RiverBank v. M/V Rock A Bye et al

Filing 53

ORDER ALLOWING SALE OF VESSEL re 51 Stipulation. by Judge Ricardo S. Martinez. (PM)cc: 3 copies of order placed in USMO Clerk's Office mailbox

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RIVERBANK, a Washington State Chartered
Bank,
Plaintiff,

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v.

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M/V ROCK A BYE, Official No. 1152013, her
engines, boilers, machinery, components, etc., in
rem and JOHN GF HIEBER JR. and DEBRA A.
HIEBER, individually and on behalf of their
marital community, in personam,

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AT LAW AND IN ADMIRALTY

CASE NO. 2:18-cv-00387-RSM
STIPULATION AND ORDER
ALLOWING SALE OF VESSEL

Defendants.
_________________________________
DEBRA A. HIEBER, individually and as
personal representative of the Estate of John GF
Hieber Jr.,

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Counterclaim Plaintiff,

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v.
RIVERBANK, a Washington State Chartered
Bank,

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Counterclaim Defendant.

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STIPULATION AND ORDER ALLOWING SALE OF
VESSEL - 1
{S1823050; 1 }
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300

Phone: [phone]
Fax: [phone]

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I.

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Plaintiff/Counterclaim Defendant RiverBank by and through its attorneys Witherspoon
Kelley and Defendant/Counterclaim Plaintiff Debra A. Hieber, individually, and as Personal
Representative of the Estate of John GF Hieber, Jr., by and through her attorneys, Lukins & Annis,
PS., hereby stipulate as follows:

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STIPULATION

1.

John GF Hieber, Jr. executed a promissory note in favor of RiverBank, and

subsequently executed several change in terms agreements (the "Note")

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2.

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As security for payment of the Note, RiverBank accepted a Preferred Ship

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Mortgage ("Mortgage") on a vessel known as the M/V ROCK A BYE, Official No. 1152013, her

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engines, boilers, machinery, components, etc. (the "Vessel")

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3.

On March 15, 2018, a Warrant was issued for the Maritime Arrest of the Vessel

(the "Warrant") (ECF No. 11). On March 30, 2018, the U.S. Marshal duly executed the Warrant

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for Arrest and immediately released custody of the Vessel to the Substitute Custodian, Crow's

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Nest Yachts through its member Dale Partna (collectively, "Crow's Nest Yachts") (See ECF Nos.

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19-20.)

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4.

The Vessel remains under arrest.

5.

Since the Vessel's arrest, RiverBank has been paying the U.S. Marshall's costs,

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insurance, substitute custodial fees and other incidental costs in order to maintain and preserve
the Vessel (the "Arrest and Custodial Fees").
6.

In order to eliminate additional Arrest and Custodial Fees and other expenses

related to the Vessel, the parties agree that the Vessel shall be sold to Mr. Kelvin Price and/or H

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Days Ltd. (collectively, "Buyer") at the gross purchase price of $330,000 (the "Purchase Price"),
including commission due Crow's Nest Yachts.
STIPULATION AND ORDER ALLOWING SALE OF
VESSEL - 2
{S1823050; 1 }
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300

Phone: [phone]
Fax: [phone]

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7.

RiverBank shall receive 100% of the Net Proceeds from the sale. "Net Proceeds"

shall mean the Purchase Price less normal and customary selling expense, including without
limitation, the commission due Crow's Nest Yachts, outstanding moorage fees, recording and like
fees.
8.

RiverBank shall apply all Net Proceeds against the secured portion of the Note.

The parties reserve for future determination the allocation of Net Proceeds between principal,
interest, late charges, collection costs, and other charges that may be due under the Note and/or

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Mortgage as may be agreed to by the parties or determined by the Court.
9.

The purchase and sale of the Vessel by Buyer shall be made in accordance with

and pursuant to 28 USC § 2004.
10.

The parties waive the appraisal and confirmation requirements for a private

foreclosure provided for under 28 USC § 2001 as allowed by 28 USC § 2004.

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11.

The parties leave for later determination whether RiverBank is entitled to a

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deficiency judgment (and if so, the amount of any such deficiency judgment), and Debra Hieber’s

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counterclaims against Riverbank.

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In the event it’s determined that Riverbank is entitled to a

deficiency judgment, the amount of any such judgment shall be based on all relevant evidence,
including without limitation, the Purchase Price, the fair market value of the Vessel at the date of

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sale, other offers to buy the vessel, the Mathers Marine Survey dated March 14, 2018, and Debra
Hieber’s counterclaims.
12.

Defendant Debra Hieber reserves all defenses, positions and arguments regarding

whether Riverbank is entitled to recover a deficiency judgment and the amount of any deficiency

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judgment.

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STIPULATION AND ORDER ALLOWING SALE OF
VESSEL - 3
{S1823050; 1 }
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300

Phone: [phone]
Fax: [phone]

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13.

RiverBank agrees that the Warrant issued pursuant to that Order for Issuance of

Warrant for Maritime Arrest entered by this Court on March 15, 2018 (ECF No. 11) shall be
released upon the closing of the sale of the Vessel.
14.

Upon the closing of the sale of the Vessel to the Buyer, Crow's Nest Yachts shall

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be released of all duties and obligations as the Substitute Custodian of the Vessel as delineated in

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that Order Granting Motion Appointing Substitute Custodian entered by this Court on March 15,

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2018 (ECF No. 12).

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15.

Upon consummation of the purchase of the Vessel by Buyer and receipt of the Net

Proceeds by RiverBank, RiverBank will cause its interest in the Vessel to be released.
16.

The parties agree that in the event Buyer fails to consummate the purchase and

sale of the Vessel as contemplated by this Stipulation and Order, this Stipulation and the below
Order shall be null and void with no force and effect.

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Stipulated this 13th day of March, 2019.

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LUKINS & ANNIS, P.S.

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By:

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/s/ Trevor R. Pincock
TREVOR R. PINCOCK, WSBA No. 36818
Attorneys for Defendants

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WITHERSPOON KELLEY

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By

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/s/ Shelley N. Ripley
SHELLEY N. RIPLEY, WSBA No. 28901
Attorneys for Plaintiff

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STIPULATION AND ORDER ALLOWING SALE OF
VESSEL - 4
{S1823050; 1 }
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300

Phone: [phone]
Fax: [phone]

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II.

ORDER

This matter came before the Court on the Stipulation set forth above. Based upon the
Stipulation and the pleadings and files herein, and the Court being fully advised in the
proceedings, it is hereby:
ORDERED, ADJUDGED AND DECREED that RiverBank is the mortgagee under a
Preferred Ship Mortgage granting it a security interest in the Vessel.
FURTHER ORDERED, ADJUDGED AND DECREED that the Vessel shall be sold to

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the Buyer for Purchase Price, including commission due Crow's Nest Yachts.
FURTHER ORDERED, ADJUDGED AND DECREED that RiverBank shall receive
100% of the Net Proceeds from the sale.
FURTHER ORDERED, ADJUDGED AND DECREED that RiverBank shall apply all
Net Proceeds against the secured portion of the Note. The parties reserve for future determination

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the allocation of Net Proceeds between principal, interest, late charges, collection costs, and other

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charges that may be due under the Note and/or Mortgage as may be agreed to by the parties or

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determined by the Court.

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FURTHER ORDERED, ADJUDGED AND DECREED that the purchase and sale of the
Vessel by Buyer shall be made in accordance with and pursuant to 28 USC § 2004.

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FURTHER ORDERED, ADJUDGED AND DECREED that the appraisal and

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confirmation requirements for a private foreclosure provided for under 28 USC § 2001 are hereby

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waived as allowed by 28 USC § 2004.

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FURTHER ORDERED, ADJUDGED AND DECREED that it is left for later

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determination whether RiverBank is entitled to a deficiency judgment (and if so, the amount of
any such deficiency judgment), and Debra Hieber’s counterclaims against Riverbank. In the event
STIPULATION AND ORDER ALLOWING SALE OF
VESSEL - 5
{S1823050; 1 }
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300

Phone: [phone]
Fax: [phone]

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it’s determined that Riverbank is entitled to a deficiency judgment, the amount of any such
judgment shall be based on all relevant evidence, including without limitation, the Purchase Price,
the fair market value of the Vessel at the date of sale, other offers to buy the vessel, the Mathers
Marine Survey dated March 14, 2018, and Debra Hieber’s counterclaims.

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FURTHER ORDERED, ADJUDGED AND DECREED that Defendant Debra Hieber

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reserves all defenses, positions and arguments regarding whether Riverbank is entitled to recover

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a deficiency judgment and the amount of any deficiency judgment.

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FURTHER ORDERED, ADJUDGED AND DECREED that the Warrant against the
Vessel shall be released upon consummation of the sale to Buyer.

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FURTHER ORDERED, ADJUDGED AND DECREED upon the closing of the sale of

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the Vessel to the Buyer, Crow's Nest Yachts shall be released of all duties and obligations as the

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Substitute Custodian of the Vessel.

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FURTHER ORDERED, ADJUDGED AND DECREED that RiverBank shall release its

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interest in the Vessel upon consummation of the purchase of the Vessel by Buyer and receipt of

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the Net Proceeds.

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FURTHER ORDERED, ADJUDGED AND DECREED in the event Buyer fails to
consummate the purchase and sale of the Vessel as contemplated by the parties' Stipulation and

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this Order, the Stipulation and this Order shall be null and void with no force and effect.
DATED this 15th day of March 2019.

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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STIPULATION AND ORDER ALLOWING SALE OF
VESSEL - 6
{S1823050; 1 }
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300

Phone: [phone]
Fax: [phone]

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Presented by:
WITHERSPOON KELLEY
By

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/s/ Shelley N. Ripley
SHELLEY N. RIPLEY, WSBA No. 28901
Attorneys for Plaintiff

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Approved as to Form,
Notice of Presentment Waived:

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LUKINS & ANNIS, P.S.

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By:

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/s/ Trevor R. Pincock
TREVOR R. PINCOCK, WSBA No. 36818
Attorneys for Defendants

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STIPULATION AND ORDER ALLOWING SALE OF
VESSEL - 7
{S1823050; 1 }
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300

Phone: [phone]
Fax: [phone]