Case No. 09-14929-DK.United States Bankruptcy Court, D. Maryland, (Baltimore Division).
May 14, 2009
STIPULATION AND CONSENT ORDER GRANTING FIRST MARINER BANK RELIEF FROM THE AUTOMATIC STAY TO ENFORCE RIGHTS WITH RESPECT TO REAL PROPERTY
DUNCAN KEIR, Bankruptcy Judge
First Mariner Bank (the “Bank”) and George W. Liebmann, Chapter 7 trustee (the “Trustee”) for the bankruptcy estate of Delmar Gateway, LLC (the “Debtor”) hereby stipulate and agree as follows:
Stipulations
A. On March 24, 2009 (the “Petition Date”), the Debtor filed a Voluntary Petition for relief under Chapter 7 of the Bankruptcy Code.
B. The Debtor owns certain real property located in Wicomico County, Maryland (as more particularly described in the Motion and in Exhibit “A” hereto, the “Property”).
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C. On January 24, 2006 the Bank made a commercial loan (as subsequently modified, the “Delmar Loan”) to the Debtor in the original principal amount of $2,750,000. As security for the Delmar Loan, the Debtor executed a Purchase Money Deed of Trust and Security Agreement (the “Deed of Trust”) dated January 24, 2006, pursuant to which the Debtor granted the Bank a first priority lien and security interest in the Property.
D. As evidenced by a Loan Modification Agreement dated September 20, 2007, the principal amount of the Delmar Loan was increased to $4,500,000. Also on September 20, 2007, as further security for the repayment of the Delmar Loan, the Debtor executed the First Amendment to Purchase Money Deed of Trust and Security Agreement (the “Amended Deed of Trust”), pursuant to which the Debtor increased the amount of indebtedness secured by the Delmar Deed of Trust to the principal amount of $4,500,000 authorized under the modified Delmar Loan.
E. As of the Petition Date, the amount due to the Bank pursuant to the Delmar Loan was $4,724,309.47.
F. The Delmar Loan is in default.
G. The Trustee has determined that the Debtor’s bankruptcy estate lacks equity in the Property, the Property is not necessary to an effective reorganization of the Debtor, and retention and/or liquidation of the Property by the Trustee is not in the best interest of the estate.
H. The Bank and the Trustee have agreed that the automatic stay of 11 U.S.C. § 362(a) should be terminated, subject to the terms of this Stipulation and Consent Order, to permit the Bank to exercise its rights and remedies under applicable non-bankruptcy law with respect to the Property.
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NOW, THEREFORE, upon the foregoing stipulations of fact, it is, by the United States Bankruptcy Court for the District of Maryland, hereby
ORDERED that the automatic stay of 11 U.S.C. § 362(a) shall be, and hereby is, terminated to permit First Mariner Bank to exercise its rights and remedies under applicable non-bankruptcy law with respect to the Property, which is more particularly described on Exhibit “A”, attached hereto, including the right to sell the Property at foreclosure; and it is further
ORDERED that the Bank shall comply with the requirements of Local Bankruptcy Rule 4001-3, including, without limitation, to provide the Trustee with copies of any reports of sale and auditors reports in connection with a foreclosure sale of the Property.
STIPULATED AND AGREED TO:
Bradley J. Swallow, Esquire (#11250), Lawrence D. Coppel, Esquire (#00180), Gordon, Feinblatt, Rothman, Hoffberger Hollander, LLC, Baltimore, MD, Attorneys for First Mariner Bank.
Orbie R. Shively, Esquire (#04461), Liebmann Shively, Baltimore, MD, Attorney for George W. Liebmann, Chapter 7 Trustee.
SO ORDERED
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EXHIBIT A
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EXHIBIT A Legal Description Parcel One:
Item One: (Tax ID# 11-021077)
All that parcel of land situate, lying and being in the Town of Delmar, Delmar Election District, Wicomico County, State of Maryland, located on the westerly side of and binding upon U.S. Route 13 and on the easterly side of and binding upon State Route No. 675 (Bi-State Boulevard) and being more particularly designated and distinguished as Parcel B having an area of 18.56 acres, more or less, on the plat entitled “Property Subdivision for G. Robert Miller”, made by Hampshire, Hampshire Andrews, Inc, P.L.S., dated June 9, 1995, and recorded in the Land Records of Wicomico County, Maryland, in Plat Book M.S.B. No. 11, folio 35 36; EXCEPT for the addition to Lot 1 Block B, having an area of .5 acres, and Lot 2 Block B, having an area of 2.344 acres as described on the plat entitled “Resubdivision Plat, Lots 1A 2, Block B, Property Subdivision for G. Robert Miller”, dated December, 1996 and recorded in Plat Book M.S.B. No. 12, folio 158; and EXCEPT for Lot 3 Block B, having an area of 2 acres described on the plat entitled “Resubdivision Plat, Lot 3 Block B, Property Subdivision for G. Robert Miller”, dated October, 1997, and recorded in Plat Book M.S.B. No. 12, folio 429, leaving the total area of the property being conveyed as 13.72 acres, more or less, and more specifically described on the survey entitled “Compilation of Deeds and Plats for Rte. 13 Stage Road, Humphrey/Oliphant Property”, prepared by Parker Associates, Inc., P.L.S., dated January 17, 2006, and attached hereto; and BEING ALL AND THE SAME property which, by Deed of even date herewith, and intended to be recorded among the Land Records of Wicomico County, Maryland, immediately prior hereto, was granted and conveyed by Gary Lee Humphreys, et al, unto Delmar Gateway, LLC.
Item Two: (Tax ID# 11-021034)
All that lot or parcel of land situate, lying and being in the Town of Delmar, Delmar Election District, Wicomico County, State of Maryland, on the Southeast side of Stage Road and more particularly described as follows:
BEGINNING for the same at a concrete monument set at the northwest corner of the lands herein conveyed and the southerly line of the lands now or formerly owned by Robert P. Cannon; thence (1) by and with the Southerly line of the said Cannon lands, North 84 degrees 56 minutes 22 seconds East a distance of 114.16 feet to a concrete monument set at the northeast corner of the lands herein conveyed and the westerly line of the remaining lands of the Estate of Gladys V. Oliphant; thence (2) continuing by and with the Westerly line of the said remaining Estate lands, South 15 degrees 06 minutes 09 seconds West a distance of 300.01 feet to a point; thence (3) continuing by and with the said remaining lands of the Estate, South 15 degrees 40 minutes 31 seconds West a distance of 197.01 feet to a point at the southeasterly corner of the lands herein conveyed; thence (4) by and with the northerly line of the said remaining Estate lands, North 74 degrees 19 minutes 29 seconds West a distance of 240.03 feet to a concrete monument set
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at the southwest corner of the lands herein conveyed and the southeasterly line of Stage Road; thence (5) continuing by and with the southeasterly line of said Stage Road, on a curve with a radius of 613.84 feet, an are length of 91.59 feet and a chord bearing of 25 degrees 34 minutes 09 seconds East to a point; thence (6) continuing by and with said Stage Road; North 29 degrees 50 minules 37 seconds East a distance of 238.59 feet to a point; thence (7) continuing by and with said Stage Road, on a curve with a radius of 500.79 feet, an are length of 146.84 feet and a chord bearing of North 38 degrees 14 minutes 36 seconds East to a concrele monument set and the place of beginning; containing 2.00 acres, more or less; and being shown and designated as Lot 3, Block B on a Plat entitled “RE: Subdivision Plat, Lot 3, Block “B”, Property Subdivision for G. Robert Miller”, made by Davis, Bowen Freidel, Inc., dated October, 1997, revised October 29, 1998, and recorded among the Plat Cabinets for Wicomico County in Cabinet M.S.B. No. 12, folio 429; and BEING ALL AND THE SAME property which, by Deed of even date herewith, and intended to be recorded among the Land Records of Wicomico County, Maryland, immediately prior hereto, was granted and conveyed by Mayor and Commissioner of Delmar unto Delmar Gateway, LLC.
Parcel Two: (Tax ID# 11-015646)
All those lots or parcels of land described as one parcel herein, situate, lying and being in Delmar Election District, Wicomico County, State of Maryland, on the easterly side of and binding upon the State Road leading from Delmar to Salisbury, being known as “Old Route 13”, and on the westerly side and binding upon the Old Stage Road and being more particularly described as follows: BEGINNING at an iron pipe on the westerly line of the aforesaid Old Stage Road at the southeasterly corner of Lot No. 119 as laid down and shown on a plat entitled “Horsey Property”, made by Roy E. Moore, dated June 12, 1943, and recorded among the Land Records of Wicomico County, Maryland, in Liber J.W.T.S. No. 250, folio 45, the same being a northeasterly corner of the parcel herein conveyed; thence running by and with the westerly line of said Old Stage Road South 18 degrees 56 minutes 47 seconds West a distance of 498.77 feet to an iron pipe; thence continuing by and with the westerly line of said Old Stage Road on a curve to the right a distance of 79.61 feet to an iron pipe at the intersection of the easterly side of the aforementioned Old Route 13; thence running by and with the easterly line of said Old Route 13; North 4 degrees 09 minutes 43 seconds West a distance of 568.60 feet to an iron pipe on the southerly line of Lot No. 10 as shown on the plat hereinafter referred to; thence running by and with the southerly line of said Lot No. 10, North 85 degrees 50 minutes 17 seconds East a distance of 136.39 feet to an iron pipe at the northwesterly corner of Lot No. 119 on the aforementioned plat; thence running by and with the westerly line of said Lot No. 119, South 4 degrees 09 minutes 43 seconds East a distance of 50.00 feet to an iron pipe, thence continuing by and with the southerly line of said Lot No. 119, North 85 degrees 50 minutes 17 seconds East a distance of 110.04 feet to the place of beginning; containing 1.76 acres, more or less, and being laid down and shown on a plat entitled “Lot Survey for John T. and Jacqueline R. Cassidy” by Herman Lloyd Purnell, III, Surveyor, dated May 1, 1984, and recorded among the Land Records aforesaid in Liber A.J.S. 1012, folio 577, comprised of the residue of Lots 1, 2, 3, 4, 5, 6, 7, 8, 9 and 120 on the aforementioned plat entitled “Horsey Property” by Roy E. Moore,
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excepting such portions of those lots conveyed unto the State of Maryland to the use of the State Roads Commission of the State of Maryland for the widening of Old Route 13, by deeds dated June 23, 1950, from Walter L. Sehman, et al, recorded among the Land Records aforesaid in Liber J.W.T.S. No. 318, folios 139 and 142; and BEING ALL AND THE SAME property which, by Deed dated January 18, 2006, and intended to be recorded among the Land Records of Wicomico County, Maryland, immediately prior hereto, was granted and conveyed by J K Cassidy Enterprises, LLC unto Delmar Gateway, LLC.
SO ORDERED.
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Notice Recipients
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