Bank of America NA v. Great Northwest Restaurants, Inc. et al

Filing 44

ORDER granting 39 Summary Judgment and Decree of Foreclosure by Judge Karen L Strombom.(TW)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRE-JUDGMENT INTEREST: COSTS: ATTORNEY'S FEES: JUDGMENT INTEREST RATE: vs. GREAT NORTHWEST RESTAURANTS, INC., a Washington corporation; BAL GLOBAL FINANCE, LLC, a Delaware limited liability company; UNITED STATES O F AMERICA, DEPARTMENT OF TREASUR Y , INTERNAL REVENUE S E R V I C E ; CAPTEC FINANCIAL CORPORATION, a Delaware corporation; PACIFIC DINING, INC., a California corporation; SYSCO FOOD SERVICES OF PORTLAND, INC., an Oregon corporation; US EXPRESS LEASING, INC., a New Jersey c o r p o r a t i o n ; REWARDS NETWORK ESTABLISHMENT SERVICES, INC., an Illinois corporation; and STATE OF WASHINGTON, Defendants.

HONORABLE KAREN L. STROMBOM

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON BANK OF AMERICA, N.A., Plaintiff, No. C09-5201 O R D E R GRANTING SUMMARY J U D G M E N T AND DECREE OF FORECLOSURE (Clerk's Action Required)

JUDGMENT SUMMARY PRINCIPAL JUDGMENT AMOUNT: $11,758,734.08 $ 2,990,374.80 $ $ 43,151.38 92,282.97

7.53% on principal, costs, & fees

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TURNBULL & BORN, P.L.L.C. ORDER GRANTING SUMMARY JUDGMENT AND DECREE OF FORECLOSURE

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Commerce Building, Suite 1050 950 Pacific Ave. Tacoma, WA 98402 [phone]; FAX [phone]

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JUDGMENT DEBTOR: JUDGMENT CREDITOR: ATTORNEY FOR JUDG. CREDITOR:

GREAT NORTHWEST RESTAURANTS, INC. BANK OF AMERICA, N.A. Brian M. Born ORDER

THIS MATTER came on for hearing on November 6, 2009, on plaintiff's motion for summary judgment and decree of foreclosure on its deed of trust foreclosure complaint. The Court reviewed the following written materials submitted by the parties: 1. 2. Plaintiff's Motion for Summary Judgment; Declaration of Thomas E. Brown in support of Plaintiff's Motion;

The Court, having considered the evidence and arguments and being fully advised in the premises, finds that the allegations contained in the plaintiff's deed of trust foreclosure complaint are true, that there is no genuine issue as to any material fact and that plaintiff is entitled to summary judgment as a matter of law. NOW, THEREFORE, it is HEREBY ORDERED, ADJUDGED and DECREED as follows: 1. That plaintiff shall have judgment against defendant Great Northwest

Restaurants, Inc. ("Great Northwest"), for the principal amount of $11,758,734.08, plus costs of $43,151.38, attorney's fees in the amount of $92,282.97, and prejudgment interest of $2,990,374.80; 2. That the judgment herein, except prejudgment interest, shall bear interest at

the rate of 7.53% per annum; 3. That plaintiff's Deed of Trust (the "Deed of Trust"), recorded on July 8, 2004,

under Auditor's File No. 200407080132, and covering the real property at issue in this case, located in Pierce County, Washington, and legally described as:

PARCEL A:

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TURNBULL & BORN, P.L.L.C. ORDER GRANTING SUMMARY JUDGMENT AND DECREE OF FORECLOSURE

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Commerce Building, Suite 1050 950 Pacific Ave. Tacoma, WA 98402 [phone]; FAX [phone]

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LOT 3 OF PIERCE COUNTY SHORT PLAT RECORDED JULY 7, 1993 UNDER RECORDING NO. 9307070708, IN PIERCE COUNTY, WASHINGTON. PARCEL B: EASEMENT RIGHTS AS DERIVED IN RECIPROCAL PARKING AGREEMENT RECORDED UNDER RECORDING NO. 9310190566; PARCEL B-1: EASEMENT RIGHTS AS DERIVED IN RECIPROCAL EASEMENT AND OPERATION AGREEMENT RECORDED UNDER RECORDING NO. 8305100149. Assessor's Tax Parcel Numbers 214000-004-3 & 214000-004-4 (the "Property") is hereby adjudged and decreed to be a first and paramount lien upon the Property and the whole thereof as security for the payment of the judgment and principal balance of said Deed of Trust, and that said Deed of Trust be, and is hereby, foreclosed and the Property is ordered sold by the Sheriff of Pierce County, Washington, in the manner provided by law, and the proceeds therefrom shall be applied to the payment of the judgment, interest and such additional amounts as plaintiff may advance for taxes, assessments, municipal charges and such other items as may constitute liens upon the property, together with insurance and repairs necessary to prevent the impairment of the security; 4. That the rights of each of the defendants and persons claiming by, through or

under them or any and all persons acquiring any right, title, estate, lien or interest in or to the Property subsequent to the execution of the Deed of Trust be, are hereby adjudged inferior and subordinate to the plaintiff's lien and are forever foreclosed except for the statutory right of redemption and any right to excess proceeds; 5. That if any deficiency remains after application of the proceeds of such sale,

execution shall be issued for said deficiency against defendant Great Northwest and enforced against any other property of it not exempt from execution; 6. That plaintiff be, and it is hereby, permitted to become a bidder and purchaser

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TURNBULL & BORN, P.L.L.C. ORDER GRANTING SUMMARY JUDGMENT AND DECREE OF FORECLOSURE

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at the sale and may credit bid some or all of the indebtedness, and that the purchaser shall be given immediate possession of the property and all right, title, and interest in any rents and profits generated by or arising from the property during the statutory redemption period; and 7. That the IRS has priority in Judgment Debtor's non-fixture personal property

on the Property. DATED this 10th day of November, 2009. __s/Karen L. Strombom ____ KAREN L. STROMBOM U.S. MAGISTRATE JUDGE Presented by: TURNBULL & BORN, PLLC /s/ Kevin W. Cure_________________ Brian M. Born, WSBA 25334 Kevin W. Cure, WSBA 34409 Attorneys for Bank of America

Law Offices of

TURNBULL & BORN, P.L.L.C. ORDER GRANTING SUMMARY JUDGMENT AND DECREE OF FORECLOSURE

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Commerce Building, Suite 1050 950 Pacific Ave. Tacoma, WA 98402 [phone]; FAX [phone]