Beech v. Select Portfolio Servicing Inc et al

Filing 100

AGREED DECREE of Foreclosure granting Trustee in rem judgment against the Property in the amount of $238,310.85. This Decree fully and finally resolves all claims, defenses, and issues in this case. Signed by Judge D. P. Marshall Jr. on 2/24/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

LITTLE ROCK DIVISION

HARVEY BEECH

VS.

PLAINTIFF
CASE NO. 4:10-cv-00547-DPM

WELLS FARGO BANK, N.A AS TRUSTEE FOR THE
HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN
TRUST 2006-FF15 MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-FFIS

DEFENDANT

WELLS FARGO BANK, N.A AS TRUSTEE FOR THE
HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN
TRUST 2006-FFIS MORTGAGE PASS-THROUGH
CERTIDCATES, SERIES 2006-FFIS

COUNTERPLAINTIFF

I

VS.
HARVEY BEECH

COUNTERDEFENDANT

WELLS FARGO BANK, N.A AS TRUSTEE FOR THE
HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN
TRUST 2006-FF15 MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-FF15
TIllRD PARTY PLAINTIFF
VS.
,

FAITH A. BEECH AND FIRST FRANKLIN,

a Division of National Bank of Indiana

THIRD PARTY DEFENDANTS

AGREED DECREE OF FORECLOSURE
Pending before the Court is the counterclaim and third party complaint (the
"Complaint") of Wells Fargo Bank, N .A. as trustee for the holders of the First Franklin
Mortgage Loan Trust 2006-FF15 Mortgage Pass-Through Certificates, Series 2006-FF15
("Trustee") against Harvey Beech ("Mr. Beech"). Faith Beech ("Ms. Beech"), and First

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Franklin a Division of National City Bank of Indiana (" First Franklin"). Based upon the
agreement among Trustee, Mr. Beech, Ms. Beech, and First Franklin. the pleadings in this
case, and other evidence and proof, the Court finds and orders as follows:
1.

The Court has jurisdiction over the parties to and subject matter of this action.

2.

On or about August 3,2006, Mr. Beech and Ms. Beech (~e "Beeches")

executed a promissory note (the "Note") in favor of First Franklin.
3.

The Note is secured by a Real Estate Mortgage (the "Mortgage") that was

executed by the Beeches in favor of First Franklin on or about August 3, 2006.

4.

The Mortgage transferred to First Franklin a fIrst priority mortgage interest in

real property .located at 121 Deer Creek Drive, Cabot, Arkansas with a legal description as
follows:
A TRACT OF LAND LOCATED IN PART OF THENW 1A OF
THE SW 1A SECTION 11. T4N, RlOW, LONOKE COUNTY,
ARKANSAS. BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS: BEGINNING AT THE NE CORNER OR THE
NE CORNER OF THE NW 1,4 SW~, SECTION 11; THENCE
WEST 438.0 FEET TO THE POINT OF BEGINNING;
THENCE SOUTH 587 .06 FEET; THENCE WEST 171.0 FEET;
THENCE SOUTH 250.0 FEET; THENCE WEST 200 FEET;
THENCE NORTH 837.06 FEET; THENCE EAST 371.0 FEET
TOTHEPOB
(the "Property").
5.

The Mortgage was recorded on August 25, 2006, in the real estate records of

Lonoke County, Arkansas as document number 200611768.
6.

Around the same time, the Beeches executed another $47,000.00 promissory

note (the "Second Note") in favor of First Franklin secured by a mortgage (the "Second
Mortgage") on the Property. The Second Mortgage was dated August 3, 2006, and filed of

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record on August 26, 2006, as instrument no. 200611769 in the real estate records of Lonoke
County.
7.

The Note and Mortgage were transferred to a mortgage loan securitization trust

- First Franklin Mortgage Loan Trust 2006-FFlS Mortgage Pass-Through Certificates, Series
2oo6-FF15 - for which Trustee acts as trustee.
8.

Trustee is the holder and owner of the Note and Mortgage.

9.

Seleet Portfolio Servicing, Inc. ("SPS") was appointed as attorney-in-fact for

Trustee to service the Note and Mortgage.
10.

An assignment of the Mortgage to Trustee was recorded in Lonoke County,

Arkansas.
11.

The Second Note and Second Mortgage were not transferred by First Franklin.

12.

First Franklin merged with Bank of America, N .A. ("BANA"), with BANA

being the surviving entity.
13.

BANA is therefore the successor in interest to First Franklin under the Second

Note and Second Mortgage.
14.

The Beeches defaulted on the Note and Mortgage by failing to make full and

timely payments.
15.

SPS, on behalf of Trustee. sent notices of default and demands for payment to

the Beeches beginning on November 28,2008, and continuing monthly for several months.
16.

The Beeches failed to cure the defaults.

17.

Trustee elected to accelerate the balance due and owing under the Note, which

is secured by Trustee's properly perfected, first priority mortgage interest in the Property.

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18.

Pursuant to a confidential settlement agreement among Trustee and the Beeches,

Trustee has waived its right to seek a joint and several judgment in personam against the
Beeches and the Beeches have consented to foreclosure.

19.

BANA was properly served with the Complaint and a summons, as described in

the affidavit of service filed in this case, in order to foreclose the Second Mortgage.
20.

BANA has made a search of its records, and it has determined that the debt

evidenced by the Second Note has been paid in full.
21.

BANA claims neither a debt owed by the Beeches to BANA, nor an interest in

the Property under the recorded Second Mortgage.

22.

The Second Mortgage should be released.

23.

Trustee is entitled to foreclose the Mortgage, the Second Mortgage, and the

Beeches' interest in the Property, and to sell the Property free and clear of all liens, claims and
encumbrances, including those of Beech, Faith Beech, and BANA, by judicial sale to satisfy
the judgment.
24.

The purchaser at the sale is entitled to a Writ of Assistance if possession of the

Property is not relinquished upon entry of judgment herein. The Court hereby retains
jurisdiction to issue a Writ of Assistance so that the purchaser at the foreclosure sale can
promptly gain possession of the Property.
IT IS THEREFORE ORDERED that Trustee have judgment in rem against the
Property in the amount of $238,310.85, representing $183,746.01 in unpaid principal,

$40,853.16 in accrued and unpaid interest, escrow advances of $7,362.65, fees of $19.61,
recoverable balance of $5,536.95, and late charges of $792.47, plus interest continuing to

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accrue at the Note rate for January 11, 2012, and each day thereafter until paid in full, plus
attorneys' fees and costs of $70,913.50 and $1,561.30, respectively.
IT IS FURTHER ORDERED that BANA shall file the appropriate documents in
Lonoke County, Arkansas, to release the Second Mortgage.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. §§ 2001 and 2002, after
publishing a notice of sale including the date, time, place, and terms of sale in a newspaper
regularly issued and of general circulation in Lonoke County, in Arkansas, or in the Eastern
Judicial District of Arkansas once each week for at least four weeks prior to the sale, the
United States Marshal shall sell the Property to the highest bidder at public auction at the
Lonoke County Courthouse where foreclosure sales are customarily conducted, with the
proceeds of such sales to be applied fIrst to the costs of sale, then to payment of the judgment
in favor of Trustee, and then the remainder I if any I shall be held in the registry of this Court
pending further Court orders.
IT IS FURTHER ORDERED that the purchaser(s) of the Property at the foreclosure
sale shall pay in cash or on credit terms up to 90 days, with interest, except Trustee that is
entitled to offset bid against its judgment.
IT IS FURTHER ORDERED that Trustee is entitled to enforce performance by any
purchaser at a judicial sale, or without waiving damages, to take the second highest bid (and so
on until the Property is sold to a bidder(s», or if no second highest bid exists as to the Property
to reschedule another sale pursuant to the terms stated herein witll0ut further Order of the
Court.

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IT IS FURTHER ORDERED that this Court will retain jurisdiction for the Court to
;:ffJtM ~ •

enter a Writ of Assistance, if necessary, andfbito en~r any other order to carry out the tenns
of this Judgment and Decree of Foreclosure.
IT IS FURTHER ORDERED that this Decree of Foreclosure fully and fillally resolves
all claims, defenses, and issues in this case.

Hon. D. Price Marsha1i

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A TO FORM AND CONTENT:

H

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~7?eJ6
ai

Beech

Wn..sON & ASSOCIATES. P.L.L.C.

1521 Merrill Drive. Suite D-220

Little Rock, AR 72211

[phone]

EMAIL: [e-mail]

By

~ttal:;'~
eith Morrison (84210)
Attorneys for Bank. of America. N.A. flkla
First Franklin. a Division of National City
Bank of Indiana

WRIGHT. LINDSEY & JENNINGS LLP

200 West capitol Avenue, SUite 2300

Little Rock, Arkansas 72201-3699

[phone]

FAX; [phone]

~~;jheDIY~lj.com

[e-mail]
~~~~~~~~~~~~

Judy Simmons Henry (84069)
Adrienne L. Joog (2007159)
Attorneys for Wells Fargo Bank. N .A.

all

trustee for the holders of the FirBt Franklin
Mortgage Loan Trost 2006-FFIS Mortgage

Pass-Through Certificates, Series 2006-FF1S

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