Cap One, Inc. v. MV Sierra Rose ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CAP ONE, INC., No. 2:19-cv-01911-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 MV SIERRA ROSE, et al., 15 Defendants. 16 17 Plaintiff Cap One, Inc. (“Plaintiff”) has filed the instant action seeking foreclosure and 18 sale of MV Sierra Rose (the “Vessel”) to satisfy a preferred mortgage in default. This matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On July 20, 2021, the magistrate judge filed findings and recommendations which 22 contained notice that any objections to the findings and recommendations were to be filed within 23 fourteen (14) days. (ECF No. 35.) No timely objections were filed. 24 The Court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). 27 The Court has reviewed the file and finds the findings and recommendations to be 28 supported by the record and by the magistrate judge’s analysis. 1 Accordingly, IT IS HEREBY ORDERED: 2 1. The Findings and Recommendations (ECF No. 35) are ADOPTED IN FULL; 3 2. Plaintiff’s Motion for Default Judgment (ECF No. 27) is GRANTED in part and DENIED 4 in part, as follows; 5 3. Judgment is entered for Plaintiff and against Defendants MV Sierra Rose and Sierra Rose 6 LLC (collectively, “Defendants”) for the following: 7 a. Outstanding balance of funds advanced and unpaid totaling $350,000.00; 8 b. Accrued annual default interest at the rate of 14% per year on the unpaid funds, 9 which brings the total amount of the principal and interest due to $848.062.53 as 10 of June 1, 2021; 11 c. Interest accrued at the contractual rate of 14% (amounting to $136.11 per day) 12 on the unpaid loan amount until the date on which judgment is entered; 13 d. Interest at the statutory rate in 28 U.S.C. § 1961 on the foregoing amounts from 14 the date of entry of judgment until paid in full; 15 e. Costs of suit in the amount of $6,079.41; and 16 f. Reasonable attorneys’ fees in the amount of $9,785.00; 17 4. Plaintiff is adjudged the holder of the first preferred maritime mortgage on the MV Sierra 18 Rose, Official Number 1177228, for payment of the judgment in rem; 19 5. The Court declares the lien of the mortgage to be superior to all other liens which may 20 exist against the Vessel; 21 6. The mortgage is foreclosed and the Vessel, MV Sierra Rose, Official Number 1177228, 22 her engines, tackle, apparel, furniture, appurtenances and equipment shall be sold in 23 accordance with Local Rule 570, with the proceeds of the sale applied and delivered to 24 pay the demands and claims of Plaintiff, together with all costs and attorneys’ fees, and 25 any and all persons, firms and corporations claiming any interest in the Vessel are forever 26 foreclosed of and from all rights of equity or redemption of claim in or to the Vessel; and 27 7. At the sale of the MV Sierra Rose, Official Number 1177228, her engines and equipment, 28 etc., Plaintiff is permitted, but not required, to credit bid without cash deposit up to the 1 extent of its judgment; 2 8. Plaintiff is awarded against Defendant Sierra Rose LLC any deficiency after the 3 application and delivery of the net proceeds of sale of the Vessel, her engines, tackle, etc., 4 on the judgment; 5 9. The request for late charges or collection charges in the amount of $42,690.28 over and 6 above the $848.062.53 is DENIED; and 7 10. The request for future or anticipated post-judgment collection costs is DENIED without 8 prejudice to renewal if adequately supported. 9 IT IS SO ORDERED. 10 | Dated: September 27, 2021 /) 12 “ \/ of Lor 13 —AN ZN Troy L. Nunley } 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28