UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA .
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 1 of 13 PageID #: 1UNITED STATES DISTRICT COURTWESTERN DISTRICT OF LOUISIANAMONROE DIVISIONLSREF2 BARON, LLC*****VERSUSDREW PROPERTIESOF RUSTON, LLC ANDDORIS F. ANDREW******CIVIL ACTION NO.SECTIONMAGISTRATE****VERIFIED COMPLAINT TO ENFORCE NOTE, MORTGAGE, ANDCOMMERCIAL GUARANTY, AND REQUESTFOR SEQUESTRATION AND APPOINTMENT OF KEEPERLSREF2 Baron, LLC (“Baron”) brings this suit against the above named defendants andrespectfully shows and alleges as follows:1.This is an action by Baron, the holder of a certain Promissory Note, MultipleIndebtedness Mortgage, and Commercial Guaranty more fully described herein to: (i) forecloseby ordinary process on certain Mortgaged Property (as defined herein); (ii) obtain thesequestration of the Mortgaged Property; (iii) appoint a keeper for the Mortgaged Property; and(iv) obtain a monetary judgment against defendants, all as provided in the various LoanDocuments (as defined herein), and as set out more fully below.Parties, Venue, and Jurisdiction2.Plaintiff Baron is a Delaware limited liability company authorized to do and doingbusiness in the State of Louisiana. Baron is organized under the laws of Delaware and its
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 2 of 13 PageID #: 2principal place of business is in Dallas, Texas. The citizenship of Baron’s members controls thedetermination of Baron’s citizenship. The sole member of Baron is LSREF2 Baron SubHoldings, LLC, a limited liability company organized under the laws of Delaware with itsprincipal place of business in Dallas, Texas.LSREF2 Baron Sub Holdings, LLC has three members: (i) LSREF2 Baron LoanHoldings, Ltd, (ii) LSREF2 Baron REO Holdings, LLC, and (iii) LSREF2 Baron PropertyHoldings, LLC. For purposes of diversity jurisdiction, LSREF2 Baron Loan Holdings, Ltd. is aBermuda corporation with its principal place of business in Bermuda and is therefore a Bermudacitizen. LSREF2 Baron REO Holdings LLC and LSREF2 Baron Property Holdings, LLC areDelaware limited liability companies, with their principal place of business in Dallas Texas. Thesole member of both of these LLC’s is LSREF2 Baron Partners (Bermuda), Ltd., a Bermudacorporation with its principal place of business in Bermuda and therefore a Bermuda citizen.Thus, no member, and no owner of any member, is a citizen of Louisiana.3.Defendant Drew Properties of Ruston, LLC (“Drew Properties”) is a Louisiana limitedliability company with its principal place of business in Monroe, Louisiana.4.Defendant Doris F. Andrew (“Ms. Andrew”) is a person of the full age of majority, uponinformation and belief, domiciled in Monroe, Louisiana. (Drew Properties and Ms. Andrew aresometimes hereinafter collectively referred to as “Defendants”)-2-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 3 of 13 PageID #: 35.This Court has subject matter jurisdiction on the basis of diversity of citizenship, 28U.S.C. § 1332, as there is complete diversity of citizenship and the amount in controversyexceeds 75,000.00 in value, exclusive of interest and costs.6.Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), because all of theDefendants reside within this District and are residents of the State of Louisiana. Venue is alsoproper in this district pursuant to 28 U.S.C. § 1391(c) because a substantial part of the events oromissions giving rise to the claims occurred in this District, and because the immovable propertythat is the subject of this action is located within this District.The Note and the Mortgage7.On March 14, 2007, Drew Properties executed a Promissory Note in favor of RegionsBank (“Regions”) in the amount of 1,281,758.65 (“Note”) (See Exhibit “A”).The Noteprovides Regions with the option to accelerate and demand the payment of the entireindebtedness due under the Note, including interest accrued and reasonable attorneys’ fees, costs,and expenses, in the event that Drew Properties defaults on a scheduled payment. Note at P. 2.8.The Note is secured by a Multiple Indebtedness Mortgage, dated March 14, 2007,executed by Drew Properties and passed before E. Eugene Hastings, Notary Public in and for theParish of Lincoln, State of Louisiana, and two witnesses (“Mortgage”) (See Exhibit “B”). TheMortgage was recorded on March 15, 2007 in the Office of the Clerk of Court of the Parish ofLincoln, State of Louisiana, under Instrument No. F82950.-3-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 4 of 13 PageID #: 49.In the Mortgage, Drew Properties did specially mortgage, affect and hypothecate in favorof Regions any and all of the Mortgagors’ present and future rights, title and interest in thefollowing described property, to wit:Commencing at an existing ½ inch iron pipe at the Southwest corner of Lot No.12 of Square 101 of the Stubbs Addition to the Town of Ruston, Louisiana;thence run North 03 degrees 21 minutes East along the West line of Lots 12, 11,10, 9 and 8 for a distance of 362.2 feet to a ½ inch rebar; thence run South 89degrees 44 minutes East for a distance of 236.1 feet to a ½ inch rebar; thence runSouth for a distance of 245.7 feet to a ½ inch rebar; thence run South 86 degrees39 minutes East for a distance of 130.3 feet to a ½ inch rebar on the East line ofLot 11 and the West line of Henderson Street; thence run South 12 degrees 09minutes West along the East line of Lot 11 and the West line of Henderson Streetfor a distance of 35.5 feet to a ½ inch rebar; thence run South 03 degrees 21minutes West along the East line of Lot 12 and the West line of Henderson Streetfor a distance of 34.0 feet to a metal “I” post set in concrete; thence run North 86degrees 39 minutes West for a distance of 223.0 feet to a metal “I” Post set inconcrete; thence run North 01 degree 26 minutes East for a distance of 12.7 feet toa metal “I” post set in concrete; thence run North 88 degrees 34 minutes West fora distance of 56.6 feet to a metal “I” Post set in concrete; thence run North 03degrees 21 minutes East for a distance of 4.3 feet to a metal “I” post set inconcrete; thence run North 86 degrees 39 minutes West for a distance of 75.0 feetto a metal “I” post set in concrete; thence run South 03 degrees 21 minutes Westfor a distance of 75.0 feet to a ½ inch rebar; thence run North 86 degrees 39minutes West for a distance of 10.0 feet and back to the point of beginning,containing 1.83 acres.Together with any and all present and future buildings, constructions, componentparts, improvements, attachments, appurtenances, fixtures, rights, ways,privileges, advantages, batture, and batture rights, servitudes and easements ofevery type and description, now and/or in the future relating to the Property, andany and all items and fixtures attached to an/or forming integral or componentparts of the Property in accordance with the Louisiana Civil Code.The Property or its address is commonly known as 620 HENDERSON STREET,RUSTON, LA 71270.(hereinafter, the “Property”). Mortgage at P. 2 and Exhibit “A” to Mortgage.-4-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 5 of 13 PageID #: 510.In the Mortgage, Drew Properties agreed that the Mortgaged Property would remainspecially mortgaged, hypothecated and assigned unto and in favor of Regions until the full andfinal payment of all Indebtedness (as defined in the Mortgage) secured thereby, including,without limitation, the Note. Mortgage at P. 2. Drew Properties also confessed judgment andacknowledged to be indebted to an in favor of Regions up to the full amount of the indebtedness,including principal, interest, costs, expenses, reasonable attorneys’ fees and other fees andcharges. Mortgage at p. 9. Drew Properties further consented, agreed and stipulated that it shallbe deemed a default under the Mortgage should Mortgagor default in payment of principal orinterest when due under the Note or should Drew Properties violate, or fail to comply fully withany of the terms and conditions of, or default under the Mortgage. Mortgage at p. 8. Upon anysuch default, the Note shall, at the option of Regions, becomes due and payable in full. Mortgageat p. 8.11.The Mortgage also provides that, as additional collateral security for the prompt andpunctual payment and satisfaction of the Mortgage, and any Additional Advances thereunder,Drew Properties specifically assigned, pledged, and granted to Regions a continuing securityinterest in and to certain property and rights, including:Proceeds. Any and all proceeds derived or to be derived from the sale, transfer,conveyance, insurance loss, damage, destruction, condemnation, expropriation, orother taking of the Property, or other proceeds and proceeds of proceeds, and anyunearned insurance premiums relating thereto, including the rights of Mortgagorto receive such proceeds directly from the obligor or obligors therefor, and tofurther enforce any rights that Mortgagor may have to collect such proceeds,including without limitation, Mortgagor’s rights to commence an appropriatecollection or enforcement action or actions incident thereto.-5-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 6 of 13 PageID #: 6Leases, Rents and Profits. Any and all present and future leases or subleasesaffecting the mortgaged Property, and all rents, income, and profits therefrom,including, without limitation, any and all rents, income, profits, bonuses,revenues, royalties, cash or security deposits, advance rentals and other payments,and further including Mortgagor’s rights to enforce all present and future leases orsubleases and to receive and enforce any rights that Mortgagor might have tocollect rental and all other payments.Deposits. Any and all present and future deposits or other security or advancepayments, including rental payments, made by or on behalf of Mortgagor toothers, with respect to (1) utility service regarding the Property, (2) cleaning,maintenance, repair, or similar services regarding the Property, (3) refuseremoval or sewer service regarding the Property, (4) rentals of equipment, if any,used in the operation by or on behalf of Mortgagor regarding the Property, and/or(5) parking or similar services or rights regarding the Property.Options. Any and all present and future options to sell or lease the mortgagedProperty or any interest therein.Contract Rights. To the extent assignable and/or transferrable, any and all ofMortgagor’s present and future contract rights, instruments, documents, andgeneral intangibles necessary for use or useful in connection with the ownershipand operation of all or any part of the Property, whether now existing or hereaftercreated, or otherwise acquired by Mortgagor, and all liens, security interests,guaranties, remedies, privileges and other rights pertaining thereto, and all rightsand remedies of any kind forming the subject matter thereof.(collectively hereinafter with the “Property”, the “Mortgaged Property”). Mortgage at P. 6-7.The Commercial Guaranty and Assignment12.As additional incentive to induce Regions to enter into the loan transaction, Ms. Andrewexecuted and delivered to and in favor of Regions Bank a Commercial Guaranty (“Guaranty”)dated March 14, 2007 (See Exhibit “C”). In the Guaranty, Ms. Andrew guaranteed the full andpunctual payment of all amounts due by Drew Properties (whether at stated maturity, uponacceleration or otherwise), as well as the full and punctual performance of all other obligations ofDrew Properties under the terms of the Note.-6-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 7 of 13 PageID #: 713.In the Guaranty, Ms. Andrew bound and obligated herself in solido with Drew Propertiesin favor of Regions.14.On July 22, 2011, Regions Bank, assigned its interest in the Note, the Mortgage, and theGuaranty (and other loan documents) (collectively sometimes hereinafter the “LoanDocuments”) to LSREF2 Baron Trust 2011. (See Exhibit “D”) On September 20, 2011, theLoan Documents were subsequently assigned by LSREF2 Baron Trust 2011 to Wells Fargo,N.A. (See Exhibit “E”). On July 31, 2012, the Loan Documents were thereafter assigned toLSREF2 Baron, LLC (the current plaintiff). (See Exhibit “F”)The Default15.Drew Properties failed to make its scheduled payments under the Note, and on May 30,2012, a notice of acceleration and default was sent to Drew Properties (as borrower) and Ms.Andrew (as guarantor) stating that all amounts were currently due under the Loan Documents.(See Exhibit “G”)16.Despite amicable demand, Defendants have failed to pay the past-due amounts owedunder the terms and provisions of the Note and the Guaranty.17.As of September 17, 2012, the amount due under the Note and Guaranty was 1,265,915.53. Interest continues to accrue on the outstanding amounts at the default rate of21% per annum (or 683.7295 per diem) until paid. (See Exhibit “H”)-7-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 8 of 13 PageID #: 8The Lost Note18.The Note was misplaced and lost by Regions prior to its assignment. Regions executed aLost Note Affidavit, dated July 22, 2011, in favor of LSREF2 Baron Trust 2011 and allsubsequent holders of the Note (See Exhibit “I”). In accordance with La. R.S. 13:3741, legalnotice seeking the whereabouts of the lost Note was published in the Ruston Daily Lender onJuly 23 and 30, 2012, and August 6 and 13, 2012. (See Exhibit “J”)The Sequestration19.The Mortgaged Property consists of a residential apartment facility presently in thepossession of the Defendants, and the Proceeds, Leases, Rents, Profits, Deposits, Options, andContract Rights related thereto that are currently being collected by and/or are in the possessionof Defendants. It is within the Defendants’ power (i) to allow waste or deterioration to theMortgaged Property during the pendency of this action and/or (ii) to conceal, dispose of, orwaste the Mortgaged Property during the pendency of this action. To protect the rights of theBaron as holder of the Loan Documents, Baron is entitled by law to the issuance of a writ ofsequestration directing the seizure of the Mortgaged Property during the pendency of this action.20.Rule 64 of the Federal Rules of Civil Procedure provides that the Louisiana state lawremedy of sequestration is available in this civil action. The Louisiana Code of Civil Procedureprovides for a remedy of sequestration “[w]hen one claims the ownership or right to possessionof property, or a mortgage, security interest, lien or privilege thereon.” La. C.C.P. art. 3571. In-8-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 9 of 13 PageID #: 9such an instance, plaintiff “may have the property seized under a writ of sequestration, if it iswithin the power of the defendant to conceal, dispose of, or waste the property or the revenuestherefrom, or remove the property from the parish, during the pendency of the action.” Id.21.Article 3501 of the Louisiana Code of Civil Procedure, applicable to this action throughF.R.C.P. 64, provides:A writ of attachment or of sequestration shall issue only when the natureof the claim and the amount thereof, if any, and the grounds relied upon for theissuance of the writ clearly appear from specific facts shown by the petitionverified by, or by the separate affidavit of, the petitioner, his counsel or agent.The applicant shall furnish security as required by law for the payment ofthe damages the defendant may sustain when the writ is obtained wrongfully.22.Baron is entitled to the writ of sequestration requested in this Verified Complaintpursuant to the allegations contained herein and the attached documents, which clearly establish:(i) that Baron has a mortgage interest and/or security interest in the Mortgaged Property, (ii) theamount owed under the Note and Guaranty, (iii) the basis for Baron’s claim – including, but notlimited, to the Loan Documents, and (iv) that it is presently and continually within the power ofone or more of the Defendants to conceal, dispose of, waste and/or remove the MortgagedProperty.23.Article 3574 of the Louisiana Code of Civil Procedure states that an applicant for a writof sequestration shall furnish security in “an amount determined by the court to be sufficient toprotect the defendant against any damage resulting from a wrongful issuance, unless security isdispensed with by law.” Within five business days of issuance of an order granting the request-9-
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 10 of 13 PageID #: 10for sequestration, Baron will either deposit 10,000.00 into the Registry of the Court or obtain asurety bond in the amount of 10,000.00, and Baron requests that this Court deem 10,000.00 asgood and sufficient security for issuance of the writ of sequestration. Such an amount issufficient to protect Defendants from any potential damage that could result from wrongfulissuance of the writ requested herein.24.The ex parte issuance of a writ of sequestration is appropriate in this instance and is infull compliance with applicable law. The United States Supreme Court has held that the ex parteissuance of a writ of sequestration, without notice or the opportunity for hearing, pursuant to thescheme set forth in the Louisiana Code of Civil Procedure, is proper and constitutional. SeeMitchell v. W.T. Grant, Co., 416 U.S. 600, 603-20 (1974). Accordingly, the U.S. Fifth Circuithas recognized the propriety of issuing ex parte writs of sequestration pursuant to the LouisianaCode of Civil Procedure. See, e.g., Rocket Indus., Inc. v. Southern Tire & Supply, Inc., 706 F.2d561, 562-64 (5th Cir. 1983) (affirming ex parte issuance of writ of sequestration). As such, thisCourt is authorized to issue the requested writ of sequestration ex parte.Appointment of Keeper25.Pursuant to the Mortgage, Baron further has the right to designate a keeper of theMortgaged Property at the time of any seizure or writ of sequestration, and Baron may designateitself or its employees, agents or independent contractors, as such keeper. Mortgage at P. 9.Baron requests that this Court appoint a keeper, in accordance with La. R.S. §9:5136, et seq.which authorizes this Court to direct the U.S. Marshal making the seizure to appoint as keeper ofthe Mortgaged Property a person designated by this Court.- 10 -
Case 3:12-cv-02724-JTT-KLH Document 1 Filed 10/19/12 Page 11 of 13 PageID #: 1126.Pursuant to its rights under the Mortgage and under Louisiana law, Baron requests thatthis Court have the U.S. Marshal appoint Property One, Inc. to serve as keeper of the MortgagedProperty once seized under the writ of sequestration. Property One, Inc. has experience inmanaging properties such as the Mortgaged Property, has demonstrated a knowledge of the localeconomy, and has agreed to serve as keeper.27.Subject to the provisions of the Loan Documents, Baron specifically reserves all of itsrights against all makers, co-makers, endorsers, guarantors, and/or solidary obligors of theindebtedness being sued on herein, against any other collateral securing the indebtedness, andagainst any persons, firms, and/or corporations who may be liable in whole or in part for theindebtedness or based upon any and all additional obligations and indebtedness owed to Baronon the Note sued upon, and for any deficiency not recovered herein.WHEREFORE, the premises considered, Plaintiff, LSREF 2 Baron, LLC, prays:1.That Judgment be rendered herein in its favor and against Drew Properties (asborrower) and Ms. Andrew (as guarantor), in solido, in the full sum of (i) 1,265,915.53, withinterest at the contract rate and other charges continuing to accrue, and (ii) additional costs ofcollection and attorneys’ fees and all costs of this proceeding;2.That the Mortgage in its favor be recognized, maintained, and declaredenforceable in accordance with the law, and that in due course after judgment herein, theproperty be sold at public auction, with appraisal, for cash to the highest bidder;- 11 -
corporation with its principal place of business in Bermuda and therefore a Bermuda citizen. Thus, no member, and no owner of any member, is a citizen of Louisiana. 3. Defendant Drew Properties of Ruston, LLC (“Drew Properties”) is a Louisiana limited liability company with its principal place of business in Monroe, Louisiana. 4.
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