SHERIPOLSTER CHAPPELL, District Judge.
This matter came before the Court on Plaintiff PNC Bank, National Association's Renewed Motion for Final Summary Judgment (
1. A final judgment of foreclosure is entered in favor of Plaintiff PNC Bank, National Association ("Plaintiff") and against Defendants Orchid Group Investments, L.L.C., Lynne W. Washburn, John P. Arnold, Jr., Kristen Flaharty, and Patrick Flaharty (collectively referred to as "Defendants"), as further stated herein.
2. A final judgment of foreclosure is entered in favor of Plaintiff and against Defendants, jointly and severally, the following amounts:
which total amount, pursuant to
3. A final judgment of foreclosure is entered in favor of Plaintiff and against Defendants on the Amended and Restated Mortgage (the "Mortgage") recorded on February 24, 2011, in the Official Records of Lee County, Florida at Instrument No. 2011000046400. Plaintiff holds a lien for the total sum in paragraph 2 of this Order superior to all claims or estates of any of the Defendants and those claiming by, through, under or against the Defendants, on the real property in Lee County, Florida, together with all fixtures located on or in such property (the "Property") described as follows:
SAID TRACTS OF LAND BEING NOW DESCRIBED AS FOLLOWS:
4. Plaintiff has standing to foreclose the Mortgage, is the owner and holder of the Commercial Promissory Note dated January 14, 2011, secured by the Mortgage, and has admitted the same into evidence pursuant to the separate Order (
5. Plaintiff is a citizen of Delaware. Defendant Orchid Group Investments, LLC, is a Florida limited liability company, whose members are citizens of New Mexico (Defendants Washburn and Arnold) and Florida (Defendants Patrick and Kristen Flaharty). Defendants Washburn and Arnold are citizens of New Mexico. Defendants Patrick Flaharty and Kristen Flaharty are citizens of Florida. All Defendants were properly served with service of process in this action.
6. This Court has subject matter jurisdiction over this dispute under
7. Pursuant to the Mortgage, January 14, 2011 Commercial Promissory Note and January 14, 2011 Single Loan Guaranty Agreements at issue in this action and described in the Verified Amended Complaint, Plaintiff is entitled to recover its reasonable attorney's fees and costs from Defendants. The Court reserves jurisdiction to award attorney's fees and costs.
8. If the total sum with interest at the rate described in paragraph 2 and all costs accrued subsequent to this judgment are not paid, the master, Philip J. von Kahle (the "Master"), shall sell the Property at a public sale in the first floor lobby of the United States Courthouse and Federal Building, 2110 First Street, Fort Myers, Florida 33901, at a date and time to be determined by the Master, not less than ninety (90) days from the entry of this judgment, to the highest bidder for cash, certified check or cashier's check made payable to the Clerk of this Court, except as prescribed in paragraph 9, in accordance with
9. Plaintiff shall advance all subsequent costs of this action, including any fees and costs of the Master associated with the sale. Plaintiff may file an affidavit of additional attorney's fees and costs prior to the sale. Plaintiff may credit bid up to the full amount of this final judgment, plus interest, as set forth in paragraph 2 above, plus any additional attorney's fees and costs supported by affidavit or separate order entered prior to the sale, without being required to deposit any cash in connection with the sale. The successful bidder shall deliver a deposit to the Master of not less than ten (10) percent of the successful bid price at the time of sale and the balance of the bid price shall be delivered to the Master in cash, certified check, or cashier's check made payable to the Clerk of Court no later than 4:00 p.m. on the day following the sale. Should the highest bidder at the sale fail to tender the full bid amount in a timely manner, the Property shall be sold to the next highest bidder timely tendering said next highest bidder's full bid amount, without the necessity of any further sale or advertising.
10. Upon receiving the bid amount from the purchaser of the property, the Master shall deposit any proceeds of the sale with the Clerk of this Court and shall file a report of sale with the Court, stating the date of the sale, the name and address of the winning bidder, the amount of the bid, the proceeds, if any, deposited with the Clerk, and the Master's fees and costs, which sale is subject to confirmation by the Court.
11. If no objections to sale are filed within fourteen (14) days of the filing of the report of sale, Plaintiff shall file a motion for an order confirming the sale and instructing the Master to issue a Certificate of Title or Deed for the Property to the purchaser of the Property at the sale, and for distribution of any proceeds received from the sale by the Clerk.
12. Upon confirmation of the sale by the Court, the Master shall convey to the purchaser a Certificate of Title or Deed, which shall be recorded in the public records of Lee County, Florida. Any documentary stamp taxes due on the Certificate of Title or Deed shall be payable by the party to whom such Certificate of Title or Deed is issued.
13. Unless otherwise ordered by the Court, upon confirmation of the sale, the Clerk shall distribute the remaining proceeds of the sale, so far as they are sufficient, by paying: first, any fees and costs owed to the Master for the sale; second, all of Plaintiff's costs; third, Plaintiff's attorneys' fees; fourth, the total sum due to Plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 2 from this date to the date of the sale; and by retaining any remaining amount pending the further order of this Court.
14. Upon recording of the Certificate of Title or Deed, Defendants and all persons claiming by, through, under, or against Defendants since the filing of the notice of lis pendens shall be foreclosed of all estates or claims in the property, except as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any. Upon recording of the Certificate of Title or Deed, the person named on the Certificate of Title or Deed shall be let into possession of the Property. If Defendants or anyone claiming under or against Defendants remain in possession of the property, the Clerk of the Court shall upon motion without further order of the Court issue forthwith a writ of possession upon request of the person named on the Certificate of Title or Deed. On issuance of the Certificate of Title or Deed, Defendant Orchid Group Investments, L.L.C.'s right of redemption as provided by
15. Jurisdiction of this action is retained to enter further Orders that are proper, including, but not limited to, an award of attorney's fees and costs, confirmation of the foreclosure sale, re-foreclosure of the mortgage as to any omitted party or to correct any error in legal description of the property, entry of a deficiency judgment, writs of possession, and the adjudication of Defendants Patrick and Kristen Flaharty's cross-claims against Defendants John P. Arnold, Jr. and Lynne W. Washburn.
16. The true and correct physical address of Plaintiff PNC Bank, National Association, is 222 Delaware Avenue, Wilmington, DE 19801.
17. The true and correct physical address of Defendant Orchid Group Investments, L.L.C. is 17 Stonegate Circle, Santa Fe, New Mexico 87506.
18. The true and correct physical address of Defendant Lynne W. Washburn is 17 Stonegate Circle, Santa Fe, New Mexico 87506.
19. The true and correct physical address of Defendant John P. Arnold, Jr. is 17 Stonegate Circle, Santa Fe, New Mexico 87506.
20. The true and correct physical address of Defendant Kristen Flaharty is 11670 Rosemont Drive, Fort Myers, Florida 33913.
21. The true and correct physical address of Patrick Flaharty is 11670 Rosemont Drive, Fort Myers, Florida 33913.
22. Plaintiff may assign the judgment and credit bid by the filing of an assignment without further Order of the Court.