FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
The court previously granted plaintiff's motion for summary judgment on its in rem claims against defendant B & B DREAMIN', Hull No. GMKD283C505 (the "Vessel") and found that plaintiff was entitled to foreclose on its security interest in the Vessel. ECF No. 161.1 Accordingly, plaintiff was directed to file any documents needed for approval of the sale of the Vessel. Plaintiff now moves for issuance of an order authorizing the sale of the Vessel. Plaintiff also seeks permission to place a credit bid at the sale and instructions to the Clerk of Court to issue a Writ of Venditioni Exponas. ECF No. 173; see ECF No. 174 (proposed order authorizing sale of Vessel and credit bid). Defendants did not file an opposition to the motion.2
Pursuant to the order granting plaintiff's motion for summary judgment on its in rem claims against the defendant vessel, it is hereby RECOMMENDED that:
1. Plaintiff's motion authorizing the sale of Vessel and credit bid (ECF No. 173) be granted;
2. Defendant B & B DREAMIN', Hull No. GMKD283C505, its engines, machinery, appurtenances, etc., in rem ("the Vessel") be sold by the United States Marshal for the Eastern District of California at public auction on a date available to the U.S. Marshal at the current location of the vessel, Delta Boat Works, 106 W. Brannan Island Road, Isleton, CA 95641 ("Delta");
3. The Clerk of the Court be directed to issue a Writ of Venditioni Exponas for the sale of the vessel, in the form attached hereto as Exhibit A.
4. A Notice of Sale, substantially in the form of the attached Exhibit B, be published by plaintiff in the Sacramento Bee in accordance with Local Rule 171.
5. Plaintiff be authorized to credit bid at the sale up to the amount of the debt owing ($616,684.61 as of August 19, 2015)3 without having to make any deposit with the U.S. Marshal.
6. No minimum bid be set for the auction sale, and that bidding be made in increments of at least $500.00.
7. The successful cash bidder be required to pay the U.S. Marshal in accordance with Local Rule 570(b) as follows:
a. at least $1,000.00 or 10 percent of the amount of the successful bid, whichever is greater, immediately at the time of the completion of the auction sale; and
b. The remainder of the balance of the purchase price be paid to the U.S. Marshal in cash, certified check, or cashier's check within three days of the sale.
8. The Marshal be directed to file a report in compliance with Local Rule 570(e) after the completion of the sale, but no later than one court day before payment of the balance is due.
9. The sale be ordered confirmed as a matter of course without any affirmative action by the court if no written objections are timely filed with the court. The successful purchaser be directed to present a form of order reflecting the confirmation of the sale for entry by the Clerk on or after the fifth day of sale. See E.D. Cal. L.R. 570(g).
10. The Marshal be directed to transfer title to the purchaser upon presentation of the confirmation order signed by the Clerk.
11. The proceeds from the sale be ordered deposited into the registry of the court pending the court's determination of the disposition of such proceeds.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Exhibit A
PNC BANK, N.A., No. 2:10-cv-1916-JAM-EFB PS
Plaintiff,
v. WRIT OF VENDITIONI EXPONAS
BELINDA L. SMITH, in personam;
JACOB WINDING, in personam; B & B
Dreamin' Hull No. GMKD283C505 (the
"Vessel"), its engines, machinery,
appurtenances, etc., in rem,
Defendants.
TO: THE UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF CALIFORNIA: YOU ARE HEREBY COMMANDED to cause the Defendant Vessel B & B DREAMIN', Hull No. GMKD283C505, its engines, machinery, appurtenances, etc. in rem in the above-entitled action (the "Vessel"), to be sold on ________, or as soon thereafter as is practical in lawful manner pursuant to the Order of the Court on file herein, after notice of the sale is published daily for at least four (4) calendar days before the sale, in accordance with Rule 570(a) of the Local Rules of Admiralty and in rem Rules, and you shall pay the proceeds from the sale into the Registry of this Court and filed this Writ with your return thereon with the Clerk of the Court forthwith after such sale.
Exhibit B
William J. Sexton (State Bar No. 164929)
HEMAR, ROUSSO & HEALD, LLP
15910 Ventura Boulevard
12th Floor
Encino, California 91436
(818) 501-3800 phone
(818) 501-2985 fax
Refer to File Number: 4158-20093272/WS
Attorneys for Plaintiff
PNC BANK, N.A.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
PNC BANK, N.A., a National Association, CASE NO. 10-CV-1916-JAM-EFB
as successor in interest to National City
Bank, IN ADMIRALTY
Plaintiff(s),
[Proposed]
vs. NOTICE OF UNITED STATES
MARSHAL'S SALE
BELINDA L. SMITH, In Personam;
JACOB WINDING, In Personam; B & B
DREAMIN', Hull No. GMKD283C505, its John Mendez, United States District
engines, machinery, appurtenances, etc. In Judge
Rem,
Defendants.
AND RELATED COUNTER CLAIMS
By virtue of an order for sale issued by the above-entitled court on __________________, and a Writ of Venditioni Exponas issued pursuant thereto, directing to and commanding me to make the sale of the vessel B & B DREAMIN', Hull No. GMKD283C505, its engines, machinery, appurtenances, etc. in rem ("the Vessel"), notice is hereby given that, on __________________, at ___________________ pm, at Delta Boat Works, 106 W. Brannan Island Road, Isleton, CA 95641, to the highest and best bidder. The Vessel may be inspected by contacting the United States Marshal at (916)_______________.
Terms:
1. No minimum bid is set for the auction sale. Bidding shall he made in increments of at least $500.00.
2. Plaintiff PNC Bank is authorized to credit bid at the sale up to the amount of the debt owing ($616,684.61 as of August 19, 2015) without having to make any deposit therefore with the US Marshal.
3. The successful cash bidder shall pay the US Marshal a deposit of either $1,000.00 or 10% of the amount of the successful bid, whichever is greater, immediately at the time of the completion of the auction sale, and the balance of the purchase price shall be paid to the US Marshal within three (3) days. All payments are to be made in cash or certified funds/cashier's check.
4. Unless written objection to the sale is made and filed with the Court within three (3) days following the sale, the sale shall be confirmed without motion and the US Marshal shall transfer title to the Vessel upon presentation of the Court's order confirming such sale.
5. The proceeds of this sale will be paid forthwith into the Court Registry pending Court determination of the disposition of such proceeds.
Dated in Sacramento, California, this _____day of ___________, 2015.
UNITED STATES MARSHAL FOR THE
EASTERN DISTRICT OF CALIFORNIA
By: ____________________________
Deputy United States Marshal
