2d 855 [1961](reversing judgment of Appellate Division and denying summary judgment for reasons stated in Appellate Division's dissenting opinion at 11 A.D.2d 615 [4th Dept 1960](J. Halpern dissenting)(in light of the circumstances surrounding the acceleration, the court should have denied mortgagee summary judgment as “it is settled law of this State that equity may relieve from an acceleration for a default in the payment of taxes, in breach of the mortgagor's collateral undertaking to protect the mortgagee's security, as distinguished from an acceleration for a default in the payment of principal or interest upon the primary obligation”); see also Clark–Robinson Corp. v. Jet Enterprises, 159 N.Y.S.2d 214 [Sup Ct, Bronx County 1957] )(default in payment of taxes was not willful or continuous when mortgagee received the tax bill evidencing payment of the outstanding taxes, less than two weeks after suit was commenced).
Here, it is undisputed that the terms of the Mortgage require that Mortgagors pay taxes and utility charges, and that continued failure to do so twenty days after written notice constituted an Event of Default, permitting the mortgagee to demand full payment of the principal and interest due under the Consolidated Note. It is also undisputed that charges in amounts over $400,000 in back taxes, and over $400,000 for unpaid water/sewer charges were imposed on the Premises, that PENY sent a written demand, and that the taxes and water/sewer charges remained unpaid for many months past the requisite twenty day period, and, indeed, remain unpaid today.
Furthermore, Mortgagors' failure to pay the taxes and utility assessments is wilful and continuous, even taking into account their more recent payments. Unlike the cases dealing with a mere inadvertence or brief delay in payments, here taxes that began accruing in 2002 remain unpaid, despite numerous demands by PENY, and have resulted in the sale of tax liens and the commencement of foreclosure actions, prejudicing PENY's interest in the Premises ( see Jamaica Sav. Bank v. Cohan, 36 A.D.2d 743 [2d Dept 1971](mortgagee should have been granted summary judgment when defendants' default in payment of taxes was willfully continued after timely and clear notice that plaintiff would require compliance with the terms of the mortgage, as it was not oppressive or in bad faith for plaintiff to accelerate the maturity date of the mortgage loan, as it was entitled to do); Armstrong v. Rogdon Holding Corp., 139 Misc. 549 [Sup Ct, N.Y. County] (when final default of mortgagor was made with full knowledge of resulting consequences, it was deliberate, continuous, and willful, and “mere improvidence or neglect or poverty is not a sufficient basis for relief in equity from foreclosure under a mortgage acceleration clause”). Mortgagors, therefore, defaulted when they failed to pay the taxes and water/sewer charges, the majority of which remain unpaid today. As plaintiff has submitted the Mortgage and the unpaid [Slip Op. 5]Consolidated Note, along with evidence of Mortgagors' default, it has established its prima facie entitlement to judgement as a matter of law on its foreclosure claim ( see Washington Mut. Bank, F.A. v. O'Connor, 63 AD3d 832, 833 [2d Dept 2009] ). It is, therefore, incumbent upon Mortgagors “to produce evidentiary proof in admissible form sufficient to require a trial of [their] defenses” ( Id. citing U.S. Bank Trust N.A. Trustee v. Butti, 16 AD3d 408, 408 [2d Dept 2005] ).
In opposition, Mortgagors argue that they are not in default. They do not dispute the existence of the unpaid taxes or water/sewer charges, but contend that there are issues of fact because, although the New York City Department of Housing Preservation and Development (“ “DHPD”) issued a Final Certification of Eligibility for a partial tax abatement on April 25, 2002, at some unspecified time thereafter, the New York City Department of Finance amended the tax assessment on the Premises and began charging real estate taxes. Mortgagors submit no evidence as to the amount of the partial tax abatement. According to Mortgagors, despite the amended tax assessment, DHPD did not authorize an increase in the rent Mortgagors could legally charge tenants and cite no authority for their claim that DHPD “could not” do so. Mortgagors argue that PENY, who was aware of the tax abatement when it was issued, should be precluded from seeking summary judgment for unpaid taxes from which defendants were presumed to be exempt at the time of the execution of the Mortgage. Mortgagors also argue that PENY's failure to require payment into an escrow account for taxes, as it was entitled to do under the Mortgage, should preclude summary judgment in its favor. Finally, Mortgagors assert that the water and sewer charges imposed on the Premises greatly exceeded those initially estimated by DHPD and, because they entered into the January 2013 payment plan with the DEP, have made some payments toward the back taxes, and remain able to pay all outstanding tax liens with interest or the principal and interest on the Consolidated Note, material issues of fact exist as to whether they are in default.
Curiously, neither party addresses the provision, at paragraph 1.24, which provides for the creation of an operating reserve for the payment of water/sewer charges. Paragraph 1.24 reads, in part:
Mortgagor shall establish an operating reserve account with JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank (“Operating Reserve Account”) and shall at the time of each payment of an installment of interest or principal under the Note make the following additional payments required by the Mortgagee: (I) a “Water and sewer reserve” payment in the amount of $2,000.00 per month.. which amounts shall be transferred, as applicable, to the Operating Reserve Account to be administered by Mortgagee's servicer, Mortgagee, or any other servicer satisfactory to the Mortgage (the “Servicer”).
Notwithstanding the foregoing, on a periodic basis, each reserve amount may be increased or decreased pursuant to the requirements of the Mortgagee in the sole discretion of the Mortgagee, however, (a) no such reserve shall be decreased without the prior consent and approval of Mortgagee and PENY & CO., as servicer for the New York City Employees' Retirement System, which consent may not be unreasonably withheld ...
The Mortgage acknowledges the existence of the tax exemption and requires Mortgagors to warrant that it would be “in full force an effect.”
However, nothing in the Mortgage indicates that if the tax abatement were lost, Mortgagors would be discharged from their obligations to pay taxes. Instead, the Mortgage expressly provides that failure to pay taxes can result in an Event of Default.
Paragraph 1.22 reads:
The Mortgagor hereby represents, warrants, covenants and agrees that the real property tax exemption (the “Exemption”) granted Mortgagor by the City of New York Department of Housing Preservation and Development pursuant to Section 420–c of the New York State Real Property Tax Law is in full force and effect, and Mortgagor shall deliver to Mortgagee any and all certificates of eligibility together with any and all other approvals or orders required to take and maintain the Exemption in full force and effect.
In Shaker Central Trust Fund v. Crusade for Christ, Inc., (26 Misc.2d 825 [Sup Ct, Columbia County 1960] ), a case involving similar facts, a mortgage provided that the principal sum and interest would become due at the option of the mortgagees after default in the payment of any tax, water rate, or assessment for 60 days after notice and demand. Defendants failed to pay taxes because they contended that they should be entitled to a tax exemption, and such failure to pay resulted in a foreclosure on a tax lien. The court determined that “Defendant may be entitled to the exemption which it claims. However, its contention in that regard is no defense to this action. Plaintiff's option to declare a default is not conditioned only on the nonpayment of those taxes the validity of which is not disputed by the defendant ... Defendant may pay the taxes levied and redeem the tax sale lien without loss to itself if it ultimately succeeds in the action to void them and there is no proof of its inability to do so” (Shaker, 26 Misc.2d at 826).
Similarly, the fact that Mortgagors claim to dispute the validity of the unpaid tax assessment does not relieve them of their obligation pursuant to the Mortgage. Pursuant to the Mortgage, Mortgagors would not be required to pay certain obligations if they, in good faith, bonded the obligation and contested the validity thereof.
However, plaintiff contends, and Mortgagors do not dispute, that Mortgagors never bonded the obligation. Furthermore, Mortgagors provide no evidence evincing their efforts to dispute the tax assessments, nor do they indicate what portion of the tax arrears would have been exempted under the partial tax abatement. Moreover, the provision goes on to specify that Mortgagors, even if contesting an obligation pursuant to that section, must pay to prevent “the delivery of a tax deed, or its equivalent, conveying the Mortgaged Property, or any part thereof.” The Mortgage thus clearly requires that taxes must be paid to prevent foreclosure on the Premises based on a tax lien.
Paragraph 1.7(a) reads:
Nothing in this Section 1.7 shall require the payment or discharge of any obligation imposed upon the Mortgagor by this Section so long as the Mortgagor shall in good faith and at its own legal expenses bond such obligation, contest the same or the validity thereof by appropriate legal proceedings which shall operate to prevent the collection thereof or other realization thereon and the sale or forfeiture of the Premises or any part thereof to satisfy the same.. provided further that if, at any time, payment of any obligation imposed upon the Mortgagor by subsection (a) of this Section shall become necessary to prevent the delivery of a tax deed, or its equivalent, conveying the Mortgaged Property, or any part thereof, because of non-payment, then the Mortgagor shall pay the same in sufficient time to prevent the delivery of such tax deed or its equivalent
That Mortgagors have made some payments toward the taxes does not negate the fact that there are still outstanding taxes in excess of $400,000 remaining on the Premises. Indeed, those amounts have led to the initiation of two proceedings to foreclose upon the Premises, which, in all likelihood, prompted plaintiff to initiate this action. Similarly, the fact that Mortgagors entered into a payment plan with DEP in January 2013 does not relieve them of their obligations to pay these charges as they accrued. Furthermore, Mortgagors have not provided any evidence supporting their contention that water/sewer charges were originally estimated by DHPD to be lower or that Mortgagors' payment obligations were somehow conditioned on such estimates. Nor is there evidence that defendants made any attempt to raise the rent rolls to meet the increased expenses or that DHPD has prevented such increases. As plaintiff notes, the current rent roll exceeds the sum due monthly to plaintiff by $30,000 a month. Defendants offer no accounting of the application of this surplus. Finally, the provision allowing PENY to demand additional payment from Mortgagors into an escrow account at the time of each principal and interest installment was to be triggered at PENY's election. PENY's decision not to do so does not preclude it from foreclosing when Mortgagors failed to perform its obligations. Accordingly, Mortgagors have not presented evidence of issues of material fact sufficient to defeat PENY's prima facie showing.
In addition to the arguments raised in opposition to the motion, in their answer, Mortgagors pose additional affirmative defenses. Mortgagors claim that plaintiff failed to provide notice of the foreclosure under New York's Real Property Actions and Proceedings Law, without further explanation or factual development. The Court takes notice of letters sent by plaintiff to Mortgagors on December 8, 2011, and July 17, 2012, warning them that they were in default and that plaintiff would be exercising its right to accelerate. Such letters were sufficient, to provide Mortgagors with notice pursuant to the Mortgage. Accordingly, Mortgagors' defense is without merit.
Mortgagors also claim that Mortgagors failed to join New Start Group, Inc., a managing general partner of Knox, as a necessary party. The Mortgage signature page indicates that the Mortgagors are Knox Homes, L.P and Food First Housing Development Company, Inc. The general partner for Knox Homes, New Start Group, signed on its behalf. Clearly Knox Homes and Food First are the Mortgagors, and plaintiff was not required to name the various partners of Knox Homes in this action. Accordingly, this defense is without merit.
Finally, Mortgagors contend that foreclosure would be inequitable as the low-income tenants of the Premises would become homeless as a result. The Court, however, takes note of the fact that none of the tenants have been named in this action, and their interests, therefore, will not be disturbed in the event of a foreclosure.
As all of Mortgagors' defenses are without merit, plaintiff's motion to dismiss the affirmative defenses is granted ( see Mazzei v. Kyriacou, 98 AD3d 1088, 1088–89 [2d Dept 2012] citing CPLR 3211(b)).
Moreover, as plaintiff has made a prima facie showing that it is entitled to summary judgment, and Mortgagors have not submitted sufficient evidence to support a viable defense or raise an issue of fact, plaintiff is entitled to summary judgment on its motion to foreclose on the Premises.
As plaintiff properly served the motion for default judgment on all parties, and there being no opposition, plaintiff's motion for default judgment against New York City Parking Violations Bureau, New York City Environmental Control Board, and the United States of America Internal Revenue Service is granted pursuant to CPLR 3215.
Plaintiff also moves for an order appointing a receiver, arguing that the Mortgage expressly provides for plaintiff's right to the appointment of a receiver, without notice, in an action to foreclose on the Mortgage, and that such an appointment is necessary to protect is interests in the Premises in light of the fact that the liens are accruing interest at 18% for taxes and 9% for water/sewer charges, and Mortgagors have failed to account for approximately $30,000 per month in rent proceeds remaining after payments made to plaintiff for principal and interest on the Mortgage. Mortgagors argue that the surplus proceeds from the rent rolls went towards the payment of other utilities like gas and electricity, maintenance, repairs, and staffing, and urges the Court to exercise its equitable powers to decline the appointment of a receiver in light of the fact that it has been making some payments toward the taxes and has entered into the water/sewer charge payment plan with DEP.
Pursuant to the express terms of the Mortgage, plaintiff has the right to the appointment of a receiver ( see Clinton Capital Corp. v. One Tiffany Place Developers, 112 A.D.2d 911 [2d Dept 1985](appointment of receiver appropriate when mortgage specifically authorized appointment of receiver without notice and without regard to the adequacy of the security). Despite the presence of such a mortgage clause authorizing the appointment of a receiver on application of the mortgagee, “a court of equity, in its discretion and under appropriate circumstances, may deny the application” (Mancusco v. Kambourelis, 72 A.D.2d 636 [2d Dept 1979]. However, Mortgagors have not made a showing that the application should be denied. The fact that Mortgagors have entered into a payment plan for the water/sewer arrears and made some payments on the real estate tax arrears does not present a compelling reason why plaintiff, who has bargained for the right to protect its interest during the pendency of a foreclosure action such as this, should not prevail. Such a conclusion is especially appropriate in light of the evidence that suggests that Mortgagors had been receiving rent far in excess of the amounts it was paying for the principal and interest on the Mortgage, and had received authorization from First Union, Knox's limited partner, authorizing a loan to pay off the tax liens, but the taxes and water/sewer charges remain unpaid. Accordingly, plaintiff's motion for an order appointing a receiver is granted.
Plaintiff also moves for an award of its attorneys' fees, costs, and disbursements. A mortgagee may recover attorney's fees in a mortgage foreclosure action if the mortgage document obligates the mortgagor to pay such a fee (see Levine v. Infidelity, Inc., 2 AD3d 691, 692 [2d Dept 2003] ). Paragraph 2.3(a) of the Mortgage provides that if an Event of Default occurs, in addition to the whole amount due and payable, Mortgagors must pay “such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Mortgagee, its agents, and counsel and any expenses incurred by the Mortgagee hereunder.” The Mortgage, therefore, authorizes the payment of costs associated with the collection of the amount due upon an Event of Default, including payment of attorney's fees. Accordingly, plaintiff's motion for an award of attorney's fees, costs, and disbursements is granted.
Plaintiff's motion to amend the caption to delete defendants “John and Jane Does 1–50” is granted.
CONCLUSION
Plaintiff's motion for summary judgment, to dismiss defendants' affirmative defenses, for attorney's fees, costs, and disbursements, to amend the caption, and for default judgment against New York City Parking Violations Bureau, New York City Environmental Control Board, and the United States of America Internal Revenue Service is granted. The motion for appointment of a Referee to compute is granted. Plaintiff shall submit an appropriate Order in conformity with the form used in Kings County Supreme Court, reciting the papers relied upon, on notice to defendants within 20 days.
Plaintiff's motion for the appointment of a receiver is also granted, and an order appointing a receiver has been signed.
This constitutes the decision and order of the Court.