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Bank of New York Mellon Trust Co. v. Samjin General Supply

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 28, 2010

BANK OF NEW YORK MELLON TRUST COMPANY, N.A. F/K/A THE BANK OF NEW YORK TRUST COMPANY, N.A., ITS SUCCESSORS AND ASSIGNS, AS INDENTURE TRUSTEE UNDER THAT CERTAIN INDENTURE DATED AS OF MARCH 1, 2006, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, FOR THE BENEFIT OF THE INDENTURE TRUSTEE AND THE HOLDERS OF BUSINESS LOAN EXPRESS BUSINESS LOAN-BACKED NOTES, 2006-A AND THE HEDGE COUNTERPARTY, AS THEIR RESPECTIVE INTEREST MAY APPEAR, SUBJECT TO THE INDENTURE DATED AS OF MARCH 1, 2006, AS THE SAME MAY BE AMENDED FROM TIME TO TIME RELATING TO BLX CONVENTIONAL FUNDING TRUST I NOTES, BLX CAPITAL, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
SAMJIN GENERAL SUPPLY, INC. DBA SAM JIN ROOFING SUPPLY, A CALIFORNIA CORPORATION; MASON AU, AN INDIVIDUAL; NANJOO AU, AN INDIVIDUAL; U.S. SMALL BUSINESS ADMINISTRATION, A UNITED STATES GOVERNMENT AGENCY; WABASH NATIONAL TRAILER CENTERS, INC., AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.
UNITED STATES OF AMERICA, CROSS-PLAINTIFF,
v.
SAMJIN GENERAL SUPPLY, INC. DBA SAM JIN ROOFING SUPPLY, A CALIFORNIA CORPORATION; MASON AU, AN INDIVIDUAL; NANJOO AU, AN INDIVIDUAL; WABASH NATIONAL TRAILER CENTERS, INC., CROSS-DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

STIPULATION FOR ENTRY OF JUDGMENT ON THE UNITED STATES OF AMERICA'S CROSS-CLAIM, AND [proposed] ORDER

The parties hereby stipulate and request that the Court enter judgment for cross-plaintiff United States of America as provided below.

FOR THE UNITED STATES OF AMERICA:

DATED: October 26, 2010

BENJAMIN B. WAGNER United States Attorney

BOBBIE J. MONTOYA Assistant U.S. Attorney Attorneys for the United States of America OF COUNSEL: JILL C. HOBBY District Counsel U.S. Small Business Administration 6501 Sylvan Road, Suite 100 Citrus Heights, CA 95610

FOR CROSS-DEFENDANTS:

Mason Au (original signature retained by attorney)

DATED: October 22, 2010

MASON AU Individually and as President and authorized agent on behalf of Samjin General Supply, Inc., dba Samjin Roofing Supply

Nanjoo Au (original signature retained by attorney)

DATED: October 22, 2010

NANJOO AU Individually and as Secretary and authorized agent on behalf of Samjin General Supply, Inc., dba Samjin Roofing Supply

James J. Kim (original signature retained by atty)

DATED: October 25, 2010

JAMES J. KIM Attorney for Cross-Defendants Mason Au, Nanjoo Au, and Samjin General Supply, Inc.

ORDER

Judgment is hereby entered as follows:

1. For cross-plaintiff United States of America and against cross-defendants Mason Au, Nanjoo Au, and Samjin General Supply Inc., dba Samjin Roofing Supply, a California corporation, jointly and severally, for the balance owed on the Note (CDC/504 Loans), to wit, as of October 8, 2010, the principal sum of $563,744.78 and interest in the amount of $57,070.43, for a total of $620,815.21, plus a daily accrual of $84.42 in interest, together with attorney's fees and costs in the amount of 10% pursuant to 28 U.S.C. § 3011.

2. Post-judgment interest shall accrue at the legal per annum percentage rate in effect at the time of its entry, computed daily and compounded annually until paid, pursuant to 28 U.S.C. § 1961, beginning on the date this judgment is entered.

3. In compromise of the judgment amount, the parties have agreed to the following workout in order to reinstate the 504 Loan (hereinafter the "Workout"):

a. Mason Au, Nanjoo Au, and/or Samjin will immediately pay in conjunction with the execution of the Settlement Agreement, but no later than October 31, 2010, a lump sum in the amount of $74,500 towards the past due balance of $93,232.26;

b. The remaining past due balance of $18,732.26 will be paid over a 15-month period ($1,248.82 per month) in addition to the regular loan installment payments of $4,237.83;

c. The modified catch up payments of $1,248.82 will increase the monthly payments for the next 15 months to $5,486.65;

d. Upon payment satisfaction after the 15-month modified catch up payments, the monthly payments will revert back to the regular loan installment amount of $4,237.83;

e. The regular loan installment amount of $4,237.83 per month will be paid in accordance with the 504 Note until the 504 Note is paid in full.

4. The SBA, or its authorized servicer of the 504 Loan, will send written notice of any default of the Workout to Mason Au, Nanjoo Au, and Samjin at their last known address. Mason Au, Nanjoo Au, and/or Samjin will have fourteen (14) days from the date of said notice to cure any such default.

5. Mason Au, Nanjoo Au, Samjin, and their attorney of record shall execute and deliver such other and further documents as may be required to carry out the terms of the Workout.

6. If a payment is not made as set forth in paragraphs 3 and/or 4 above, or if the terms of paragraph 5 are not met, the United States may immediately record abstracts of judgment, enforce the full judgment entered by any means provided by law; and take any other civil means to preserve its judgment right against Mason Au, Nanjoo Au and/or Samjin.

7. The Clerk is directed to enter a separate judgment hereon, in accordance with Rule 58, Fed. R. Civ. P.

IT IS SO ORDERED.

20101028

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