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Pnc Bank, National Association, Successor-In-Interest To National City Bank v. Daniel Sadek

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


June 19, 2012

PNC BANK, NATIONAL ASSOCIATION, SUCCESSOR-IN-INTEREST TO NATIONAL CITY BANK IN ADMIRALTY FOR SALE OF VESSEL AND CREDIT BID FED. R. CIV. P. 55 SUPP. RULES C AND E LOCAL ADMIR. RULE E.15 PLAINTIFF,
v.
DANIEL SADEK, IN PERSONAM ; M/V NADIA, OFFICIAL NO. 1163334, ITS ENGINES, TACKLE, MACHINERY, FURNITURE, APPAREL, APPURTENANCES, ETC., IN REM , AND DOES 1-10. DEFENDANTS.

JS-6

JUDGMENT AND ORDER

Default having been entered in this action against defendants DANIEL SADEK, in personam, and M/V NADIA in rem , on May 9, 2012, a hearing was held on the date and time as set forth in the record, pursuant to Federal Rule of Civil Procedure 55(b)(2).

GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED AS FOLLOWS

1. Plaintiff PNC is entitled to damages as alleged in the Verified Complaint on file herein for Breach of Contract and Preferred Ship Mortgage and for Foreclosure of the Preferred Ship Mortgage, and as set forth in its Application for Default Judgment by Court. Damages are awarded as follows:

A. Breach of Contract Default Judgment against Defendant Sadek, in personam , and the Defendant Vessel , in rem , in the amount of $810,616.48, the outstanding balance on May 10, 2012, due and owing on the Mortgage and Security Agreement, including interest and late charges.

B. Attorney Fees and Costs Default Judgment in the amount of $17,235.91 is entered in favor of Plaintiff PNC and against Defendant Sadek, in personam . Said fees were provided for in the Mortgage and Security Agreement under which this action was brought. The amount stated above represents a reasonable amount of attorney fees in this action.

C. Custodia Legis Expenses: Default Judgment in the amount of $19,258.30 in favor of Plaintiff PNC and against Defendant Sadek , in personam , and against the Defendant Vessel , in rem . Said costs include custodia legis fees from the date of repossession and detention of the Defendant Vessel from September 8, 2010, through May 31, 2012, by the duly appointed Substitute Custodian, and costs charged to PNC by the U.S. Marshal for arresting the Vessel, maintaining insurance, and publishing the notice of arrest.

D. Sum Total of Judgment: For good cause, default judgment in the amount of $829,874.78 is entered in favor of Plaintiff PNC and against Defendant Sadek , in personam , and the Defendant Vessel , in rem . Default Judgment in the total amount of $17,235.91 is also hereby entered in favor of Plaintiff PNC and against Defendant Sadek , in personam , and in the total amount of $847,110.69 against the Defendant Sadek , in personam .

The Clerk of the Court is Ordered to enter this judgment forthwith. IT IS FURTHER ORDERED THAT:

1. The Defendant Vessel shall be sold free of all mortgages, liens and other encumbrances in an admiralty execution sale pursuant to Supplemental Rules

for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Suppl. Rule"), Rule E(9)(a) and Local Admiralty Rule E.15. The proceeds of the sale shall be paid into Court to await disbursement upon further order of the Court per Suppl. Rule E(9)(b). If the net proceeds of the Defendant Vessel's sale are less than Plaintiff PNC's judgment herein, PNC will be allowed to seek any deficiency against Defendant Sadek, in personam .

2. The sale shall commence at a time and place designated by the U.S. Marshal for the Central District of California.

3. Plaintiff PNC shall, pursuant to Local Admiralty Rule E.15(a), cause to be published for at least seven days before the date of the sale a notice of the sale of Defendant Vessel in The Orange County Reporter .

4. The Court authorizes Plaintiff PNC to arrange for other such advertising as can be placed at a reasonable cost, and the expense of such advertisements will be reimbursable as an expense of sale.

5. The U.S. Marshal shall conduct the sale and shall abide by the terms of sale as set forth in Local Admiralty Rule E.15.

6. Pursuant to Admiralty Local Rule E.15, Plaintiff PNC may make a credit bid on its lien on the Defendant Vessel for any and all amounts up to the total judgment of $847,110.69. If the credit bid of PNC is the highest bid, PNC shall not be required to make a cash deposit or a subsequent cash payment into the Registry of the Court as is required for other bidders. The U.S. Marshal is authorized and directed to accept such credit bids from PNC at the sale of the Defendant Vessel. If a sale to PNC is confirmed for an amount based only on a credit bid: (1) PNC will be allowed to seek a deficiency judgment against Defendant Sadek, in personam , for any amounts remaining to be owed under the Court's judgment; (2) PNC will be responsible to pay the fees, costs and commissions due to the U.S. Marshal for the arrest and sale of the Defendant Vessel; and (3) PNC will be responsible to pay any other custodia legis fees or costs applicable to the Defendant Vessel.

7. At the conclusion of the sale, the Marshal shall forthwith file a written report to the Court pursuant to Local Admiralty Rule E.15.

8. The proceeds of the sale, if any, are to be deposited into the Court until further order of the Court.

9. Should no successful bid be received on the Defendant Vessel, or if for any other reason the sale of the Defendant Vessel is not completed, then the parties shall report that to the Court and the Defendant Vessel shall remain under arrest pending further order of the Court.

United States District Court Judge

20120619

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