WELLS FARGO BANK, N..A. v. RICHMOND et al
Filing
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DEFAULT JUDGMENT against Capital One Bank (USA) N.A. (tlf).
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
WELLS FARGO BANK, N.A.
Plaintiff,
vs.
JAMES I. RICHMOND,
CAPTIAL ONE BANK (USA)
UNITED STATES OF AMERICA,
N.A.,
Defendants.
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) CASE NO.: 4:18-cv-107-CDL
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FINAL JUDGMENT
Plaintiff filed a Complaint [Doc 1] and a Motion [Doc 15]
for entry of this Order. The Defendants consent to entry of this
Order, subject to its below conditions. Having considered the
Motion and the record, the Court finds that a hearing is not
required and this Order is entered as follows.
Under
Plaintiff,
28
a
U.S.C.
citizen
§
of
1332,
South
jurisdiction
Dakota,
exists
Defendant
between
Richmond,
a
citizen of Georgia and Capital One, a citizen of Virginia. The
value of the real property and/or the debt at issue exceeds the
principal sum of $76, 000.00. Under 28 U.S.C. § 1331 and 1346,
jurisdiction exists as to the United States, which holds a lien
interest in the real property at issue in this case, described
as:
ALL THAT LOT, TRACT AND PARCEL OF LAND SITUATE, LYING
AND BEING IN COLUMBUS, MUSCOGEE COUNTY, GEORGIA, BEING
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KNOWN AND DESIGNATED AS ALL OF LOT NUMBERED THIRTEEN
(13), IN BLOCK LETTERED ‘B’, SECTION ONE,
BATTLE
FOREST, AS SAID LOT IS SHOWN UPON A MAP OR PLAT OF
SAID SUBDIVISION DATED SEPTEMBER 10, 1963 MADE BY
ALDRIDGE, MOON & ASSOCIATES AND RECORDED IN PLAT BOOK
31, FOLIO 10 IN THE OFFICE OF THE CLERK OF THE
SUPERIOR COURT OF MUSCOGEE COUNTY, GEORGIA.
THE IMPROVEMENTS THEREON BEING
FORGE ROAD, COLUMBUS, GA 31907
(TAX ID NO. 093-013-019)
KNOWN
AS
945
VALLEY
On 2/10/92, Johnnie and Patricia Mason, in whom title was
vested,
executed
a
Warranty
Deed,
conveying
the
Property
to
Defendant James, Richmond, recorded 2/13/92, Book 3534, Page 46.
On 2/19/08, Richmond executed a Note to Security Atlantic Mortgage
Co, for the principal sum of $104,900.00, now in default. On
2/19/08, Richmond executed a Security Deed to MERS as nominee for
Security
conveying
the
Property
as
collateral
for
the
Note,
recorded 3/5/08, Book 9285, Page 132, also in default.
On 8/16/12, MERS executed an Assignment of the Security Deed
to Plaintiff, recorded 4/12/17, Book 12074, Page 280. Security
assigned and transferred the Note and/or all interest in the
Note
to
executed
Plaintiff
a
as
provided
Modification
of
the
by
law.
On
2/18/14,
Note/Security
Deed,
Richmond
recorded
1/6/15, Book 11427, Page 282, also in default.
On 10/22/08,
the
United States
obtained judgment in the
Court against Richmond in the sum of $9,864.02, recorded 11/18/08,
Lien Book 248, Page 321, of which the principal is $6,496.15;
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interest is $7,240.46; and collection fee is $3343.49, totaling
$17,080.10 as of 9/18/18. On 7/11/09, Defendant Capital obtained
judgment
against
Richmond
in
state
court
for
the
sum
of
$2,885.71, recorded 7/27/09, Lien Book 290, Page 159.
Richmond breached Plaintiff’s Note and Security Deed, still
in
effect,
not
making
payments
and/or
not
fulfilling
other
obligations on them, now in default. Richmond surrendered the
Property in his Chapter 13 Bankruptcy Case No. 13-40824, in the
Court, in which Plaintiff’s motion for stay relief to pursue this
action was granted on 7/31/17. [Bankruptcy Doc 58]
On 5/25/18, Plaintiff filed suit [Doc 1] for which summons
issued [Doc 2-5] and Plaintiff served the Defendants. [Doc 8-11]
Richmond and the United States appeared. [Doc 7 and 12] Default
was entered against Defendant Capital One.
By consent of Defendants Richmond and the United States,
the Court orders, adjudges and decrees as follows:
1.
Per Count I of the Complaint, the Court declares and
establishes Plaintiff holds the senior interest in the Property,
its fixtures, appurtenances, rents, contents and insurance, for
the
principal
due
on
its
Note/Security
Deed,
plus
interest,
charges, expenses, costs and fees, taxes and abstracting, which are
judicially foreclosed against the Property, in which all other
claims and interests are inferior, subordinate, barred,
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foreclosed and quieted to all right, title, interest and equity
of redemption.
2.
The parties agree that if the Property is purchased at
sale by a third party bidder, detailed below, then the judgment
of the United States will be satisfied by any surplus funds
remaining
after
satisfaction
remainder
of
Richmond.
Otherwise,
any
such
the
of
Plaintiff’s
debt,
with
the
surplus
funds
payable
to
Defendant
United
States
retains
the
right
to
enforce its judgment if not satisfied by a purchase by a thirdparty bidder at a sale of the Property under this order.
3.
Under Fed. R. Civ. P. 53, the law firm of Reginald
Hudespeth, LLC and/or its designee, is appointed as Special Master
to
and
authorized
buildings, fixtures
to
and
sell
the
Property,
appurtenances
at
the
its
improvements,
Muscogee
County
Courthouse at the usual hour and location for public sale, per 28
U.S.C. § 2001 and applicable law, after advertisement of the
sale, once per week for 4 weeks before the sale, in a newspaper
regularly
issued
and
of
general
circulation
in
that
county,
without right of redemption.
4.
Under U.S.C. § 564 and 566, the, the Special Master
may exercise the same powers to conduct the sale as any local
official or party conducting foreclosure sales, to yield the
best sale price of the Property through free, fair and
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competitive bidding.
5.
Plaintiff may bid the credit due on its debt, without
payment of cash. At the time of sale, any third-party bidder (s)
will
tender
a
successful
bid
in
cash,
cashier's
check
or
certified check, payable to Plaintiff. If a third-party bidder
defaults
on
this
or
any
other
condition
of
sale,
then
the
payment is forfeited and shall be applied to expenses of sale.
The Property may then be re-offered for sale or sold to a second
highest bidder at Plaintiff's discretion.
6.
If Plaintiff is the purchaser, the Special Master will
credit on Plaintiff's bid the total sums due to Plaintiff, or
such
portion
necessary
to
pay
Plaintiff's
bid.
If
not
the
purchaser, Plaintiff will advance all subsequent costs of this
action, for which it will be reimbursed by the Special Master.
After completion of the sale, the Special Master will execute a
Report of Sale, for filing with the Clerk of Court, subject to
confirmation by the Court. Upon entry of the confirmation order,
the
sale
proceeds
disbursements
of
will
this
be
applied
action,
to
Plaintiff's
expenses
of
sale,
costs
and
including
documentary stamps affixed to the order if applicable, the total
sum due to Plaintiff less the items paid, plus interest at the
rate prescribed by state law from this date to the sale date.
7.
Upon motion following the sale, the Court shall enter
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an order confirming the sale of the Property, conveying title to
the purchaser at sale, which shall be filed and recorded in the
local land registry office, with the same legal effect as a Deed
Under Power or other conveyance of title under Georgia law or
the Special Master may execute a Deed for recordation with the
same such effect. Plaintiff may assign the Order and/or credit
bid by executing an assignment prior to issuance of an order
confirming the sale of the Property, without further order of
the Court.
8.
A successful third-party bidder at the sale shall pay,
in addition to the amount of the bid, any documentary stamps and
land registry fees and like costs, as provided by law. Upon
entry
of
the
confirmation
order,
the
sale
proceeds
will
be
applied to Plaintiff's costs and disbursements of this action,
expenses of sale, including documentary stamps affixed to the order
if applicable, the total sum due to Plaintiff less the items
paid, plus interest at the rate prescribed by state law from
this date to the sale date.
9.
Per Count II of the Complaint, following entry of the
confirmation
order,
Plaintiff
or
any
purchaser
at
sale
is
granted possession of the Property as set forth in the Order.
All
parties,
occupants,
entities
and
others
will
vacate
Property following the sale. The Marshall and/or local law
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the
enforcement officers, their deputies and agents are ordered to
take any action to remove any anyone and their belongings from
the Property, with whom Plaintiff or other purchaser at sale may
coordinate to take all actions necessary to effectuate. Refusal
or failure to vacate the property is punishable by contempt of
Court.
All parties, occupants, entities and others will take all
reasonable
current
steps
necessary
condition,
vandalism
against
who
the
to
preserve
will
not
Property
or
the
commit
do
Property
waste,
anything
to
in
its
damage
or
impair
or
reduce its value or marketability, including but not limited to
recording any instruments, publishing any notice, or taking any
other
action
tending
to
adversely
affect
the
value
of
the
Property or tending to deter or discourage potential bidders
from participating in the sale and shall not cause or permit
anyone
else
contempt
of
to
do
Court.
so,
Any
violation
personal
of
which
property
is
punishable
remaining
in
by
the
Property is deemed forfeited and abandoned; which Plaintiff or
any other purchaser may dispose of in any manner.
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The parties are excused from further participation from this
case, including under the scheduling order [Doc 13] other than
as provided by this Order.
SO ORDERED AND DECREED this 17th day of December, 2018
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT COURT JUDGE
CONSENTED TO BY:
/s/Elizabeth Blair Weatherly
Elizabeth Blair Weatherly
Georgia Bar No. 672518
Ryan Starks
Georgia Bar No. 676512
11675 Great Oaks Way, Suite 375
Alpharetta, Georgia 30022
(770) 393-4300 (Telephone)
(770) 393-4310 (Facsimile)
Blair.Weatherly@phelanhallinan.com
Ryan.Starks@phelanhallinan.com
Attorneys for Plaintiff
/s/Valerie G. Long
Valerie G. Long
Georgia Bar No. 457485
Attorney for Defendant James I. Richmond
905 Columbus, GA 31901
(706)322-5358
lawofficevlong@yahoo.com
Attorney for James I. Richmond
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