First National Bank of Izard County v. B & H Resources, LLC et al

Filing 118

DECREE OF FORECLOSURE against Northstar Farms LLC. Signed by Magistrate Judge Beth Deere on 8/8/2017. (mef)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

FIRST NATIONAL BANK OF
IZARD COUNTY
VS.

PLAINTIFF
NO. 1:15-CV-5-BD
(Lead Case)

EVERGREEN PROCESSING,
LLC F/K/A B & H RESOURCES,
LLC; NORTHSTAR FARMS, LLC;
JOHN P. HARDY; CELTIC BANK;
HELEN BARTMESS AND GIBSLAND
BANK & TRUST CO. A/K/A
GIBSLAND BANK & TRUST, N.A.
CELTIC BANK

DEFENDANTS
THIRD-PARTY PLAINTIFF

VS.
HAYNESVILLE SHALE RENTALS, LLC;
ARK-LA-TEX LEASING, LLC; ENERGY
RENTALS & LEASING, LLC; ELITE COIL
TUBING SOLUTIONS, LLC; HARDY
ENERGY SERVICES, INC. AND JAMES
P. HARDY, JR.
GIBSLAND BANK & TRUST CO. A/K/A
GIBSLAND BANK & TRUST, N.A.

THIRD-PARTY DEFENDANTS

COUNTER-CLAIMANT

VS.
FIRST NATIONAL BANK OF
IZARD COUNTY
GIBSLAND BANK & TRUST CO. A/K/A
GIBSLAND BANK & TRUST, N.A.

COUNTER-DEFENDANT

CROSS-CLAIMANT

VS.
JOHN P. HARDY, CELTIC BANK AND
HELEN BARTMESS, INDIVIDUALLY,
AND AS EXECUTRIX OF THE ESTATE
OF GEORGE BARTMESS, DECEASED

CROSS-DEFENDANTS

GIBSLAND BANK & TRUST CO. A/K/A
GIBSLAND BANK & TRUST, N.A.

THIRD-PARTY PLAINTIFF

VS.
NORTHSTAR FARMS, LLC

THIRD-PARTY DEFENDANT

****************************************************************************
CELTIC BANK
VS.

PLAINTIFF
NO. 1:15-CV-78-BD
(Member Case)

HAYNESVILLE SHALE RENTALS,
LLC; EVERGREEN PROCESSING,
LLC; FIRST NATIONAL BANK OF
IZARD COUNTY AND HELEN
BARTMESS, INDIVIDUALLY, AND
AS EXECUTRIX OF THE ESTATE
OF GEORGE BARTMESS, DECEASED

DEFENDANTS

DECREE OF FORECLOSURE
AGAINST NORTHSTAR FARMS, LLC
On this date the above-styled matter comes on for consideration by the
Court and Plaintiff First National Bank of Izard County (FNBIC) is present by its
attorney, Robert D. Stroud; Defendant and Third Party Plaintiff Gibsland Bank & Trust
Co. a/k/a Gibsland Bank & Trust, N.A. (Gibsland) is present by its attorney, David A.
Grace; Defendant Northstar Farms, LLC, appears not. The Court being well and
sufficiently advised in the law and the facts and after review of all pleadings and
consideration of applicable law, concludes and finds:
1. This Court has jurisdiction of the parties to and subject matter of this
action.

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2.

On September 26, 2016, an Order (Docket Entry #78) was entered

granting Plaintiff FNBIC=s motion for partial summary judgment against Northstar
finding there are no genuine issues of material fact and that Plaintiff FNBIC is entitled to
judgment as a matter of law.
3.

On or about August 7, 2009, Defendant Northstar Farms, LLC,

executed and delivered to Plaintiff FNBIC its promissory note and security agreement in
the original principal amount of $320,230.65, payable with interest at the rate of 6.500%
per annum, on demand, but if no demand is made on February 7, 2010, when the entire
unpaid principal and interest would be due and payable.
4.

As security for the payment of the promissory note, Defendant

Northstar Farms, LLC, executed and delivered to Plaintiff FNBIC its mortgage on the
following described real property situated in Izard County, Arkansas:
All that part of the Southeast Quarter Northwest Quarter
lying South of State Highway 56 in Section 10, Township
17 North, Range 10 West of the 5th P.M. of Izard County.
All that part of the Southwest Quarter Northeast Quarter
lying South of State Highway 56 in Section
10, Township 17 North, Range 10 West of the 5th P.M. of
Izard County.
Part of the Southeast Quarter Southwest Quarter lying
East of an existing fence and part of the West Half of the
Southeast Quarter lying East of an existing fence
described as follows: Beginning at the Southwest corner of
the Southeast Quarter Southeast Quarter; thence North
86 degrees 26 minutes 51 seconds West, 1075.96 feet to a
point; thence North 37 degrees 39 minutes 07 seconds
West, 833.75 feet to a point; thence North 49 degrees 10
minutes 10 seconds West, 1572.02 feet to a point; thence
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North 41 degrees 43 minutes 32 seconds West, 1263.74 feet
in Section 10, Township 17 North, Range 10 West of the
5th P.M. of Izard County.
Part of the Southeast Quarter Northeast Quarter lying
South of State Highway 56 in Section 10, Township 17
North, Range 10 West of the 5th P.M. of Izard County.
All the Northeast Quarter Southeast Quarter in Section
10, Township 17 North, Range 10 West of the 5th P.M. of
Izard County.
All the Southeast Quarter Southeast Quarter in Section
10, Township 17 North, Range 10 West of the 5th P.M.
Izard County.
The North Half Northeast Quarter Northeast Quarter of
Section 15, Township 17 North, Range 10 West of the 5th
P.M. of Izard County (the “Real Property”).

said mortgage having been recorded in Book 32 at Page 553 of the Izard County records.
5.

From time to time, Plaintiff FNBIC and Defendant Northstar Farms,

LLC, entered into Loan Extension Agreements concerning the promissory note.
6.

From time to time, Plaintiff FNBIC and Defendant Northstar Farms,

LLC, also entered into Modifications of Mortgage concerning the promissory note.
7.

Defendant Northstar Farms, LLC, has failed and refused to make

payments in accordance with the terms of the promissory note, and is wholly in default.
Plaintiff FNBIC is entitled to in rem judgment from and against the Real Property of
Northstar Farms, LLC, in the amount of $358,604.93, plus interest accruing daily after
September 27, 2016, of $64.04 per day, plus its costs and an attorney=s fee of $35,860.00.
8.

Although Defendants Celtic Bank and Helen Bartmess claim an
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interest in other property mortgaged to FNBIC, only FNBIC and Third Party Plaintiff
Gibsland claims any interest in the Real Property.
9.

Gibsland’s Third-Party Complaint (Doc. 102) was filed herein on

February 16, 2017 (“Third-Party Complaint”).
10.

As evidenced by a Proof of Service on file with this Court (Doc.

108), a Summons on a Third-Party Complaint, a Notice, Consent, and Reference of a
Civil Action to a Magistrate Judge, an Amended Answer to Amended Complaint,
Counterclaim, Cross-Claim and Third-Party Complaint of Gibsland, an Answer to
Amended Complaint, Counterclaim and Cross-Claim of Gibsland (Docket Entry #101), a
Notice of Lis Pendens (Docket Entry #100) and an Amended Complaint of Plaintiff
FNBIC (Docket Entry #96) were served on Third-Party Defendant, Northstar Farms,
LLC (“Northstar”), on March 8, 2017.
11.

Northstar has failed to answer or otherwise respond to the Third-

Party Complaint of Gibsland within the time allowed by law and is in default. A Clerk’s
Default (Docket Entry #112) was entered herein on April 10, 2017, and a Default
Judgment in favor of Gibsland was entered May 31, 2017 (Docket Entry #114).
12.

All allegations in the Third-Party Complaint pertinent to claims

against Northstar are deemed true for purposes of this litigation and Northstar’s default
establishes, as a matter of law, that:
(a)

The real property against which Gibsland seeks to

enforce its Mortgage, as hereinafter set forth, is situated in Izard
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County, Arkansas, and is also the Real Property described in the
paragraph 4 filed herein.
(b)

This Court has jurisdiction over the subject matter of,

and parties to, this action, and venue is proper.
(c)

On or about August 9, 2013, for value received, Coil

Tubing Intervention Services, LLC executed and delivered to
Gibsland a Promissory Note in the principal amount of
$1,200,000.00 (“Promissory Note”).
(d)

To secure repayment of the Promissory Note,

Northstar, an affiliate of Coil Tubing Intervention Services, LLC, for
value received, executed and delivered to Gibsland a Mortgage and
Security Agreement dated August 9, 2013 (“Mortgage”) on the
following described real property:
All that part of the SE ¼ NW ¼ lying south of State
Highway 56 in Section 10, Township 17 North, Range 10
West containing 14.76 acres more or less.

All that part of the SW ¼ NE ¼ lying south of State
Highway 56 in Section 10, Township 17, Range 10 West
containing 13.53 acres more or less.
Part of the SE ¼ SW ¼ lying east of an existing fence and
part of the West Half of this SE ¼ lying east of an existing
fence described as follows: Beginning at the Southwest
corner of the SE ¼ SE ¼ thence North 86 degrees 26
minutes 51 seconds West, 1075.96 feet to a point; thence
North 37 degrees 39 minutes 07 seconds West, 833.75 feet
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to a point; thence North 49 degrees 10 minutes 10 seconds
West, 1572.02 feet to a point; thence North 41 degrees 43
minutes 32 seconds West, 1263.74 feet in Section 10,
Township 17 North, Range 10 West containing 62.90 acres
more or less.
Part of the SE ¼ NE ¼ lying south of State Highway 56 in
Section 10, Township 17 North, Range 10 West containing
8.63 acres more or less.
All of the NE ¼ SE ¼ in Section 10, Township 17 North,
Range 10 West containing 39.48 acres more or less.
All the SE ¼ SE ¼ in Section 10, Township 17 North,
Range 10 West containing 39.44 acres more or less.
The North ½ NE ¼ NE ¼ of Section 15, Township 17
North, Range 10 West containing 19.60 acres more or less.
All lands located in Izard County, Arkansas. The above
being in the aggregate of 198.4 acres more or less
(the “Real Property”).
The Mortgage was recorded in the Office of the Izard County Clerk
on September 3, 2013 at Book 115, Page 187. The Real Property is
the same land as that mortgaged to FNBIC, as set out in paragraph 4.
(e)

Coil Tubing Intervention Services, LLC has failed to

repay the indebtedness evidenced by the Promissory Note when such
indebtedness became due and is in default. There is due and owing
by Coil Tubing Intervention Services, LLC to Gibsland pursuant to
the terms of the Promissory Note a principal debt in the amount of
$1,198,396.90, plus accrued interest in the amount of $145,252.59

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(which represents accrued interest due through January 25, 2017),
with interest continuing to accrue thereon at the rate of
$180.580354794 per day and late fees in the amount of $3,758.15,
all of which amounts are secured by the Real Property and for which
Gibsland is entitled to judgment in rem against the Real Property of
Northstar.
(f)

Gibsland’s right of foreclosure of the Mortgage and its

right to possession and sale of the Real Property has become
absolute.
(g)

Gibsland is entitled to recover a reasonable attorney’s

fee, not to exceed 10% of the amount of principal indebtedness plus
accrued interest, in accordance with applicable law and the terms of
the Promissory Note.
(h)

All conditions precedent to the enforcement of

Gibsland’s claim against Northstar have been satisfied.
13.

The lien of the mortgage to FNBIC on the Real Property is prior and

paramount to the lien of the mortgage of the Real Property to Gibsland. The lien of the
mortgage of Gibsland is superior to all other equities of all other parties hereto.
NOW, THEREFORE, IT IS HEREBY CONSIDERED, ORDERED and
ADJUDGED Plaintiff First National Bank of Izard County have in rem judgment from
and against the property of Northstar Farms, LLC, in the amount of $376,023.81, plus
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interest accruing daily after June 26, 2017, at the rate of $64.04 per day, and for its costs,
plus an attorney=s fee in the amount of $35,860.00 and Third-Party Plaintiff, Gibsland
Bank & Trust Co. a/k/a Gibsland Bank & Trust, N.A., have in rem judgment from and
against the property of Northstar Farms, LLC, in the amount of $1,363,659.87, together
with interest continuing to accrue at the rate of $180.580354794 per diem after April 25,
2017 until paid, its court costs in the amount of $90.00, its reasonable attorney’s fees and
costs in the amount of $3,000.00; that Plaintiff First National Bank of Izard County’s lien
be declared to be a first, valid and paramount lien on the real property described herein;
that if said judgments be not paid within a reasonable time, that the real property
described herein be sold at public auction at the front door of the Izard County
Courthouse, Melbourne, Arkansas, after publication of the notice of sale in a newspaper
having a general circulation in Izard County, Arkansas, once weekly for four consecutive
weeks; U. S. Marshal Clifton Massanelli is directed to make said sale; that the proceeds
of the sale shall be first applied to the cost of this action, including a reasonable Marshal=s
fee, next applied toward the satisfaction of the judgment of First National Bank of Izard
County, and the balance, if any, applied to the judgment of Third-Party Plaintiff,
Gibsland Bank & Trust Co. a/k/a Gibsland Bank & Trust, N.A., and the balance, if any,
held pursuant to other orders of the Court.
_____________________________
BETH DEERE
United States Magistrate Judge
DATE: August 8, 2017
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APPROVED AS TO FORM:

/s/ Robert D. Stroud
Robert D. Stroud, Attorney for First
National Bank of Izard County

/s/ David A. Grace
David A. Grace, Attorney for Gibsland
Bank & Trust Co. a/k/a Gibsland Bank
& Trust, N.A.

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