PNC Bank v. Smith et al

Filing 186

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/13/2016 RECOMMENDING that plaintiff's 173 motion authorizing the sale of Vessel and credit bid be granted. Defendant B & B DREAMIN', Hull No. GMKD283C505, its engines, machinery, appurtenances, etc., in rem ("the Vessel") be sold by the United States Marshal. The Clerk of the Court be directed to issue a Writ of Venditioni Exponas for the sale of the vessel. A Notice of Sale be published by plaintiff in the Sacramento Bee. Motion referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PNC BANK, N.A.,

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No. 2:10-cv-1916-JAM-EFB PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

BELINDA L. SMITH, in personam;
JACOB WINDING, in personam; B & B
Dreamin’ Hull No. GMKD283C505 (the
“Vessel”), its engines, machinery,
appurtenances, etc., in rem,

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Defendant.

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The court previously granted plaintiff’s motion for summary judgment on its in rem

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claims against defendant B & B DREAMIN’, Hull No. GMKD283C505 (the “Vessel”) and found

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that plaintiff was entitled to foreclose on its security interest in the Vessel. ECF No. 161. 1

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Accordingly, plaintiff was directed to file any documents needed for approval of the sale of the

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Vessel. Plaintiff now moves for issuance of an order authorizing the sale of the Vessel. Plaintiff

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also seeks permission to place a credit bid at the sale and instructions to the Clerk of Court to

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issue a Writ of Venditioni Exponas. ECF No. 173; see ECF No. 174 (proposed order authorizing

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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sale of Vessel and credit bid). Defendants did not file an opposition to the motion.2

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Pursuant to the order granting plaintiff’s motion for summary judgment on its in rem
claims against the defendant vessel, it is hereby RECOMMENDED that:

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1. Plaintiff’s motion authorizing the sale of Vessel and credit bid (ECF No. 173) be
granted;

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2. Defendant B & B DREAMIN’, Hull No. GMKD283C505, its engines, machinery,

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appurtenances, etc., in rem (“the Vessel”) be sold by the United States Marshal for the Eastern

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District of California at public auction on a date available to the U.S. Marshal at the current

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location of the vessel, Delta Boat Works, 106 W. Brannan Island Road, Isleton, CA 95641

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(“Delta”);

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3. The Clerk of the Court be directed to issue a Writ of Venditioni Exponas for the sale of
the vessel, in the form attached hereto as Exhibit A.

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4. A Notice of Sale, substantially in the form of the attached Exhibit B, be published by
plaintiff in the Sacramento Bee in accordance with Local Rule 171.

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5. Plaintiff be authorized to credit bid at the sale up to the amount of the debt owing

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($616,684.61 as of August 19, 2015)3 without having to make any deposit with the U.S. Marshal.

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6. No minimum bid be set for the auction sale, and that bidding be made in increments of

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at least $500.00.

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/////

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Defendants Jacob Winding and Belinda Smith did, however, file a notice of appeal,
seeking review of the court’s March 16, 2015 findings and recommendations, the May 14, 2015
order adopting the findings and recommendations, and the August 11, 2015 order finding that the
U.S. Marshal has authority to complete the judicial sale of the vessel. ECF No. 168. Winding
and Smith also filed a notice stating that they are “actively in bankruptcy,” presumably in an
attempt to automatically stay this case. See ECF No. 182; 11 U.S.C. § 362(a), (c)(3). However,
on July 11, 2016, the U.S. Court of Appeals for the Ninth Circuit dismissed defendants’ appeal.
ECF No. 185. Furthermore, a review of the docket for the United States Bankruptcy Court for the
Eastern District of California reveals that neither Smith nor Winding currently have a bankruptcy
action pending. See In re Winding, 15-bk-28722 (Bankr. E.D. Cal.) (case closed June 30, 2016);
In re Smith, 16-bk-20499 (Bankr. E.D. Cal.) (case closed April 25, 2016).
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Plaintiff may submit an updated accounting of the amount of the debt owed within 14
days of these Findings and Recommendations.
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7. The successful cash bidder be required to pay the U.S. Marshal in accordance with
Local Rule 570(b) as follows:
a. at least $1,000.00 or 10 percent of the amount of the successful bid, whichever
is greater, immediately at the time of the completion of the auction sale; and
b. The remainder of the balance of the purchase price be paid to the U.S. Marshal
in cash, certified check, or cashier’s check within three days of the sale.
8. The Marshal be directed to file a report in compliance with Local Rule 570(e) after the
completion of the sale, but no later than one court day before payment of the balance is due.
9. The sale be ordered confirmed as a matter of course without any affirmative action by

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the court if no written objections are timely filed with the court. The successful purchaser be

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directed to present a form of order reflecting the confirmation of the sale for entry by the Clerk on

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or after the fifth day of sale. See E.D. Cal. L.R. 570(g).

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10. The Marshal be directed to transfer title to the purchaser upon presentation of the
confirmation order signed by the Clerk.
11. The proceeds from the sale be ordered deposited into the registry of the court pending
the court’s determination of the disposition of such proceeds.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 13, 2016.

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Exhibit A

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PNC BANK, N.A.,

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No. 2:10-cv-1916-JAM-EFB PS

Plaintiff,
v.

WRIT OF VENDITIONI EXPONAS

BELINDA L. SMITH, in personam;
JACOB WINDING, in personam; B & B
Dreamin’ Hull No. GMKD283C505 (the
“Vessel”), its engines, machinery,
appurtenances, etc., in rem,
Defendants.

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TO: THE UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF CALIFORNIA:

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YOU ARE HEREBY COMMANDED to cause the Defendant Vessel B & B DREAMIN’, Hull

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No. GMKD283C505, its engines, machinery, appurtenances, etc. in rem in the above-entitled

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action (the “Vessel”), to be sold on ________, or as soon thereafter as is practical in lawful

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manner pursuant to the Order of the Court on file herein, after notice of the sale is published daily

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for at least four (4) calendar days before the sale, in accordance with Rule 570(a) of the Local

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Rules of Admiralty and in rem Rules, and you shall pay the proceeds from the sale into the

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Registry of this Court and filed this Writ with your return thereon with the Clerk of the Court

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forthwith after such sale.

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Exhibit B

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