SunTrust Bank v. Ink Slingers Airbrushing, Inc. et al

Filing 22

ORDER granting 20 Motion for Default Judgment of Foreclosure and Request for Appointment of Special Master to Conduct Foreclosure Sale. The Court appoints Jason Rosenthal as Special Master to conduct the foreclosure sales. Plaintiff shall file the original promissory notes with the Clerk of Court on or before July 3, 2017. Adopting Report and Recommendations - re 21 Report and Recommendations. Signed by Judge Carlos E. Mendoza on 6/12/2017. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

SUNTRUST BANK,
Plaintiff,
v.

Case No: 6:17-cv-177-Orl-41TBS

INK SLINGERS AIRBRUSHING, INC.,
SOUTHCORP ENTERPRISES, INC. and
GARY G. GILLSTEDT,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Renewed Motion for Default Judgment of
Foreclosure and Request for Appointment of Special Master to Conduct Foreclosure Sale.
(“Motion,” Doc. 20). United States Magistrate Judge Thomas B. Smith submitted a Report and
Recommendation (Doc. 21), in which he recommends that the Motion be granted.
After a de novo review, and noting that no objections were timely filed, the Court agrees
with the analysis set forth in the Report and Recommendation. Assuming the factual allegations
of the Complaint (Doc. 1) are true, as is required for determining entitlement to default judgment,
see Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975), 1 Plaintiff
has sufficiently established Defendants’ liability for the Small Business Administration Loan and
the Demand Loan. However, as noted in Judge Smith’s Report and Recommendation, the Bank
must tender the original promissory notes for cancellation before the Court enters a Default

1

Decisions of the Fifth Circuit entered before October 1, 1981, are binding on the courts
of the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

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Judgment against Defendants and the Special Master conducts the foreclosure sales. (Doc. 21 at
8); see also Deutsche Bank Nat. Trust Co. v. Huber, 137 So. 3d 562, 564 (Fla. 4th DCA 2014)
(“Because a promissory note is a negotiable instrument, a plaintiff seeking to foreclose on a
defendant must produce the original note (or provide satisfactory explanation of the failure to
produce) and surrender it to the court or court clerk before the issuance of a final judgment in
order to take it out of the stream of commerce.”).
Therefore, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 21) is ADOPTED and CONFIRMED and
made a part of this Order.
2. As set forth herein, Plaintiff’s Renewed Motion for Default Judgment of
Foreclosure and Request for Appointment of Special Master to Conduct
Foreclosure Sale (Doc. 20) is GRANTED.
3. The Court appoints Jason Rosenthal as Special Master to conduct the foreclosure
sales.
4. However, the foreclosure sales shall not be conducted until the Court receives the
original promissory notes for (1) the Small Business Administration Loan made to
Ink Slingers Airbrushing, Inc. and Southcorp Enterprises, Inc. and guaranteed by
Gary Gillstedt and (2) the Demand Loan made to Southcorp Enterprises, Inc. and
guaranteed by Ink Slingers Airbrushing, Inc. and Gary Gillstedt. Plaintiff shall file
the original promissory notes with the Clerk of Court on or before July 3, 2017.
5. Thereafter, the Court will enter a Default Judgment of Foreclosure. Upon the
Court’s entry of the Default Judgment of Foreclosure, the foreclosure sales may be

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conducted pursuant to the terms set forth in the Court’s Default Judgment of
Foreclosure.
DONE and ORDERED in Orlando, Florida on June 12, 2017.

Copies furnished to:
Counsel of Record

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