United States of America v. Alecio Shipping Inc. et al
Filing
101
CONSENT JUDGMENT in favor of United States of America against Fam Marine Services, Inc., Konstantinos Papageorgiou. ***Civil Case Terminated.*** Signed by Judge Haywood S. Gilliam, Jr. on 8/31/2017. (ndrS, COURT STAFF) (Filed on 8/31/2017)
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CHAD A. READLER
Acting Assistant Attorney General
R. MICHAEL UNDERHILL
Attorney in Charge
West Coast Office, Torts Branch, Civil Division
U.S. Department of Justice
VICKEY L. QUINN
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
450 Golden Gate Avenue, Room 7-5395
P.O. Box 36028,
San Francisco, CA 94102
Telephone: (415) 436-6645
Facsimile: (415) 436-6632
E-mail: vickey.l.quinn@usdoj.gov
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Attorneys for the United States of America
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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ALECIO SHIPPING INC.; FAM
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MARINE SERVICES, INC.; SHOTON )
MARITIME, LTD; SERAFIM
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SOFIANTIS, an individual;
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KONSTANTINOS PAPAGEORGIOU, an )
individual; and UNKNOWN
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DEFENDANTS 1-10
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Defendants.
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Case No.: 15-cv-00098-HSG
IN ADMIRALTY
CONSENT JUDGMENT
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Consent Judgment
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Case No.: 3:15-cv-00098-HSG
I.
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PARTIES
This Consent Judgment is made and entered into by and among the following parties
(hereinafter referred to collectively as “the Settling Parties” and individually as “Party”):
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Plaintiff United States of America on behalf of: the Department of Homeland
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Security, United States Coast Guard (“USCG”), National Pollution Funds Center (“NPFC”), and
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the Oil Spill Liability Trust Fund (“OSLTF”);
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Defendants FAM Marine Services, Inc., and Konstantinos Papageorgiou
(“Settling Defendants”).
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II.
INTRODUCTION
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A.
On January 8, 2015, the United States filed a Verified Complaint under provisions
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of, inter alia, the Oil Pollution Act (“OPA”), 33 U.S.C. §§ 2701 et seq., against defendants
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Alecio Shipping Inc. (“Alecio”); FAM Marine Services, Inc. (“FAM”), Shoton Maritime,
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Ltd (“Shoton”), Serafim Sofiantis (“Sofiantis”), and Konstantinos Papageorgiou
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(“Papageorgiou”).
B.
On February 27, 2015, Defendants FAM and Papageorgiou filed an Answer
(Docket No. 20) to the Verified Complaint.
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C.
On February 21, 2017, Default Judgments pursuant to Rule 55(b)(1) of the
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Federal Rules of Civil Procedure were entered against Defendants Alecio and Shoton
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(Docket No. 90).
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D.
Based on the representations of the Settling Parties, Defendant Sofiantis is
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believed to be in Greece and, in any event, the United States has been unable to serve the
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Summons and Verified Complaint upon Sofiantis.
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Consent Judgment
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E.
Settling Parties United States, FAM, and Papageorgiou, by and through their
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respective undersigned counsel, entered into a settlement agreement that has been approved by
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all Settling Parties and the respective principals having full and final settlement authority.
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F.
The Settling Parties agree, and the Court, by entering this Consent Judgment
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finds, that the Settling Parties’ settlement and this Consent Judgment effectuating the settlement
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has been negotiated by the Settling Parties in good faith, and that it is fair and reasonable.
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NOW THEREFORE, WITH THE UNDERSIGNED CONSENTS OF THE
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SETTLING PARTIES, IT IS HEREBY ADJUDGED, ORDERED AND DECREED AS
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FOLLOWS:
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III.
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1.
JURISDICTION AND VENUE
This Court has jurisdiction over the subject matter of this action pursuant to, inter
alia, 28 U.S.C. §§ 1331 and 1345, and OPA, 33 U.S.C. § 2717(b). Venue is proper in this Court
pursuant to 28 U.S.C. § 1391(b) and 33 U.S.C. § 2717(b). The Court has personal jurisdiction
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over the Settling Defendants, who do not contest the Court’s jurisdiction and do not contest the
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propriety of venue in this judicial district.
IV.
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2.
APPLICABILITY
The obligations of this Consent Judgment apply to and are binding upon the
Settling Parties, and each of them, and upon the Settling Defendants’ successors, assigns, or
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other entities or persons otherwise bound by law.
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V.
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3.
SETTLEMENT
Judgment shall be, and the same is, entered in favor of the United States
and against Settling Defendants FAM Marine Services, Inc., and Konstantinos
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Papageorgiou, jointly and severally, in the principal amount of $225,000 (Two Hundred
Consent Judgment
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Case No.: 3:15-cv-00098-HSG
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Twenty-Five Thousand Dollars, and Zero Cents), plus simple interest of 2.5 % per annum
on any unpaid portion of the foregoing principal amount of $225,000, said principal
amount to be paid as follows:
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(a)
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An up front initial payment of $15,000 (the “Initial Payment”) to paid to the
United States within 90 days of the Court’s execution of this Consent Judgment;
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(b)
In addition to the foregoing Initial Payment, Semi-Annual Payments (2
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payments per year) shall be made to the United States as follows:
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(i)
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Years 1-4 = $12,500 each payment (Total = $100,000 for Years 1-
(ii)
Years 5-7 = $21,479 each payment (Total = $130,495 Years for 5-
(iii)
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The Semi-Annual Payments (the Semi-Annual Payment Dates) shall
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7);
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be due each year on January 15th and July 15th. The first Semi17
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Annual Payment shall commence on the earliest Semi-Annual date
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following 90 days after the payment of the Initial Payment of
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$15,000;
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4.
No pre-payment penalties apply.
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5.
The foregoing monetary obligation of $225,000, plus accrued interest, is a
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joint and non-severable debt and obligation of Settling Defendants FAM and
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Papageorgiou to the United States. Thus, in the event of default and/or non-payment of
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any portion of the debt by one of the Settling Defendants, the other Settling Defendant
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shall not be relieved from paying the full sum remaining to be paid from the original
Consent Judgment
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amount of principal and interest, less amounts previously paid down as of the date of
default or non-payment.
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All payments shall be made in U.S. Dollars ($) and shall be made payable
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to “United States Dept. of Justice” and shall be identified by reference to “U.S. v.
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Alecio Shipping, FAM Marine, Papageorgiou, et al., DJ No. 62-1102”, and sent to the
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following:
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If sent by regular, certified, or registered mail:
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Attn: Attorney in Charge
Vickey L. Quinn, Trial Attorney
West Coast Office
Torts Branch, Civil Division (Admiralty)
U.S. Department of Justice
P.O. Box 36028
450 Golden Gate Avenue
San Francisco, California 94102-3463
If sent by overnight mail, e.g., FedEx, UPS:
Attn: Attorney in Charge
Vickey L. Quinn, Trial Attorney
West Coast Office
Torts Branch, Civil Division (Admiralty)
U.S. Department of Justice
7th Floor, Room 7-5395
450 Golden Gate Avenue
San Francisco, California 94102-3463
7.
With respect the payments set forth in Section V, sub-paragraphs (a) and
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(b) above, the Settling Defendants shall have a 30 (thirty) day grace period on each such
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payment.
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In the event that the Settling Defendants, or either of them, fail to make full
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amount of payment of the Initial Payment ($15,000) or any Semi-Annual Payment
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thereafter in accordance with the schedules and grace periods set out above (any such
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non-payment(s) to constitute a “Default”), then the full amount of the $225,000 and
Consent Judgment
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accrued interest awarded by this Consent Judgment shall immediately be accelerated,
due, owing, and payable to the United States without further notice or demand, plus
interest continuing to accrue, plus costs, plus the United States’ attorneys’ fees, less any
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amounts paid up to the time of the missed payment date/Default.
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If the Settling Defendants fully and completely comply with all terms and
final payment provisions specified in this Consent Judgment, then, notwithstanding any
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other provision in this Consent Judgment regarding the total Consent Judgment entered in
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the amount of $225,000, the United States shall, upon request, file a Satisfaction and
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Discharge of this Consent Judgment herein as against the Settling Defendants.
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VI.
ADDITIONAL MONETARY CONDITIONS TO BE ENFORCED UPON THE
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HAPPENING OF CERTAIN CONTINGENCIES
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10.
If the real estate owned at 2910 Ocean Mist Court, Seabrook, Texas, is sold over
the course of the settlement period, Settling Defendant Papageorgiou shall pay the United States
50% of any net sales proceeds. Net sales proceeds are defined as gross sales proceeds less any
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outstanding mortgages, less sales commissions, less any other sales related expenses. No
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mortgages, liens, or encumbrances of any kind may be placed upon said property without prior
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written notice to, and the written approval of, the United States. In determining whether to grant
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approval to such a proposed mortgage, lien, or encumbrance on the said property, the United
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States will give particular consideration to such request(s) in the event that Defendant
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Papageorgiou warrants to
the United States' satisfaction that the purpose of requested
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encumbrance is to be used as security for necessary maintenance and repairs to the said property
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and/or for loans of funds to be used to pay for necessary medical services and related health care
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expenses for Settling Defendant Papageorgiou, his wife (Marilyn Papageorgiou), his daughter
Consent Judgment
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(Angela Marie Papageorgiou), or his mother-in-law (Mary Ann Hendron). By signing this
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agreement, Settling Defendant Papageorgiou expressly warrants that there are currently no liens,
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mortgages, or other encumbrances on said property.
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11.
Except as provided in paragraph 10 above, if either or both Settling Defendants
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place liens, encumbrances, or mortgages on the aforesaid real property without the express
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written consent of the United States, such action(s) shall be a condition of Default and entitle the
United States to take the actions described above in Section V in the event of Defaults.
12.
The foregoing payment in paragraph 10 above shall be in addition to any and all
sums set forth in Section V above, i.e., they shall be in addition to the foregoing $225,000
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principal obligation set forth in Section V.
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VII.
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13.
ADDITIONAL CONDITIONS
If real estate owned at 6601 Springer St., Houston, Texas, is sold over the course
of the settlement period, Settling Defendant FAM agrees to pay the United States 50% of any net
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sales proceeds, said proceeds to be used to pay down any remaining principal and accrued
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interest then remaining due and owing on the original $225,000 obligation set forth in Section V
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above. Net sales proceeds are defined as gross sales proceeds less any outstanding mortgages,
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less sales commissions, less any other sales related expenses. No mortgages, liens, or
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encumbrances of any kind may be placed upon said property without prior written notice to,
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and the written approval of, the United States, approval for which will not be unreasonably
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withheld by the United States (i.e. as examples only, said encumbrance(s) requested as
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security for necessary maintenance and repairs to the said property and/or for loans of funds
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to be used to pay for necessary medical services and related health care expenses for Settling
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Consent Judgment
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Defendant Papageorgiou, his wife Marilyn Papageorgiou, his daughter Angela Marie
Papageorgiou, or his mother-in-law, Mary Ann Hendron.)
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If Settling Defendant Papageorgiou receives any payments from Settling
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Defendfant FAM on the shareholder loan during the settlement period, Settling Defendant
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Papageorgiou agrees to pay the United States 25% of any and all such payments, said
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proceeds to be used to pay down any remaining principal and accrued interest then remaining
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due and owing on the original $225,000 obligation set forth in Section V above.
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VIII. SECURITY AND DEFAULT
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15.
As part of the settlement and this Consent Judgment, the United States shall
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take a first priority mortgage lien on the property at 2910 Ocean Mist Court, Seabrook,
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Texas, said mortgage to secure the full amount of principal and interest on the obligation of
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$225,000 set forth in Section V above.
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16.
Except as specifically stated in paragraph 17 below, in the event of Default on
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any payment obligation under this settlement agreement, the United States shall have the
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right to foreclose and sell said property and apply the proceeds of sale to any and all such
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sums then remaining due and owing by Settling Defendants FAM and Papageorgiou.
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17.
If, however, a Default on any payment obligation under the settlement and this
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Consent Judgment is occasioned by the involuntary incapacitation of Settling Defendant
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Papageorgiou resulting in his inability to make such payments, then the right of the United
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States to foreclose and sell said property and apply the proceeds of sale to any and all such
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sums then remaining due and owing by Settling Defendants FAM and Papageorgiou as
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provided in paragraph 16 above, shall be suspended and held in abeyance until the passing(s)
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Consent Judgment
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of Marilyn Papageorgiou, Mary Ann Hendron, and Defendant Papageorgiou, who otherwise
shall have a life estate in the residence at 2910 Ocean Mist Court, Seabrook, Texas.
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IX.
ACCEPTANCE OF RESPONSIBILITY OF RESPONSIBLE PARTIES
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UNDER OPA
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18.
Pursuant to the requirements of Section 1017(f)(2) of OPA, 33 U.S.C. §
2717(f)(2), the Settling Defendants acknowledge and stipulate, for purposes of giving effect to
this Consent Judgment and to satisfy the requirements of § 1017(f)(2) of OPA, 33 USC §
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2717(f)(2), that they are Responsible Parties within the meaning of OPA.
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X.
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19.
NOTICES
Unless otherwise specified herein, whenever modifications, submissions, or
communications are required by this Consent Judgment, they shall be made in writing and
addressed as follows:
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To the United States:
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Re: DOJ Number 62-1102
Attn: R. Michael Underhill (mike.underhill@usdoj.gov)
Attorney in Charge
Vickey Quinn (vickey.l.quinn@usdoj.gov
Trial Attorney
West Coast Office and Pacific Rim Office
Torts Branch, Civil Division
United States Department of Justice
7th Floor Federal Building, Room 7-5395
P.O. Box 36028
450 Golden Gate Avenue
San Francisco, California 94102-3463
Tel: 415-436-6630
Fax: 415-436-6632
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And to:
Re: FPN No. A12002
National Pollution funds Center
Attn: Director, National Pollution Funds Center
LaCresha Johnson
Consent Judgment
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Case No.: 3:15-cv-00098-HSG
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4200 Wilson Blvd., Ste. 1000
Arlington, VA 22203-1804
1-800-280-7118
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To Settling Defendants FAM and Papageorgiou:
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Joseph A. Walsh II (Joe.Walsh@Clydeco.us)
Clyde & Co.
301 East Ocean Boulevard, Suite 1550
Long Beach, CA, 90802
Tel: 562-317-3300
Fax: 562-317-3399
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20.
Any Settling Party may, by written notice to other Settling Parties, change its
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designated notice recipient or notice address provided above.
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Notices submitted pursuant to this Section shall be deemed submitted upon
mailing, unless otherwise provided in this Consent Judgment or by mutual agreement of the
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Settling Parties in writing.
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XI. EFFECTIVE DATE
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22.
The Effective Date of this Consent Judgment shall be the date of the Entry of this
Consent Judgment by the Court.
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XII.
RETENTION OF JURISDICTION
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23.
The Court shall retain jurisdiction over this case until termination of this Consent
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Judgment, for the purpose of effectuating or enforcing compliance with the terms of this Consent
Judgment.
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XIII. MODIFICATION
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The terms of this Consent Judgment may be modified only by a subsequent
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written agreement signed by all Settling Parties. Where the modification constitutes a material
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Consent Judgment
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change to any term of this Consent Judgment, it shall be effective only upon approval by the
Court.
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XIV. SIGNATORIES/SERVICE
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25.
Each undersigned representative of the Settling Defendants, together with the
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attorneys for the United States, certifies that he or she is fully authorized to enter into the terms
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and conditions of this Consent Judgment and to execute and legally bind the respective Settling
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Party he or she represents to the terms of this Consent Judgment.
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XV.
INTEGRATION
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26.
With the exception of the limited class of documents specified in paragraph 27
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below, this Consent Judgment constitutes the final, complete, and exclusive agreement and
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understanding among the Settling Parties with respect to the settlement embodied in the Consent
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Judgment, and this Consent Judgment supersedes all prior agreements and understandings,
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whether oral or written, concerning the settlement embodied therein. No other document, nor
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any representation, inducement, agreement, understanding, or promise (other than documents
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specified in paragraph 27 below), constitutes any part of this Consent Judgment or the settlement
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it represents, nor shall it be used in construing the terms of this Consent Judgment.
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27.
As set forth in Section VIII, paragraph 15 above, as part of the settlement and
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this Consent Judgment the United States shall take a first priority mortgage lien on the
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property at 2910 Ocean Mist Court, Seabrook, Texas, said mortgage to secure the full amount
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of principal and interest on the obligation of $225,000 set forth in Section V above. In order to
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give effect to the United States’ rights thereunder, the Settling Parties shall draft, exchange,
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Consent Judgment
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execute and file, as appropriate the necess
a
e,
sary docume
ents to give full force a effect t the
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and
to
United States’ rights under said Section VIII, paragraph 15.
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XVI. FIN
NAL JUDGM
MENT
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The Court hereby determines that there is no just rea
C
y
s
ason for dela of entry o this
ay
of
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Judgmen and, upon approval an Entry of this Consen Judgmen by the Co
nt
n
nd
f
nt
nt
ourt, this Co
onsent
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Judgmen shall const
nt
titute a final judgment of the Court in accorda
l
o
t,
ance with Ru 54 and 58 of
ules
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the Feder Rules of Civil Proced
ral
dure.
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IT IS SO ADJUDGED.
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A
Dated: August 31, 2017
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__________
__________
___________
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UNITED ST
TATES DIS
STRICT JUD
DGE
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Consent Ju
udgment
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Case No.: 3:15-cv-0
00098-HSG
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THE UNDERSIGNED SETTLING PARTIES enter into this Consent Judgment in
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the matter of UNITED STATES OF AMERICA v. FAM MARINE SERVICES, INC.;
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KONSTANTINOS PAPAGEORGIOU, et. al:
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FOR THE UNITED STATES OF AMERICA:
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Date: August 23, 2017.
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CHAD A. READLER
Acting Assistant Attorney General
R. MICHAEL UNDERHILL
Attorney in Charge
West Coast Office, Torts Branch, Civil Division
U.S. Department of Justice
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/s/ Vickey L. Quinn
VICKEY L. QUINN
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
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Attorneys for Plaintiff
United States of America
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FOR FAM MARINE SERVICES, INC., AND KONSTANTINOS PAPAGEORGIOU:
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Date: August 23, 2017.
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CLYDE & CO.
/s/ Joseph A. Walsh II
Joseph A. Walsh II
Ellen McGlynn
Conte Cicala
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Consent Judgment
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Attorneys for Settling Defendants
FAM MARINE SERVICES, INC., and
KONSTANTINOS PAPAGEORGIOU
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Consent Judgment
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