Opinion
Case No. 01-70919-SCS, Chapter 11, (Jointly Administered)
April 24, 2002
Counsel far Richfood Holdings, Inc.: Jonathan L. Hauser, Esq., Virginia State Bar No. 18688 and Troutman Sanders LLP from Norfolk, VA.
ORDER GRANTING RELIEF FROM STAY
CAME the parties on this day upon Motion for Relief from Stay and the Motion for Judgment on the Pleadings filed on behalf of Richfood Holdings, Inc. and for the reasons enunciated by the Court at hearing of this matter and it appearing proper after due notice, and for good cause shown, it is:
ADJUDGED AND ORDERED that the automatic stay provided for by 11 U.S.C. § 362 be, arid it hereby is, modified, to permit Plaintiff to regain possession of, foreclose and sell pursuant to the loan documents and state law, that certain real property described as follows:
Norfork, Virginia
All those two certain tracts or parcels of land situate in the City of Norfolk, Virginia and containing approximately 18.3 acres, being bounded and described as follows:
(1) Beginning at a point in the western line of Production Road (formerly East Woodlawn Avenue), distant N 26" 52' 30" W 61.73 feet as measured along said line from the intersection of the southern line of Investors Road (formerly Parkland Road), and the western line of the aforesaid Production Road; thence N 26' 52' 30" W 793.88 feet along the western line of Production Road to the southern line of the Norfolk and Western Railway Company's Right of Way for spur track; thence westwardly along said line which follows the arc of a curve to the right, the radius of which is 5,208 feet, an arc distance of 50.01 feet; thence westwardly and northwestwardly along the arc of a curve to the right, the radius of which is 309.61 feet an arc distance of 279.83 feet; thence N 57' 34' 20" W 43.21 feet; thence northwestwardly, westwardly, and southwestwardly along the arc of a curve to the left, the radius of which is 267.94 feet, an arc distance of 444.26 feet; thence southwestwardly along the arc of a curve to the left, the radius of which is 809.21 feet, an arc distance of 161.22 feet; thence S. 12' 34' 20" E 744.63 feet; thence N 76' 43' W 1017.30 feet to the western line of Production Road, the point of beginning.
(2) Beginning at a point in the western line of Production Road (formerly East Woodlawn Avenue), distant N 26' 52' 30" W 895.94 feet as measured along said line from the intersection of the southern line of Inventors Road (formerly Parkland Road), and the western line of the aforesaid Production Road; thence N 26' 52' 30" W 62.66 feet along the western line of Production Road to the northern line of a 20 foot drainage easement; thence S 71' 37' W 213.22 feet along said line to the northern line of the Norfolk and Western Railway Company's Right of Way for spur track; thence southeastwardly arid eastwardly along said line which follow the arc of a curve to the left, the radius of which is 269.61 feet, an are distance of 192.62 feet; thence continuing eastwardly along the aforesaid Norfolk and Western Railway Company's Right of Way for spur track which follows the arc of a curve to the left, the radius of which is 5,168 feet, an are distance of 44.74 feet to the western line of Production Road, the point from the beginning.
Being the same property conveyed by deed dated March 15, 1961, made by the City of Norfolk, a municipal corporation, and recorded in the Clerk's Office of the Circuit Court of the (City of Norfolk, Virginia in Deed Book 861, page 141, and subsequently conveyed by deed dated June 1, 1979, recorded in the Clerk's Office aforesaid in Deed Book 1494, page 863.
Franklin, Virginia
ALL THAT certain lot, tract or parcel of land lying situate and being in the City of Franklin, Virginia. as shown on Plat Showing W.O. Bogard Tract in Franklin, Virginia, Surveyed for Ronnie Enterprises, Incorporated Scale 1"-50' — Dec. 30, 1961, J.E. Henry, Reg. Engr., Revised March 27, 1962 (Easement Notes added), said plat to be duly recorded in the Clerk's Office of the Circuit Court of Southampton County contemporaneously herewith, said tract or parcel of land being more particularly described in accordance with the aforesaid plat as follows: Beginning at an iron pin at the intersection of Main Street, South Street, and road to Pin Point as shown on the aforesaid plat; thence South 34° 18' West 209.5 feet along South Street to an iron pin; thence continuing along South Street South 41° 34' West 94.70 feet to an iron pin; thence continuing along South Street South 56° 26' West 92.35 feet to an iron pin at a ditch; thence along said ditch South 46° 20' East 773.34 feet to an iron pin, a corner for property of the Town of Franklin (City of Franklin now), and the within described property; thence North 66° 06' East 93.72 feet to an iron pin, a corner for properly of the Town of Franklin (City of Franklin) and the within described property; thence North 4° 23' West 615.04 feet to an iron pin on road to Pin Point; thence adjacent to the road to Pin Point North 59° 47' West 216.71 feet to an iron pin; thence continuing along a line adjacent to road to Pin Point North 66° 34' West 155.3 feet to an iron pin, the point of beginning.
Princess Anne, MD
All that lot or parcel of land situate, lying and being in the Town of Princess Anne, West Princess Anne Election District, Somerset County, Maryland, lying and binding in part on the east side of U.S. Route 13 known as the Princess Anne By-Pass leading from Princess Anne to Salisbury, hounded on the north by the land of M. Lurline Cross, bounded on the east in part by the land of Joseph Pietroski and Mary Pietroski (G.J.B. No. 201, folio 557), in part by the land owned or formerly owned by S. Banes Layfield (I.T.P. No. 262, folio 129), in part by the land formerly owned by Thomas S. Simpkins, in part by the land of John H. Fitzgerald and Emma C. Fitzgerald (B.L.B. No. 182, folio 100) and in part by the land of Lindy Bromley and Mary Jane Bromley (I.T.P. No. 275, folio 70), in part by the land of Kellam Realty Company (I.T.P. No. 343, folio 382), in part by the land of Somerset County Organization for Progressive Enterprises, Inc. (I.T.P. No. 341, folio 65) in part by Maryland Route 362 which leads in an easterly direction From U.S. Route 13 to Maryland Route 675, bounded on the southwest in part by the land of Hardee's Food Systems, Inc. (I.T.P. No. 312, folio 409) in part by the land of Maryland State Bank (I.T.P. No. 312, folio 412) and in part by the land of Richard D. Wheatley and Teresa W. Wheatley (I.T.P. No 345, folio 591 formerly owned by Richard P. Smith and Dorothy S. Smith I.T.P. No. 344, folio 772); said land was originally laid down and described as containing 11.48 acres on a plat entitled "Property Survey for Logan D. Widdowson" dated February 13, 1979 by Herman Lloyd Purnell, III, Surveyor, recorded among the Land Records of Somerset County in Plat Book I.T.P. No. 13, folio 48 and is the same and all of said land described on said plat and conveyed unto Eastern Shore Markets, Inc. by Logan C. Widdowson by deed dated December 23. 1981 arid recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 626; EXCEPT SO MUCH THEREOF subsequently conveyed by Eastern Shore Markets, Inc. by the following deeds: (1) To Somerset County Organization for Progressive Enterprises, Inc. dated November 22, 1983 and recorded among the aforesaid Land Records in Liber I.T.P. No. 341, folio 65, containing 39,320 square feet or 0.92 acres as laid down and described on a plat entitled "Lot Survey for SCOPE, Inc." by Herman Lloyd Purnell, III, dated September 9, 1983 recorded in Liber I.T.P. No. 341, folio 69; and (2) To Richard P. Smith and Dorothy S. Smith dated June 18, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 772 containing 24,728.27 square feet or 0.57 acres as laid down and described on a plat entitled "Property Survey for Richard P. Smith and Dorothy S. Smith" dated May 17, 1984, prepared by Herman Lloyd Purnell, III, Surveyor recorded in Liber I.T.P. 344, folio 776 (now owned by Richard D. Wheatley and Teresa W. Wheatley; I.T.P. No. 345, folio 591); leaving a residue of 19.99 acres as hereinafter described; together with a right of way over and across a 30 ft. strip of land on the western side of the land which was conveyed by L. Wilbur Engleman unto Hardee's Food Systems, Inc. by deed dated January 22, 1979 and recorded among the aforesaid Land Records in Liber I.T.P. No 312, Folio 409 and on the western side of the land which was conveyed by L. Wilbur Engleman unto Maryland State Bank by deed dated January 22, 1979 and recorded among the aforesaid Land Records in Tiber I.T.P. No. 312, folio 412: said right of way being designated as "Proposed Private Drive on a plat by Stewart Whitter, Registered Surveyor, dated October 2, 1978, recorded December 26, 1978 and recorded among the Land Records of Somerset County in Plat Book I.T.P. No. 12, folio 33 and also shown on as 30 ft. Reserved for Roadway" on the aforesaid plat by Herman Lloyd Purnell, III surveyed for Logan C. Widdowson recorded in Plat Book I.T.P. No. 13, folio 48 and also together with certain drainage rights and appurtenance thereto conveyed unto Eastern Shore Markets, Inc. by Bailey Alfred Thomas by deed of easement dated December 28, 1982 and recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 561 and also together with an easement for the purpose of construction, installation, inspection, maintenance and replacement of water and sewer mains and facilities appurtenant thereto as set forth in a deed of easement and agreement by and between Somerset County Organization for Progressive Enterprises, Inc. and Eastern Shore Markets, Inc. dated April 30, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 257; and together with the benefit of the restrictions established for the benefit of Eastern Shore Markets, Inc. in the aforesaid deed from Eastern Shore Markets, Inc. to Richard P. Smith arid Dorothy S. Smith dated June 18, 1984 and recorded among the aforesaid Land Records to Liber I.T.P. No. 344, folio 772; subject to the term and conditions set forth in the aforesaid deed of easement from Bailey Alfred Thomas to Eastern Shore Markets, Inc. dated December 28, 1982 and recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 561 and subject to the terms and conditions of said deed of easement and agreement by and between Somerset County Organization for Progressive Enterprises, Inc. and Eastern Shore Markets, Inc. dated April 30, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 257 subject to an Inquisition by the State Roads Commission of Maryland vs. Harold A. McAllen and Hessie P. McAllen on November 12, 1957 and recorded among the aforesaid Land Records in Liber G.J.B. No. 184, folio 177; subject to the easements contained in a deed to the State of Maryland to the use of the State. Records Commission from Warren C. Gladden and Helen W. Gladden dated November 4, 1959 and recorded among the aforesaid Land Records in Liber G.J.B. No. 196, folio 3041 subject to an agreement by and between Oakhill Farms, Inc. and Somerset County Sanitary Commission dated October 3, 1962 and recorded among the aforesaid Land Records in Liber G.J.B. No. 211, folio 596; subject to an agreement by and between Warren C. Gladden and Helen W. Gladden and Somerset County Sanitary Commission dated October 5, 1962 and recorded among the aforesaid Land Records in Liber (G.J.B. No. 221, folio 605; subject to the use in common with Hardee's Food Systems, Inc. and Maryland State Bank and Richard D. Wheatley and Teresa W. Wheatley of a 30 ft. right of way on the west side of he properties of Hardee's Food Systems, Inc. and Maryland State Bank and Richard D. Wheatley and Teresa W. Wheatley and lying between the west side of said properties and the east side of U.S. Route 13; subject to the use by Hardee's Food Systems, Inc., Maryland State Bank and Richard D. Wheatley and Teresa W. Wheatley of the 60 ft. right of way on the east side of their respective properties for access to Maryland Route 362 and for the installation and maintenance of water and sewer mains and appurtenances thereto and subject to the use by Somerset County Organization for Progressive Enterprises, inc. of said 60 ft. right of way on the west side of its property for access to Maryland Route 362 and for the installation and maintenance of water and sewer mains and appurtenances thereto; subject to the restrictions set forth in the aforesaid deed to Eastern Shore Markets, Inc. from Logan C. Widdowson dated December 23, 1981 and recorded among the aforesaid Land Records in Liber I.T.P. No. 330, folio 626; subject to the covenants as to the use of land of Eastern Shore Markets, toe, as set fort in the deed from Eastern Shore Markets, Inc. to Richard P. Smith arid Dorothy S. Smith dated June 18, 1984 and recorded among the aforesaid Land Records in Liber I.T.P. No. 344, folio 772.
The subject land is described on a plat entitled "Property Survey for Eastern Shore Markets, Inc." by Herman Lloyd Purnell, III, Surveyor, dated October 28, 1984 and recorded among the Land Records of Somerset County in Plat Book I.T.P. No. 14, folio 20 as follows: Beginning for the same at a concrete monument found on the north side of Maryland Route 362 at the extreme southeast corner of the land of Hardee's Food Systems, Inc. (I.T.P. No. 312, folio 409), as shown on said plat. thence from said place of beginning as follows: (1) North 1° 30' 0" East a distance of 756.91 feet to a point which marks the northernmost corner of the land of Richard D. Wheatley and Teresa W. Wheatley (I.T.P. No. 345, folio 591), thence (2) by and with the west line of said Wheatley land South 21° 10' 30" West a distance of 394.97 feet to the southwest corner of said Wheatley land, Thence (3) North 88° 30' 0" West a distance of 30 feet to intersect the east side of U.S. Route 13; thence (4) by and with the east side of 115. Route 13 North 21° 10' 2" East a distance of 1310.25 feet to a concrete monument at the northwest corner of the land herein described, thence (5) South 72° 8' 0" East by and with the south line of the land by M. Lurline Cross 239.66 feet to a concrete monument at the northeast corner of the land herein described and the northwest corner of the land of Joseph Pietroski and Mary Pictroski (G.J.R. No. 201, folio 557), thence (6) South 11° 38' 0" West a distance of 625.04 feet to a point which designates the southwest corner of the land of Lindy Bromley and Mary J. Bromley (I.T.P. No. 275, folio 70), thence (7) North 74° 57' 19" West 164.99 feet to a point, thence (8) North 75° 23' 19" West a distance of 16.14 feet, thence (9) South 1° 6" 14" West a distance of 23.25 feet, thence (10) South 74° 55' 0" Fast a distance of 212.03 feet to a point, thence (11) by and with the west side of Walnut Street South 1° 5' 0" West a distance of 425.87 to a point which designates the northeast corner of Kellam Realty Company (I.T.P. No. 343, folio 382), thence (12) North 88° 30' 0" West a distance of 209.28 feet to the northwest corner of said Kellam Realty Company land, thence (13) South 1° 30' 57" West a distance of 35 feet to the northeast corner of the land of SCOPE, Inc. thence (14) North 88° 30' 0" West 160 feet to the northwest corner of SCOPE, Inc. thence (15 So. 1° 30' 0" West a distance of 444.50 feet to a concrete monument on the north side of Maryland Route 362, thence (16) by and with the north side of Maryland Route 362 North 88° 30' 0", West 60.03 feet to the first mentioned concrete monument and place of beginning, containing 10.56 acres, more or less, all as described on said plat.
Pokomoke, MD
All that lot or parcel of land situate in the City of Pocomoke, First Election District, Worcester County, Maryland, lying and binding on the southwest side of Market Street and the northeasterly side of Fourteenth Street and more particularly described as follows: Beginning at a point at the westernmost corner of the land herein described on the northeast side of Fourteenth Street designated by an "X" on the curb of Fourteenth Street, the same being the westernmost corner of the land depicted as Parcel 1 on a plat by W. Ballard Miles recorded in Liber E.W.R. No. 2, folio 10, thence (1) North 31° 10' 0" East a distance of 157.02 feet to chisel mark on said curb bearing 5.6 feet from an iron pipe, said mark being designed by the letter "A" on the plat hereinafter referred to, thence (2) south 42° 02' 00" East 124.48 feet to a concrete post depicted on said plats designated by letter B on said last mentioned plat, said concrete post being 3.22 feet from an axle, thence (3) North 49° 56' 42" East a distance of 179.64 feet through art iron pipe (designated by letter G on the plat hereinafter referred to) to a point on the south side of Market Street (20 feet from the center line thereof), thence (4) South 40° 0' 28" East 45.79 feet with Market Street to a point, thence (5) South 41° 16' 9" East 508.51 feet with the right of way of Market Street to a point 60 feet northwest of a concrete post, thence (6) South 49° 46' 0" West by and with the land now or formerly of Wesley Stephens (F.W.H. No. 1075, folio 515) a distance of 180.26 feet to a concrete post; thence (7) South 48° 46' 0" West 150 feet by and with the reserved land of Baylis Realty Company, Inc. to an iron pipe, thence (8) North 41° 14' 39" West 631.83 feet by and with the land now or formerly of Milton W. Baylis to the first mentioned point and place of beginning, containing 4.5 acres, more or less, and being accurately laid down and described on a plat entitled "Plat of Property surveyed for Baylis Realty Co., Inc." by H. William Pusey dated December 1, 1982 and being a part only of the land conveyed unto Baylis Realty Company, Inc., by the following deeds: (1) from Milton W. Baylis and wife dated September 1, 1961 and recorded among the aforesaid Land Records in Liber F.W.H. No. 149, folio 245; (2) from Milton W. Baylis and wife dated July 20, 1972 and recorded among the aforesaid Land Records in Liber F.W.H. No. 358, folio 151; (3) To Milton W. Baylis and wife from John H. Baylis, dated June 16, 1945 and recorded in Liber (G.W.N. No. 2, folio 132; and (4) from Virginia F. Fulmer dated February 23, 1973 and recorded among the aforesaid Land Records in Liber F.W.H. No. 402, folio 428; (5) From Robert P. Baylis, Attorney in Fact for Milton W. Baylis, dated August 31, 1987 and recorded among the aforesaid Land Records in Liber W.C.L. No. 1365, folio 583. The property conveyed unto Eastern Shore Markets, Inc. by deed dated December 11, 1987 and recorded in Liber W.C.L. 1391, folio 71.
Parksley, VA
PARCEL 1: ALL THAT certain parcel of land embracing parts of two lots, known as the "Mason Storehouse" property, fronting on Dunne Avenue, in the Town of Parksley, Accomack County, Virginia, and bounded as follows, to wit: on the North by the land formerly belonging to Mr. and Mrs. Henry R. Bennett on the Fast, by a Twenty Foot (20 ft.) alley and a portion of the land conveyed by deed by Jeff P. Walter, Special Commission, to H. Dix Lilliston; on the South by the land of The Parksley National Bank and the land conveyed to H. Dix Lilliston, known as the Post Office Property; and on the West by Dunne Avenue. Said parcel of land is shown as "lot No. 1, Mason Storehouse Property" on a certain plat of survey made by J.B. Gibb, C.S., on May 3, 1941, and marked "Property of the Parksley Realty Company at Parksley, Accomack County, Virginia" which said plat is made by this reference a part of this deed, together with the North one-fifth (1/5th) of a foot of land fronting on Dunne Avenue and tapering off to the rear of lot 54 of the duly recorded plat of the Town of Parksley. as described in the deed recorded in the Office of the Clerk of the Circuit Court of Accomack's County, Virginia, in Deed Book 1904, at page 498.
PARCEL 2: ALL THAT certain lot or parcel of land situate on the East side of Dunne Avenue in the Town of Parksley, Accomack County, Virginia, having a frontage of 50 feet on Dunne Avenue and being designated as Lot No. 50 and 10 feet of Lot No. 51 on the original plat of the Town of Parksley, Virginia, recorded in the aforesaid Clerk's Office in Plat Book 6, Page 821 together with all the rights, buildings, privileges and appurtenances thereunto belonging or in anywise appertaining; subject to valid recorded easements, covenants and reservations in the chain of title to the property hereby conveyed, which have not expired or otherwise become ineffective.
PARCEL 3: ALL THAT certain tract or parcel of land situate in the Town of Parksley, Metompkin Magisterial District, Accomack County, Virginia, having a frontage of 60 feet on Dunne Avenue and extending between parallel lines a distance of 130 feet to a 20 alley, which lot is Southern 30 feet of Lot 51 and the Northern 30 feet of Lot 52 as shown on a certain plat captioned "Plat of the Town of Parksley," which plat is recorded in the Clerk's Office of the Circuit Court for the County of Accomack in Deed Book 58, at page 579; together with all the buildings, privileges, tenement hereditaments, appurtenances and rights of way thereunto belonging or in anywise appertaining.
(collectively, the "Property").
As to the balance of the properties mentioned in the Motion for Relief from Stay, a final hearing shall be conducted by the Court on May 24, 2002 commencing at 9:30 a.m.
IT IS FURTHER ORDERED that the provisions of Rule Rules of Bankruptcy Procedure are hereby waived.
It is so ORDERED