Opinion
CIVIL ACTION NO. 13-578-JWD-RLB C/w CIVIL ACTION NUMBER 14-766-JWD-RLB C/w CIVIL ACTION NUMBER 15-25-JWD-RLB
05-17-2016
PNC BANK N.A. v. FIDELITY NATIONAL TITLE INSURANCE COMPANY PNC BANK, N.A. v. IRVIN LIMITED FAMILY PARTNERSHIP PNC BANK, N.A. v. IRVIN FAMILY LIMITED PARTNERSHIP
Magistrate Judge Richard L. Bourgeois ET AL.JUDGMENT RELATED TO PNC BANK , N.A.'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT ASSOCIATED WITH ITS VERIFIED COMPLAINT TO COLLECT AMOUNTS DUE
Upon considering (a) the Verified Complaint to Collect Amounts Due Under Promissory Note; For Recognition of Mortgage, Assignment of Leases and Rents, And Security Agreement; Other Relief, and for Issuance of Writ of Sequestration (the " Verified Complaint ") that was filed by PNC Bank, National Association (" PNC ") as Doc. 1 in case number 3:15-cv-00025 (the " Collection Case "), (b) PNC's Motion for Partial Summary Judgment against the Edgar A. Irvin, in his capacity as the Independent Administrator of the Succession of Melvin Irvin, Jr. and Irvin & Associates that was filed as Doc. 13 in the Collection Case, (c) PNC's Motion for Partial Summary Judgment against the Irvin Family Limited Partnership that was filed as Doc. 52 in the consolidated case number 3:13-cv-00578 (the " Consolidated Case "), (d) the Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment, (Doc. 22 of the Collection Case), (e) the Omnibus Memorandum In Opposition to Plaintiff's Motion for Partial Summary Judgment, (Doc. 57 of the Consolidated Case), and (f) the arguments of counsel, for the reasons set forth in the Order and Ruling On Plaintiff's Motions for Partial Summary Judgment and Defendants' Motion to Strike, (Doc. 80 of the Consolidated Case), and the Minute Entry dated November 18, 2015, (Doc. 94 of the Consolidated Case).
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the PNC's Motion for Partial Summary Judgment against Edgar A. Irvin, in his capacity as the Independent Administrator of the Succession of Melvin Irvin, Jr.; Irvin & Associates, Inc.; Irvin Family Limited Partnership; and the Estate of Melvin Irvin, Jr. (Doc. 48), is GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that PNC's Motion for Partial Summary Judgment against the Irvin Family Limited Partnership, (Doc. 52), is GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment be, and is hereby, entered in favor of PNC Bank, National Association and against the Irvin Family Limited Partnership; Edgar A. Irvin, in his capacity as the Independent Administrator of the Succession of Melvin Irvin, Jr., and thereby, the Succession of Melvin Irvin, Jr.; and Irvin & Associates, Inc.:
1. In solido, in the following amounts as of April 1, 2016:
a. The principal amount of TWO MILLION FOUR HUNDRED EIGHTY THOUSAND ONE HUNDRED NINETY-SIX AND 88/100 ($2,480,196.88) DOLLARS, plus;
b. Accrued non-default and default interest in the aggregate amount of ONE MILLION THREE HUNDRED FIFTY-EIGHT THOUSAND
NINE HUNDRED SIXTY-SIX AND 79/100 ($1,358,966.79) DOLLARS, plus;
c. Prepayment Premium in the amount of TWENTY-FOUR THOUSAND EIGHT HUNDRED ONE AND 97/100 ($24,801.97) DOLLARS, plus;
d. Late fees in the amount of FIFTY-FIVE THOUSAND EIGHT HUNDRED EIGHTY-SIX AND 55/100 ($55,886.55) DOLLARS, plus;
e. Satisfaction fee in the amount of ONE HUNDRED FORTY-FIVE AND NO/100 ($145.00) DOLLARS, plus;
f. Cancellation of State UCC Fee of TEN AND NO/100 ($10.00) DOLLARS, plus;
g. Processing Fee of TWO HUNDRED AND NO/100 ($200.00) DOLLARS, plus;
h. Non-Sufficient Funds Fee of SIXTY AND NO/100 ($60.00) DOLLARS, plus;
i. Interest accruing after April 1, 2016, in the amount of EIGHT HUNDRED TWENTY-EIGHT AND 1101/100 ($828.1101) DOLLARS per day, plus;
j. All costs, fees, attorneys' fees, expenses and charges incurred by PNC Bank, National Association that are associated with the collection of loan amounts and other relief sought in the Verified Complaint that have accrued as of April 1, 2016, and that continue
to accrue thereafter, until all amounts due to PNC Bank, National Association hereunder are paid in full; plus
k. All costs, fees, attorneys' fees, expenses and charges incurred by PNC Bank, National Association in connection with any appeal of this judgment and the collection of this judgment.
2. Recognizing PNC Bank, National Association as the holder and owner of:
a. that certain Business Loan Agreement (the " Loan Agreement ") dated August 29, 2007 that was executed by Irvin Family Limited Partnership, a copy of which is attached to the Verified Complaint as Exhibit "3";
b. that certain Promissory Note (the " Note ") dated August 29, 2007, that is made payable by Irvin Family Limited Partnership to PNC Bank, National Association, as the successor-in-interest to Red Capital Mortgage, Inc., who was the successor-in-interest to BMC Capital, LP, in the original amount of $2,550,000.00, bearing interest at the rate set forth therein, a copy of which is attached to the Verified Complaint as Exhibit "4";
c. that certain Multiple Indebtedness Mortgage (the " PNC Mortgage ") dated August 29, 2007, that was granted by Irvin Family Limited Partnership in favor of PNC Bank, National Association, as the successor-in-interest to Red Capital Mortgage, Inc., who was the successor-in-interest to BMC Capital, LP, a copy of which is attached to the Verified Complaint as Exhibit "5";
d. that certain Assignment of Leases and Rents (the " PNC Assignment ") dated August 29, 2007, that was granted by Irvin Family Limited Partnership in favor of PNC Bank, National Association, as the successor-in-interest to Red Capital Mortgage, Inc., who was the successor-in-interest to BMC Capital, LP, a copy of which is attached to the Verified Complaint as Exhibit "6";
e. that certain Commercial Security Agreement (the " Security Agreement ") dated August 29, 2007, that was granted by Irvin Family Limited Partnership of favor of PNC Bank, National Association, as the successor-in-interest to Red Capital Mortgage, Inc., who was the successor-in-interest to BMC Capital, LP, a copy of which is attached to the Verified Complaint as Exhibit "7";
f. that certain Agreement to Provide Insurance (the " Insurance Agreement ") dated August 29, 2007, that was executed by Irvin Family Limited Partnership, a copy of which is attached to the Verified Complaint as Exhibit "11";
g. that certain Hazardous Substances Certificate and Indemnity (the " Certificate and Indemnity ") dated August 29, 2007, that was executed by Irvin Family Limited Partnership, a copy of which is attached to the Verified Complaint as Exhibit "12";
h. that certain Pre-Negotiation Agreement (the " Pre-Negotiation Agreement ") dated April 4, 2012, that was executed by Irvin Family Limited Partnership, Melvin Irvin, Jr. and Irvin &
Associates, Inc., a copy of which is attached to the Verified Complaint as Exhibit "13";
i. that certain Commercial Guaranty (the " Melvin Irvin Guaranty ") dated August 29, 2007, that was executed by Melvin Irvin, Jr., a copy of which is attached to the Verified Complaint as Exhibit "14"; and
j. that certain Commercial Guaranty (the " Irvin & Associates Guaranty ") dated August 29, 2007, executed by Irvin & Associates, Inc., a copy of which is attached to the Verified Complaint as Exhibit "15."
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all of the rights, interests, claims and causes of action of PNC Bank, National Association that are in any way associated with, arise from, or related to, the recognition and/or enforcement of all of PNC Bank, National Association's rights and interests under, and pursuant to, the Loan Agreement; Note; PNC Mortgage; PNC Assignment; Security Agreement, and all of the Uniform Commercial Code Financing Statements filed in connection therewith; Insurance Agreement; Certificate and Indemnity; Pre-Negotiation Agreement; Melvin Irvin Guaranty and/or Irvin & Associates Guaranty be, and are hereby, reserved and preserved.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all of the rights, interests, claims and causes of action of PNC Bank, National Association against all individuals and entities, including, without limitation, Irvin Family Limited Partnership; the Edgar A. Irvin, in his capacity as the Independent Administrator of the Succession of Melvin Irvin, Jr., and thereby, the Succession of Melvin Irvin, Jr.; and Irvin & Associates, Inc. that are in any way related to, associated with or which arise from or under the Collection Case; Loan Agreement; Note; PNC Mortgage; PNC Assignment; Security Agreement, and all of the Uniform Commercial Code Financing Statements filed in connection therewith; Insurance Agreement; Certificate and Indemnity; Pre-Negotiation Agreement; Melvin Irvin Guaranty; and/or Irvin & Associates Guaranty be, and are hereby, reserved and preserved.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all of the rights, interests, claims and causes of action of PNC Bank, National Association against all individuals and entities in this matter and case numbers 14-766-JWD-RLB and 15-25-JWD-RLB be, and are hereby, reserved and preserved.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because there is no just reason for delay, this judgment constitutes a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, subject to all of the reservations included herein.
Signed in Baton Rouge, Louisiana, on May 17, 2016.
/s/ _________
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA