CHARTERBANK v. TW HOSPITALITY LLC et al

Filing 39

ORDER adopting 37 R&R. Pla's 30 Motion for Summary Judgment is GRANTED. Pla shall recover from dft TW Hospitality $5,159,965.69. The Special Master appointed herein shall sell the Property at public sale on the fr ont steps of the Walton County Courthouse, 571 U.S. Highway 90 East, DeFuniak Springs, Walton County, Florida, 32435. The court gives notice of its intent to appoint Mr. Louis A. Maygarden, III, Esquire, of Shell, Fleming, Menge & Davis, 226 Palaf ox Place, Ninth Floor, Seville Tower, Pensacola, 32502, as Special Master for the purpose of conducting the foreclosure sale. All parties shall have 10 days from the date of this order to file a written objection with the court. The clerk is direc ted to send notice to Mr. Maygarden as well, who, shall file an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. § 455 within 10 days of this order. Upon confirmation by the court of any sale, if there are no objections to the sale within 10 days of such confirmation, the proceeds of the sale shall be distributed as directed in an Order Confirming the Sale. Signed by SENIOR JUDGE ROGER VINSON on September 4, 2012. (Miscellaneous Deadline - by 9/14/2012)(copy mailed to Louis A. Maygarden) (kvg)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
CHARTERBANK, a federal
savings association,
Plaintiff,
v.

CASE NO.: 3:11cv522/RV/CJK

TW HOSPITALITY LLC;
RICHARD M. COLBERT;
LAWRENCE A. WRIGHT;
SUMMIT BANK, N.A.;
FIRST CITY BANK OF FLORIDA;
STATE OF FLORIDA DEPARTMENT
OF REVENUE; AMERICAN HOTEL
REGISTER CO.; TRAVEL MEDIA
GROUP a division of DOMINION ENTERPRISES
GROUP, LLC; and SIGN SERVICE AND
INSTALLATIONS, INC.;
Defendants.
/
ORDER
This cause comes on for consideration upon the magistrate judge’s Report and
Recommendation dated July 31, 2012. (Doc. 37). The parties have been furnished
a copy of the Report and Recommendation and have been afforded an opportunity to
file objections pursuant to Title 28, United States Code, Section 636(b)(1). No
objections have been filed..
Having considered the Report and Recommendation, I have determined that
the Report and Recommendation should be adopted.
Accordingly, it is now ORDERED as follows:

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1.

The magistrate judge's report and recommendation is adopted and

incorporated by reference in this order.
2.

The plaintiff’s Motion for Summary Judgment (Doc. 30) is GRANTED.

3.

Plaintiff shall recover from defendant TW Hospitality the following

amounts due under the promissory note and mortgage sued upon and costs:
Note:
Principal

$4,545,296.00

Interest through

4/11/12

$441,695.87

Interest from

4/11/12 through 7/30/12 $48,609.42

Late Charges

$7,444.86

Real Estate Taxes

$115,682.04

Clerk's filing fee

$352.00

Lis Pendens recording fee

$35.50

Service of process fees

$590.00

Title search costs

$260.00

Costs:

The daily default rate of $441.90378 to date of judgment.
Total $5,159,965.69
By separate order following the foreclosure sale, the expenses and costs
incurred by the Special Master and set forth in the Special Master’s report to the court
pursuant to paragraph 7 below should be added to this amount, together with interest
continuing to accrue on the unpaid principal balance at the post-judgment interest rate
pursuant to 28 U.S.C. §1961, from the date of this judgment until paid, for all of
which let execution issue.
Case No: 3:11cv522/RV/CJK

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AS TO COUNT 1 (Foreclosure of Mortgage), it is further ORDERED as
follows:
4.

That the plaintiff holds a lien for the amount equal to the indebtedness

described in paragraph 2 on the property covered by that certain Mortgage and
Security Agreement, dated August 16, 2007, executed by TW Hospitality, with said
Mortgage and an Assignment of Leases, Rents, and Profits securing the payment of
the Promissory Note to the payee named therein; the Mortgage was recorded in
Official Records Book 2770 at Page 4530 of the Public Records of Walton County,
Florida, and mortgaged the property described in said Mortgage, including personal
property identified in said Mortgage; the Assignment of Leases, Rents, and Profits
was recorded in Official Records Book 2770 at Page 4539 of the Public Records of
Walton County, Florida and included a security interest in the accounts, inventory,
and equipment as identified in Schedule “A” of the UCC-1 Financial Statements filed
with the State of Florida on August 20, 2007 (#200706329145) and May 9, 2011
(#201104561571), and established a security interest in all rents, issues, profits,
revenues, royalties, rights and benefits of TW Hospitality (herein collectively referred
to as the “Mortgage”); the Promissory Note and Mortgage that are the subject of this
action were thereafter assigned to plaintiff pursuant to that certain Blanket Assignment
of Loans and Liens to plaintiff CharterBank, dated September 21, 2011, recorded in
Official Records Book 2874 at Page 1032 of the Public Records of Walton County,
Florida, and which lien is prior, paramount, and superior to all rights, claim, title,
interest, liens, encumbrances, and equities of the defendants, and all persons, firms or
corporations claiming by, through, under, or against them, and any junior lienholders;
and that if said indebtedness is not paid, said property situate, lying and being in
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Walton County, Florida and described in the Exhibit “A” attached hereto and made
a part hereof (the “Property”), the Special Master appointed herein shall sell the
Property at public sale on the front steps of the Walton County Courthouse, 571 U.S.
Highway 90 East, DeFuniak Springs, Walton County, Florida, 32435, on a date to be
set by the Special Master and set forth in required published notices, to the highest and
best bidder for cash, except as set forth hereinafter, after having first given notice
pursuant to 28 U.S.C. §2001-2003. The Property shall not be sold by the Special
Master appointed herein if plaintiff’s duly authorized representative or plaintiff’s
counsel is not present at the public sale.
5.

Notwithstanding the foregoing paragraph, this court is without

jurisdiction to adjudicate the foreclosure as to the State of Florida, Department of
Revenue, and therefore, the State of Florida, Department of Revenue, is dismissed
from this action; said dismissal is without prejudice to the plaintiff’s right to proceed
in state court to re-foreclosure, terminate the State’s right of redemption, or take such
other and further action as it deems necessary and appropriate, and nothing herein
shall be construed to bar such action.
6.

Pursuant to Fed. R. Civ. P. 69, the procedures for the sale shall be in

accordance with the practice and procedure of the State of Florida as provided in
Chapter 45, Florida Statutes, except that title shall vest in the purchaser at the sale
pursuant to a Special Master's Deed issued after confirmation of any sale by the court.
7.

Plaintiff is authorized to bid at the sale and any bid by the plaintiff shall

be a credit against the indebtedness due to the plaintiff. Plaintiff shall advance all
subsequent costs of this action and shall be reimbursed for them by the Special Master
if the plaintiff is not the purchaser of the Property for sale in accordance with the
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Order Confirming Sale. If the plaintiff is the purchaser, the Special Master shall credit
the plaintiff's bid with the total sum with interest and costs accruing subsequent to this
judgment, or such part of it, as is necessary to pay the bid in full. If a third party is the
purchaser at the sale, ten (10%) percent of the bid price by certified check shall be
paid at the time of the sale, with the balance to be paid by certified check to the
Special Master within twenty-four (24) hours after the sale.
8.

It is further ORDERED pursuant to the suggestion of CharterBank, the

court gives notice of its intent to appoint Mr. Louis A. Maygarden, III, Esquire, of
Shell, Fleming, Menge & Davis, 226 Palafox Place, Ninth Floor, Seville Tower,
Pensacola, 32502, as Special Master for the purpose of conducting the foreclosure sale
called for in the preceding paragraphs. See Fed. R. Civ. P. 53(b)(1), subject to the
following conditions. All parties shall have ten (10) days from the date of this order
to file a written objection with the court. The clerk is directed to send notice to Mr.
Maygarden as well, who, shall file an affidavit disclosing whether there is any ground
for disqualification under 28 U.S.C. § 455 within ten (10) days of this order. If no
objection is filed and no grounds for disqualification are disclosed, then this paragraph
shall constitute an order of appointment of Mr. Maygarden as Special Master herein.
The Special Master is directed to proceed with all reasonable diligence to publish a
Notice of Sale in accordance with the directions set forth above, and that Notice shall
contain reference to this judgment, a description of the property to be sold, and the
time, place, and terms of the sale. Upon the sale, the Special Master shall receive
proceeds from it and shall, no later than ten (10) days after the sale, file a report of the
sale, along with proof of the publication of the Notice of Sale. The Special Master
may communicate ex parte with any of the parties to this action regarding any matters
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pertaining to the foreclosure sale scheduled pursuant to this judgment. The Special
Master shall be compensated by plaintiff at a rate of $200.00 per hour for all time
expended to complete the above-described tasks and responsibilities, and shall also
be reimbursed by the plaintiff for all costs and or expenses necessary to complete the
above-described tasks and responsibilities pertaining to the foreclosure sale scheduled
pursuant to this judgment, all of which shall be added to the indebtedness due and
owing from the defendant TW Hospitality, as more fully set forth in paragraph 2
above.
As to the sale, it is further ORDERED:
9.

Upon confirmation by the court of any sale, if there are no objections to

the sale within ten (10) days of such confirmation, the proceeds of the sale shall be
distributed as directed in an Order Confirming the Sale, and the purchaser at the sale
shall be entitled to conveyance by a Special Master's Deed, free and clear of all rights
of the defendants, and all persons claiming by, through, under, or against the
defendants shall stand forever barred and foreclosed of all right, title and interest of
whatever kind or nature in and to the property, and the purchaser shall be entitled to
immediate possession of the property. The purchaser will pay for and affix any
documentary stamps or taxes required for recording the Special Master's Deed.
10.

If the subject property is sold at public auction, there may be

additional money from the sale after payment of persons who are entitled to be
paid from the sale proceeds pursuant to the final judgment of foreclosure. As to
such additional money, the Special Master shall advise as follows. “If you are a
subordinate lienholder claiming a right to funds remaining after the sale, you
must file a claim with the Special Master no later than 60 days after the sale. If
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you fail to file a claim, you will not be entitled to any remaining funds. If you are
the property owner, you may claim these funds yourself. You are not required
to have a lawyer or any other representation and you do not have to assign your
rights to anyone else in order for you to claim any money to which you are
entitled. Please check with the Special Master within ten (10) days after the sale
to see if there is additional money from the foreclosure sale.”
11.

At any time before the filing of the Special Master's report of the sale,

defendant TW Hospitality may cure the indebtedness adjudicated due herein and
prevent a foreclosure sale by paying the amount of money specified in this judgment,
plus the reasonable expenses of proceeding to foreclosure incurred to the time of the
tender. Otherwise, there is no right of redemption.
12.

Jurisdiction over this action is retained to enter such further orders as are

proper, including without limitation, an Order Confirming Sale, Writs of Assistance,
Possession and Deficiency Judgments; and the defendants are enjoined and restrained
from damaging, molesting, vandalizing or otherwise harming the improvements
located on the real property described in this judgment, or from removing from said
property anything affixed to the real property in such fashion that it has become part
of the realty or improvements, and the court cautions said defendants that any
violation of this provision by themselves or anyone could subject them to contempt
powers of this court.
13.

Any person with a disability who needs any accommodation in order to

participate in this proceeding, is entitled, at no cost to the person, to the provisions of
certain assistance. Please contact the office of Borowski & Traylor, P.A., 25 W.
Cedar Street, Suite 525, Pensacola, Florida 32502, [phone], within two (2)
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working days of your request of this Judgment.
AS TO COUNT 2 (Suit on Note against TW Hospitality):
14.

On August 1, 2010, TW Hospitality executed and delivered a renewal

Promissory Note to First National Bank of Florida evidencing and renewing an
indebtedness of $4,468,291.00. Said Promissory Note has been assigned to plaintiff
CharterBank pursuant to that certain Blanket Assignment of Loans and Liens dated
September 21, 2011, recorded in Official Records Book 2874, Page 1032, of the
Public Records of Walton County, Florida, and it is hereby adjudged that plaintiff
CharterBank owns, holds, and is entitled to the Promissory Note.
15.

TW Hospitality has defaulted under the Promissory Note by: (1) failing

to pay the required installments due under the Note, and (2) failing to satisfy the note
when it matured on October 1, 2011.
16.

Therefore it is ORDERED that plaintiff shall recover from defendant TW

Hospitality the total amount of $5,043,046.15, for which let execution issue.
Following the foreclosure sale, the fair market value of the Property will be credited
towards the judgment outstanding against defendant TW Hospitality.
AS TO COUNT 3 (Suit on Guaranty against Richard M. Colbert):
17.

Defendant Richard M. Colbert, on August 9, 2009, executed and

delivered a Guaranty to First National Bank of Florida, guaranteeing payment of any
indebtedness of Defendant TW Hospitality. Said Guaranty has been assigned to
plaintiff CharterBank pursuant to that certain Blanket Assignment of Loans and Liens
dated September 21, 2011, recorded in Official Records Book 2874, Page 1032, of the
Public Records of Walton County, Florida, and it is hereby adjudged that plaintiff
CharterBank owns, holds, and is entitled to enforce the valid Guaranty.
Case No: 3:11cv522/RV/CJK

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18.

Therefore it is ORDERED that plaintiff shall recover from defendant

Colbert the total amount of $5,159,965.69, as described in paragraph 2 above, for
which let execution issue. Following the foreclosure sale, the fair market value of the
Property will be credited towards the judgment outstanding against defendant Colbert.
AS TO COUNT 4 (Suit on Guaranty against Lawrence A. Wright):
19.

Defendant Lawrence A. Wright, on August 16, 2007, September 24,

2008, February 9, 2009 executed and delivered Guaranties to First National Bank of
Florida, guaranteeing payment of any indebtedness of defendant TW Hospitality. Said
Guaranties have been assigned to plaintiff CharterBank pursuant to that certain
Blanket Assignment of Loans and Liens dated September 21, 2011, recorded in
Official Records Book 2874, Page 1032, of the Public Records of Walton County,
Florida, and it is hereby adjudged that plaintiff CharterBank owns, holds, and is
entitled to enforce the valid Guaranties.
20.

Therefore it is ORDERED that plaintiff shall recover from defendant

Wright the total amount of $5,159,965.69, as described in paragraph 2 above, for
which let execution issue. Following the foreclosure sale, the fair market value of the
Property will be credited towards the judgment outstanding against Defendant Wright.

Case No: 3:11cv522/RV/CJK

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DONE AND ORDERED this 4th day of September, 2012.

/s/ Roger Vinson
ROGER VINSON
SENIOR UNITED STATES DISTRICT JUDGE

Case No: 3:11cv522/RV/CJK

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EXHIBIT “A”

Case No: 3:11cv522/RV/CJK