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U.S. Bank National Association v. The Agency Realty Executives, LLC

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

December 23, 2019


          Zachary D. Prendergast Attorney for Plaintiff U.S. Bank National Association, as Trustee for Velocity Commercial Capital Loan Trust 2018-2

          HAVE REVIEWED AND HAVE NO OBJECTION: T.N. Ziedas Assistant United States Attorney Attorney for Defendant United States of America, Department of the Treasury, Internal Revenue Service Moe Freedman Attorney for State of Michigan, Department of the Treasury

          Mag. Mona K. Majzoub



         This matter is before the Court on the Motion of Plaintiff U.S. Bank National Association, as Trustee for Velocity Commercial Capital Loan Trust 2018-2 (the “Plaintiff”) to Appoint Receiver (the “Motion”). The Court has reviewed the pleadings. Based upon the pleadings and the evidence, the Court finds the Motion well-taken and the same is GRANTED.

         It is therefore ORDERED, ADJUDGED, and DECREED as follows:

         1. Appointment of Receiver.

         1.1 PRODIGY PROPERTIES [by and through its Manager Jeff Lane] (the “Receiver”) hereby is appointed receiver of the Receivership Property (as defined below), effective upon the Receiver posting a bond as required below and filing an oath in the form attached to this Order as Exhibit B (the “Effective Date”). The Receiver's duty to act as receiver is subject to the terms of this Order.

         1.2 As of the Effective Date, the Receiver is authorized and directed to take immediate possession and full control of the Receivership Property, to the exclusion of Defendant The Agency Realty Executives, LLC (the “Borrower”) and to take such other actions as the Receiver deems reasonable and appropriate to take possession of, to exercise full control over, to prevent waste, and to preserve, manage, secure, and safeguard the Receivership Property. The Borrower shall have neither possession nor control of, nor any right to Income (as defined below) derived from, the Receivership Property.

         1.3 The Receiver shall take possession of and receive from all depositories, banks, brokerages, and otherwise (collectively, “Financial Institutions”), any money on deposit in all such Financial Institutions belonging to or arising from the operation of the Receivership Property, whether such funds be in accounts titled in the name of the entity or not. All Financial Institutions are directed to deliver such deposits to the Receiver and such records as the Receiver may reasonably request with respect to such accounts. The Receiver may indemnify the Financial Institution upon whom such demand is made, and is empowered to open or close any such accounts.

         1.4 The Borrower and all of its employees, agents, and representatives are ordered to cooperate with the Receiver in the transition of the management of the Receivership Property to the Receiver and on the Effective Date turn over to the Receiver all of the following pertaining to the Receivership Property:

(a) All keys.
(b) Year-end 2017 operating statements, year-end 2018 operating statements, and year-to-date 2019 operating statements.
(c) All on-site employee payroll records and employee files and applications.
(d) An inventory of all equipment, furniture, vehicles, and supplies.
(e) All information about customers, current orders, and accounts receivable.
(f) All existing service contracts.
(g) All pending bids for contractor work.
(h) All insurance policies on the Receivership Property and their terms.
(i) Information regarding all insurance claims submitted in the past three (3) years.
(j) Site plans, specifications, floor plans, drawings, measurements, etc.
(k) Documents identifying and summarizing all pending litigation (excluding this action).
(1) All documents, books, records and computer files, computer equipment, software, management files, equipment, furniture, supplies, and all passwords needed to access all software and computer files, and e-mail accounts maintained by the Borrower both at the offices of the Borrower and off-site including, but not limited to, all records concerning the Income, and the operation and management of the businesses of the Borrower.
(m) All documents containing formulas, trade secrets, methods, and processes necessary to the manufacturing of any products made by the Borrower.
(n) All documents reflecting payables and vendor information.
(o) All information concerning real estate taxes and personal property taxes.
(p) A list of all utilities and utility accounts.
(q) All leases including all communication/correspondence files.
(r) Documents pertaining to all pending new leases/renewals.
(s) A current rent roll including, but not limited to, lease start and end dates.
(t) Tenant contact names and telephone numbers.
(u) The occupant ledgers.
(v) All security deposits, security deposit accounts, and an accounting for all security deposits.
(w) The petty cash, if any.
(x) A current aged accounts receivable/delinquency report.
(y) An aged listing of all trade payables and other payables.
(z) A list of all historical operating expenses for the Property.
(aa) Such other records pertaining to the management of the Receivership as may be reasonably requested by the Receiver.

         1.5 The Borrower is under a continuing obligation to turn over all items listed in Section 1.4 after the Effective Date.

         1.6 The Borrower and its employees, officers, members, and directors are prohibited from removing any personal property belonging to the Borrower, or diverting any Income.

         1.7 The Borrower shall fully cooperate with the Receiver in adding the Receiver and the Plaintiff as additional insureds and Plaintiff as the loss payee on all insurance relating to the operation and management of the Receivership Property including, but not limited to, fire, extended coverage, auto and van coverage, property damage, liability, fidelity, errors and omissions, and workers compensation, and modifying the policies if deemed appropriate by the Receiver. The Borrower and its employees, agents and representatives are prohibited from canceling, reducing, or modifying any and all insurance coverage in existence with respect to the Receivership Property.

         2. Receiver's Duties and Authority.

         2.1 The Receiver shall be vested with the following authority, powers, and duties:

(a) To maintain, secure, manage, operate, repair, and preserve the Receivership Property in such condition as may be deemed advisable by the Receiver in its reasonable discretion.
(b) To change any and all locks to the Receivership Property and limit access to some or all of the Receivership Property as the Receiver deems appropriate.
(c) To assume control over the Receivership Property and to collect and receive all Income.
(d) To make routine repairs and incidental alterations to the Receivership Property, as may be necessary, including, but not limited to, electrical, plumbing, carpentry, masonry, and any other routine repairs or incidental alterations as may be required in the course of the ordinary maintenance and repair of the Receivership Property.
(e) To take such action as deemed appropriate in the Receiver's discretion to comply with any orders or notices of violation affecting the Receivership Property issued by any federal, state, county, or municipal authority having jurisdiction thereof.
(f) To prepare and maintain complete books, records, and financial reports of the Receivership Property in a form acceptable to the Court.
(g) To allow the Plaintiff, its counsel and appraisers and other independent third party consultants engaged by the Plaintiff access to the Receivership Property at all reasonable times to inspect the Receivership Property and all books and records, and to cooperate with the Plaintiff, its counsel, appraisers, and other independent third-party consultants to evaluate the Receivership Property.
(h) To retain, hire, or discharge employees of the Borrower (none of whom are, or shall be deemed to be, employees of the ...

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