U.S. Bank National Association v. Norfolk Country Inn L.L.C. et al

Filing 86

ORDER - The Joint Motion for Permission to Sell Real Estate and Personal Property Without the Necessity of Obtaining Appraisals (Filing No. 82 ) is granted. The Defendants have agreed to the sale of the Property to the Buyer without the need for the engagement of appraisers, and accordingly agree that the sale price set forth in the LOI is acceptable under the circumstances. Ordered by Chief Judge Laurie Smith Camp. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
U.S. BANK NATIONAL ASSOCIATION,
Plaintiff,

8:15CV299

vs.
ORDER
NORFOLK COUNTRY INN, L.L.C.,
ROBERT L. PAGAN, AND MICHAEL
WIESELER,
Defendants.

This matter is before the Court on the Joint Motion for Permission to Sell Real
Estate and Personal Property Without the Necessity of Obtaining Appraisals (Filing No.
82) (the "Motion"), filed by the parties in this case: U.S. Bank National Association (the
"Bank"), Great American Hotel Group, Inc. f/k/a Ocean Hospitalities, Incorporated as the
duly appointed receiver in this action and not in its corporate capacity (the "Receiver"),
and the above-captioned defendants (the "Defendants").
This action was brought by the Bank on August 10, 2015. (Filing No. 1.) By
agreement with the Defendants, the Receiver was appointed to manage the real and
personal property assets of Norfolk County Inn L.L.C. ("NCI") that serve as collateral for
the debt owing to the Bank (the "Property"), and to seek a buyer for such assets. On
September 30, 2015, the Court appointed the Receiver. (Filing No. 30.)

Since its

appointment, the Receiver has actively sought, and now identified, a buyer for the
Property (the "Buyer"). Attached as Exhibit A to the Motion (Filing No. 82 at ECF 6-10)
is the letter of intent ("LOI") with respect to the sale of the Property to the Buyer. The
parties have represented to the Court that they have reached an agreement as set forth
in this Order, and the Court has considered the agreement, and concludes it is in the

best interest of the parties and the Motion should be granted. The Court specifically
notes that the parties have agreed to wording of the operative portion of this Order.
Accordingly,
IT IS ORDERED:
1.

The Joint Motion for Permission to Sell Real Estate and Personal Property

Without the Necessity of Obtaining Appraisals (Filing No. 82) is granted;
2.

The Defendants have agreed to the sale of the Property to the Buyer

without the need for the engagement of appraisers, and accordingly agree that the sale
price set forth in the LOI is acceptable under the circumstances;
3.

Although 28 U.S.C. § 2201(b) requires the Receiver to obtain three

appraisals to support the sale of the Property, the Court finds that the Receiver has
actively marketed the Property for months and the attached LOI is the highest and best
offer that can be obtained. The Court also notes that the statutory requirement for the
appraisals is to assure that the offer yields a fair price to protect the interests of the
landowner, here NCI, and guarantors of the Debt, here Mr. Pagan and Mr. Wieseler,
who have agreed to waive the appraisal requirement;
4.

Under these circumstances, and in light of the Defendants' agreement, the

requirement of engaging three appraisers, which would entail expenditure of significant
sums that would add to the recovery sought by the Bank against the Defendants, should
not be imposed;
5.

It is also recognized that at the time the Receiver was appointed, NCI

owned substantially all its personal property subject to a security interest in favor of
Leasing Experts, Inc. ("LEI") to secure a loan made by LEI to NCI to acquire such
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personal property, guaranteed by Mr. Pagan and Mr. Wieseler;
6.

As further consideration for the agreement herein made by the

Defendants, the Receiver and the Bank agree:
(a)

the regular payments owing to LEI (or any assignee of LEI) shall

continue to be made by the Receiver to LEI (or, in the event of assignment, to its
assignee) pending the closing with the Buyer; and
(b)

At Closing, the debt owing to LEI (or any assignee of LEI) shall be

satisfied;
7.

The Receiver shall comply with the other requirements of 28 U.S.C.

§ 2001(b) to publish notice of the sale to assure there are no higher or better bids in
advance of seeking entry of an order by the Court approving the sale;
8.

The Court designates the Norfolk Daily News, a newspaper of general

circulation in Madison County, Nebraska, for publication of said notice;
9.

The Receiver shall publish a notice in the Norfolk Daily News no later than

June 15, 2016, or as soon as possible after the entry of this Order pursuant to Norfolk
Daily News’s publication schedule;
10.

The notice should include:
(a)

a legal description of the real property and a description of the

personal property that is to be sold;
(b)

a statement that the property is being sold by the Receiver under

the authority of an order of this Court in this case, with reference to the case
number;

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(c)

a statement that the property is under contract to be sold for

$1,300,000, as-is and where-is, on terms more fully set out in governing sale
documents;
(d)

a statement that the Receiver will consider bona fide offers that

result in at least a 10 per centum increase over the price offered in the private
sale;
(e)

a statement that any person seeking to make such an offer must

file with the Clerk of the United States District Court for the District of Nebraska
within 10 days of the notice an irrevocable offer to purchase the property on the
same material terms as the governing sale documents, with a closing date of 60
days after the notice is filed;
(f)

a statement than any person seeking to make such an offer must

also pay to the Clerk of the United States District Court the amount of $82,500.00
within 10 days of the notice, which amount will be held by the Clerk on the same
terms as the escrow deposit required by the governing sale documents;
(g)

a statement that, by submitting such an offer, the person is

subjecting themselves and the funds paid to the Clerk to the jurisdiction of this
Court for all purposes related to the offer and sale; and
(h)
11.

contact information for the Receiver or its designee;

If no offer is made pursuant to the foregoing paragraphs, the sale

contemplated by the LOI will be deemed approved without further order of the Court;
12.

In light of the anticipated closing date of July 29, 2016, if an offer is made

pursuant to the foregoing paragraphs, each party should file a statement within seven
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days of the expiration of the 10-day notice period identifying that party’s position on how
the court should proceed, together with a proposed order, with simultaneous reply briefs
due seven days thereafter.

Dated this 14th day of June, 2016.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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