CADENCE BANK N A v. MANAUSA HOLDINGS LLC et al

Filing 54

ORDER ADOPTING THE MAGISTRATE JUDGE'S 47 REPORT AND RECOMMENDATION. Granting 5 and 32 Motion to Appoint Receiver. Signed by SENIOR JUDGE WILLIAM STAFFORD on 4/13/12. (pll)

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

CADENCE BANK, N.A.,
a national banking association,
Plaintiff,
v.

4:12cv38-WS

MANAUSA HOLDINGS, LLC,
et al.,
Defendants.

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the court is the magistrate judge's report and recommendation (doc. 47)
docketed March 30, 2012. The magistrate judge recommends that the plaintiff's
motions for appointment of a receiver be granted. The defendant Minausa Holdings,
LLC, has filed objections to the report and recommendation. In its objections, the
defendant does not explain why the plain language of the mortgage—wherein the
defendant agreed to the appointment of a receiver upon default of the underlying
loan—should be ignored.
Having reviewed the record, the court finds that the magistrate judge's report and
recommendation should be adopted. Accordingly, it is ORDERED:
1. The magistrate judge’s report and recommendation (doc. 47) is ADOPTED
and incorporated by reference into this order.

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2. The plaintiff's motions (docs. 5 & 32) for appointment of receiver are
GRANTED.
3. Robert E. Swett is hereby appointed as Receiver of all that certain real
property located in Leon County, Florida as more particularly described on the attached
Exhibit “A” (the “Real Property”) together with all the rents, income and profits from the
Real Property (the “Rents”, and together with the Real Property, the “Property”).
4. The Receiver shall, within fifteen (15) days after the date of this Order, file a
good and sufficient bond in the sum of Ten Thousand Dollars ($10,000.00) conditioned
upon the full and faithful performance of his duties as Receiver as prescribed by this
Order and by such further orders of this Court as may be made and entered.
5. The Receiver is authorized to immediately enter upon, receive, take and have
possession of the Property. Until further order of this Court, the Receiver shall have
complete and exclusive control, possession and custody of the Property.
6. Defendants, MANAUSA HOLDINGS, LLC, MICHELE MANAUSA and
JOSEPH P. MANAUSA, and their officers, servants, agents, managers, members,
employees, attorneys and other persons in active concert or participation with them,
who have possession of the Property, are ordered to deliver immediately to the
Receiver all of the Property, and they, and each of them, are enjoined from interfering in
any way with the Receiver or with any of the Property until the further order of this
Court.
7. Defendants, MANAUSA HOLDINGS, LLC, MICHELE MANAUSA and
JOSEPH P. MANAUSA, and their officers, servants, agents, managers, members,
employees, attorneys and other persons in active concert or participation with them,

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who have possession of the Property, are further ordered to deliver to the Receiver or
his representative, all keys, combinations to locks and pass codes required to open or
gain access to any part of the Property, and all money deposited in any bank to the
credit of MANAUSA HOLDINGS, LLC, MICHELE MANAUSA and JOSEPH P.
MANAUSA, or any one of them, relating to the Property, including any security deposits
relating to the leasing of the Property, all lease agreements for the leasing of any
portion of the Property, all contracts , written agreements, rent rolls or accounts for the
maintenance, operation and management of the Property, and any other money or
things of value of said Defendants relating to the Property.
8. The Receiver is hereby granted all the usual, necessary and incidental
powers for the purpose of managing and maintaining the Property, including the power
to (a) appoint and retain such agents as the Receiver considers necessary to enable the
Receiver to perform the Receiver’s duties; (b) to open such bank accounts as deemed
necessary for the deposit and maintenance of funds received from or in connection with
the Property; (c) to make, execute, deliver and terminate any contracts or leases for the
benefit of the Property; (d) to collect rents, income, profits, issues and revenues from
the Property; (e) to pay all reasonable expenses for the operation, management and
maintenance of the Property; (f) to bring a lawsuit in eviction or for the collection of
rents; (g) to purchase and carry insurance of any kind and in such amounts as the
Receiver deems advisable for the benefit of the Property; (h) to pay all taxes and
assessments on the Property; (i) to maintain such reserves as deemed necessary for
the operation and maintenance of the Property; and (j) to retain and set aside such
funds as may be available to be applied to the payment of the mortgage payments to

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Plaintiff as the holder of the first mortgage on the Property, pending further Order of this
Court.
9. The Receiver shall file in the Clerk’s office a true and complete inventory
under oath of the Property coming under the receiver’s control or possession under the
Receiver’s appointment within twenty (20) days from the date of this Order.
10. No less than every three (3) months thereafter, the Receiver shall, unless
otherwise ordered by this Court, file in the Clerk’s office an inventory and account under
oath of any additional property or effects which the Receiver has discovered or which
shall have come to the Receiver’s hands since appointment, and of the amount
remaining in the hands of or invested by the Receiver, and of the manner in which the
same is secured or invested, stating the balance due from or to the Receiver at the time
of rendering the last account and the receipts and expenditures since that time.
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this action
for all purposes. The Receiver is authorized, empowered, and directed to apply to this
Court, with notice to the parties, for issuance of whatever additional orders may be
necessary and appropriate in order to carry out the mandate of this Court.
IT IS FURTHER ORDERED that this Order will remain in effect until modified by
further order of this Court.
DONE AND ORDERED this

13th

day of

April

,2012

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE

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EXHIBIT “A”
BEGIN AT A COPPER PIN IN THE CENTER LINE OF PARK AVENUE SAID COPPER PIN
MARKING THE SOUTHEAST CORNER OF THE NORTHWEST ONE-QUARTER OF
SECTION 31, TOWNSHIP 1 NORTH, RANGE 1 EAST, AND RUN THENCE NORTH ALONG
THE QUARTER SECTION LINE A DISTANCE OF 510 FEET TO THE NORTHEAST CORNER
OF LOT 8, BLOCK "B", EAST HIGHLANDS A SUBDIVISION APPEARING OF RECORD IN
PLAT BOOK 2, PAGE 83, PUBLIC RECORDS OF LEON COUNTY, FLORIDA, SAID CORNER
BEING MARKED BY A P.R.M., THENCE RUN NORTH 73 DEGREES EAST ALONG THE
SOUTH BOUNDARY LINE OF THE 50 FOOT RIGHT OF WAY OF CALL STREET, A
DISTANCE OF 165 FEET, TO A POINT MARKED BY AN IRON PIPE, THENCE RUN SOUTH
ALONG A LINE 157.8 FEET FROM AND PARALLEL TO THE WEST BOUNDARY LINE OF
THE PROPERTY BEING DESCRIBED, A DISTANCE OF 259.4 FEET, MORE OR LESS, TO
A POINT ON THE NORTH BOUNDARY LINE OF PROPERTY OF DOLA C. VARNER, THE
DESCRIPTION OF WHICH APPEARS IN DEED BOOK 138, PAGE 357, PUBLIC RECORDS
OF LEON COUNTY, FLORIDA, THENCE RUN WEST ALONG THE NORTH BOUNDARY
LINE OF PROPERTY OF SAID DOLA C. VARNER, A DISTANCE OF 2 1/2 FEET TO THE
NORTHWEST CORNER OF PROPERTY OF SAID DOLA C. VARNER, SAID POINT BEING
MARKED BY AN IRON PIPE, THENCE RUN SOUTH ALONG THE WEST BOUNDARY LINE
OF PROPERTY OF DOLA C. VARNER AS DESCRIBED IN DEED BOOK 138, PAGE 357,
AND DEED BOOK 104, PAGE 49, PUBLIC RECORDS OF LEON COUNTY, FLORIDA, A
DISTANCE OF 298.8 FEET TO A POINT ON THE CENTER LINE OF SAID PARK AVENUE,
THENCE RUN WEST ALONG THE CENTER LINE OF SAID PARK AVENUE, A DISTANCE
OF 154.7 FEET TO THE POINT OF BEGINNING.
LESS ANY RIGHT OF WAY FOR PARK AVENUE.
MORE PARTICULARLY DESCRIBED BY A RECENT SURVEY AS FOLLOWS:
COMMENCE AT A COPPER PIN IN THE CENTERLINE OF PARK AVENUE MARKING THE
SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SECTION 31, TOWNSHIP 1
NORTH, RANGE 1 EAST, LEON COUNTY, FLORIDA, AND RUN NORTH ALONG THE
QUARTER SECTION LINE A DISTANCE OF 20.00 FEET TO A CONCRETE MONUMENT ON
THE NORTH BOUNDARY OF SAID PARK AVENUE FOR THE POINT OF BEGINNING.
FROM SAID POINT OF BEGINNING CONTINUE NORTH ALONG SAID QUARTER LINE
488.51 FEET TO A CONCRETE MONUMENT ON THE SOUTHERLY RIGHT OF WAY
BOUNDARY OF CALL STREET (50 FOOT RIGHT OF WAY) (SAID CONCRETE
MONUMENT MARKING THE NORTHEAST CORNER OF LOT 8, BLOCK "B" OF EAST
HIGHLANDS AS RECORDED IN PLAT BOOK 2, PAGE 83 OF THE PUBLIC RECORDS OF
LEON COUNTY, FLORIDA), THENCE NORTH 73 DEGREES 06 MINUTES 35 SECONDS
EAST ALONG THE SOUTHERLY RIGHT OF WAY BOUNDARY OF SAID CALL STREET
A DISTANCE OF 165.00 FEET TO A CONCRETE MONUMENT, THENCE SOUTH 00
DEGREES 29 MINUTES 17 SECONDS WEST 258.12 FEET TO A CONCRETE MONUMENT
ON THE NORTH BOUNDARY OF PROPERTY DEEDED TO DOLA C. VARNER AND

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CHARLOTTE VARNER HOUTS AND RECORDED IN OFFICIAL RECORDS BOOK 714,
PAGE 692 OF THE PUBLIC RECORDS OF LEON COUNTY, FLORIDA, THENCE WEST
ALONG THE NORTH BOUNDARY OF SAID PROPERTY 2.55 FEET TO A CONCRETE
MONUMENT MARKING THE NORTHWEST CORNER OF SAID PROPERTY, THENCE
SOUTH 00 DEGREES 17 MINUTES 56 SECONDS EAST ALONG THE WEST BOUNDARY
OF SAID PROPERTY 278.96 FEET TO AN IRON PIPE ON THE NORTH BOUNDARY OF
SAID PARK AVENUE, THENCE NORTH 89 DEGREES 45 MINUTES 54 SECONDS WEST
ALONG SAID NORTH BOUNDARY 154.58 FEET TO THE POINT OF BEGINNING.
THE FOREGOING PROPERTY HAVING BEEN SUBMITTED TO THE CONDOMINIUM
FORM OF OWNERSHIP ACCORDING TO THE DECLARATION OF CONDOMINIUM
RECORDED IN OFFICIAL RECORDS BOOK 4062, PAGE 1837, AND AMENDED BY
DOCUMENT RECORDED IN OFFICIAL RECORDS BOOK 4065, PAGE 727, OF THE PUBLIC
RECORDS OF LEON COUNTY, FLORIDA.