UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
July 7, 2011
HSBC BANK, USA, NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE FOR THE BENEFIT OF THE NOTEHOLDERS, THE HEDGE COUNTERPARTY AND THE CERTIFICATEHOLDERS OF BUSINESS LOAN EXPRESS BUSINESS LOAN TRUST 2007-A, PLAINTIFF,
ZNM HOLDINGS, INC., A CALIFORNIA CORPORATION; DIPU HAQUE, AN INDIVIDUAL; SIKDER INCORPORATED, A CALIFORNIA CORPORATION; M. SIKDER HOLDINGS, INC., A CALIFORNIA CORPORATION; ZMS, INC., A CALIFORNIA CORPORATION; GRADY HANSHAW, AN INDIVIDUAL; U.S. SMALL BUSINESS ADMINISTRATION, A UNITED STATES GOVERNMENT AGENCY; WASH & GO CAR WASH & DETAIL CENTER, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.
LEO D. PLOTKIN (SBN 101893) JOHN P. MERTENS (SBN 252762) LEVY, SMALL & LALLAS JS-6 A Partnership Including Professional Corporations 815 Moraga Drive Los Angeles, California 90049-1633 Telephone: (310) 471-3000 Facsimile: (310) 471-7990 Attorneys for Plaintiff HSBC BANK, USA, National Association, as Indenture Trustee for the benefit of the Noteholders, the Hedge Counterparty and the Certificateholders of Business Loan Express Business Loan Trust 2007-A
JUDGMENT BY SUMMARY JUDGMENT, JUDGMENT OF FORECLOSURE AND ORDER OF SALE
The Court has read and considered the Motion for Summary Judgment (the "MSJ") filed by plaintiff HSBC Bank, USA, National Association, as Indenture Trustee for the benefit of the Noteholders, the Hedge Counterparty and the Certificateholders of Business Loan Express Business Loan Trust 2007-A ("HSBC as Trustee"), as well as the evidence submitted in support thereof. All defendants have filed Notices of Non-Opposition to the Motion for Summary Judgment. . See Docket Nos. 73-75.
The Court deems this matter appropriate for decision without oral argument, and therefore vacates the July 11, 2011, hearing in this matter. See Fed. R. Civ. P. 78; Local Rule 7-15.
All the requirements for summary judgment as set forth in Federal Rule of Civil Procedure ("Rule") 56 have been met, and there is no genuine dispute as to any material fact; thus, HSBC as Trustee is entitled to judgment as a matter of law.
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. HSBC as Trustee shall have judgment against ZNM Holdings, Inc. ("ZNM"), M. Sikder Holdings, Inc., Sikder Incorporated, ZMS, Inc. and Dipu Haque (the "Guarantors"), and the US Small Business Administration ("SBA") and Grady Hanshaw ("Hanshaw" and together with the SBA the "Junior Lienholders" and together with the SBA, the Guarantors and ZNM, the "Defendants"), as herein provided.
2. Guarantors, and each of them, jointly and severally, are indebted to HSBC as Trustee in the following sums:
(a) Principal, accrued interest, late fees, attorney's fees and costs and other chargeable expenses incurred as of February 28, 2011, in the total amount of $1,052,705.88;
(b) Interest accruing from and after March 1, 2011 at the daily rate of $224.27 through the date of entry of the Judgment;
(c) Actual costs of foreclosure and sale hereunder; and
(d) Interest on the amounts set forth in subparagraphs (a) through
(c) above (which together shall be referred to hereinafter as the "Indebtedness") at the rate of 10% per annum from the date of entry of the Judgment.
3. All rights, claims, ownership, liens, titles and demands of any or all of the Defendants to the Trust Estate (defined below) are subsequent to and subject to the liens of HSBC as Trustee as assignee and real party in interest with respect to the written Leasehold Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated May 25, 2006 and recorded in the Official Records of Orange County, California on June 9, 2006 (the "Trust Deed") whereby ZNM conveyed its interest in the Trust Estate to W. David Jenkins, as trustee, for the benefit of BLX Capital, LLC, as beneficiary.
4. The Trust Deed shall be foreclosed and the real and personal property hereinafter described shall be sold in the manner prescribed by law, by the Sheriff of Orange County or the United States Marshall ("Officer"), on proper application for the issuance of a writ of sale. Any party to this action may be a purchaser at the sale.
5. The following property is the subject of this Judgment of Foreclosure:
(a) ZNM's interest in certain real property commonly known as 3080 Main Street, Irvine, California 92614 (the "Land"), whether arising under ZNM's Ground Lease of the Land or otherwise acquired by ZNM, together with all buildings and improvements thereon, including the fixtures, attachments, appliances, equipment, machinery and other articles attached thereto (collectively and together with the Land, the "Property"),and ZNM's personal property and other assets associated with the Property (together with the Property, the "Trust Estate")
(b) The Land is legally described as follows:
PROPERTY SITUATED IN THE CITY OF IRVINE IN THE COUNTY OF ORANGE and  described as follows:
PARCEL 2 of PARCEL MAP NO 96-128 in the City of Irvine, County of Orange, State of California, as shown on Map filed in Book 297, pages 34, 35 and 36 of parcel maps, in the office of the County Recorder of Orange County, California. The Property tax identification number is 447-172-07.
6. From the proceeds of the sale, the Officer shall pay to HSBC as Trustee, after deducting the actual costs and expenses of sale, the sums adjudged due pursuant to paragraph 2 above less the amounts of $66,395.85 plus $90.34 per diem between March 1, 2011 and the date of this judgment ("Subordinated Amount") in late fees, increased default interest, and prepayment penalties. This Subordinated Amount being the amount due and owing to HSBC, but subordinated to the amounts owed to the SBA, under that certain Third Party Lender Agreement dated as of May 31, 2006 by and between BLX Capital, LLC and EDF Resource Capital, Inc.
7. If any surplus remains after making the payments specified in paragraph 6 above, the Court shall retain jurisdiction to determine the respective priority and amount of payment to each Junior Lienholder, HSBC as Trustee, and ZNM.
8. No deficiency shall be had against ZNM, however the Guarantors shall remain liable for the sums adjudged due less any amount paid to HSBC as Trustee by the Officer as a result of the sale.
9. Deficiency having been waived, the sale shall be without right of redemption by any party under California law. At the time of sale, the Officer may immediately execute a deed of sale ("Deed") to the purchaser, who may then take possession of the Trust Estate or the part thereof so purchased, if necessary with the assistance of the Officer. This Deed shall be subject to the redemption rights of the SBA, if any, under 28 U.S.C. §2410.
10. ZNM and the Guarantors, and all persons claiming from or under them, or any one or more of them, and all persons having liens subsequent to those of HSBC as Trustee by judgment or decree on the Trust Estate (or any part of it), and their personal representatives, and all persons having any lien or claim by or under such subsequent judgment or decree, and their heirs or personal representatives, and all persons claiming to have acquired any estate or interest in the Trust Estate (or any part of it) subsequent to the recording of the notice of pendency of this action with the Orange County Recorder, are forever barred and foreclosed from all equity of redemption in and claim to the Trust Estate, and every part thereof, from and after delivery of the deed of sale by the Officer. The Junior Lienholders retain all of their remaining rights, claims or interests against ZNM and the Guarantors.
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 815 Moraga Drive, Los Angeles, California 90049.
On June 22, 2011, I served the foregoing document entitled [PROPOSED] JUDGMENT BY SUMMARY JUDGMENT, JUDGMENT OF FORECLOSURE AND ORDER OF SALE on the interested parties in this action by placing a true copy thereof in sealed envelopes addressed as follows:
See Attached Service List
(By Email) I had such document electronically submitted pursuant to the email addresses attached on the service list with no system administrator error returned.
(Federal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct.
Executed June 22, 2011, at Los Angeles, California.
/s/ Heidi Gray Heidi Gray
Michael D. May, Esq. 532 West First Street, Suite 209 Claremont, CA 91711-4527 Email: firstname.lastname@example.org George C. Cardona Acting United States Attorney Leon W. Weidman Assistant United States Attorney Chief Civil Division Russell W. Chittenden Assistant United States Attorney Federal Building 300 North Los Angeles Street, Room 7516 Los Angeles, CA 90012 Email: email@example.com Attorney for Defendant, GRADY HANSHAW Attorney for Defendant, UNITED STATES SMALL BUSINESS ADMINISTRATION VIA EMAIL Farhad Novian, Esq. David B. Felsenthal, Esq. Novian & Novian, LLP 1801 Century Park East, Suite 1201 Los Angeles, CA 90067 Email: David@NovianLaw.com Attorneys for Defendants, ZNM HOLDINGS, INC., DIPU HAQUE, SIKDER INC., M. SIKDER HOLDINGS, INC., and ZMS, INC.
© 1992-2011 VersusLaw Inc.