Opinion
CASE NO.: 8:10-cv-655-T-23TGW.
June 15, 2010
ORDER
The parties stipulate (Docs. 46, 48) to (1) dismissal with prejudice of the plaintiff Donald Phillips' claim against the defendant Fifth Third Bank and (2) entry of a "foreclosure judgment" on count one of the counterclaim (Doc. 5). Additionally, the parties submit a "stipulated motion" (Doc. 47) that requests an order approving both a "stipulation regarding waiver of defenses, consent order appointing receiver, and consent to final judgment of foreclosure on complaint" and the parties' settlement agreement.
The stipulated motion (Doc. 47) is GRANTED IN PART, and the stipulation (Doc. 47-1) is APPROVED IN PART, to the extent that the parties seek entry of a foreclosure judgment, an order directing the Marshal to conduct a foreclosure sale on October 15, 2010 (or at a time requested by Fifth Third Bank), and the court's reserving jurisdiction to appoint a receiver upon motion of the parties. Pursuant to Rule 41(a), Federal Rules of Civil Procedure, the stipulation of dismissal with prejudice as to Phillips' claim (Doc. 46) is APPROVED and Phillips' claim (Doc. 1) against the defendant is DISMISSED WITH PREJUDICE. The motion (Doc. 48) for entry of a "foreclosure judgment" as to count one of the counterclaim (Doc. 5) is GRANTED. Accordingly, it is ORDERED that:
1. The Clerk enter a judgment in favor of the counter claimant (the "lender") and against the counter defendants (the "borrower") on count one of the counterclaim (Doc. 5).
2. The lender holds valid mortgage liens on the collateral (described in exhibits A and B, which are attached to this order) as security for payment of the amount specified in paragraph three. Each lien is superior to any right, title, interest, estate, or claim of either the borrower or any representative or assignee of the borrower.
3. As of June 1, 2010, the borrower owes the lender (1) $5,093,286.21 (plus $681.30 in per diem interest accruing since June 2, 2010) under the Swap Agreement, which amount includes both a $4,905,907.79 termination fee and $187,378.42 in interest (accruing at a rate specified in the Swap Agreement); (2) $56,435,518.47 under the loan documents (plus $3,496.23 in per diem non-default interest accruing since June 2, 2010), which amount includes $55,260,320.89 in principal; $1,125,197.58 in interest (accruing since August 3, 2009, at the thirty-day London Interbank Offered Rate ("LIBOR") plus two percent); and $50,000.00 in stipulated legal fees; and (3) interest (accruing at the incremental default rate for the principal loan balance) under the loan documents through the date of a foreclosure sale and any additional attorneys' fee, charge, or other expense.
4. The United States Marshal (the "Marshal") for the Middle District of Florida shall offer, in accord with 28 U.S.C. §§ 2001-02, the collateral for public sale for cash to the highest bidder at the George E. Edgecomb Building, 800 East Twiggs Street, Tampa, Florida 33602, during the legal hours of sale and at a date and time determined by the Marshal upon the written request of the lender. The Marshal shall advertise the time and place of the sale in accord with 28 U.S.C. § 2002 by publishing a notice of sale in at least one newspaper regularly issued and of general circulation in Hillsborough County once a week for four (4) consecutive weeks, beginning not less than twenty-eight (28) days before the date of sale.
5. The lender may purchase the collateral at the sale. If the lender is the purchaser, the Marshal shall credit the lender's bid with the total amount due to the lender (as described in paragraph three), which amount includes any interest, attorneys' fee, or cost incurred by the lender after entry of this order. If the lender is not the purchaser at the sale, the lender may by motion seek reimbursement for any interest, reasonable attorneys' fee, or necessary cost from the proceeds of the sale, if sufficient.
6. The highest bidder for the collateral shall pay in accord with any state, county, or local law the cost of the documentary stamp and any recording fee. If a successful bidder other than the lender fails to pay by the deadline established by the Marshal the entire amount bid, the lender may by motion filed within ten (10) days after the date of sale request that the court both vacate the sale and direct the Marshal to schedule another sale.
7. Upon the sale of the collateral, the Marshal shall file a report of sale, and the lender shall seek an order confirming the report of sale. Upon confirmation, and receipt of the full purchase price of the sale, the Marshal shall deliver a Marshal's deed to the purchaser. The confirmation of sale shall foreclose any interest, estate, claim, equity, or right of redemption in the collateral held by the borrower (or any entity or person claiming under or against the borrower since the filing of the notice of lis pendens).
9. Upon the confirmation of sale and delivery of the Marshal's deed to the purchaser, the Marshal shall distribute the proceeds of the sale in the following order:
a. To the Marshal for any cost or expense incurred in connection with this the sale.
b. To the lender, if the lender is not the purchaser at the sale, any amount owed to the lender and reduced to a judgment against the borrower.
c. Any amount due under a receiver certificate issued by a duly-appointed receiver.
d. The balance, if any, to the Clerk for deposit in the court registry. The Clerk shall within ten (10) days of the deposit notify the borrower so that the borrower may file a claim to the balance.
10. The lender may assign the lender's rights under this order by providing the Marshal with an assignment of the rights. The assignee may credit the assignee's bid with the amount owed to the lender as provided in paragraphs three and five of this order.
11. The address for the lender is 201 East Kennedy Boulevard, 18th Floor, Tampa, Florida, 33602. The address for borrower is 142 Platt Street, Tampa, Florida, 33606.
The court retains jurisdiction to confirm the sale; to award a deficiency judgment, if proper; and to appoint a receiver, upon request of the parties. The Clerk is directed to (1) terminate any pending motion and (2) ADMINISTRATIVELY CLOSE the case.
ORDERED in Tampa, Florida.
Exhibit A
Parcel 1:
The West 1/2 of the East 1/2 of the Southeast 1/4 of the Northwest 1/4 of Section 16, Township 29 South, Range 18 East, LESS the South 50 feet thereof, LESS the West 1 foot thereof and LESS the North 358.60 feet of the South 408.60 feet thereof, all lying and being in Hillsborough County, Florida.Parcel 2:
TOGETHER WITH those certain easements and the right to use the same as described in Easement Declaration and Agreement recorded in Official Records Book 2979, Page 1387, and the Amendments thereto recorded in Official Records Book 2989, Page 1602 and Official Records Book 3682, Page 1188, of the Public Records of Hillsborough County, Florida.
Parcel 3: INTERNATIONAL DRIVE:
From the Southwest corner of the Southeast 1/4 of the Northwest 1/4 of Section 16, Township 29 South, Range 18 East, Hillsborough County, Florida; run North 89°3859 East, along the South boundary of the Southeast 1/4 of the Northwest 1/4 of said Section 16, a distance of 42.0 feet; run thence North, a distance of 688.0 feet for a POINT OF BEGINNING; from said POINT OF BEGINNING run North 89°3859 East, along the centerline of a road or easement 50.0 feet in width lying 25.0 feet either side of said centerline, a distance of 577.0 feet to a point of termination of said centerline of said 50.00 foot wide strip.
Parcel 4: LEMANS BOULEVARD:
Commencing at the Southwest corner of the Southeast 1/4 of the Northwest 1/4 of Section 16, Township 29 South, Range 18 East, Hillsborough County, Florida; thence run North 89°3859 East (assumed bearing) along the South boundary of the Southeast 1/4 of the Northwest 1/4 of said Section 16, a distance of 619.0 feet; thence North 50.0 feet to a point on the North right-of-way line of Spruce Street for a POINT OF BEGINNING; thence continue North, a distance of 1274.07 feet to a point on the North boundary of the Southeast 1/4 of the Northwest 1/4 of said Section 16; thence North 89°4347 East along the said North boundary of the Southeast 1/4 of the Northwest 1/4 of said Section 16, a distance of 44.22 feet; thence South 00°0220 East along a line 1.0 feet East of and parallel to the West boundary of the West 1/2 of the East 1/2 of the Southeast 1/4 of the Northwest 1/4 of said Section 16, a distance of 1274.0 feet to a point on the North right-of-way line of Spruce Street; thence South 89°3859 West, along the North right-of-way line of Spruce Street, a distance of 45.09 feet to the POINT OF BEGINNING.
EXCEPTING THEREFROM that portion of Lemans Boulevard described as follows:
A tract of land lying in the West 1/2 of the East 1/2 of the Southeast 1/4 of the Northwest 1/4 of Section 16, Township 29 South, Range 18 East, Hillsborough County, Florida, being further described as follows:
Commence at the Southwest corner of the Southeast 1/4 of the Northwest 1/4 of said Section 16; thence North 89°3850 East, (assumed bearing) along the South boundary of the Southeast 1/4 of the Northwest 1/4 of said Section 16, a distance of 619.0 feet; thence North, a distance of 50.0 feet to a point on the North right-of-way line for Spruce Street for a POINT OF BEGINNING; thence continue North, a distance of 675.00 feet; thence North 89°3859 East, a distance of 44.63 feet; thence South 00°0238 East, along a line 1.0 feet East of and parallel to the West boundary of the West 1/2 of the Southeast 1/4 of the Southwest 1/4 of the Northwest 1/4 of said Section 16, a distance of 675.00 feet to a point on the North right-of-way line of Spruce Street; thence South 89°2800 West along the North right-of-way line of Spruce Street, a distance of 45.00 feet to the POINT OF BEGINNING.
Parcel 5:
A tract of land lying in the West 1/2 of the East 1/2 of the Southeast 1/4 of the Northwest 1/4 of Section 16, Township 29 South, Range 18 East, Hillsborough County, Florida, being further described as follows:
Commence at the Southwest corner of the Southeast 1/4 of the Northwest 1/4 of said Section 16; thence North 89°3850 East, (assumed bearing) along the South boundary of the Southeast 1/4 of the Northwest 1/4 of said Section 16, a distance of 619.0 feet; thence North, a distance of 50.0 feet to a point on the North right-of-way line for Spruce Street for a POINT OF BEGINNING; thence continue North, a distance of 675.00 feet; thence North 89°3859 East, a distance of 44.63 feet; thence South 00°0238 East, along a line 1.0 feet East of and parallel to the West boundary of the West 1/2 of the Southeast 1/4 of the Southwest 1/4 of the Northwest 1/4 of said Section 16, a distance of 675.00 feet to a point on the North right-of-way line of Spruce Street; thence South 89°2800 West along the North right-of-way line of Spruce Street, a distance of 45.00 feet to the POINT OF BEGINNING.
Exhibit B
All of the following described properties and interests, now owned or hereafter acquired by 2021 North Le Mans, LLC ("Debtor"), and all accessories, attachments and additions thereto and all replacements or substitutes therefor and all products and proceeds thereof, and accessions thereto:A. All of the property, personal or otherwise, now or hereafter attached to or incorporated into or used in or about the real property described on Exhibit "A", attached hereto, and all improvements thereon (collectively, the "Real Property"), including, without limitation, all fixtures, building materials, inventory, furniture, appliances, furnishings, goods, equipment, and machinery and all other tangible personal property now or hereafter affixed, attached or related to the Real Property or used in connection therewith;
B. All accounts, inventory, instruments, chattel paper, documents, consumer goods, insurance proceeds. surveys, plans and specifications, drawings, permits, licenses, warranties, guaranties, deposits, prepaid expenses, contract rights, and general intangibles now, or hereafter related to, any of the Real Property;
C. All rents, income, receipts, revenues, issues and profits arising or related to any portion of the Real Property, including without limitation, minimum rents, additional rents, percentage rents, common area maintenance charges, parking charges, tax and insurance premium contributions, liquidated damages following default, premiums payable by any tenant upon the exercise of any cancellation privilege provided for in any lease affecting the Real Property, and all proceeds payable under any policy of insurance covering the loss of rent resulting from any untenantability, together with any and all rights and claims or any kind which Debtor may have against any tenant or any other occupants of the Real Property;
D. All general intangibles relating to the development or use of the Real Property, including but not limited to all governmental permits relating to construction on the Real Property, all names under or by which the Real Property may at any time be operated or known, and all rights to carryon the business under any such names or any variant thereof, and all trademarks and goodwill in any way relating to the Real Property;
E. All water rights and water stock relating to the Real Property that is owned by Debtor in common with others, and all documents of membership in any owner's or members' association or similar group having responsibility for managing or operating any part of the Real Property;
F. All proceeds and claims arising on account of any damage to or taking of the Real Property or any part thereof, and all causes of action and recoveries for any loss or diminution in the value of the Real Property and all rights of the Debtor under any policy or policies of insurance covering the Real Property or any rents relating to the Real Property and all proceeds, loss payments and premium refunds which may become payable with respect to such Insurance policies.