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Talmer Bank and Trust v. Sherwood Properties Inc.

United States District Court, E.D. Michigan, Southern Division

December 6, 2016

TALMER BANK AND TRUST, a Michigan banking corporation, Plaintiff,
v.
SHERWOOD PROPERTIES, INC., a California Corporation, and BRADLEY SHERWOOD, an Individual, Defendants.

          O'REILLY RANCILIO P.C. Joseph N. Ejbeh (P48961) James J. Sarconi (P66101) Attorneys for Plaintiff Talmer Bank.

          HUBBARD SNITCHLER & PARZIANELLO, PLLC John A. Hubbard (P39624) Attorneys for Defendants.

          STIPULATED ORDER APPOINTING RECEIVER

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         A. Talmer Bank and Trust (the “Plaintiff”) filed this lawsuit seeking to recover outstanding amounts allegedly due and owing on a commercial loan granted to finance the purchase of an office building, now in default, made to Defendant Sherwood Properties, Inc. (the “Borrower”), the obligations of which are guaranteed by Defendant Bradley Sherwood (the “Guarantor”).

         B. Collectively Borrower and Guarantor shall hereafter be referred to as (the “Defendants”).

         C. Plaintiff's Complaint also seeks to obtain the appointment of a receiver over the property, to operate the commercial property, to sell the commercial property, and to obtain a deficiency judgment.

         D. The real property is located in the City of Lathrup Village, County of Oakland, Michigan, and more fully described as follows (the "Property"):

Lots 1785 through 1794, inclusive, LOUISE LATHRUP'S CALIFORNIA BUNGALOW SUBDIVISION NO. 3, according to the plat thereof as recorded in Liber 32, page(s) 26 of Plats, Oakland County of Records
Tax Item No.: 24-13-359-063
Commonly known as: 17550 West 11 Mile Road,

         consisting of a two-front professional office building with basement having separate entrance doors for each of the two tenants.

         E. Plaintiff also filed a Motion/Brief for the Appointment of a Receiver over the property that is now pending before this Court.

         F. Plaintiff is the mortgagee of the Property pursuant to the Mortgage as attached to and referenced in Plaintiff's Complaint.

         G. As further security for repayment of the Loan obligations owed to Plaintiff, the Defendant-Borrower executed an Assignment of Leases and Rents in favor of Plaintiff's predecessor in interest - now owned by Plaintiff. The Assignment of Leases and Rents provides, in part, an assignment to Plaintiff of all “the rents, profits and all other income under any and all existing and future leases (together with all guarantees of the performance of the tenants thereunder)” relative to the Property.

         H. Prior to filing this Lawsuit, Plaintiff did exercise its statutory right of assignment of the leases and rents as afforded under Michigan law and contractually provided for in the Loan Documents, to receive and realize the rent roll generated by the tenancy of the Property that consists of two tenants. The tenants are presently paying rent directly to the Plaintiff that is being used for operating the Property and to pay down the Loan Balance.

         I. As further security for repayment of Defendants' obligations to Plaintiff, the Defendant-Borrower executed and delivered to Plaintiff a Security Agreement granting Plaintiff a security interest in “all personal property and fixtures owned by Debtor or in which Debtor has rights, whether now or hereafter existing or acquired by Debtor and wherever located; and all proceeds and products of the foregoing.”

         J. Plaintiff filed a UCC Financing Statement perfecting its security interest with the Michigan Secretary of State and the California Secretary of State.

         K. The appointment of a receiver over the Property, which is owned by the Defendants, is appropriate based upon the breach of the loan agreement and note, more fully described in Plaintiff's Complaint and Motion for Appointment of Receiver, and other documents, including, but not limited to the Mortgage, Assignment of Leases and Rents and Security Agreements executed in conjunction therewith (collectively, the “Loan Documents'').

         L. The Defendants are in default of their obligations to Plaintiff under the terms of the Loan Documents, inter alia, by reason of their failure to pay all amounts due to the Bank upon the maturity of the Loan, their failure to pay real property taxes on the Property, their failure to maintain the Property in suitable condition so as to avoid waste, blight, hazardous conditions to the tenants and visitors and otherwise maintain the Property as required under the Loan Documents.

         M. For the reasons set forth above, the appointment of a receiver over the Receivership Property is appropriate, and consistent with the rights afforded to Plaintiff in the Loan Documents and as provided for under Fed.R.Civ.P. 66.

         N. Plaintiff and Defendants, by and through counsel, have held a meet and confer conference and have come to a consent agreement on Plaintiff's pending Motion to stipulate to the Appointment of a Receiver over the Property in this Order.

         O. The Court having reviewed the pleadings filed in this matter, having received this Stipulation and consent of the Plaintiff and Defendants and ...


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