GENERAL WASTE PRODUCTS, INC. v. CONTINENTAL CASUALTY COMPANY et al
Filing
18
MINUTE ENTRY for proceedings held before Magistrate Judge William G. Hussmann, Jr: Hearing on Trustee's 2 Motion to convey the "River Yard Site" held on 12/12/2012. The court grants in part 2 Motion, and the Trustee is ordered to provide an appropriate deed and necessary closing documents to effectuate the sale of the River Yard Site. Mounts is ordered to execute documents required by the title company to reflect a release of any and all liens as they apply to the River Yard Site only. The Trustee is ORDERED to maintain the funds received from the sale of the River Yard Site until further order of this court, except that from the funds at closing may be paid appropriate real estate taxes and title insurance fees. The Tr ustee is ORDERED to prepare on or before January 3, 2013, a proposed final distribution order for the court's review. On or before January 9, 2013, Mounts, the Estate of Allan Trockman, Marsha Trockman, Mr. Newcomb, and any other interested part ies shall file and serve any objections to the Trustee's proposed distribution. Motion Hearing on any objections to the Trustee's proposed distribution previously set for 12/18/2012 is RESCHEDULED for 1/9/2013 01:00 PM in room #335, United States Courthouse, 101 Northwest MLK Boulevard, Evansville, Indiana before Magistrate Judge William G. Hussmann, Jr. Signed by Magistrate Judge William G. Hussmann, Jr. See entry for other orders entered.(NRN)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
GENERAL WASTE PRODUCTS, INC.,
Plaintiff,
v.
CONTINENTAL CASUALTY COMPANY,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
3:01-cv-96-WGH-RLY
ORDER TO CONVEY DEED
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, pursuant to the Trustee’s motion, in part requesting an
order to convey the “River Yard Site,” filed November 14, 2012. (Docket No. 2).
David G. Mounts (“Mounts”) requested a hearing on that motion. (Docket No. 4).
A hearing was held before the Magistrate Judge on December 12, 2012, at 2:00
p.m., at which Kathleen Lucas, the Trustee, appeared in person with counsel,
Mr. Turner, and Mr. Walker and Mr. Nelson, by telephone; Mounts was present
in person and represented by counsel, Mr. Kahre, in person; Marsha Trockman
was represented by counsel, Ms. Jones, in person; the Estate of Allan Trockman
was represented by counsel, Mr. Veazey, in person; interested party Evansville
Marine Services was represented by counsel, Mr. Lavallo, in person. Mr.
Newcomb was represented by counsel, Mr. Kent and Mr. Johnson, by telephone.
After hearing argument, the court finds as follows:
1. By Order dated August 31, 2004, this court created an IRC Section
468B Trust (“Trust”). (Final Report of Trustee, Motion for Status Conference,
and Request to Convey River Yard, Distribute Assets, and Terminate Trust
(“Final Report”) Ex. A).
2. That Trust is memorialized through the Evansville Greenway and
Remediation Trust Agreement (“Trust Agreement”). (Final Report Ex. B).
Pursuant to Section 2.3(6), the Trustee is authorized to “enter into contracts and
agreements as needed to fulfill the purposes of this Trust Agreement.” Section
5.4 of the Trust specifically contemplates the sale of the River Yard Site. The
trustee is therefore the person authorized under the trust to execute deeds and
the appropriate documents to consummate a sale of the River Yard Site.
3. The Trust entered into a Forbearance and Partial Settlement Agreement
(“Forbearance Agreement”) with Mounts and others on October 18, 2004. (Final
Report Ex. I). Paragraph 6.1 of that agreement provides:
6.1
Mounts hereby agrees that he will release any and all liens
that he claims to have maintained on the River Yard in
exchange for the payment to him of the net sales proceeds
from the sale of the River Yard up to the amount of the
remaining indebtedness identified in Sections 5.1 and 5.2.
Should the amount offered to purchase the River Yard Site be
less than the remaining indebtedness identified in Sections
5.1 and 5.2 of this Agreement, and should Mounts not agree
that the sales price offered represents the fair market value of
the River Yard, Mounts shall, at his discretion, be entitled to
purchase the River Yard at the offered price under the same
terms and conditions as acceptable to the Trustee of the
Evansville Greenway and Remediation Trust.
-2-
(Final Report Ex. I (emphasis in original)).
4. Pursuant to paragraph 6.1, Mounts has agreed that he will release any
and all liens upon the payment of the net sales proceeds from the sale of the
River Yard Site. In addition, that section provides that should the amount
offered to purchase the River Yard Site be less than the remaining indebtedness
. . . and should Mounts not agree that the sales price offered represents the fair
market value of the River Yard Site, Mounts shall, at his discretion, be entitled to
purchase the River Yard Site at the offered price under the same terms and
conditions as acceptable to the Trustee of the Evansville Greenway and
Remediation Trust.
5. There exists a contract to purchase the River Yard Site with Evansville
Marine Services. (Final Report Ex. E).
6. The court finds that the sales price offered represents the fair market
value of the River Yard Site, and that Mounts has not indicated to the court or to
other parties that this is not the fair market value of the River Yard Site.
Pursuant to the clear and unambiguous terms of the Forbearance Agreement,
Mounts is not at this time entitled to purchase the River Yard Site.
7. Section 5.4 of the Trust Agreement provides:
5.4
Sale of the River Yard. The Trustee acknowledges that, upon
the sale of the River Yard Site, the full sale price of the River
Yard Site and other Recoveries shall become an asset of the
Trust. In addition, the Trustee acknowledges that, upon the
issuance of a Covenant Not to Sue by the Governor of Indiana,
General Waste will execute an irrevocable Power of Attorney
authorizing the Trustee to offer the River Yard Site for sale.
The Trustee agrees that she has sole and complete authority
to determine whether to accept a bid for the sale of the River
-3-
Yard Site, whether that bid was obtained by General Waste
or by the Trustee. All proceeds from the sale of the River
Yard Site shall be placed into the Trust.
(Final Report Ex. B at 11 (emphasis in original)).
8. Pursuant to the Trust Agreement, upon the sale of the River Yard Site,
all proceeds “shall be placed into the Trust.” (Id.).
9. This court has jurisdiction to interpret the Forbearance Agreement as
part of its continuing jurisdiction “to effectuate the purposes of the Trust
Agreement.” (Final Report Ex. A ¶ 5). Payment of the proceeds from the sale to
the Trust subjects those proceeds to further order of the court with respect to
disbursement of the funds.
10. Evansville Marine Services has made substantial expenditures to the
River Yard Site to improve it. Such expenditures were useful to complete the
purposes of remediation of this parcel of property.
11. There are no other known interested parties to purchase the River Yard
Site.
12. Because fair market value for the property is being paid and those
proceeds may not be disbursed until further order of this court, Mounts has
constructively received those proceeds and is now required to execute a release
of all liens with respect to the River Yard Site only.
13. Marsha Trockman, by counsel, has agreed to execute documents
necessary to convey the title to the River Yard Site. Claims that she may have to
-4-
distribution shall be addressed in the proceedings to approve the Trustee’s
proposed final distribution.
14. Mr. Newcomb’s claim for realtor’s fees will be addressed as part of the
Trustee’ proposed final distribution report.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, as follows:
1. The Trustee’s motion and request to convey the River Yard Site is
GRANTED, and the Trustee is ORDERED to provide an appropriate deed and
necessary closing documents to effectuate the sale of the River Yard Site.
2. Mounts is ordered to execute documents required by the title company
to reflect a release of any and all liens as they apply to the River Yard Site only.
3. The Trustee is ORDERED to maintain the funds received from the sale
of the River Yard Site until further order of this court, except that from the funds
at closing may be paid appropriate real estate taxes and title insurance fees.
4. The Trustee is ORDERED to prepare on or before January 3, 2013, a
proposed final distribution order for the court’s review.
5. On or before January 9, 2013, Mounts, the Estate of Allan Trockman,
Marsha Trockman, Mr. Newcomb, and any other interested parties shall file and
serve any objections to the Trustee’s proposed distribution. The objections shall
include briefs on the issues of what constitutes “net proceeds” of the sale and of
the court’s jurisdiction to resolve disputes between those who are not parties to
this litigation.
-5-
6. The HEARING on any objections to the Trustee’s proposed distribution
previously set for December 18, 2012, is hereby RESCHEDULED before the
Magistrate Judge on WEDNESDAY, JANUARY 9, 2013, at 1:00 p.m., Evansville
time (CST), in Room 335, U.S. Courthouse, Evansville, Indiana.
SO ORDERED this 14th day of December, 2012.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Distribution:
Electronically to Registered Counsel of Record.
Annie Greenblum
3920 Pinetop Blvd.
Titusville, FL 32796
Kathleen Coyle
CNA - Environmental & Mass Tort Claims
P.O. Box 2002
1249 South River Road
Cranbury, NJ 08512
Kathleen G. Lucas
BOSE MCKINNEY & EVANS, LLP
111 Monument Circle
Suite 2700
Indianapolis, IN 46204
Lynn Senzell
P. O. Box 53
Evansville, IN 47701
Laurie Baiden Bumb
P O Box 3326
Evansville, IN 47732-3326
-6-
Michael Orville Nelson
NELSON LAW GROUP LLC
8777 Purdue Road
Suite 310
Indianapolis, IN 26268
Philip C. Hunsucker
RESOLUTION LAW GROUP PC
3717 Mt Diablo Blvd
Suite 200
Lafayette, CA 94549
Rebecca L. Ross
ROSS DIXON & BELL LLP
70 West Madison Street Ste 525
Chicago, IL 60602
Susan Sussman
10215 47th Ave. North
Plymouth, MN 55442
Scott E. Turner
ELENIUS FROST & WALSH
333 South Wabash Avenue
25th Floor
Chicago, IL 60604
William Stacey White
Resolute Management, Inc.
79 West Monroe
7th Floor
Chicago, IL 60603
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?