U. S. Bank National Association v. Oakbrook Apartments LLC

Filing 97

ORDER granting 94 Unopposed MOTION to Proceed With Foreclosure Sale. Signed by Magistrate Judge Stephen C. Riedlinger on 9/14/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CIVIL ACTION NO. 14-340-SCR

U.S.
BANK
NATIONAL
ASSOCIATION, AS TRUSTEE, AS
SUCCESSOR IN INTEREST TO
BANK OF AMERICA, NATIONAL
ASSOCIATION, AS SUCCESSOR BY
MERGER TO LASALLE
BANK
NATIONAL ASSOCIATION, FOR
THE REGISTERED HOLDERS OF
LB-UBS COMMERCIAL MORTGAGE
TRUST
2006-C6, COMMERCIAL
MORTGAGE
PASS-THROUGH
CERTIFICATES
SERIES 2006-C6

MAGISTRATE JUDGE
STEPHEN C. RIEDLINGER

PLAINTIFF,
VERSUS
OAKBROOK APARTMENTS LLC
DEFENDANT.
____________________________________________________________________________
ORDER SETTING FORECLOSURE SALE PROCEDURES
______________________________________________________________________________

CONSIDERING the Ex Parte/Unopposed Motion to Proceed with Foreclosure Sale,
record document number 94, filed by U.S. Bank National Association, as Trustee, as SuccessorIn-Interest to Bank of America, N.A., as Successor by Merger to LaSalle Bank National
Association, as Trustee, for the Registered Holders of LB-UBS Commercial Mortgage Trust
2006-C6, Commercial Mortgage Pass-Through Certificates, Series 2006-C6 (“Plaintiff”), the law
being in support of the relief requested therein and good cause having been shown, the motion is
GRANTED.
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IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the foreclosure sale
of the property more fully described in Exhibit "1" hereto (the "Property") be conducted
according to the following terms and in the following manner:
1.

Considering the Judgment entered by this Court on July 27, 2015, was

immediately executable, all parties having absolutely waived any and all applicable appeal
periods provided for by the Federal Rules of Civil Procedure, it is hereby ordered that the U.S.
Marshal's office is authorized to sell the Property pursuant to the procedures provided for herein,
with the benefit of appraisement;
2.

The U.S. Marshal is authorized and directed to effect service of any notice of

seizure, notice of sale, writs, orders and other processes requested to be served by Plaintiff.
Plaintiff shall release, hold harmless and indemnify the United States of America, the United
States Marshal, their agents, servants and employees, and all others for whom they are
responsible from any and all liability or responsibility for claims arising out of the care and
custody of the Property in this case;
3.

Service of notices (including notices of seizure and sale), writs (including a writ

of execution), orders or other process may be made upon (the "Judgment Defendant") by serving
their counsel of record in this action;
4.

Pursuant to 28 U.S.C. §2001, the Court directs that the Property be sold as a

whole ("in globo") and not in separate parcels;
5.

Pursuant to 28 U.S.C. §2002, notice to the public of the judicial sale shall be

made "once a week for at least four weeks prior to the sale." The notice shall be set forth in The
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Advocate (Baton Rouge) four (4) times prior to the sale. Notice shall commence no sooner than
three (3) days (exclusive of holidays) following service on the Judgment Defendants of the
notice of seizure;
6.

The U.S. Marshal shall both obtain a mortgage certificate from the Clerk of Court

and Recorder of Mortgages for East Baton Rouge Parish and conduct a UCC search with the
Secretary of State for the State of Louisiana regarding any state or federal tax notices and/or
UCC financing statements filed against the property both immediately upon execution of the
Order and five (5) business days prior to the scheduled sale date;
7.

The foreclosure sale shall occur at the federal courthouse for the United States

District Court for the Middle District of Louisiana, 777 Florida Street, Baton Rouge, Louisiana
70801;
8.

The appraisal will occur essentially as set forth in La. R.S. 13:4363, in that:
[n]ot less than seven days, exclusive of holidays, before the sale of the
seized property, the [U.S. Marshal] shall serve written notice on the
[Judgment Defendants] and on [Plaintiff], in the manner provided for [in
Paragraph 3 above] . . . , directing each to name an appraiser to value the
property and to notify the [U.S. Marshal] of his appointment prior to the
time stated in the notice, which shall be at least four days, exclusive of
holidays, prior to the time of the sale. The appraisal of the [Judgment
Defendants] and [Plaintiff] shall be made and delivered to the [U.S.
Marshal] at least two days, exclusive of holidays, prior to the time of the
sale.

As set forth in La. R.S. 13:4364, "[i]f a party neglects to appoint an appraiser or to notify
the [U.S. Marshal] within the time designated, the [U.S. Marshal] shall appoint an
appraiser for [the party]." Further, as set forth in La. R.S. 13:4365, the "appraisers shall
take an oath to make a true and just appraisal of the property." Moreover,
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[i]f the appraisers cannot agree, and (1) the difference in value between
the two appraisals does not exceed two hundred and fifty thousand
dollars, and (2) the value assigned by the lower of the two appraisers is at
least ninety percent of the value assigned by the higher of the two
appraisers, then the [U.S. Marshal] shall average the two figures and use
the average as the appraised value for purposes of determining the
opening bid. ... [If] the two appraisers do not agree and the values are not
within the averaging limits, then the [U.S. Marshal] shall appoint a third
appraiser, who shall also be sworn, and whose decision shall be final.
The appraisers shall deliver their appraisals to the U.S. Marshal in writing and signed;
9.

If the highest bid at the sale is less than 2/3 of the appraised value, a second sale

shall be scheduled to occur on the soonest available date after notice to the public of the second
sale date has been made once a week for four (4) weeks. The notice to the public shall be as set
forth in Paragraph 5, above. At any second sale, the Property shall be sold to the highest bidder
regardless of the amount of the bid;
10.

Plaintiff shall be entitled, to the extent allowed by law, to collect from the

Judgment Defendant the amount of any deficiency as a result of the foreclosure sale - i.e., the
amount by which the Judgment exceeds the purchase price received at a completed foreclosure
sale;
11.

At the foreclosure sale. Plaintiff shall be entitled to "credit bid" up to the amount

owed under the Judgment without the necessity of having to pay any funds over to the U.S.
Marshal (except costs and commissions incurred by the U.S. Marshal's office in connection with
any sale);
12.

The U.S. Marshal's fee shall be $50,000 payable at the conclusion of a completed

foreclosure sale. See 28 CFR §0.114(h) (the U.S. Marshal “shall collect a commission of …1.5

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percent on the excess of any sum over $1,000 …, except that the amount of commission… shall
not exceed $50,000.”).

Baton Rouge, Louisiana, September 14, 2015.

s

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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