Filed: Mar. 18, 2020
Latest Update: Mar. 18, 2020
Summary: ORDER RESULTING FROM HEARING ON MOTION FOR RELIEF FROM AUTOMATIC STAY AND ABANDONMENT OF PROPERTY DAVID T. THUMA , Bankruptcy Judge . This matter came before the Court on the Motion for Relief from Automatic Stay for the Abandonment of Property to CRF Commercial Bridge Fund II, LLC, Marc Andrew Babcock, and Copper River Funding LLC, as Administrative Agent's ("Creditor"), filed on January 8, 2020 (DOC 74) (the "Motion") and the Trustee's Response to Motion for Relief from Automatic Stay fo
Summary: ORDER RESULTING FROM HEARING ON MOTION FOR RELIEF FROM AUTOMATIC STAY AND ABANDONMENT OF PROPERTY DAVID T. THUMA , Bankruptcy Judge . This matter came before the Court on the Motion for Relief from Automatic Stay for the Abandonment of Property to CRF Commercial Bridge Fund II, LLC, Marc Andrew Babcock, and Copper River Funding LLC, as Administrative Agent's ("Creditor"), filed on January 8, 2020 (DOC 74) (the "Motion") and the Trustee's Response to Motion for Relief from Automatic Stay for..
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ORDER RESULTING FROM HEARING ON MOTION FOR RELIEF FROM AUTOMATIC STAY AND ABANDONMENT OF PROPERTY
DAVID T. THUMA, Bankruptcy Judge.
This matter came before the Court on the Motion for Relief from Automatic Stay for the Abandonment of Property to CRF Commercial Bridge Fund II, LLC, Marc Andrew Babcock, and Copper River Funding LLC, as Administrative Agent's ("Creditor"), filed on January 8, 2020 (DOC 74) (the "Motion") and the Trustee's Response to Motion for Relief from Automatic Stay for the Abandonment of Property (the "Response") filed on January 29, 2020 (DOC 101). The matter was brought before the Court at a Preliminary Hearing held on March 9, 2020. The Court, having reviewed the record and the Motion, and being otherwise sufficiently informed, FINDS:
a. On January 8, 2020, Creditor served the Motion and a Notice of the Motion (the "Notice") on Dennis A Banning, Attorney for Debtor and (the "Trustee") by use of the Court's case management and electronic filing system for the transmission of notices, as authorized by Fed.R.Civ.P. 5(b)(3) and NM LBR 9036-1, and on Thomas Laws ("Debtor") by United States first class mail, in accordance with Bankruptcy Rules 7004 and 9014.
b. The Motion relates to the property located at 909 N Hudson St, Silver City, New Mexico 88061 (the "Property"), more fully described as:
A 338.638±ACRE TRACT SITUATE WITHIN THE E1/2 OF SECTION 19, THE SW1/4 OF SECTION 20 AND THE W1/2 AND W1/2E1/2 OF SECTION 29, TOWNSHIP 17 SOUTH, RANGE 13 WEST, NEW MEXICO PRINCIPAL MERIDIAN, GRANT COUNTY, NEW MEXICO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Beginning at the Section Corner common to Sections 19, 20, 29 & 30; Thence N88? 06'13"W, a distance of 1,670.13 feet; Thence N00°00'02"W, a distance of 531.57 feet; Thence N22°03'46"E, a distance of 554.19 feet; Thence S64°27'31"E, a distance of 49.51 feet; Thence N19°02'39"E, a distance of 140.97 feet; Thence N19°55'15"E, a distance of 229.81 feet; Thence northerly, 248.94 feet along a curve to the left, with a radius of 1,200.00 feet, delta angle of 11°53'10", and chord bearing N13°58'40"E, a distance of 248.49 feet; Thence N08° 02'05"E, a distance of 156.05 feet; Thence northeasterly, 217.90 feet along a non-tangential curve to the right, with a radius of 224.27 feet, delta angle of 55° 40'06", and chord bearing N35° 52'09"E, a distance of 209.43 feet; Thence northeasterly, 181.21 feet along a non-tangential curve to the left, with a radius of 155.27 feet, delta angle of 66°52'04", and chord bearing N30° 16'59"E, a distance of 171.10 feet; Thence N03°09'04"W, a distance of 45.59 feet; Thence northwesterly, 120.00 feet along a non-tangential curve to the right, with a radius of 50.00 feet, delta angle of 137°30'36", and chord bearing N22° 39'59"W, a distance of 93.20 feet; Thence northeasterly, 18.69 feet along a non-tangential curve to the left, with a radius of 25.00 feet, delta angle of 42°50'04", and chord bearing N24° 52'57"E, a distance of 18.26 feet; Thence N03°27'56"E, a distance of 373.58 feet; Thence northeasterly, 318.20 feet along a non-tangential curve to the left, with a radius of 560.00 feet, delta angle of 32°33'23", and chord bearing N62°31'59"E, a distance of 313.94 feet; Thence N46° 15'17"E, a distance of 67.17 feet; Thence northeasterly, 142.90 feet along a curve to the right, with 8 radius of 194.05 feet, delta angle of 42° 11'37", and chord bearing N67°21'06"E, a distance of 139.69 feet; Thence southeasterly, 222.27 feet along a compound curve to the right, with a radius of 164.00 feet, delta angle of 77°39'16", and chord bearing S52°43'27"E, a distance of 205.65 feet; Thence southerly, 209.08 feet along a compound curve to the right, with a radius of 1,230.00 feet, delta angle of 09°44'22", and chord bearing S09°01'38"E, a distance of 208.83 feet; Thence S04°09'27"E, a distance of 254.09 feet; Thence southerly, 81.95 feet along a curve to the left, with a radius of 140.00 feet, delta angle of 33°32'15", and chord bearing S20° 55'34"E, a distance of 80.78 feet; Thence S37°41'42"E, a distance of 20.66 feet; Thence southeasterly, 128.63 feet along a curve to the right, with a radius of 280.00 feet, delta angle of 26°19'17", and chord bearing 524° 32'04 "E, a distance of 127.50 feet; Thence S 11°22'26"E, a distance of 68.84 feet; Thence southeasterly, 161.80 feet along a non-tangential curve to the left, with a radius of 100.00 feet, delta angle of 92°42'08", and chord bearing S54 °12'01 "E, a distance of 144.72 feet; Thence southeasterly, 249.97 feet along a non-tangential curve to the right, with a radius of 181.07 feet, delta angle of 79°05'57", and chord bearing S51°46'08"E, a distance of 230.59 feet; Thence S07° 28'58"E, a distance of 173.80 feet; Thence southerly, 74.79 feet along a curve to the right, with a radius of 630.00 feet, delta angle of 06°48'06", and chord bearing S04°04'55"E, a distance of 74.74 feet; Thence S00°40'52"E, a distance of 123. 79 feet; Thence southerly, 55.50 feet along a non-tangential curve to the right, with a radius of 436.16 feet, delta angle of 07°17'28", and chord bearing S02°56'55"W, a distance of 55.46 feet; Thence southerly, 143.86 feet along a non-tangential curve to the right, with a radius of 440.00 feet, delta angle of 18° 44'01", and chord bearing S15 °54'56"W, a distance of 143.22 feet; Thence S25° 16'56"W, a distance of 49.76 feet; Thence southerly, 70.59 feet along a curve to the left, with a radius of 100.00 feet,
delta angle of 40° 26'47", and chord bearing S05° 03'33"W, a distance of 69.14 feet; Thence southerly, 228.77 feet along a non-tangential curve to the right, with a radius of 295.00 feet, delta angle of 44°25'55", and chord bearing S07° 06'25"W, a distance of 223.08 feet; Thence S29° 19'22"W, a distance of 262.68 feet; Thence due East, a distance of 1,630.34 feet; Thence northeasterly, 65.85 feet along a non-tangential curve to the right, with a radius of 260.00 feet, delta angle of 14°30'38", and chord bearing N60°31'16"E, a distance of 65.67 feet; Thence N67 °46'35"E, a distance of 83.07 feet; Thence northeasterly, 101.43 feet along a curve to the left, with a radius of 230.00 feet, delta angle of 25°16'01", and chord bearing N55° 08'35"E, a distance of 100.61 feet; Thence N42°30'26"E, a distance of 29.50 feet; Thence northerly, 70.24 feet along a curve to the left, with a radius of 100.00 feet, delta angle of 40°14'40", and chord bearing N22° 23'06"E, a distance of 68.80 feet; Thence N02°15'46"E, a distance of
99.31 feet; Thence N02°15'19"E, a distance of 72.58 feet; Thence northeasterly, 128.73 feet along a curve to the right, with a radius of 160.00 feet, delta angle of 46° 05'57", and chord bearing N25°18'17"E, a distance of 125.29 feet; Thence N48°21'16"E, a distance of 209.13 feet; Thence S37°12'54"E, a distance of 145.63 feet; Thence southeasterly, 117.47 feet along a non-tangential curve to the right, with a radius of 430.00 feet, delta angle of 15°39'08", and chord bearing S29°25'11"E, a distance of 117.10 feet; Thence 521.35'37"E, a distance of 35.35 feet; Thence southerly, 244.70 feet along a curve to the right, with a radius of 1, 705.00 feet, delta angle of 08°13'23", and chord bearing S17°28'55"E, a distance of 244.49 feet; Thence S13°22'13"E, a distance of 31.69 feet; Thence southerly, 135.47 feet along a curve to the right, with a radius of 390.00 feet, delta angle of 19°54'06", and chord bearing S03° 25'10"E, a
distance of 134.79 feet; Thence S06°31'52"W, a distance of 125.56 feet; Thence southerly, 69.03 feet along a curve to the left, with a radius of 230.00 feet, delta angle of 17.11'42", and chord bearing S02°03'59"E, a distance of 68.77 feet; Thence S10°39'50"E, a distance of 49. 17 feet; Thence southeasterly, 134.86 feet along a curve to the left, with a radius of 320.00 feet, delta angle of 24°08'50", and chord bearing S22°44'15"E, a distance of 133.87 feet; Thence S34°48'40"E, a distance of 200.71 feet; Thence southeasterly, 25.63 feet along a curve to the left, with a radius of 170.00 feet, delta angle of 08°38'13", and chord bearing S39°07'46"E, a distance of 25.60 feet; Thence S43°26'53"E, a distance of 256.15 feet; Thence southeasterly, 92.34 feet along a curve to the right, with a radius of 160.00 feet, delta angle of 33°04'06", and chord bearing S26°54'50"E, a distance of 91.07 feet; Thence S10°22'47"E, a distance of 37.86 feet; Thence southeasterly, 56.35 feet along a curve to the left, with a radius of 100.00 feet, delta angle of 32°17'13", and chord bearing S26°31'23"E, a distance of 55.61 feet; Thence S42°40'00"E, a distance of 84.67 feet; Thence southeasterly, 65.03 feet along a curve to the left, with a radius of 600.00 feet, delta angle of 06°12'37", and chord bearing S45°46'18"E, a distance of 65.00 feet; Thence S48°52'36"E, a distance of 27.99 feet; Thence southeasterly, 47.68 feet along a curve to the right, with a radius of 370.00 feet, delta angle of 07°23'03", and chord bearing S45°11'05"E, a distance of 47.65 feet; Thence S38°02'40"E, a distance of 154.52 feet; Thence S21°00'55"W, a distance of 51.04 feet; Thence southerly, 96.05 feet along a curve to the left, with a radius of 170.07 feet, delta angle of
32°21'35", and chord bearing S04°50'08"W, a distance of 94.78 feet; Thence S11°20'40"E, a distance of 54.35 feet; Thence southerly, 140.81 feet along a curve to the right, with a radius of 220.07 feet, delta angle of 36°39'38", and chord bearing S06°59'09"W, a distance of 138.42 feet; Thence S25°18'58"W, a distance of 80.15 feet; Thence southwesterly, 181.40 feet along a curve to the right, with a radius of 390.13 feet, delta angle of 26°38'26", and chord bearing S38°38'11 "W, a distance of 179.77 feet; Thence S51°57'23"W, a distance of 144.61 feet, Thence southerly, 330.40 feet along a curve to the left, with a radius of 255.10 feet, delta angle of 74°12'29", and chord bearing S14°51'08"W, a distance of 307.79 feet; Thence S22°15'06"E, a distance of 329.97 feet; Thence southeasterly, 79.90 feet along a curve to the left, with a radius of 115.05 feet, delta angle of 39°47'27", and chord bearing S42°08'50"E, a distance of 78.30 feet; Thence S62°02'33"E, a distance of 75.94 feet; Thence southeasterly, 135.60 feet along a curve to the right, with a radius of 160.05 feet, delta angle of 48°32'39", and chord bearing S37°46'14"E, a
distance of 131.58 feet; Thence S13°29'54"E, a distance of 61.75 feet; Thence southerly, 135.72 feet along a curve to the right, with a radius of 320.10 feet, delta angle of 24°17'33", and chord bearing S01°21'08"E, a distance of 134.70 feet; Thence S10°47'38"W, a distance of 113.74 feet; Thence southerly, 38.03 feet along a curve to the left, with a radius of 170.07 feet, delta angle of 12°48'41", and chord bearing S04°23'18"W, a distance of 37.95 feet; Thence S02°01'02"E, a distance of 30.20 feet; Thence southerly, 54.15 feet along a curve to the right, with a radius of 230.07 feet, delta angle of 13°29'04", and chord bearing S04°43'30"W, a distance of 54.02 feet; Thence S11°28'01"W, a distance of 102.36 feet; Thence southerly, 120.85 feet along a curve to the left, with a radius of 355. 14 feet, delta angle of 19°29'51", and chord bearing S01°43'05"W, a distance of 120.27 feet; Thence S08°01'50"E, a distance of 252.15 feet; Thence southerly, 421.91 feet along a curve to the right, with a radius of 540.18 feet, delta angle of 44°45'04", and chord bearing S14°20'42"W, a distance of 411.27 feet; Thence S36°43'14"W, a distance of 248.99 feet; Thence southerly, 81.88 feet along a curve to the left, with a radius of 145.06 feet, delta angle of 32°20'29", and chord bearing S20°33'00"W, a distance of 80.80 feet;
Thence S04°22'45"W, a distance of 368.88 feet; Thence southerly, 284.01 feet along a curve to the left, with a radius of 945.35 feet, delta angle of 17°12'48", and chord bearing S04°13'39"E, a distance of 282.95 feet; Thence S12°50'03"E, a distance of 158.97 feet; Thence southerly, 103.42 feet along a curve to the right, with a radius of 415.14 feet, delta angle of 14°16'23", and chord bearing S05°41'51"E, a distance of 103.15 feet; Thence S01°26'20"W, a distance of 193.19 feet; Thence southerly, 226.31 feet along a curve to the left, with a radius of 1,970. 72 feet, delta angle of 06°34'46", and chord bearing S01°51'03"E, a distance of 226.18 feet; Thence S05°08'26"E, a distance of 79.79 feet; Thence southeasterly, 171.95 feet along a curve to the left, with a radius of 239.70 feet, delta angle of 41°06'01", and chord bearing S25°41'27"E, a distance of 168.28 feet; Thence S46°14'27"E, a distance of 64.50 feet; Thence S27°46'41W, a distance of 62.39 feet; Thence N46°14'27'W, a distance of 34.09 feet; Thence westerly, 30.50 feet along a curve to the left, with a radius of 25.00 feet, delta angle of 69°53'27", and chord bearing N81°11'10'W, a distance of 28.64 feet; Thence westerly, 73.54 feet along a reverse curve to the right, with a radius of 160.05 feet, delta angle of 26°19'30", and chord bearing S77°01'51"W, a distance of 72.89 feet; Thence N89°48'24W, a distance of 35.12 feet; Thence westerly, 84.47 feet along
a curve to the left, with a radius of 270.11 feet, delta angle of 17°55'02", and chord bearing S81 °14'05"W, a distance of 84.12 feet; Thence S72°16'34'W, a distance of 121.08 feet; Thence westerly, 201.97 feet along a curve to the right, with a radius of 290.09 feet, delta angle of 39°53'28", and chord bearing N87°46'42'W, a distance of 197.92 feet; Thence N67°49'58W, a distance of 459.21 feet; Thence westerly, 37.03 feet along a curve to the left, with a radius of 170.08 feet, delta angle of 12°28'25", and chord bearing N74°04'10'W, a distance of 36.95 feet; Thence N80°18'23"W, a distance of 143.67 feet; Thence northwesterly, 212.03 feet along a curve to the right, with a radius of 190.06 feet, delta angle of 63°55'07", and chord bearing N48°20'49"W, a distance of 201.20 feet; Thence N16°23'16'W, a distance of 7.39 feet; Thence northerly, 122.69 feet along a curve to the right, with a radius of 260.08 feet, delta angle of 27°01'47", and chord bearing N02°52'22'W, a distance of 121.56 feet; Thence northerly, 43.03
feet along a reverse curve to the left, with a radius of 77.21 feet, delta angle of 31°55'46", and chord bearing N05°19'22"W, a distance of 42.47 feet; Thence N21°17'15'W, a distance of 239.13 feet; Thence northerly, 60.17 feet along a curve to the right, with a radius of 160.00 feet, delta angle of 21°32'51", and chord bearing N10°30'49'W, a distance of 59.82 feet; Thence N00°15'36"E, a distance of 37.88 feet; Thence northerly, 55.47 feet along a curve to the left, with a radius of 100.05 feet, delta angle of 31°45'50", and chord bearing N15°37'19"W, a distance of 54.76 feet; Thence N31°30'14'W, a distance of 151.55 feet; Thence northerly, 101.08 feet along a curve to the right, with a radius of 230.07 feet, delta angle of 25°10'17", and chord bearing N18°55'05"W, a distance of 100.26 feet; Thence N06°19'56'W, a distance of 192.49 feet; Thence northerly, 82.32 feet along 8 curve to the right, with a radius of 430.14 feet, delta angle of 10°57'56", and chord bearing N00°50'58"W, a distance of 82.20 feet; Thence N04°38'00"E, a distance of 120.67 feet; Thence northerly, 202.48 feet along a curve to the left, with a radius of 215.09 feet, delta angle of 53°56'12", and chord bearing N22°20'06"W, a distance of 195.09
feet; Thence N49°18'13'W, a distance of 81.43 feet; Thence northerly, 390.00 feet along a curve to the right, with a radius of 325.11 feet, delta angle of 68°43'52", and chord bearing N14°56'17"W, a distance of 367.03 feet; Thence northerly, 63.80 feet along a reverse curve to the left, with a radius of 184.08 feet, delta angle of 19°51'29", and chord bearing N09°29'55"E, a distance of 63.48 feet; Thence N00°25'50'W, a distance of 294.69 feet; Thence northerly, 131.34 feet along a non-tangential curve to the left, with a radius of 410.19 feet, delta angle of 18°20'45", and chord bearing N09°36'15'W, a distance of 130.78 feet; Thence northerly, 95.51 feet along a non-tangential curve to the right, with a radius of 208.89 feet, delta angle of 26°11'46", and chord bearing N05°40'56"W, a distance of 94.68 feet; Thence N07°25'02"E,
a distance of 68.35 feet; Thence northerly, 129.28 feet along a curve to the right, with a radius of 355.12 feet, delta angle of 20°51'31", and chord bearing N17°50'48"E, a distance of 128.57 feet; ThenceN28°16'33"E, a distance of 390.83 feet; Thence northeasterly, 144.51 feet along a curve to the right, with a radius of 360.00 feet, delta angle of 22°59'57", and chord bearing N39°46'32"E, a distance of 143.54 feet; Thence northeasterly, 153.44 feet along a reverse curve to the left, with 8 radius of 190.09 feet, delta angle of 46°14'59", and chord bearing N28°09'01"E, a distance of 149.31 feet; Thence N05°01'32"E, a distance of 90.06 feet; Thence northeasterly, 119.57 feet along a curve to the right, with a radius of 195.05 feet, delta angle of 35°07'25", and chord bearing N22°35'15"E, a distance of 117.71 feet; Thence N40°08'57"E, a distance of 22.55 feet; Thence northeasterly, 39.43 feet along a curve to the left, with a radius of 75.05 feet, delta angle of 30°06'06", and chord bearing N25°05'54"E, a distance of 38.98 feet; Thence N10°02'51"E, a distance of 178.74 feet; Thence N11°08'25"E, a distance of 9.86 feet; Thence N89°33'32"W, 8 distance of 1,394.72 feet; Thence N01°27'34W, a distance of 1,312.99 feet to the POINT OF BEGINNING.
Containing 338.638 Acres (14,751,050 sq. ft.), more or less.
SUBJECT TO Easements, Restrictions, Reservations of Record and such Easements as may exist upon the ground.
including any improvements, fixtures, and attachments, such as, but not limited to, mobile homes. If there is a conflict between the legal description and the street address, the legal description shall control.
c. The Notice provided for an objection deadline of 21 days from the date of service of the Notice, to which three days was added pursuant to Bankruptcy Rule 9006(f);
d. The Notice was sufficient in form and content;
e. The objection deadline expired on February 3, 2020;
f. On January 29, 2020 the Trustee filed a Response to the Motion;
g. As of March 9, 2020 no other party in interest filed a response to the Motion;
h. The Motion is well taken and was granted at the hearing held on March 9, 2020;
i. The Court being advised of the Debtor's consent to the relief requested herein and his approval as to the form of this Order; the Trustee not attending the hearing, and the Court having considered Creditor's Motion, now enters this Order granting relief from the automatic stay and providing for the abandonment of property.
IT IS THEREFORE ORDERED:
1. Pursuant to 11 U.S.C. § 362(d), Creditor is granted relief from the automatic stay:
(a) To enforce its rights in the Property, including foreclosure of liens and a foreclosure sale, under the terms of any prepetition notes, mortgages, security agreements, and/or other agreements to which Debtor is a party, to the extent permitted by applicable non-bankruptcy law, such as by commencing or proceeding with appropriate action against the Debtor or the Property, or both, in any court of competent jurisdiction; and
(b) To exercise any other right or remedy available to it under law or equity with respect to the Property.
2. The Trustee is deemed to have abandoned the Property from the estate pursuant to 11 U.S.C. § 554 as of the date of entry of this Order, and the Property is not property of the estate. As a result, Creditor need not name the Trustee as a defendant in any state court action it may pursue to foreclosure liens against the Property and need not notify the Trustee of any sale of the Property.
3. The automatic stay is not modified to permit any act to collect any deficiency or other obligation as a personal liability of the Debtor, in the event that a discharge order is entered. The Debtor can be named as a defendant in litigation to obtain judgment or to repossess the Property in accordance with applicable non-bankruptcy law, pursuant to any discharge order entered.
4. This Order shall continue in full force and effect if this case is dismissed or converted to a case under another chapter of the Bankruptcy Code.
5. This order is effective and enforceable upon entry. The 14-day stay requirement of Fed.R.Bankr.P. 4001(a)(3) is waived.
IT IS ORDERED.
