California Bank & Trust v. Shilo Inn Moses Lake Inc et al

Filing 156

AMENDED ORDER RE PENDING MOTIONS - granting 92 Motion for Partial Summary Judgment. Signed by Senior Judge Lonny R. Suko. (CC, Case Administrator)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8
9
10

CALIFORNIA BANK & TRUST, as
assignee of the Federal Deposit
Insurance Corporation, as
receiver for Vineyard Bank, a
California banking corporation,

11
Plaintiff,
12
-vs13
14
15
16
17

SHILO INN, MOSES LAKE, INC., a
Washington corporation; MOSES
LAKE FOOD MART, INC., a
Washington corporation; and
KOHLI INVESTMENT, INC., d/b/a
Sunval Express, a Washington
corporation,
Defendants.

18

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

NO.

CV-12-0161-LRS

AMENDED1 ORDER RE PENDING
MOTIONS

19
20
21

BEFORE THE COURT is Plaintiff California Bank & Trust’s (“CB&T”)
Motion for Partial Summary Judgment for Judicial Foreclosure (ECF No.

22

92), filed November 14, 2014; CB&T’s Motion for Summary Judgment on

23

Counterclaims (ECF No. 98), filed November 14, 2014; Defendant Shilo Inn,

24

Moses Lake, Inc.’s (“Shilo”) Motion For Leave to File Supplemental Brief

25
1

26

The Order Re Pending Motions (ECF No. 154) entered on January 22,
2015 is amended only to correct a typographical error made regarding a
court docket number that occurred on page 14, line 26 of the order.
ORDER - 1

1

in Support of Opposition to Plaintiff's Summary Judgment Motions (ECF No.

2

132); and Defendant Shilo’s Motion to Extend Expert Report Deadline (ECF

3

No. 108).

4

At

5
6

the

The Court held a telephonic oral argument on January 7, 2015.

close

of

oral

argument,

the

Court

took

the

motions

under

advisement and set a further briefing for Plaintiff only to respond to
Defendant Shilo Inn’s late filed supplemental brief. All briefing is now

7
in and has been considered by the Court.
8
I.

CB&T’s Motion for Partial Summary Judgment (ECF No. 92)

9
10

A.

Introduction

11

CB&T has moved for partial summary judgment on its third cause of

12

action for judicial foreclosure of CB&T’s liens and security interests

13

against Shilo and Kohli Investment, Inc. (collectively “Defendants” or

14

“Shilo”), and for a judgment for the deficiency against Shilo after

15

completion of the foreclosure sale. CB&T asserts that this case is based

16

on undisputed facts, namely, that Shilo is obligated to CB&T on a loan

17

made in October 2005 (the “Loan”).

18
19

The Loan is secured by, among other

things, a leasehold deed of trust against nonresidential real property
located in Moses Lake, Washington (the “Hotel”) and a UCC Financing

20
Statement. Shilo has failed to meet its obligations to CB&T and is in
21
default under the Loan Documents. CB&T has obtained relief from the
22
automatic stay to pursue this action to judgment, and may proceed to sale
23
24
25
26

since Shilo failed to confirm a plan of reorganization in the California
Bankruptcy matter by November 6, 2014. Pursuant to applicable federal
rules, foreclosure laws, and the terms of the deed of trust, CB&T seeks

ORDER - 2

1

an order granting partial summary judgment for judicial foreclosure for

2

real and personal property, and for judgment in the amount of the

3

deficiency after a sale.

4

requested and appropriate relief under the undisputed facts of this case.

5

CB&T concludes judicial foreclosure is the

Undisputed Facts2

B.

6
1.

Subject Loan Transactions

7
On or about October 18, 2005, Vineyard provided financing to Shilo
8
9
10

in the original principal amount of $3,000,000, the Loan. The Loan is
evidenced, in part, by the several documents (collectively with the First
“Loan Documents”).3

11

Amendment and Second Amendment, the

12

the Loan in or about September 2009, by agreement with the FDIC, as

13

receiver for Vineyard. An Assignment of Deed of Trust was recorded March

14

20, 2012 in the official records of Grant County as instrument number

15

1297979.

16
17
18

CB&T acquired

Shilo defaulted on the Note and Deed of Trust in or about September
2009

by

failing

Documents.

In

to

make

November

the

2010,

monthly
Shilo

payments

and

CB&T

due

under

entered

into

the

Loan

a

First

19
20
21

2

The following undisputed facts are gleaned from the Declaration of
Eric Venture, ECF No. 144, filed on January 9, 2015.
3

22
23
24
25
26

1) A Promissory Note, dated October 18, 2005,executed by Shilo,
payable to Vineyard, in the original principal amount of $3,000,000, as
amended from time to time (the "Note"); 2) a Deed of Trust for the Hotel,
dated October 18, 2005, made by Shilo for the benefit of Vineyard,
recorded on November 1, 2005, in the Official Records of Grant County,
Washington, as instrument number 1179692 ("Deed of Trust"); 3) a Business
Loan Agreement, dated October 18, 2005, made and executed between Shilo
and Vineyard, as amended from time to time; and 4)a Commercial Security
Agreement, dated October 18, 2005, made and executed between Shilo and
Vineyard, as amended from time to time.
ORDER - 3

1

Amendment to Deed of Trust, Promissory Note, and Other Loan Documents,

2

dated November 4, 2010, which was recorded November 17, 2010, in the

3

Official Records of Grant County, Washington, as instrument number

4

1278966 (“First Amendment”). Under the terms of the First Amendment, the

5
6

Loan was cross-defaulted with six loans made to the other Shilo Borrowers
(collectively, the Shilo Loans”) and a personal line of credit previously

7
made to Mark Hemstreet (“Hemstreet Loan”). Shilo also agreed to grant
8
CB&T a security interest in the Property to secure the Hemstreet Loan.
9
Each of the other Shilo Borrowers and Hemstreet entered into a separate
10
11
12

first amendment of their respective loan on terms similar to those set
forth in the First Amendment (collectively, the “First Amendments”).

13

Shilo defaulted under the First Amendment by failing to make the

14

monthly payments due beginning on December 1, 2010. In addition, Shilo

15

failed to execute a second priority deed of trust to secure the Hemstreet

16

Loan as required by the First Amendment.

17

In June 2011, Shilo and CB&T executed the Forbearance and Second

18

Amendment to Deed of Trust and Other Loan Documents (dated as of June 30,

19

2011), which was recorded on August 25, 2011 through the Memorandum of

20
21

Forbearance Agreement and Second Amendment to Deed of Trust, Promissory
Note and Other Loan Documents in the Official Records, Grant County,

22
Washington as instrument number 1290148 (“Second Amendment”).

Each of

23
the other Shilo Borrowers and Hemstreet also entered into a second
24
///
25
26

amendment of their respective loan on terms similar to those set forth

ORDER - 4

1

in the Second Amendment (collectively, the “Second Amendments”).

2

By late 2011, Shilo was again in default on the Second Amendment.

3

The defaults under the Second Amendment included the following: a)

4

failure to pay the monthly interest only payments on the Loan due

5
6

beginning November 1, 2011; b) failure of the other Shilo Borrowers and
Hemstreet to pay monthly interest payments on their respective loans; c)

7
failure to deliver Monthly Sales Reports; d) failure to satisfy the Post
8
Closing Obligations required by Section 2(c) of the Second Amendment; and
9
e) failure to comply with the provisions of Section 2(d)(ii)(A) requiring
10
11
12

the entry of at least two Purchase Agreements by September 30, 2011.
On or about November 10, 2011, CB&T, through its counsel, sent a

13

letter to Shilo providing notice of the above-referenced defaults. Shilo

14

failed to cure both the monetary and non-monetary defaults. Additional

15

defaults under the Loan occurred when the Shilo Borrowers failed to

16

comply with Section 2(d)(ii)(B) requiring the Shilo Borrowers to have

17

entered

18

2(d)(iv)(A) requiring the closing of at least two sales by December 31,

19

2011.

20
21

into

purchase

agreements

for

four

properties,

and

Section

On March 30, 2012, CB&T commenced this action seeking judicial
foreclosure, appointment of a receiver, and the accounting and turnover

22
of receipts.

In its first verified Amended Complaint filed April 6,

23
2012, CB&T sought the appointment of a receiver and imposition of an
24
injunction to enforce the provisions of the Deed of Trust as amended and
25
26

modified and to preserve revenues arising therefrom.

ORDER - 5

The injunctive

1

relief sought asked that Shilo and all persons acting in concert be

2

enjoined from collecting, discounting, or in any way taking actions which

3

would divert funds or interfere with the rights and duties of the

4

receiver which CB&T requested in its Amended Complaint.

5
6

Additional

relief was asked in the form of an accounting and turnover of receipts
together with judicial foreclosure of CB&T’s lien and security interests

7
as well as a judgment for deficiencies, attorney fees and costs.

As the

8
borrower's financial position continued to deteriorate, Shilo became part
9
of the bankruptcy proceeding referenced above which resulted in the
10
11
12
13

imposition of a stay in this Court on November 19, 2012.

The stay

remained in place until approximately mid August of 2014 as a result of
the California bankruptcy proceedings.

14

On June 7, 2012 this Court, by Stipulation of the parties, ordered

15

that CB&T provide “accurate reinstatement figures” to Shilo by June 14,

16

2012.

17

provided by June 28, 2012, otherwise a receiver would be immediately

18

appointed.

19

findings of fact and conclusions of law in the cases consolidated under

20
21

The Court also ordered that Shilo make full payment of the amount

ECF No. 34.

This Court’s order specifically adopted the

California Bank & Trust Shilo Inn, Seaside East, LLC, et al., Case No.
3:12-CV-00506-HZ (the “Oregon District Court Cases”).

On or about June

22
28,

2012,

Shilo

made

the

payment

to

CB&T,

with

the

exception

of

23
outstanding

attorneys’

fees

and

expenses,

thereby

avoiding

the

24
appointment of a receiver in this case.
25
26

Shilo, though, did not cure the non-monetary defaults under the

ORDER - 6

1

Moses Lake Loan and neither the Shilo Borrowers nor Hemstreet cured the

2

monetary defaults under the Hemstreet Loan.

3

On June 15, 2012, CB&T sent letters reminding the Shilo Borrowers

4

and Hemstreet that additional defaults would occur if they did not

5
6

satisfy

the

monetary

and

non-monetary

obligations

in

the

Second

Amendments by the expiration of the forbearance period on June 30, 2012.

7
At the same time, CB&T proposed that Hemstreet enter into a stipulation
8
with CB&T similar to the payment orders entered by the District Courts
9
whereby Hemstreet would pay the outstanding amounts owed on the Hemstreet
10
11
12

Loan, with the exception of outstanding attorneys’ fees and expenses.
The forbearance period provided for under the Second Amendments expired

13

on June 30, 2012, at which time the additional defaults occurred,

14

including executed purchase agreements for five properties, Section

15

2(d)(iv)(B) and (C) requiring the Shilo Borrowers to have closed all five

16

sales, and Section 2(d)(v) requiring the proceeds of the sales to be

17

applied to the amounts due.

18

After Shilo failed to cure the defaults by the expiration of the

19

Forbearance Period, CB&T exercised its rights to accelerate the balance

20
21

owed on the Loan. Prior to acceleration, the Loan was set to mature on
December 31, 2013.

22
On July 10, 2012, CB&T, through its counsel, sent another letter to
23
the Shilo Borrowers and Hemstreet notifying them of the existing defaults
24
on the Loan, the other Shilo Loans and the Hemstreet Loan.

On October

25
26

10, 2012, CB&T filed its Supplemental Verified Complaint and Supplemental

ORDER - 7

1

First Amended Verified Complaint to assert the additional defaults.

2

On or about January 28, 2013, the Shilo Borrowers, Hemstreet and

3

CB&T

4

Agreement”). Under the Settlement Agreement, the Shilo Borrowers and

5
6

entered

into

a

Settlement

and

Release

Agreement

(“Settlement

Hemstreet were to make a payment of $21,000,000 by April 30, 2013. The
Shilo Borrowers and Hemstreet failed to make the settlement payment. As

7
part of the Settlement Agreement, which was CB&T’s third and last attempt
8
to work out Shilo’s defaults under the Loan, CB&T agreed to forbear from
9
foreclosing on its deed of trust and to accept a discounted payoff of the
10
11
12

Loan if Shilo made the discounted payoff on or before April 30, 2013, the
Loan Payoff Date. The release of claims against CB&T set forth in the

13

Settlement Agreement was a significant part of the consideration for

14

CB&T’s willingness to enter into the Settlement Agreement.

15

On May 2, 2013, Shilo filed a Notice of Automatic Stay under

16

11 U.S.C. § 362 based on the filed chapter 11 petition in the United

17

States Bankruptcy Court on May 1, 2013 (the “Bankruptcy Case”).4 Since

18

the bankruptcy filing, Shilo has made Court-ordered monthly adequate

19

protection payments to CB&T equal to approximately 5% per annum of the

20
21

principal balance due.

However, Shilo has failed to cure the various

non-monetary and monetary defaults described above. After acceleration

22
of the Loan, Shilo failed to pay all amounts due and owing. Even if the
23
Loan had not been accelerated, the Loan would be due and owing in full,
24
25
26

4

The Bankruptcy
2:13-bk-21601-VZ.
ORDER - 8

Case

is

being

administered

under

case

number

1

as it would have matured by its own terms on December 31, 2013.

2

On May 17, 2013, this Court entered an Order staying all activity

3

in this case with a direction that counsel advise the Court at such time

4

as the stay is lifted.

5
6

On August 11, 2014 this Court lifted the stay based on the parties’
Stipulation, whereby Shilo expressly waived any right to a hearing

7
concerning the lifting of the stay.

ECF Nos. 70, 71.

This Court further

8
ordered the

parties

to

proceed

to

address

the

issues

relating to

9
foreclosure as permitted by the Bankruptcy Court Order5 entered on May
10
11
12

21, 2014 in the United States Bankruptcy Court, Central District of
California-Los Angeles Division.

13

CB&T has performed all conditions and obligations on its part under

14

the Loan Documents, including the First Amendment and Second Amendment.
Moses Lake Indebtedness (Based on the Ventura6 Declaration)

15

2.

16

As of October 1, 2014, the amount owing on the Loan is $3,677,304.11

17

(“Moses Lake Indebtedness”), which consists of principal in the amount

18

of

19

$2,834,599.49,

interest

in

the

amount

of

$126,375.92,

deferred

interest at the contract rate in the amount of $245,171.68, default

20
21
22
23
24
25
26

5

ORDER GRANTING MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER
11 U.S.C. § 362 (REAL PROPERTY), signed by the Honorable Vincent P.
Zurzolo. The Order allowed CB&T to enforce its remedies to foreclose upon
and obtain possession of the Property in accordance with applicable
non-bankruptcy law, so long as the sale did not take place prior to
November 7, 2014 and so long as an order confirming a plan of
reorganization for Shilo had not been entered by November 6, 2014.
6

Eric Ventura is a Vice-President of CB&T with access to all bank
records pertaining to the subject loans. ECF No. 144 at 1.
ORDER - 9

1

interest in the amount of $123,620.12 (to May 1, 2013), deferred legal

2

fees in the amount of $27,246.50, deferred late charges in the amount of

3

$3,562.93, attorneys’ fees in the amount of $230,507.22 and other

4

expenses in the amount of $86,220.25.

5
6

at

the

rate

of

$393.69

per

day.

Interest will continue to accrue
The

details

of

the

Indebtedness is attached to the Ventura Declaration.

Moses

Lake

ECF No. 94-13.

7
CB&T intends to move for a deficiency judgment in an amount to be
8
established after completion of the requested foreclosure sale.
9
10

II.

Shilo’s Opposition to CB&T’s Motion for Partial Summary Judgment
On December 26, 2014, in a belated filing near the eve of the day

11
12

of argument on CB&T's Motion For Partial Summary Judgment, Shilo filed

13

supplemental briefing raising for the first time claims that its loan had

14

been

15

$1,400,000.00 towards the debt obligations it owed. Shilo had also filed

16

counterclaims against CB&T on November 7, 2014 essentially complaining

17

that Shilo had become the victim of an overzealous bank which had not

18

acted in good faith or in accord with binding California law and

19
20

“reinstated”

by

virtue

of

Shilo's

having

paid

in

excess

of

practice.
Shilo maintains that there exist provisions under California law for

21
the protection of the borrower, such as the right to reinstate a loan
22
secured by real property pursuant to California Civil Code § 2924c.
23
While acknowledging numerous ongoing and continuing defaults under its
24
25
26

loan obligations, Shilo argues that on June 14, 2012, CB&T's legal
counsel sent an e-mail to Shilo Inn's counsel with an attachment:

ORDER - 10

1

"TOTAL AMOUNT TO REINSTATE $256,230.79." Shilo asserts that when it paid

2

the requisite amount, the entire loan that was due and owing (at least

3

insofar as

4

reinstated by operation of law.

5
6

it

involves

the

litigation

pending

in

this

Court) was

Shilo further argues that California law precludes waiver of certain
rights which cannot be lost or given up by the signing of a forbearance

7
agreement.

The right to foreclose and the terms of the forbearance

8
agreement, together with amendments thereto, did not properly modify the
9
Deed of Trust provisions which are to be construed under California law.
10
Shilo further contends that with respect to the post default actions

11
12

of Shilo, CB&T did not give Shilo an opportunity to cure with respect to

13

the alleged non-monetary defaults thereby making prior notices of its

14

default ineffectual. Shilo also reasons that no borrower would have made

15

a payment in excess of $1,400,000.00 if it did not intend to have its

16

loan reinstated, subject to the agreements it had previously entered into

17

with CB&T.

18

Finally, Shilo asks for equitable considerations under California

19

state law to “do right and justice,” and grant Shilo a short stay pending

20
21

the proceedings in the Bankruptcy Court.

Specifically, Shilo requests

a stay in this matter until after the Bankruptcy Court’s newly scheduled

22
March 10, 2014 hearing on the final confirmation of the proposed Plan of
23
Reorganization.
24
///
25
26

III. CB&T’s Reply

ORDER - 11

1

CB&T takes the position that Shilo' payment of more than $1.4

2

million to CB&T did not actually reinstate the loans, it merely avoided

3

the appointment of a receiver as no judge or court involved in this

4

proceeding or related proceedings has ruled that such a reinstatement

5
6

alleged by Shilo ever occurred.
On May 11, 2012, the Honorable Marco A. Hernandez in the District

7
of Oregon (Cause numbers 3:12-CV-506-HZ; 3:12-CV-508-HZ; and 3:12-CV8
509-HZ) entered the following order:
9
The Court finds plaintiff is entitled to an order
appointing a receiver; however, plaintiff is ordered
to provide defendant with a payoff number within
seven days of today.
Defendant to pay in full
within 14 days thereafter.
If the amount is not
st
paid in full by the 21 day from today, the court
will sign an order appointing a receiver. If the
amount is paid in full, the issue is moot.
The
court makes findings as stated on the record.

10
11
12
13
14
15

Cause No. 3:12-cv-506-HZ, Dkt. No. 38.

16
On October 1, 2012, Judge Hernandez rejected the arguments Shilo now
17
18

makes herein, in his Opinion & Order:
Shilo Inn also argues that because it has tendered
approximately
$1.65
million
to
Plaintiff
to
“reinstate the loans pursuant to [CCP] Section 2924c
and this Court's May 11 Order”, Plaintiff is
“estopped from declaring additional defaults based
upon the non-monetary provisions in the Forbearance
and Second Amendment.” Id., p. 10. Specifically,
Shilo Inn asserts that Plaintiff’s supplemental
allegations are barred by the doctrine of equitable
estoppel because Plaintiff “was aware that as soon
as Shilo Inn tendered the $1.65 million that it was
the agreement and understanding of the parties that
the loans would be reinstated pursuant to section
2924c” and that Shilo Inn “relied in good faith on
[Plaintiff’s] representations at the hearing and

19
20
21
22
23
24
25
26
ORDER - 12

1

this Court's May 11 Ruling [sic] when it tendered in
excess of $1.65 million dollars to [Plaintiff}.”
Id., p. 11.

2
3

Shilo Inn's arguments again miss the mark. Stated
above, my May 11, 2012, order only addressed the
narrow issue of whether it would be proper to
appoint a receiver based on the facts presented
before me as of that date. I did not rule that Shilo
Inn's
payment
to
Plaintiff
would
reinstate
Defendants' loans or otherwise cure all of
Defendants'
past
and
future
monetary
and
non-monetary defaults. ....

4
5
6
7
8

ECF No. 97-2 at 7[footnote 3 omitted].
9
10

Roughly two years later, on December 18, 2014, the Honorable Judge

11

Vincent P. Zurzolow in the Bankruptcy Court in California recognized that

12
13

Shilo ran out of time curing the continuing defaults, and lifted the stay
to allow CB&T the remedy of foreclosure:

14

As is clear from the record, there was a motion for
relief from that automatic stay brought by the
respondent herein. I granted that relief from stay
setting a time deadline by which a plan would need
to be confirmed and also imposing payment of
adequate protection payments so that the stay would
remain in effect.

15
16
17
18

And it was a generous amount of time. And payments
were made.
Substantial payments have been made,
that's not in dispute.

19
20

But time ran out. And these debtors in possession
have tried multiple times. I believe we're now on
at least the fourth iteration of a disclosure
statement to get a disclosure statement approved,
let alone a plan confirmed.

21
22
23
24

So that was all contemplated in the initial relief
from stay motion, and that was why I structured the
relief from stay order as I did.

25
26
ORDER - 13

1

So there are really two procedural ways to view this
request. Again, I note that it's to reimpose the
automatic stay.

2
3

ECF No. 135-1 at 7.

4
5
6

Judge Zurzolow in his later comments the same day specifically noted
that, "to the extent that there is some independent grounds at Section
362 to impose the stay, I find that cause has not been established for

7
such relief either."

ECF No. 135-1 at 9.

8
CB&T concludes that the entire purpose of lifting the stay in the
9
Bankruptcy Court was to recognize Shilo’s failure to make the payments
10
11
12
13

and cure the defaults, which were numerous and significant throughout the
time period that the forbearance agreement was in effect.
IV.

Judicial Foreclosure is Appropriate

14

For the reasons set forth in the briefing filed by CB&T, the

15

California Code Provisions referenced by Shilo neither apply nor require

16

the additional notice or preclusion of waiver of reinstatement of rights.

17

This

18

insufficient to raise a question of fact or law which requires trial. The

19
20

Court

finds

the

arguments

of

Shilo

to

be

without

merit

and

subject loan fully matured on December 31, 2013 and it remains unpaid.
Nothing raised in Shilo’s counterclaims is a “defense” to the fact that

21
amounts are due and owing.

For the reasons noted above, the Court also

22
finds Shilo’s belated contention lacking merit regarding its partial
23
payment of the June 2012 "reinstatement" amount constituting a complete
24
25
26

cure of all loan defaults.
///

ORDER - 14

1

Accordingly, judgment of foreclosure is hereby granted in favor of

2

CB&T.

3

evidence, are without merit, and are hereby dismissed with prejudice.

4

Finally, Shilo’s request for a short stay is respectfully denied.

5

Likewise, Shilo’s counterclaims are unsupported with factual

IT IS ORDERED:

6
1.

Plaintiff’s Motion FOR Partial Summary Judgment for Judicial

7
Foreclosure, ECF No. 92, is GRANTED in its entirety.
8
9
10
11
12
13
14

2.

CB&T is entitled to foreclose its liens against the real and

personal

property,

including

rents

and

leasehold

interests

(the

"Property") more specifically described in the attached Exhibit A.
3. CB&T is entitled to the issuance of writs of execution directing
the U.S. Marshal to levy on and sell the Property.
4.

To the extent that the U.S. Marshal collects money from the

15

sale(s) of the Property and deposits those funds into the registry of the

16

Court, those funds shall be allocated to the payment of the total

17

Judgment in the action.

18
19

5.

All right, title, claim, or interest of the or any of them, and

all of the persons claiming by, through, or under them, or any of them,

20
subsequent to the execution of the Deed of Trust for the above-described
21
Property, or any part thereof, are declared inferior and subordinate to
22
CB&T's leasehold deed of trust lien and be forever foreclosed except only
23
24
25
26

for the statutory right of redemption allowed by law.
6.

Defendants Shilo Inn, Moses Lake, Inc. and Kholi Investment,

Inc. d/b/a Sunval Express, claiming right, title, estate, lien, or

ORDER - 15

1

interest in and to the Property, or any part thereof, and any and all

2

persons claiming any right, title, estate, lien, or interest in and to

3

the Property, or any part thereof, subsequent to the date of CB&T's Deed

4

of Trust are forever foreclosed of any such right, title, estate, lien,

5
6

or other interest as against CB&T in this action.
7.

CB&T is entitled to become a credit bidder and purchaser at any

7
sale(s) by the U.S. Marshal or other authorized official.
8
8. Any purchaser at the sale(s) is entitled to exclusive possession
9
of the Property from and after the date of sale(s) and is entitled to
10
11
12
13
14

such remedies as are available at law to secure possession.
9. CB&T is entitled to its reasonable attorneys' fees and expenses,
in an amount to be proven at a later date.
10.

CB&T is entitled to a deficiency judgment against Shilo Inn,

15

Moses Lake, Inc. in an amount to be established after completion of the

16

foreclosure sale(s).

17
18
19

CB&T's Motion for Summary Judgment on Counterclaims, ECF No.

11.

98, filed November 14, 2014, is GRANTED insofar as Defendant Shilo filed
no opposition and based on the resultant judicial foreclosure, said

20
motion is otherwise moot.
21
12.

Defendant Shilo’s Motion For Leave to File Supplemental Brief

22
in Support of Opposition to Plaintiff's Summary Judgment Motions, ECF No.
23
24
25
26

132, is GRANTED.
13.

Defendant Shilo's Motion to Extend Expert Report Deadline, ECF

No. 108, is DENIED as MOOT.
ORDER - 16

1

The District Court Executive is directed forthwith to enter this

2

Order, and judgment consistent with this order of judicial foreclosure.

3

DATED this 23nd day of January, 2015.

4

s/Lonny R. Suko

5
LONNY R. SUKO
SR. UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER - 17