United States District Court, D. Nebraska
U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
NORFOLK COUNTRY INN, L.L.C., ROBERT L. PAGAN, AND MICHAEL WIESELER, Defendants.
LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Motion to Appoint Receiver (Filing No. 10) filed by Plaintiff U.S. Bank National Association (the "Bank"). The parties have represented to the Court that they agree to the appointment of a receiver of the rights and interests of defendant Norfolk Country Inn L.L.C., ("Norfolk"), in and to the “Collateral” (set forth on Exhibit A attached to this Order) and the “Receipts” (set forth on Exhibit B attached to this Order and as defined in the Complaint (Filing No. 1)) (the Collateral and the Receipts are collectively referred in this Order as the "Property"). The parties agree that the Court may enter an order in which the receiver shall take possession and control of the Property; collect the Receipts; protect the Property from further loss and waste, market the Property for sale, and if a buyer is identified, seek this Court's approval to consummate the sale.
The parties have submitted a joint proposed order to the Court and have represented that the hearing, set for September 28, 2015, at 10:00 a.m. is no longer necessary upon the Court’s entry of this Order. The Court has considered the record in this case, including the allegations of the Complaint (Filing No. 1), the Motion (Filing No. 10) and evidence submitted in support (Filing No. 12), the exhibits, statements of counsel, and applicable law. The Court concludes that for good cause shown, and pursuant to Fed.R.Civ.P. 66, the Motion to Appoint Receiver (Filing No. 10) will be granted. Accordingly, IT IS ORDERED:
1. Motion Granted. The Motion for Appointment of Receiver (Filing No. 10) is granted.
2. Receiver Appointment. Great American Hotel Group Inc., or a special purpose entity formed by it to act as receiver, is appointed receiver (the "Receiver").
3. Receiver to Take Possession and Protect. The Receiver is hereby authorized and directed to take possession and control of the Property; to operate the Property and in particular to collect the Receipts; to protect the Property from loss and waste; to exercise all powers and rights permitted by law and the loan documents governing the lending relationship between the Bank and Norfolk (“Loan Documents”). In addition, the Receiver is authorized to (a) market the Property for sale, (b) identify a buyer, and (c) then seek approval of the Court to consummate such sale (collectively the "Sale").
4. Pre-Receivership Bills. The Receiver shall have no responsibility for payment of any utility bills, unpaid payroll expenses or other unpaid invoices for services or utilities incurred by, or for the benefit of, Norfolk, and which came due prior to the Receiver taking possession of the Property. No utility or other vendor may terminate service or the provision of other goods or services to the Property as a result of the non-payment of pre-receivership obligations without prior order of this Court.
5. Collection and Use of Receipts / Bank Accounts.
a. The Receiver is authorized to receive, collect, use and hold the Receipts in the operation of the Property.
b. Norfolk, its managers, agents and employees and all persons interested in the Property are hereby authorized and directed to immediately pay and deliver to the Receiver possession and control of the Property and the Receipts.
c. Norfolk and its managers, agents and employees and all persons interested in the Property are hereby authorized and directed to immediately pay and deliver to the Receiver all Receipts that have been received by them, are being held by them, or which come into their possession.
d. In particular, all account debtors and guests of the Property are hereby directed to pay Receipts to the Receiver and specifically shall not pay Receipts to Norfolk or its owners or agents.
e. The Receiver is authorized to (i) pay all the operating expenses of the Property incurred in the ordinary course of business in the operation of the Property, including payments to the Bank under the Loan Documents and to pay taxes owing, Property expenses, utilities, taxes, wages, the Bank's debt, and other obligations needed in order to protect, care for, and maintain the Property; (ii) prepare and operate the Property pursuant to a budget acceptable to the Bank; (iii) fulfill the obligations of Norfolk with regard to any existing agreements; and (iv) prevent possible waste and loss of income; provided however, that the Receiver shall not be permitted to make capital expenditures in excess of an aggregate of $2, 000.00 per month for the Property without providing written notice to Bank and Norfolk and obtaining either written approval of the Bank or an order of this Court after notice to the Bank and Norfolk and an opportunity for a hearing.
f. The Receiver is authorized to take control of all bank accounts of Norfolk with respect to the Property, and to open a bank account or accounts in the name of the Receiver and deposit the Receipts and any proceeds of the Property in said account(s). Receiver is further authorized to redirect merchant credit card ...