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Bank of America, N.A. v. G&S Co.

June 21, 2010

BANK OF AMERICA, N.A. PLAINTIFF,
v.
G&S CO., A CALIFORNIA GENERAL PARTNERSHIP A/K/A G & S CO., A CALIFORNIA GENERAL PARTNERSHIP; MCMAHAN'S FURNITURE CO. -- PACOIMA, A CALIFORNIA GENERAL PARTNERSHIP A/K/A MCMAHAN'S FURNITURE CO. OF PACOIMA, A CALIFORNIA GENERAL PARTNERSHIP; PACOIMA LAND COMPANY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; MCMAHANS OF GLENDALE, INC., A CALIFORNIA CORPORATION A/K/A MCMAHAN'S OF GLENDALE INC., A CALIFORNIA CORPORATION A/K/A MCMAHANS OF GLENDALE, A CALIFORNIA CORPORATION D/B/A MCMAHANS OF GLENDALE, INC.; MCMAHAN'S OF SAN FERNANDO, A CALIFORNIA CORPORATION A/K/A MCMAHANS OF SAN FERNANDO, A CALIFORNIA CORPORATION D/B/A MCMAHANS OF SAN FERNANDO, INC.; MCMAHANS OF LANCASTER, A CALIFORNIA CORPORATION A/K/A MCMAHAN'S OF LANCASTER, A/K/A MCMAHAN'S OF LANCASTER, A CALIFORNIA CORPORATION A/K/A MCMAHANS OF LANCASTER; MCMAHANS OF CHICO, A CALIFORNIA CORPORATION A/K/A MCMAHAN'S OF CHICO A/K/A MCMAHAN'S OF CHICO, A CALIFORNIA CORPORATION; MCMAHANS OF MARYSVILLE, A CALIFORNIA CORPORATION A/K/A MCMAHAN'S OF MARYSVILLE A/K/A MCMAHAN'S OF MARYSVILLE, A CALIFORNIA CORPORATION A/K/A MCMAHANS OF MARYSVILLE; MCMAHAN'S OF EUREKA, A CALIFORNIA CORPORATION A/K/A MCMAHANS OF EUREKA; MCMAHAN'S FURNITURE CO. -- REDDING, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY A/K/A MCMAHAN FURNITURE COMPANY -- REDDING A/K/A MCMAHAN'S FURNITURE CO. -- REDDING, A CALIFORNIA PARTNERSHIP A/K/A MCMAHANS FURNITURE CO.-REDDING, LLC A CALIFORNIA LIMITED LIABILITY COMPANY; MCMAHANS'S FURNITURE CO. -- KLAMATH FALLS, LLC, AN OREGON LIMITED LIABILITY COMPANY, A/K/A MCMAHAN'S FURNITURE CO. – KLAMATH FALLS, AN OREGON PARTNERSHIP A/K/A MCMAHANS FURN CO -- KLAMATH FALLS; MCMAHAN'S FURNITURE COMPANY -- ALBANY, AN OREGON GENERAL PARTNERSHIP A/K/A MCMAHAN'S FURNITURE CO. -- ALBANY A/K/A MCMAHAN FURNITURE COMPANY -- ALBANY A/K/A MCMAHAN'S FURNITURE COMPANY -- ALBANY, AN OREGON PARTNERSHIP A/K/A MCMAHANS OF ALBANY; MCMAHANS FURNITURE CO. -- KERN, LLC A/K/A MCMAHANS FURNITURE CO. - KERN, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; CONSUMER SECURITY AGENCY, A CALIFORNIA GENERAL PARTNERSHIP A/K/A CONSUMER SECURITY AGENCY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; JULIAN A. GANZ, JR. A/K/A JULIAN ANGLEMAN GANZ A/K/A JULIAN GANZ A/K/A JULIAN J GANZ A/K/A J A GANZ; JOANN GANZ A/K/A JOANN S. GANZ A/K/A JOANN SCHAFF GANZ A/K/A JO ANN SCHAAF A/K/A GANZ JO SCHAAF A/K/A JOANN SCHAAF-GANZ A/K/A JOANN SCHAA GANZ A/K/A GANZ J. SCHAAF A/K/A JO ANN SCHAAF GANZ A/K/A JO ANN SCHAAF, DEFENDANTS.



The opinion of the court was delivered by: George H. Wu United States District Judge

JUDGMENT AND DECREE OF FORECLOSURE

The parties in this action having stipulated in writing, and the Court having reviewed and considered the stipulation, and finding it to be in good order and proper,

IT IS ORDERED, ADJUDGED AND DECREED THAT:

1. As of the date of this judgment and decree of foreclosure (the "Judgment and Decree") there is due and owing to Plaintiff Bank of America, N.A., ("the Bank") from each of the defendants identified on Exhibit "A", attached hereto and incorporated herein by reference ("Defendants"), jointly and severally, the sum (calculated as of June 3, 2010) of $10,073,073.40 principal, plus non-accelerated, past due interest of $470,653.13, plus attorney fees and costs ("the Adjudicated Amount").

2. The Adjudicated Amount, plus any recoverable post-Adjudicated Amounts related thereto, including but not limited to post-Judgment and Decree interest and attorney fees ("the Full Adjudicated Amount"), is and shall continue to be secured by liens previously granted by the Defendants in favor of the Bank upon both the real property identified in Exhibit "B" attached hereto and incorporated herein by reference ("the Real Property Collateral") and the personal property identified in Exhibit "C" attached hereto and incorporated herein by reference ("the Personal Property Collateral") (the Real Property Collateral and the Personal Property Collateral, collectively, "the Collateral") with priority over any interest or lien of any of the Defendants. The Bank may file or record such instruments and documents as it deems necessary or appropriate to give notice of this Judgment and Decree and protect its (and the Receiver's) interests in the Collateral. None of the Bank's existing liens or security interests on any of the Collateral are extinguished or diminished by entry of this Judgment and Decree or any proceedings or sales conducted under this Judgment and Decree, nor shall their priority on the Collateral be affected or altered by entry of this Judgment and Decree or the conduct of such proceedings or sales.

3. No part of the Full Adjudicated Amount may be recovered against the Defendants personally or from any of their assets, other than from the Collateral.

4. Upon the issuance by this Court or the court for the District of Oregon of one or more writs of sale as requested by the Bank (and in such order as the Bank may determine) with respect to any portion of the Collateral, the Collateral, or so much of it as may be necessary to satisfy the Full Adjudicated Amount, shall be sold by the levying officers of this Court or, with respect to the portion of the Collateral located in Oregon, of the United States District Court for the District of Oregon. The Bank (or its assignee) may be a purchaser at any such sale, and may credit bid any portion of the Full Adjudicated Amount at such sale insofar as the Bank in its discretion determines to bid. From the proceeds of the sale, the levying officer shall deduct the expenses of the sale, amounts sufficient to pay and satisfy any liens on that portion of the Collateral which have priority over the liens of the Bank (such as liens for property taxes on such portion of the Collateral), and then pay the remainder to the Bank on account of the Full Adjudicated Amount. If any surplus remains from sales of Collateral after satisfaction in full of the Full Adjudicated Amount, the levying officer shall pay the next funds to the holders of the second liens on the Collateral, Julian and JoAnn Ganz, and, after their liens are satisfied in full, shall pay the next proceeds to the owner of the portion of the Collateral whose sale produced the surplus.

5. On completion of the sale of any portion of the Collateral, the levying officer shall execute and deliver to the purchaser at the sale, and the purchaser may record, a certificate of sale to or as directed by the purchaser, who may then take possession of that portion of the Collateral, if necessary, with the assistance of the levying officer. If the Bank is the successful bidder at the sale the Bank may designate in writing to the levying officer at or after the sale an entity through which it will take the certificate of sale to that portion of the Collateral. Upon the conclusion of the sale, Defendants, and all persons claiming under them or having liens subsequent to the liens of the Bank, shall be forever barred and foreclosed from all equity of redemption in, and claim to, that portion of the Collateral and every part of it, Defendants having waived their rights of redemption and all notices in respect thereto by their Stipulation filed concurrently herewith.

6. With respect to the Real Property Collateral located in California, the Bank may in its discretion, but is not required to, proceed with fair value hearings pursuant to California Code of Civil Procedure Sec. 726, and with respect to the Real Property Collateral located in Oregon, the Bank may in its discretion, but is not required to proceed with any applicable post-Judgment and Decree procedures to establish value of Collateral under Oregon law, in the event the Bank forecloses on any of the Real Property Collateral pursuant to paragraphs 4 and 5 hereof.

6. In addition to the procedures set forth in paragraphs 4 and 5 hereof, in the Bank's discretion, it may seek recovery of the Full Adjudicated Amount by the following:

(a) Any part, or all, of the Collateral may be collected, assigned, sold or otherwise disposed of pursuant to laws and procedures for non-judicial foreclosure in the situs of such Collateral, in any order, and in one or more separate or unified sales.

(b) Any part, or all, of the Collateral, or as much as may be necessary or as much as the Bank determines to be appropriate, may be sold by the Receiver appointed by this Court by order entered June 3, 2010 ("the Receiver") in accordance with the provisions of the Stipulation for Order Appointing Receiver and Preliminary Injunction; Order Thereon entered herein on June 3, 2010 as Docket Nos. 43 and 48 (the "Receivership and Preliminary Injunction Order").

6. The Receivership and Preliminary Injunction Order shall remain in full force and effect until the earlier of the payment in full of the Full Adjudicated Amount and the Discharge of the Receiver. The Receiver shall retain the full powers, duties and immunities afforded by the Receivership and Preliminary Injunction Order and is authorized to take any actions as provided in the Receivership and Preliminary Injunction Order to protect, maintain or sell the Collateral or any portion thereof, or in aid of the Bank's or any levying officer's execution on this Judgment and Decree.

7. The Preliminary Injunction contained in the Receivership and Preliminary Injunction Order is hereby made a permanent injunction effective until the later of the satisfaction of the Full Adjudicated Amount or the discharge of the Receiver as provided in the Receivership and Preliminary Injunction Order.

EXHIBIT "A"

G&S Co., a California general partnership a/k/a G & S Co., a California general partnership.

McMahan's Furniture Co. -- Pacoima, a California general partnership a/k/a McMahan's Furniture Co. of Pacoima, a California general partnership.

Pacoima Land Company, LLC, a California limited liability company. McMahans of Glendale, Inc., a California corporation a/k/a McMahan's of Glendale Inc., a California corporation a/k/a McMahans of Glendale, a California corporation d/b/a McMahans of Glendale, Inc.

McMahan's of San Fernando, a California corporation a/k/a McMahans of San Fernando, a California corporation d/b/a McMahans of San Fernando, Inc.

McMahans of Lancaster, a California corporation a/k/a McMahan's of Lancaster, a/k/a McMahan's of Lancaster, A California Corporation a/k/a McMahans of Lancaster.

McMahans of Chico, a California corporation a/k/a McMahan's of Chico a/k/a McMahan's of Chico, A California Corporation.

McMahans of Marysville, a California corporation a/k/a McMahan's of Marysville a/k/a McMahan's of Marysville, A California Corporation a/k/a McMahans of Marysville.

McMahan's of Eureka, a California Corporation a/k/a McMahans of Eureka, McMahan's Furniture Co. -- Redding, LLC, a California limited liability company a/k/a McMahan Furniture Company -- Redding a/k/a McMahan's Furniture Co. -- Redding, a California Partnership a/k/a McMahans Furniture Co.-Redding, LLC a California limited liability company.

McMahans's Furniture Co. -- Klamath Falls, LLC, an Oregon limited liability company, a/k/a McMahan's Furniture Co. -- Klamath Falls, An Oregon Partnership a/k/a McMahans Furn Co -- Klamath Falls.

McMahan's Furniture Company -- Albany, an Oregon general partnership a/k/a McMahan's Furniture Co. -- Albany a/k/a McMahan Furniture Company -- Albany a/k/a McMahan's Furniture Company -- Albany, An Oregon Partnership a/k/a McMahans of Albany.

McMahans Furniture Co. -- Kern, LLC a/k/a McMahans Furniture Co. - Kern, LLC, a California limited liability company.

Consumer Security Agency, a California general partnership a/k/a Consumer Security Agency, LLC, a ...


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