Independent Bank of Texas v. M/V JANICE RUTH II, Official Number 1118444 et al

Filing 47

Report and Recommendation

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA INDEPENDENT BANK OF TEXAS, 3:11-cv-00128-TMB-JDR Plaintiff, vs. M/V JANICE RUTH II, Official Number 1116444, her engines, gear, tackle, and appurtenances, In Rem, and THE MARTHA REYNOLDS TRUST, In Personam, RECOMMENDATION REGARDING MOTION FOR DEFAULT JUDGMENT IN REM AND IN PERSONAM (Docket No. 40) Defendants. The Plaintiff filed its Motion for Default Judgment In Rem and Order of Sale (Docket 40) on November 17, 2011, in order to foreclose on a preferred ship mortgage. The Plaintiff filed a Verified Complaint setting forth the terms and conditions of the Promissory Note and the Preferred Ship Mortgage, which provides security for the Note.1 This Court previously made an Entry of Default In Rem at Docket 39 and default was entered against The Martha Reynolds Trust at Docket 29. The Court has reviewed the Motion and Memorandum filed at Docket 40 and the affidavits of S. Richard Shook, Steven J. Shamburek and Randyl Meigs, filed at Dockets 41, 42 and 44, respectively. The Magistrate Judge is satisfied that the Plaintiff has met its notice requirements for service under Local Rule (c)-3. The Plaintiff published notice of the arrest of the Vessel in the Anchorage Daily News on September 14, 2011 and published the same in The Valdez Star on September 21, 2011.2 Additionally, the Plaintiff has filed proof that the Trustee for the In Personam Defendant, The Martha Reynolds Trust, was served with the Summons and Complaint.3 The Plaintiff is seeking a Judgment which includes the principal sum owed, totaling $748,542.00, accrued interest totaling $101.668.74 (through October 21, 2011), continued interest accruing at a rate of $374.27 per day (after October 21, 2011), late fees totaling $1,120.05, costs in the amount of $14,772.08, in custodia legis expenses of the U.S. Marshal totaling $3,508.00, and Plaintiff’s attorneys’ fees 1 See Promissory Note, Docket 1-1; Preferred Ship Mortgage, Docket 1-2. 2 See Affidavit in Support of Entry of Default, Docket 38; Publication of Notice of Arrest, Docket 32. 3 See Affidavit in Support of Entry of Default, Docket 28. 11-cv-128-TMB-JDR @ 40 RR Re Motion for Default Judgment.wpd 2 in the amount of $37,107.50. These sums, interest, costs and fees are due in accordance with the terms of the Promissory Note and Mortgage.4 The Magistrate Judge HEREBY RECOMMENDS the Court find the In Rem Defendant liable for the amounts outlined above and grant Plaintiff’s Request for entry of Judgment In Rem. The request for Judgment In Personam should be deferred, subject to renewal, as it may be renewed when a request for a deficiency judgment, if any, is determined after the sale of the Vessel. In the interest of justice, and in order to expedite the business of the court, this Recommendations shall be deemed a Final Recommendation. DATED this 21st day of November, 2011, at Anchorage, Alaska. /s/ John D. Roberts JOHN D. ROBERTS United States Magistrate Judge 4 See Docket 1-1; 1-2. 11-cv-128-TMB-JDR @ 40 RR Re Motion for Default Judgment.wpd 3

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