Simonson et al v. M/V Lucky Buck et al

Filing 33

STIPULATED JUDGMENT AND ORDER of Foreclosure (M/V Lucky Buck) re parties' 32 Stipulated Motion. Plaintiffs shall have, and hereby are awarded, a judgment of foreclosure in rem against the M/V LUCKY BUCK. Signed by Judge Richard A. Jones. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STANLEY G. SIMONSON and REBECCA I.
SIMONSON, husband and wife,
Plaintiffs,

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IN ADMIRALTY
No. 2:17-cv-01724 RAJ

v.
M/V LUCKY BUCK, Official Number
567411, her engines, machinery, equipment,
tackle, appurtenances, etc., in rem; M/V
SPEEDWELL, Official Number 594754, her
engines, machinery, equipment, tackle,
appurtenances, etc., in rem; WILLIAM R.
ORR and JANE DOE ORR, husband and wife
and their marital community comprised
thereof; JOHN KELLEY and JANE DOE
KELLEY, husband and wife and their marital
community comprised thereof; GREGORY
THOMAS and JANE DOE THOMAS,
husband and wife and their marital community
comprised thereof; TKO FISHERIES
LIMITED, a Washington corporation,

STIPULATED JUDGMENT AND ORDER
OF FORECLOSURE (M/V LUCKY
BUCK)

Defendants.
Plaintiffs Stanley G. Simonson and Rebecca I. Simonson (“Plaintiffs”) have

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commenced this proceeding for the purpose, among others, of securing a sale at foreclosure of

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the M/V LUCKY BUCK, Coast Guard Official Number 567411, pursuant to a preferred ship

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mortgage granted to secure a debt owing to the Plaintiffs. The parties have agreed that the

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STIPULATED JUDGMENT AND ORDER OF FORECLOSURE
(M/V LUCKY BUCK)
(2:17-CV-01724 RAJ) - 1

HILLIS CLARK MARTIN & PETERSON P.S.
999 Third Avenue, Suite 4600
Seattle, WA 98104
Tel: [phone]

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expeditious conduct of that sale is in the interests of all parties, and so have stipulated to the

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following facts and to the following relief:

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Stipulated Facts:

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1.

Defendant TKO FISHERIES LIMITED (“TKO”) executed a Promissory Note

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in favor of the Plaintiffs, dated April 1, 2011, in the original principal amount of $2,500,000

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(the “Note”).

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2.

Signature Seafoods, Inc., the sole owner of the M/V LUCKY BUCK, executed

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a Preferred Ship Mortgage (the “Mortgage”), dated April 1, 2011, encumbering the

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M/V LUCKY BUCK as security for the obligations evidenced by the Note. The Mortgage

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was filed at the National Vessel Documentation Center on April 26, 2011 and was recorded in

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Batch Number 798687 with the Document Identification number 13488355.

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3.

The Mortgage encumbered the entirety of the M/V LUCKY BUCK and

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constitutes a preferred mortgage for purposes of 46 U.S.C. § 31301(6) and related provisions

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of title 46 of the United States Code.

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4.

The M/V LUCKY BUCK is within the navigable waters of this district and

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within the jurisdiction of this Court.
5.

Beginning on or about August 1, 2015, and thereafter, TKO failed to make

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principal and interest payments due under the Note, and failed to cure that default within any

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applicable cure period. The unpaid balance of the Note as of April 6, 2018, is $2,177,893.44,

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which amount consists of principal in the amount of $1,625,516.77, interest in the amount of

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$440,830.67, and fees and costs recoverable under the Note in the amount of $111,546.00.
The Note accrues interest at a rate of $541.84 per diem.

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STIPULATED JUDGMENT AND ORDER OF FORECLOSURE
(M/V LUCKY BUCK)
(2:17-CV-01724 RAJ) - 2

HILLIS CLARK MARTIN & PETERSON P.S.
999 Third Avenue, Suite 4600
Seattle, WA 98104
Tel: [phone]

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6.

The Court issued a Warrant to Arrest the M/V LUCKY BUCK (Dkt. 8-1) and

appointed a Substitute Custodian Docket Entry (Dkt. 9) on November 16, 2017. The United
States Marshal arrested the M/V LUCKY BUCK and it has been in the custody of the

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Substitute Custodian since that date.
7.

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Signature Seafoods, Inc., is the current owner of the M/V LUCKY BUCK.

After notice, no party other than Signature Seafoods, Inc. has filed a claim of interest in the
M/V LUCKY BUCK. The Court has entered an order of default barring the claims of all

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persons except Signature Seafoods, Inc. against the M/V LUCKY BUCK. (Dkt. 30.)
8.

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Plaintiffs have paid all expenses for the preservation and care the

M/V LUCKY BUCK since its arrest.

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Stipulated Relief:

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9.

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The Mortgage shall be foreclosed upon confirmation of the sale described

10.

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The U. S. Marshal shall cause the M/V LUCKY BUCK (including all marine

herein.

equipment, electronics, machinery, accessions, and appurtenances for thereto; the personal

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property aboard or used in the operation of the vessel; and all additions, substitutions,

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replacements, fittings, furnishings, accessions, accessories, supplies, operating manuals,

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plans, specifications, improvements, and tools therefor or thereto) to be condemned and sold

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at public auction to the highest and best bidder, the sale to be held alongside the vessel on a

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date and at a time satisfactory to the U.S. Marshal. LAR 145 shall, to the extent applicable,

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supply the procedure and terms for such sale, except as otherwise provided herein.
11.

At such sale, Plaintiffs will be permitted, but not required, to submit one or

more credit bids in amounts not to exceed the then-outstanding unpaid balance owing under
STIPULATED JUDGMENT AND ORDER OF FORECLOSURE
(M/V LUCKY BUCK)
(2:17-CV-01724 RAJ) - 3

HILLIS CLARK MARTIN & PETERSON P.S.
999 Third Avenue, Suite 4600
Seattle, WA 98104
Tel: [phone]

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the Note, with any bid by the Plaintiffs in excess of such balance to include cash equal to the

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difference between such balance and the amount of the bid.

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12.

The minimum successful bid at such sale shall be $500,000. If no bid in this or

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a greater amount is received at the noticed sale, the U.S. Marshal shall adjourn the sale and
shall confer with the Plaintiffs regarding a continuance or cancellation of the sale.
13.

Upon confirmation of the sale and delivery of title to the successful bidder, the

U.S. Marshal shall release to the Plaintiffs all cash proceeds generated by the sale for

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application to the then-outstanding unpaid balance owing under the Note, except to the extent

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of any cash in excess of such balance, which excess shall be placed with the registry of Court

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for later distribution. To the extent the Plaintiffs are the successful bidders, the credit

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component of the Plaintiffs' successful bid shall be applied, upon confirmation and delivery of

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title of the M/V LUCKY BUCK to the Plaintiffs, to reduce the amount of the thenoutstanding unpaid balance owing under the Note.
14.

The sale of the M/V LUCKY BUCK at foreclosure will result in the

elimination and release of all liens, whether known or unknown, from the M/V LUCKY

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BUCK in accordance with the general maritime law and will terminate any ownership or

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other interest in the M/V LUCKY BUCK held or asserted by any person or entity other than

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the successful bidder.

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15.

This Stipulated Judgment (i) is without prejudice to the Plaintiffs’ rights to

seek in this action the imposition of one or more money judgments against any of the in

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personam Defendants for amounts owing under the Note at the time such judgments are
sought, as any such amounts may be reduced in connection with any sale of the M/V LUCKY

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STIPULATED JUDGMENT AND ORDER OF FORECLOSURE
(M/V LUCKY BUCK)
(2:17-CV-01724 RAJ) - 4

HILLIS CLARK MARTIN & PETERSON P.S.
999 Third Avenue, Suite 4600
Seattle, WA 98104
Tel: [phone]

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BUCK and (ii) is without prejudice to any defenses to in personam liability under the Note or

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payment guarantees relating to the Note that might be available to any of the Defendants.

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16.

The Plaintiffs' Complaint in this proceeding also sought foreclosure of the

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M/V SPEEDWELL. The U.S. Marshal has not arrested the M/V SPEEDWELL, and nothing

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in this Order shall affect in any respect the Plaintiffs' rights as against the M/V SPEEDWELL.

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JUDGMENT AND ORDER

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1.

The foregoing shall constitute, as applicable, the Court's findings and

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conclusions with respect to the matters addressed herein, and the stipulated relief described
above shall be incorporated into this judgment as an order and directive of the Court.
2.

In connection with the foregoing, the Plaintiffs shall have, and hereby are

awarded, a judgment of foreclosure in rem against the M/V LUCKY BUCK on the terms

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described herein.
Dated this 7th day of May, 2018.

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A
The Honorable Richard A. Jones
United States District Judge

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STIPULATED JUDGMENT AND ORDER OF FORECLOSURE
(M/V LUCKY BUCK)
(2:17-CV-01724 RAJ) - 5

HILLIS CLARK MARTIN & PETERSON P.S.
999 Third Avenue, Suite 4600
Seattle, WA 98104
Tel: [phone]