Opinion
Civil Action No. 11-cv-01246-PAB-CBS.
October 31, 2011
ORDER
This matter is before the Court on the Stipulation Regarding Priority [Docket No. 23] filed by plaintiff P.F. McCarthy, Inc. ("PFM"), defendant Federal Deposit Insurance Corporation, an independent federal government agency, as Receiver for FirsTier Bank ("FDIC"), and former defendants Schommer Construction, LLC ("Schommer") and Herron Electric Company ("Herron"), as well as the Stipulated Motion for Judgment Order and Termination of Lis Pendens [Docket No. 72] filed by PFM and defendants Compass Capital Group, LLC ("Compass") and Ryan Eller. Having reviewed the foregoing filings, it is
ORDERED that, pursuant to the Stipulation Regarding Priority [Docket No. 23]:
1. The FDIC's interest in the following described real property by reason of two Construction Deeds of Trust has priority over the Mechanic's Liens of PFM, Schommer and Herron against:
LOT 1, POWERS OFFICE PARK FILING NO. 1, EXCEPT THAT PART PLATTED TO POWER PLACE 1 CONDOMINIUMS,
also known by street number as 9222-9390 Grand Cordera Parkway, Colorado Springs, Colorado (the "Subject Real Property").
2. Foreclosure of the Mechanic's Liens of PFM, Schommer and Herron will not affect, release or impair the FDIC's Construction Deeds of Trust against the Subject Real Property in any respect and, based on the foregoing, the FDIC is not required to answer or otherwise respond to the Complaint or to participate in the action and it is dismissed from the instant action, the parties to pay their own attorney's fees and costs. It is further
ORDERED that the Stipulated Motion for Judgment Order and Termination of Lis Pendens [Docket No. 72] is GRANTED and pursuant thereto:
1. Plaintiff P.F. McCarthy, Inc. is hereby awarded a judgment against defendant Compass Capital Group, LLC on its First Claim for Relief for breach of contract in the principal amount of $64,000.00, together with costs in the amount of $1,933.76, interest in the amount of $20,875.37 through August 29, 2011, and attorneys' fees in the amount of $22,390.79 through August 29, 2011, for a total judgment of $109,199.92 as of August 29, 2011. Interest shall continue to accrue on the judgment at the rate of 8% per annum until paid.
2. The Notice of Lis Pendens recorded by Plaintiff P.F. McCarthy, Inc. with the Clerk and Recorder's Office of El Paso County, Colorado on April 19, 2011, at Reception No. 211039022 with respect to the following described real property is hereby terminated and discharged and shall be of no force or effect:
LOT 1, POWERS OFFICE PARK FILING NO. 1, EXCEPT THAT PART PLATTED TO POWERS PLACE I CONDOMINIUMS,
also known by street number as 9222-9390 Grand Cordera Parkway, Colorado Springs, Colorado.
3. Plaintiff's counsel shall record a certified true copy of this Order in the Clerk and Recorder's Office in El Paso County, Colorado forthwith.
4. Except for the judgment granted herein and except for the claims of Beal Bank USA, f/k/a Beal Bank Nevada, Assignee of and real party in interest in the claims of FirsTier Bank and the Federal Deposit Insurance Corporation against Compass arising from or related to indebtedness owed by Compass to FirsTier Bank or its successors and assigns as evidenced and secured by deeds of trust against the subject real property, including but not limited to all rights, claims, and actions arising from or related to the $23M Loan and Beal's claims in Beal Bank Nevada v. Compass Capital Group, LLC, et al., El Paso County District Court, Case No. 11-CV-4248 and Beal Bank Nevada v. Compass Capital Group, LLC, et al., Denver District Court, Case No. 10-CV-8810, all other claims which were or could have been asserted by the parties to the Stipulated Motion for Judgment Order and Termination of Lis Pendens and which are related to the subject matter of the Complaint filed in this action are dismissed with prejudice, the parties to pay their own attorney's fees and costs.
5. The Deeds of Trust recorded at Reception No. 208015050 and Reception No. 208015053 in the records of the Clerk and Recorder of El Paso County, Colorado have priority over all mechanic's liens recorded against the Subject Real Property arising out of plaintiff P.F. McCarthy, Inc.'s contract with defendant Compass Capital Group, LLC and any judgment lien hereafter recorded by P.F. McCarthy, Inc. It is further
ORDERED that this case shall be closed and judgment shall enter.