Wachovia Bank, National Association v. The Estate of Charles E. McNeil, Sr. et al

Filing 37

Order granting 35 Consent Motion to Terminate Receivership and Discharge and Release Receiver Effective Immediately Prior to Closing of Sale of Receivership Property filed by Wells Fargo Bank, N.A.. Signed by Judge Kristi K. DuBose on 8/22/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WELLS FARGO BANK, N.A.,
as successor by merger to Wachovia
Bank, National Association,
Plaintiff,
v.
THE ESTATE OF CHARLES E.
MCNEIL, SR., and MCNEIL AND
RAST, LTD.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action 1:10-cv-00143

ORDER DISCHARGING AND RELEASING RECEIVER
AND TERMINATING RECEIVERSHIP EFFECTIVE IMMEDIATELY
PRIOR TO CLOSING OF SALE OF PURCHASED ASSETS
This matter is before the Court on Consent Motion to Terminate
Receivership and Discharge and Release Receiver Effective Immediately Prior to
Closing of Sale of Receivership Property (the "Motion") filed by Wells Fargo
Bank, N.A., successor by merger to Wachovia Bank, National Association (“Wells
Fargo”). Unless otherwise apparent from the context, all capitalized terms used
herein and not defined shall have the meanings ascribed to them in the Motion.
Based upon the pleadings of record, the consent of the parties, all other matters
brought before the Court, and for good cause shown, the Court has determined that
the Motion is due to be granted. Upon due deliberation and sufficient notice, it is
hereby ORDERED, ADJUDGED and DECREED that:
1

1.

The Motion is GRANTED as provided herein.

2.

The Receiver and MLRP are authorized to execute any and all

documents necessary to dispose, transfer, and convey the Purchased Assets in
accordance with the terms of the Purchase Agreement.
3.

As soon as practicable after September 29, 2011, but no later than

October 13, 2011, Wells Fargo shall notify the Court whether the Sale shall have
closed or failed to close.
4.

If the Sale shall have failed to Close, the Receiver shall continue to as

Receiver of the Mortgaged Property, uninterrupted, pursuant to the Receiver Order,
pending further order of the Court.
5.

If the Closing of the Sale shall have occurred, the receivership

established by the Receiver Order (the "Receivership") shall be deemed to have
terminated immediately prior to the Closing of the Sale, and the following
provisions of this Order shall govern:
A.

With the exception of cash and cash equivalents in the possession or
control of the Receiver related to the Receivership (the “Receivership
Cash”), the Receiver’s right to possession of the Mortgaged Property,
and the Receiver’s authority to manage, operate and control the
Mortgaged Property, shall terminate at Closing, subject to the

2

Receiver's duty to wind up the affairs of the receivership estate and to
facilitate consummation of the Sale of the Purchased Assets.
B.

The Receiver shall deliver possession of the Purchased Assets to the
Purchaser at Closing.

C.

The Receiver is relieved of any further obligation with respect to the
Mortgaged Property, save and except for the activities as described
herein and in the Purchase Agreement.

D.

The Receiver shall file his final accounting and report (the “Final
Report”) within forty-five (45) days from the date of the Closing of
the Sale and shall deliver a copy of the same to Wells Fargo, the
Purchaser, and the defendants in this action.

E.

If no objections to the Final Report have been received within fifteen
(15) days of the filing of such Final Report, without further order the
Final Report shall be deemed approved and Jesse D. Slaton and
Warren, Averett, Kimbrough & Marino, LLC, shall be fully and
forever released and discharged from any and all liability as Receiver
of the Mortgaged Property, which said release and discharge shall
include, without limitation, any and all claims, cross-claims,
counterclaims, causes, damages and actions of every kind and
character, and all suits, costs, damages, expenses, compensation and

3

liabilities of every kind, character and description, whether direct or
indirect, known or unknown, disclosed or hidden, in law or in equity,
which anyone has or will have against Jesse D. Slaton or Warren,
Averett, Kimbrough & Marino, LLC, in their capacity as Receiver,
and/or any of their respective agents, representatives, officers,
attorneys, professionals, employees or contractors, on account of,
arising, or resulting from, or in any manner incidental to, the
Receivership, the Mortgaged Property, the Receiver’s possession
and/or use of the Mortgaged Property, the administration of the
Receivership estate, the Sale of the Purchased Assets, and/or any acts
or omissions of Jesse D. Slaton or Warren, Averett, Kimbrough &
Marino, LLC, in their capacity as Receiver.
F.

The Receiver is hereby directed to pay all fees and expenses of the
Receiver and/or the Receiver’s counsel in connection with the
Receivership from the Receivership Cash, including the Receivership
Expenses (as said term is defined in the Consent Letter).

After

making the payments authorized hereby, and if no objections to the
Final Report shall have been received within fifteen (15) days of the
date of filing of the Final Report, the Receiver shall turnover to Wells
Fargo all Receivership Cash in the Receiver’s possession or control

4

relating to the Receivership and shall close all bank accounts
maintained by the Receiver in connection with the Receivership.
G.

The termination of the Receivership shall not result in the dismissal of
this lawsuit, nor shall the termination of the Receivership constitute a
dismissal or adjudication of Wells Fargo’s claims for monetary
damages against the defendants.

22
August
Dated this the ___ day of ________________________, 2011.

s/Kristi K. DuBose

United States District Court Judge

5