Duca v. Gratitude Group et al
Filing
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ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS AND FOR DECREE OF FORECLOSURE. Signed by JUDGE LESLIE E. KOBAYASHI on 8/23/2012. re: Motion for Summary Judgment filed 11/22/2011 in U.S. Bankruptcy Court District of Hawaii Adversary Proceeding no. 11-90056. Yuriko J. Sugimura, Esq. is appointed as Commissioner. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Case No. 10-03696
(Chapter 11)
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In re ROBERT NORTON MORAN,
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Debtor.
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_____________________________ )
JAMES N. DUCA,
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Plaintiff,
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vs.
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GRATITUDE GROUP, a Hawaii
limited partnership, et al., )
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Defendants.
_____________________________ )
CIVIL NO. 12-00191 LEK-KSC
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AGAINST DEFENDANTS AND FOR DECREE OF FORECLOSURE
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1.
Plaintiff James N. Duca’s (“Plaintiff”) Motion for
Summary Judgment filed on November 22, 2012 is granted.
2.
Defendants Gratitude Group, a Hawai`i limited
partnership, and Bob & Elice Company, LLC, a Hawai`i limited
liability company (collectively “Defendants”) are in default
under the Note, Term Loan Agreement, Assignment of Payments,
Security Agreement and Financing Statement, referenced in this
Court’s Order Accepting the Bankruptcy Court’s Proposed Findings
of Fact and Conclusions of Law and Recommend Judgment Granting
Plaintiff’s Motion for Summary Judgment and for Decree of
Foreclosure, filed July 31, 2012 (“July 31, 2012 Order”) [dkt.
no. 31].
There is due and owing and unpaid to Plaintiff from
Defendants the sum, as of November 13, 2011, of $237,750.00, plus
per diem interest of $98.6301169863, attorney’s fees and costs
and such other and further amounts and charges as may be proper
and allowed, until the closing of the sale herein authorized
(attorney’s fees and costs and other charges to be submitted at a
later time per the direction of the court or at subsequent
hearing) and which sums shall be a valid lien on the Collateral
referenced in the July 31, 2012 Order.
3.
The security interest currently held by Plaintiff
shall be and is hereby foreclosed upon, and the Property shall be
sold at public auction, without an upset price, as authorized by
law and under the provisions of Article 9 of Chapter 490, of the
Hawaii Revised Statutes.
Such sale shall not be final until
approved and confirmed by the Court.
4.
The Commissioner as appointed herein by the Court
shall hold all proceeds of sale of the Collateral and all
payments received under the Assignment of Payments to the credit
of this cause subject to the directions of this Court.
Upon
payment according to such directions, the Commissioner shall
file an accurate accounting of his receipts and expenses.
5.
Yuriko J. Sugimura, Esq., whose address is 1001
Bishop Street, Suite 710, Honolulu, Hawai`i 96818, and telephone
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number is (808)524-0544, is hereby appointed as Commissioner by
this Court and such Commissioner shall henceforth hold all
equitable and legal title to the Collateral, and is hereby
authorized and directed to take possession of the Collateral, and
to sell the Property on foreclosure sale to the highest bidder at
public commissioner’s sale by auction, without an upset price,
after notice of such sale first being given by said Commissioner
by publication in the classified section of a daily newspaper of
general circulation printed and published in the county in which
the Subject Property lies, as may be directed by the Court from
time to time.
Said notice shall be published once in each week
for three (3) consecutive weeks, with the sale to take place no
sooner than fourteen (14) days after the third date of
publication.
Said notice shall give the date, time and place of
sale and an intelligible description of the Collateral, and shall
disclose all of the terms of sale herein mentioned.
The
Commissioner shall have further authority to continue said sale
from time to time in his discretion.
of the Commissioner.
No bond shall be required
The Commissioner shall be awarded a
reasonable fee as Commissioner to be subsequently determined by
the Court.
In the event the Commissioner refuses, or becomes
unable to act as Commissioner, the Court shall appoint another
without further notice of hearing.
6.
The Commissioner’s fees and costs shall be deemed
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to be secured by the Plaintiff’s security interest on the
Collateral.
7.
The Court reserves jurisdiction to determine the
party or parties to whom any surplus shall be awarded herein.
8.
A further hearing shall be held herein to consider
confirmation of the foreclosure sale.
9.
Defendants and all persons claiming by, through or
under them are hereby perpetually barred of and from any and all
right, title and interest in the Collateral or any part thereof.
At said hearing to consider confirmation of the foreclosure sale,
the Court shall hear proof of claim of any other party, and shall
determine the priority among the claims of the other parties
besides Plaintiff, as appropriate, and there shall be determined
the amount of the fee of the Commissioner appointed herein and
the amount of the attorney’s fees.
10.
Plaintiff and all other parties are hereby
authorized to purchase at said foreclosure sale.
The successful
bidder(s) at said foreclosure sale is to make a down payment to
the Commissioner in an amount not less than ten percent (10%) of
the highest successful bid price, such payment to be in cash or
by way of certified or cashier’s check, provided that Plaintiff
may satisfy the down payment by way of offset up to the amount of
Plaintiff’s secured debts.
At the Court’s discretion, the ten
percent (10%) down payment may be forfeited in full or in part if
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the purchaser(s) shall fail to pay the balance of the purchase
price as hereinafter set forth.
In no event, shall the
purchaser(s) be liable for damages greater that the forfeiture of
the ten percent (10%) down payment.
The balance of said purchase
price including the down payment shall be paid to the
Commissioner upon approval and confirmation of the sale, provided
that after all prior liens are satisfied, Plaintiff may satisfy
the balance of the purchase price by way of offset up to the
amount of Plaintiff’s secured debt in the event Plaintiff is the
purchaser at the foreclosure sale.
Costs of conveyance,
including conveyance tax, the costs of any escrow, securing
possession of the Collateral and recording of such conveyance and
any orders of the Court, shall be at the expense of such
purchaser(s).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 23, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JAMES M. DUCA V. GRATITUDE GROUP, ET AL; CIVIL NO. 12-00191 LEKKSC; ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AGAINST DEFENDANTS AND FOR DECREE OF FORECLOSURE
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