Citizens Bank, successor in interest by merger to Republic Bank, f/k/a Republic Savings Bank v. Sawmill ARC, LLC et al

Filing 33

Agreed Judgment Entry and Decree in Foreclosure (cw)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Carey Realty Investments, Inc., Plaintiff, v. Sawmill ARC, LLC, et al., Defendants. AGREED JUDGMENT ENTRY AND DECREE IN FORECLOSURE This matter comes before the Court upon substituted Plaintiff Carey Realty Investment, Inc.'s ("Plaintiff") Complaint for Foreclosure and Other Relief filed March 25, 2010; the Answer to Complaint, Crossclaim filed by Defendant Delaware County Treasurer (the "Treasurer") on April 8, 2010; the Answer to Complaint and Crossclaim filed by Defendant Golf Village Property Owners Association, Inc. filed on April 9, 2010; and the Answer filed by Defendant Fahey Banking Company on May 4, 2010. Based upon the pleadings and the record in this case, the Court finds that all necessary parties have been properly served, and are before the Court. The Court further finds: 1. That Defendants Liberty Community Infrastructure Financing Authority, LEAF Case No. 2:10-cv-00256 Judge Marbley Magistrate Judge King

Funding, Inc. are in default of answer and any interest, right, or title of these Defendants in the premises commonly known as 3442 O'Connell Street, Powell, OH (the "Premises") shall be barred. 2. That the liens of Defendants Golf Village Property Owners Association, Inc. and

Fahey Banking Company on the Premises at issue have been satisfied in full, and that they have no additional interest, right, or title in the Premises.

3.

That Plaintiff's Mortgage is a valid and subsisting first and best lien upon the

Premises, subject only to the lien of the Treasurer; 4. That Defendant Sawmill ARC, LLC has reached a separate agreement with the

Treasurer to make payments on any and all delinquent and outstanding real estate taxes (the "Agreement"). 5. That the balance due to Plaintiff under the Note and Mortgage described in the

Complaint is $2,261,150.01 as of February 1, 2010, with interest at a variable rate, per annum, equal to the One Month LIBOR Rate plus 7.25%, plus costs, reasonable attorney's fees, and other sums advanced pursuant to the Mortgage for the protection of the Premises. 6. That the covenants and obligations of Sawmill ARC, LLC have not been fulfilled;

the conveyance of the Premises has become absolute; and Plaintiff is entitled to have the equity of redemption of Sawmill ARC, LLC foreclosed. Therefore, by agreement of the parties, it is hereby ORDERED, ADJUDGED AND DECREED that judgment and a decree in foreclosure shall be entered in favor of Plaintiff against the non-Treasurer defendants, and that the non-Treasurer defendants are hereby barred from asserting any interest, right, or title to the Premises. By agreement of the parties, it is further ORDERED, ADJUDGED AND DECREED that judgment shall be entered in favor of the Treasurer and in favor of the Plaintiff against Sawmill ARC, LLC; provided, however, that the Treasurer shall not foreclose on the Premises so long as Defendant Sawmill ARC, LLC complies with its obligations under the Agreement. In the event Defendant Sawmill ARC, LLC defaults under the Agreement, the Treasurer shall first provide notice to Plaintiff (c/o Ed Carey, 140 E. Town Street, Ste. 1150, Columbus, OH 43215) and Plaintiff's counsel (at the address listed in the signature block below), by certified mail, return

012854.000030/#4833-4220-2887 v1

2

receipt requested. Upon signed receipt of the notice by either Plaintiff or its counsel, Plaintiff shall have ten (10) days to cure any default in payment under the Agreement. In the event Plaintiff fails to cure within this ten (10) day period described above, the Treasurer may proceed to enforce this judgment and decree in foreclosure by filing an Affidavit of Default herein, and then obtaining an Order of Sheriff's Sale. It is further ORDERED, ADJUDGED and DECREED that Plaintiff may cause the matter to proceed to Sheriff's Sale at any time. It is further ORDERED, ADJUDGED and DECREED, that if the matter proceeds to Sheriff's Sale, the Sheriff, upon confirmation of said sale, shall pay from the proceeds of said sale, upon the claims found herein, the following sums in the following order of priority: 1. appraisers; 2. To the Treasurer of this County, the taxes and assessments, due and payable as of To the Clerk of this Court, the costs of this action, including the fees of

the date of transfer of the Property after the sale; 3. 4. To Plaintiff, the balance of the sale proceeds, up to the amount of the judgment. To the Sheriff, for any remaining amount to be disbursed pursuant to further

Orders of this Court. IT IS SO ORDERED.

Date

November 17, 2010

s/Algenon L. Marbley Algenon L. Marbley United States Magistrate Judge

012854.000030/#4833-4220-2887 v1

3

AGREED TO BY: /s/ Stephanie P. Union Stephanie P. Union (0071092) Daniel J. Bennett (0079932) Kegler, Brown, Hill & Ritter Co., LPA 65 East State Street, Suite 1800 Columbus, Ohio 43215 Phone: [phone] Fax: [phone] Email: [e-mail] [e-mail] Counsel for Carey Realty Investments, Inc. /s/ Lisa Thomas Banal per email authority Dennis J. Morrison (0000887) Lisa Thomas Banal (0079209) Jeffrey J. Madison (0080590) Means Bichimer Burkholder & Baker Co. LPA 2006 Kenny Road Columbus, Ohio 43221 Phone: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] Counsel for Defendant The Fahey Banking Company /s/ Charles T. Williams per email authority Charles T. Williams (0033367) Williams & Strohm, LLC 2 Miranova Place, Suite 380 Columbus, Ohio 43215-7047 Phone: [phone] / Fax [phone] Email: [e-mail] Counsel for Golf Village Property Owners /s/ Brian T. Kooperman per email authority Brian T. Kooperman (0077966) Kooperman Law Offices, LLC 383 N. Front Street, LL Columbus, Ohio 43215 Phone: [phone] Fax: [phone] Email: [e-mail] Attorney for Defendant Pickerington ARC, LLC

/s/ Christopher D. Betts per email authority William J. Owen, II (0034637) Christopher D. Betts (0068030) Assistant Prosecuting Attorneys 140 N. Sandusky Street, 3rd Floor Delaware, Ohio 43015 Phone: [phone] Fax: [phone] Email: [e-mail] [e-mail] Counsel for Defendant Delaware County Treasurer

012854.000030/#4833-4220-2887 v1

4

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was electronically filed and served by operation of the Court's electronic filing system on October 1, 2010 upon the following: Stephen D. Dodd Christopher D. Betts William J. Owen, II Charles T. Williams Dennis J. Morrison Lisa Thomas Banal Jeffrey J. Madison Brian Kooperman and by regular U.S. Mail upon: Liberty Community Infrastructure Financing Authority 470 Old Worthington Road, Suite 100 Westerville, Ohio 43082 Leaf Funding, Inc. c/o CSC-Lawyers Incorporating Service 50 W. Broad Street, Suite 1800 Columbus, Ohio 43215 [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

/s/ Stephanie P. Union Stephanie P. Union

012854.000030/#4833-4220-2887 v1

5