2017-00223812-CU-MC

BACM 2007-4 12th Street vs. 12th & K St. Mall Partners

Nature of Proceeding: Motion to Appoint Receiver

Filed By: Colabianchi, Marcus O.

Plaintiff BACM 2007-4 12th Street, LLC’s Motion to Appoint Receiver and for a Preliminary Injunction is UNOPPOSED and is GRANTED.

Plaintiff’s request for judicial notice is GRANTED.

This is an action for specific performance, appointment of a receiver and injunctive relief. In July 2007, Defendant 12th & K St. Mall Partners, LLC (“Defendant”) obtained a $10,750,000 loan from Bank of America. The loan was secured by a Deed of Trust, Assignment of Leases and Rents and Security Agreement (“DOT”) on property located at 1020 12th Street, Sacramento, California (“Property”). Through a series of assignments and allonges between Bank of America and a series of subsequent entities, Plaintiff is the beneficiary under the DOT and holder of the Promissory Note (“Note”). Plaintiff is also the secured party with respect to certain personal property located on and/or related to the Property.

Defendant is the owner of the Property. Defendant failed to make the payment due on

the Maturity Date of August 1, 2017. (Declaration of Aaron Guillotte, ¶ 22.) As of

December 1, 2017, there is due and owing from Defendant the amount of

$11,117,873.55 to pay off the Note. (Id. ¶ 25.) Defendant has been collecting rent

and is holding over $398,000 in accumulated rents. (Declaration of Marcus O.

Colabianchi, ¶ 3.)

Plaintiff moves to appoint a receiver pursuant to CCP §564(b)(11). Under CCP §564(b) (11), the Court may appoint a receiver “[i]n an action by a secured lender for specific performance of an assignment of rents provision in a deed of trust.” When the parties insert a clause providing for a receiver in the deed of trust, a court may appoint a receiver to collect rents arising from a property in default. (Turner v. Superior Court (1977) 72 Cal.App.3d 804, 811.) Such a clause is prima facie evidence of entitlement to a receiver. (Barclays Bank of Calif. v. K.V.E. Shelters, Inc. (1977) 69 Cal.App.3d 593, 602.) Here, Section 8.1(g) of the DOT provides that, upon the occurrence of an Event of Default, Plaintiff may seek appointment of a receiver. (RJN, Ex. A at Ex. 4.) Additionally, all current and future lease and rents are assigned to Plaintiff. (Id., Section 1.2.)

Despite the Court giving Defendant an opportunity to file an opposition to the motion,

Defendant did not do so. Rather, Defendant solely relies on the Declaration of Robert Clippinger filed in opposition to Plaintiff’s ex-parte application for appointment of receiver and injunction. Thus, the Court construes the motion as unopposed. Additionally, Mr. Clippinger’s declaration presents no legitimate reason why a receiver should not be appointed.

The motion to appoint receiver and for a preliminary injunction is GRANTED. Jeffrey P. Fanzo is appointed as the receiver.

APPEARANCE IS REQUIRED, HOWEVER, PURSUANT TO CRC RULE 3.1178. The amount of undertakings for the receiver and injunction were not specified by the parties. The Parties are directed to appear and provide proposed amounts for a receiver’s bond and injunction bond, and to explain the reasons for the proposed amounts.

Pursuant to CRC 3.1312, Plaintiff is directed to lodge a formal order appointing receiver and granting preliminary injunction for the Court’s signature. The Court will

sign the order once the Receiver has filed an oath, and the injunction and receiver bonds are posted. (CCP § 567.)