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Wells Fargo Bank, N.A., v. Canning Boulevard Associates LLC

United States District Court, D. Massachusetts

April 7, 2017

WELLS FARGO BANK, N.A., Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series 2007-C1BC20, Plaintiff,
v.
CANNING BOULEVARD ASSOCIATES, LLC, Defendant.

          ORDER APPOINTING RECEIVER:

         Upon Plaintiffs Verified Complaint and Assented-To Motion for Appointment of a Receiver to take possession of the property of the defendant, Canning Boulevard Associates, LLC ("Canning Boulevard" or "Defendant"), the court finds as follows:

         1. Plaintiff, Wells Fargo Bank National Association, Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20 ("Plaintiff') has established that an event of default by Defendant has occurred under the terms of a promissory note (the "Note") and a Mortgage, Assignment of Leases and Rents and Security Agreement (the "Mortgage");

         2. Under the Mortgage and the Assignment of Leases and Rents, Defendant agreed that Plaintiff would be entitled to apply for the appointment of a receiver in the event of a default, without notice or demand, and without regard for the adequacy of the security for the debt and without regard for the solvency of the Defendant; and

         3. Defendant has subsequently affirmed its assent to the appointment of a receiver. It is therefore ORDERED and ADJUDGED that, until further order of the court:

         1. Stuart F. Pratt of NAI Hunneman be and hereby is appointed receiver (the "Receiver") of the real property of the Defendant located in Fall River, Massachusetts, and as more particularly described in the Mortgage (the "Mortgaged Property"), and Receiver is hereby authorized, subject to jurisdiction of this Court and the laws regarding receivership, to do any and all of the following acts necessary for the proper and lawful conduct of the receivership:

         a. Receiver's Exclusive and Complete Control over the Mortgaged Property.

         Receiver is authorized to take and have complete and exclusive control and possession of the Mortgaged Property, together with any and all funds held in Mortgaged Property-related accounts, including, without limitation, funds held as security deposits and all other funds related to accounts receivable, payment rights, cash and cash equivalents, along with any and all information necessary to operate the Mortgaged Property, including but not limited to all security codes, combinations, passwords and other access codes and all other collateral securing the indebtedness owed to Plaintiff. Defendant shall also provide Receiver with bank statements showing that all funds in any and all Mortgaged Property-related accounts were in fact transferred to Receiver;

         b. Items to be Delivered to Receiver by Defendant.

         Defendant and all persons acting under its direction, including but not limited to officers, directors, managers, agents, representatives, independent contractors, partners, affiliates, attorneys, accountants, shareholders, and employees, are ordered to deliver possession to Receiver, without any right of offset or recoupment, of the Mortgaged Property and all other collateral securing the indebtedness owed to Plaintiff, including but not limited to: (1) cash collateral (whether consisting of cash on hand, cash in any and all bank accounts or other accounts, all rights to security deposits, including, but not limited to, amounts that Defendant may have deposited with utility companies, all rights to unearned insurance premiums or claim proceeds, or pre-payments of any kind, and all other cash and cash equivalents); (2) all keys; (3) all loans (if any) between Defendant and any affiliated entities and/or between Defendant and any third parties (excluding Plaintiff), together with any communications and correspondence files relating thereto; (4) security deposits, rent, prepaid rent, other sums relating to the use, enjoyment, possession, improvement or occupancy of all or any part of the Mortgaged Property and any accounts of any of the foregoing; (5) a current list of the occupants of the Mortgaged Property, including the complete tenant ledgers with respect to each occupant; (6) complete tenant files, tenant histories and all communications and correspondence pertinent thereto for the two years preceding the date of this Order and for previous years at Receiver's reasonable request; (7) any and all accounts receivable and accounts payable reports; (8) any and all contracts in effect with respect to the Mortgaged Property and all communications and correspondence pertinent thereto, including, but not limited to, all service contracts and warranty information and contracts with vendors who provide or have provided services at the Mortgaged Property; (9) any and all files relating to contracts, bids or other materials relating to any contractor work performed at the Mortgaged Property during the two years preceding the date of this Order and for previous years at Receiver's reasonable request; (10) any and all payroll records, employee files, applications and other materials relevant to those persons employed at the Mortgaged Property for the two years preceding the date of this Order and for previous years at Receiver's reasonable request; (11) any and all insurance policies covering the Mortgaged Property, and all communications and correspondence pertinent thereto; (12) any and all bank statements and records relating to any accounts associated with the Mortgaged Property; (13) any and all records relating to pending or current litigation; (14) any and all leases and any and all subleases in effect with respect to the Mortgaged Property and all communications and correspondence pertinent thereto; and (15) any and all other records pertaining to the operation and management of the Mortgaged Property reasonably requested by Receiver. Defendant, and its officers, servants, agents, and attorneys, are hereby restrained and enjoined from collecting any of the debts or accounts due to the Defendant, and from using, spending, injuring, conveying, transferring, selling, or in any manner disposing of or encumbering any of the effects or property aforesaid, except to deliver them into the hands of the Receiver.

         c. Receiver's Right to Prevent Waste of, and to Preserve, the Mortgaged Property.

         Effective immediately, Receiver is ordered to take any and all actions Receiver deems reasonable and appropriate to prevent waste to the Mortgaged Property and to preserve, secure, manage, maintain and safeguard the Mortgaged Property and all other forms of property to which Receiver is entitled to take possession and control under this Order, provided however, that Receiver shall not have any power to sell the Mortgaged Property;

         d. Receiver Vested with the Information Related to the Mortgaged Property.

         Receiver is vested with the books and records of Defendant with respect to operation of the Mortgaged Property and other property subject hereto for the two years preceding the date of this Order and for previous years at Receiver's request, including any and all information related to: (1) rent rolls and leases affecting the Mortgaged Property, including, but not limited to, leases for current and former tenants and a detailed accounting of all security deposits for current and former tenants; (2) amounts paid by lessees and other obligors of Defendant; (3) liens, encumbrances and other interests against or affecting the Mortgaged Property; (4) property taxes and assessments owed by Defendant and previously paid by Defendant; (5) all types of insurance affecting the Mortgaged Property, including but not limited to, any and all information regarding any pending or settled insurance claims; (6) plans, specifications, surveys and drawings of the Mortgaged Property, including, but not limited to, building and individual floor plans, elevator and/or escalator plans and mechanical system plans; (7) any and all maintenance logs and repair records for all systems in place at the Mortgaged Property; (8) access codes to any of the Mortgaged Property; (9) all operating, income, financial and monthly statements of Defendant and any management company retained by Defendant, including but not limited to, any and all general ledgers, balance sheets, check registers, budgets and monthly billings; (10) all current account numbers for all utility companies; (11) any and all current marketing materials and information, including, but not limited to, any prospect reports; and (12) all other aspects of the Mortgaged Property;

         e. Receiver's Right to Manage, Maintain, and Operate the Mortgaged Property.

         Receiver is authorized to manage, operate, and lease the Mortgaged Property and to employ such managers, agents, employees, servants, brokers, accountants and attorneys as may in Receiver's reasonable judgment be advisable or necessary in the management, conduct, control or custody of the affairs of the Defendant and its assets subject to the consent of the Plaintiff or further order of this Court;

         f. Receiver's Right to Eject Tenants or ...


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