You are on page 1of 11

E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK

CLERK OF DISTRICT COURT Page 1 of 11

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

U.S. BANK NATIONAL ASSOCIATION, EQUITY NO. EQCE087632


AS TRUSTEE FOR MORGAN STANLEY
BANK OF AMERICA MERRILL LYNCH
TRUST 2013-C7, COMMERCIAL
MORTGAGE PASS-THROUGH JUDGMENT AND DECREE OF
CERTIFICATES, SERIES 2013-C7, FORECLOSURE

Plaintiff,

vs.

VALLEY WEST MALL, LLC,

Defendant.

This matter came before the Court at the request of Plaintiff, U.S. Bank National

Association, as Trustee for Morgan Stanley Bank of America Merrill Lynch Trust 2013-C7,

Commercial Mortgage Pass-Through Certificates, Series 2013-C7 (“Noteholder”), upon its

Motion for Entry of Consent Foreclosure Decree (the “Motion”). The Court, having examined

the pleadings and papers filed in the above-captioned action, noting the consent to entry of this

Judgment and Decree of Foreclosure evidenced by the signature of counsel to the Defendant,

Valley West Mall, LLC below, and being fully advised, GRANTS the Motion, and finds the

following facts and enters judgment as follows:

I. Findings of Fact.

1. Defendant, Valley West Mall, LLC (“Borrower”) is an Iowa limited liability

company with its principal place of business in Polk County, Iowa. Borrower, through counsel,

accepted service of the Original Notice and Petition in the instant suit on May 25, 2022, as

evidenced by the Acceptance of Service filed with this Court on May 26, 2022.

3377801
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 2 of 11

2. Borrower filed an Answer to the Petition on June 30, 2022.

3. The Answer admits the Loan is in default.

4. Borrower does not contest the entitlement of Plaintiff to entry of this Judgment and

Decree of Foreclosure, as evidenced by the consent indicated by the signature of Borrower’s

counsel set forth below.

5. Noteholder is entitled to the Entry of a Judgment in this case by virtue of the proof

provided by its Verified Petition and based on Borrower’s consent.

6. Subject matter jurisdiction and venue is proper in this Court under Iowa Code

§ 602.6101, § 616.1, and § 654.3 and other applicable Iowa law, because this case seeks to

foreclose a mortgage of real property and personal property located in Polk County, Iowa.

7. As of May 6, 2022, the following amounts were due and owing pursuant to the

Loan Documents:

Unpaid Principal: $ 40,499,024.90


Interest through 5/6/22 $141,240.35
Interest on Advances $12,702.69
Late Charges Receivable $240,151.20
Protective Advancements for taxes $1,025,053.95
Bank Account Management fee $50.00
Special Servicing Fee $270,680.95

Total: $42,188,904.04

8. Interest continues to accrue at the Note and Default rate of 9.05% from and after

May 6, 2022, until the obligations owed under the Loan Documents are paid in full, and liquidation

fees, other fees, costs, expenses, including legal expenses and attorneys' fees, protective advances,

other advances and other accruals continue to accrue or will become liquidated upon the occurrence of

2
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 3 of 11

certain events, and all are due and owing relating to the Loan from and after their accrual or after they

become liquidated, until paid in full.

9. Noteholder has incurred, and will continue to incur, substantial costs, including

attorneys’ fees, in enforcing its rights and remedies under the Loan Documents, including without

limitation, the costs of instituting this foreclosure lawsuit and reasonable attorneys’ fees related to

Noteholder's enforcement efforts.

10. The attorney fees incurred by Noteholder with Dentons US LLP are $3,294.00

through August 31, 2022, costs incurred with Dentons US LLP through August 31, 2022 are $0.00,

attorneys fees incurred with Dentons Davis Brown P.C. are $27,591.50 through August 31, 2022,

and costs incurred with Dentons Davis Brown P.C. are $770.62 through August 31, 2022.

11. Borrower is in default under the terms and conditions of the Note, Loan Agreement,

Mortgage.

II. Judgment and Decree of Foreclosure.

12. The Note was made Borrower, and the indebtedness evidenced by the Note is the

legal and binding obligation of Borrower, enforceable against Borrower in accordance with its

terms.

13. Borrower is in default under the terms and conditions of the Note.

14. Borrower’s payment and performance obligations under the Loan Documents,

including the payment of the Note, are due and payable in full absolutely and unconditionally, and

there exists no right of setoff or recoupment, nor any counterclaims or defenses of any nature

whatsoever, to the full payment of the obligations or the exercise and enforcement of Noteholder’s

rights under the Loan Documents.

15. All required notices under the Loan Documents have been given to Borrower by

Noteholder, including all appropriate notices pursuant to Iowa Code §625.25 and § 654.4B.

3
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 4 of 11

16. Borrower has failed to make full and punctual payment to Noteholder and perform

certain obligations of the Loan Documents.

17. All conditions precedent to Borrower’s obligations pursuant to the Note have

occurred, and Noteholder has complied with the terms of the Loan Documents.

18. Borrower’s default under the Note has caused Noteholder damages.

19. The Real Property is not (i) used for agricultural purposes as defined within Iowa

Code § 535.13, (ii) a homestead or (iii) a one or two-family dwelling.

20. The liens and security interests in the Real Property created and granted by the

Mortgage and Assignment of Rents to Noteholder are legal, valid, unavoidable and enforceable

liens and security interests in the Real Property and constitute first priority liens and security

interests in the Real Property.

21. "Real Property" defined herein includes Rents to the extent Rents are deemed Real

Property.

22. As a result of Borrower’s default under the Loan Documents, Noteholder has all

the rights and remedies of a secured party under applicable foreclosure statutes, other applicable

law and the Loan Documents.

23. Borrower’s fee ownership interest in the Real Property is subject to Noteholder’s

security interests as evidenced by the Loan Documents.

24. By virtue of Borrower's default under the Loan Documents, Noteholder is the

assignee of the Rents.

25. The liens and security interests in the Personal Property created and granted by the

Mortgage and Loan Documents to Noteholder are legal, valid, unavoidable and enforceable liens

4
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 5 of 11

and security interests in the Personal Property and constitute first priority liens and security

interests in the Personal Property.

26. "Personal Property" includes Rents to the extent Rents are deemed Personal

Property and not the subject Paragraph 21 above.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Noteholder is hereby

granted judgment in rem on Count I (Breach of Note) of its Petition and in Count II (Mortgage

Foreclosure Without Redemption) against the Mortgaged Property, which includes the Real

Property, Personal Property, and the Rents, and the Borrower’s interest in the Mortgaged Property

in the amounts due and owing pursuant to the terms of the Note and Loan Documents, which as of

May 6, 2022, was the following:

Unpaid Principal: $ 40,499,024.90


Interest through 5/6/22 $141,240.35
Interest on Advances $12,702.69
Late Charges Receivable $240,151.20
Protective Advancements for taxes $1,025,053.95
Bank Account Management fee $50.00
Special Servicing Fee $270,680.95
Attorney Fees and Costs through 8/31/22 $31,656.12

Total: $42,220,560.16

Together with all pre and post-judgment interest that accrues at the Note and Default rate of 9.05%

from and after May 6, 2022, until the obligations owed under the Loan Documents are paid in full,

plus all pre and post-judgment prepayment premiums, liquidation fees, other fees, costs, expenses,

including legal expenses and attorneys' fees, and protective advances that have accrued or continue

to accrue or will become liquidated upon the occurrence of certain events, until paid in full,

including all accruals and protective advances identified in any Verified Statement filed by

Noteholder, as is provided below, and including attorneys’ fees and costs that have accrued or

continue to accrue (the “Judgment Amount”). The Judgment Amount shall also be credited with

5
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 6 of 11

any and all payments made to Noteholder relating to the Note and Loan Documents, after the filing

of the Petition herein. This Court retains jurisdiction to more particularly identify all amounts

accrued and all credits against this Judgment Amount, when needed, including that Noteholder

shall file a Verified Statement identifying all accruals and credits against the Judgment Amount

prior to any sale of the Real Property or Personal Property by sheriff’s sale pursuant to the decree

of foreclosure entered below.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Noteholder is

hereby granted judgment in rem on Count II (Mortgage Foreclosure Without Redemption) of its

Petition against the Mortgaged Property and Borrower’s interest in the Mortgaged Property, as

follows:

(A) Judgment in rem against the Mortgaged Property and Borrower’s interest in the

Mortgaged Property in the Judgment Amount.

(B) Judgment that the Mortgage and Assignment of Rents held by Noteholder are valid

first, unavoidable, superior and prior liens on the Mortgaged Property as to all persons, whether

known or unknown, securing the sums due Noteholder as adjudicated herein;

(C) Judgment that the Mortgage and Assignment of Rents be foreclosed subject to their

covenants and terms.

(D) Judgment that Borrower is foreclosed from all rights, title, interest or statutory or

equitable redemption in, of or to all or any part of the Mortgaged Property;

(E) Judgment hereby directing that a special execution be issued directing the sale of

the Mortgaged Property by the Polk County Sheriff, without redemption, and that at the time of

said sale, the Sheriff shall issue to the purchaser of the Mortgaged Property a Sheriff's Deed and,

if appropriate, a Bill of Sale.

6
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 7 of 11

(F) Judgment that no third persons may obtain an interest in and to the Real Property

after this action has been indexed by the Clerk of Court pursuant to Iowa Code § 617.11.

(G) Judgment that, Borrower has not lawfully filed a written demand for delay of sale;

(H) Judgment that, if possession of the Mortgaged Property be not immediately then

surrendered to the grantee in the Sheriff’s Deed or Bill of Sale to be issued under said execution,

a writ of possession may be issued directing the Polk County Sheriff to put such grantee in

possession of the Mortgaged Property.

(I) Judgment that, to the extent that additional amounts accrue as due and owing

pursuant to the terms of the Loan Documents and this Judgment and Decree of Foreclosure,

Noteholder be given an additional lien against the Mortgaged Property.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Judgment and

Decree of Foreclosure is a final judgment with respect to all matters adjudicated herein; however,

the Court reserves jurisdiction for all matters related to title and all matters related to the

receivership and the Receiver Order

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Noteholder does not

herein assert any claim for a personal liability money judgment against Borrower or any other

person or entity, but Noteholder reserves any right it may have under the Loan Documents to a

personal liability deficiency judgment and all other in personam claims against Borrower and any

other person or entity liable to Noteholder.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Court shall

retain jurisdiction of this matter to resolve any disputes between the parties, including, without

limitation: (i) to consider the Motion to be filed following the Sheriff’s Sale to discharge Krista

Freitag as receiver, and to direct the actions necessary to close out the receivership, and to complete

7
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 8 of 11

the administration of the receivership estate and to review and approve payment of the final

receivership fees and expenses and to distribute the net proceeds of the receivership as set forth in

the Final Report of Receiver; and (ii) to consider further applications of Noteholder for in rem

Judgment for the attorneys’ fees and costs incurred from the date set forth in Paragraph 10 above

to the date the Judgment Amount is fully satisfied.

8
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 9 of 11

9
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 10 of 11

Approved as to Form:

/s/ Linda M. Kirsch__________________________


LINDA M. KIRSCH AT0004297
Shuttleworth & Ingersoll, P.L.C.
115 Third Street, S.E., Suite 500
P.O. Box 2017
Cedar Rapids, IA 52406-2017
Phone: (319) 365-9461
Fax: (319) 365-8443
E-mail: lmk@shuttleworthlaw.com

ATTORNEYS FOR DEFENDANT


VALLEY WEST MALL, LLC

10
E-FILED EQCE087632 - 2022 OCT 03 01:21 PM POLK
CLERK OF DISTRICT COURT Page 11 of 11

State of Iowa Courts


Case Number Case Title
EQCE087632 US BANK NA ET AL VS VALLEY WEST MALL
Type: ORDER FOR JUDGMENT
So Ordered

Electronically signed on 2022-10-03 13:21:11

You might also like