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Westfield mayor’s business HQ headed for sheriff’s sale

The Illinois bank TBF has foreclosed on a trucking business owned by Westfield Mayor Andy Cook and his son Ben Cook.

Through a mutual agreement filed in Hamilton Superior Court III Tradewinds Holding Co.’s headquarters at 1318 E. 236th St. will be auctioned Aug. 20 at a sheriff’s sale. In addition to that 5-acre property, the auction also will include 75 acres of adjacent undeveloped land at 1110 E. 236th St.

TBF forced the foreclosure and sheriff’s sale after acquiring Tradewinds’ debt from Fifth Third Bank in January 2014. The bank, though, essentially forgave up to $1.4 million in debt from Tradewinds and the Cooks, through the agreement.

Tradewinds was upside down on $2.7 million it owed on the property when TBF acquired the loans. According to an independent appraisal provided to the court, the property was valued at $1.3 million to $1.6 million and would be difficult to market and sell in the rural area. The land is far north of economic development in Hamilton County.

The bank agreed not to seek more than the auction amount from Tradewinds, or from Andy Cook and Ben Cook, who had provided personal guarantees on the debt.

In return, Tradewinds will drop potential court actions to stop or delay the foreclosure.

“This is a really good deal for everyone,” said Eric Douthit, an attorney with the Noblesville-based Church, Church, Hittle Antrim law firm who represents Tradewinds.

The Cooks referred questions to Douthit. Ben Cook has managed day-to-day operations at the company since Andy Cook was elected mayor. Andy Cook’s other son, Brian Cook, handles the company’s finances.

Douthit said Tradewinds will either lease the headquarters from the future owner of the property or move to another location the company owns on 181st Street in Westfield, where the trucking operations are based.

Douthit said the company plans to have a long-term future after posting its best earnings year in 2014. Business is up so far this year, he said.

“Hoosier Tradewinds plans to continue to operate,” Douthit said.

There’s no question the trucking company has been troubled for years, though. Founded in 2006, Tradewinds filed for bankruptcy after struggling to maintain business during the recession.

Tradewinds emerged from bankruptcy in November 2009 and consolidated its debt into the two loans from Fifth Third Bank.

Fifth Third Bank, though, sold the loans to TBF in January 2014, according to court documents. A month later, TBF informed Tradewinds it was in default for failing to provide properly audited financial documents.

TBF demanded the full amount of the loans. When Tradewinds failed to pay the money, the bank filed for foreclosure in March 2014. Tradewinds owed $3.17 million, including the loans and other expenses, according to the court filing.

Douthit said the two sides began negotiating on a mutually beneficial agreement even as TBF pursued the foreclosure.

Mark Owens, an attorney with Barnes Thornburg who represented both Fifth Third Bank and TBF in dealings with Tradewinds, did not immediately respond to questions.

TBF could keep the property if it fails to sell at auction. If that happens, Douthit said Tradewinds would seek to lease the property.

The property has been managed by a receiver since July 2014, at TBF’s request.

Politically well-connected Hamilton County businessman Terry Anker owns the receivership, called The Anker Receivership Group.

He could not immediately be reached. His group has filed frequent reports stating that Tradewinds is making timely payments and providing the necessary upkeep for the property as it heads to auction.

Anker is a co-owner of a group of the Current community newspapers in Hamilton County. He also heads The Legacy Fund, which raises money for community projects, including the Westfield Youth Assistance program started by Cook.

Anker also headed a political action committee formed by Carmel Mayor Jim Brainard to elect like-minded City Council candidates in 2011.

Douthit said Tradewinds has made timely payments since emerging from bankruptcy. He said all known debts have been resolved, either through paying them off, through continuing to make payments, or through companies going out of business.

County records also indicate Tradewinds owes roughly $1 million in unpaid taxes to the Internal Revenue Service. However, Douthit provided documentation that all of those liens were resolved and would be removed.

The Cooks formed Tradewinds Holding Co. in December 2010 to manage the finances of and pay the taxes of sister business entities Tradewinds Logistics and Hoosier Tradewinds. The IRS, county records show, continued to tax the two sister businesses for several years, though.

The Sheriff’s sale will begin at 10 a.m. Aug. 20 at the Sheriff’s Office. Written bids will be taken until noon, at which time a verbal auction will begin.

Call Star reporter Chris Sikich at (317) 444-6036. Follow him on Twitter: @ChrisSikich and at Facebook/chris.sikich.

Article source:

Auctions are not best options for abandoned property

Auctions are not best options for abandoned property

An abandoned property. Credit: Cindy Cornett Seigle

If officials in distressed cities want their communities to recover, abandoned commercial and residential properties would be available through a managed sales program rather than auctions, according to a new University of Michigan study.

Managed sales through land banks or city planning departments can lead to more owner-occupied homes, additions of side lots to homes and businesses, and less property flipping, said Margaret Dewar, U-M professor of urban and regional planning.

Population loss and employment decline in many cities nationwide have led to thousands of abandoned . As a result, owners stop paying , which sends the property into foreclosure. The governments then sell tax liens or sell the property at auction, depending on state law.

“The objectives of the sales are to recoup at least some of the lost municipal revenue quickly and to move property back into private ownership,” Dewar said.

But this system is not the best approach to assure that abandoned property returns to productive use that yields future tax revenues, she said.

Dewar studied the reuse of tax-foreclosed properties in Flint, Mich., and Detroit. The method of sale of these properties has ramifications for future use. A county government in Michigan has to offer tax-foreclosed property at auctions.

“This allows governments to receive immediate revenue if the property sells, but this strategy has promoted prolonged disinvestment,” she said. “Auctions have not allowed prospective bidders to inspect properties.”

Purchasers usually have had to deliver full payment within 24 hours. Dewar said those individuals with the financial means to accept these conditions have often flipped properties, extracted payment from people who had intended to use the properties, or rented houses without making improvements until the county again took the property for failure to pay taxes.

In contrast, managed sales aim to assure lasting reuse. Dewar saw how city department staffs scrutinized prospective owners and their plans for reuse. In addition, interested purchasers had an opportunity to inspect the property, remove any liens against the title and arrange financing.

Managed sales also were associated with much better property conditions than were auctions. A smaller share of properties sold through managed remained vacant lots, Dewar said. Fewer properties returned to tax foreclosure or experienced speculative flipping.

Officials can improve outcomes by alerting the public about properties to be auctioned, she said. This would also include holding open houses for prospective buyers to examine the properties.

“Auctions could allow more time for a purchaser to find funds to pay for property and clear title,” Dewar said.

In addition, public officials could reduce the share of foreclosed properties sold at by advocating for changes in state law, she said.

The findings appear in the current issue of the Journal of Planning Education and Research.

Explore further:
Foreclosure reduces a home’s sale price by 27 percent on average

More information:
“Reuse of Abandoned Property in Detroit and Flint: Impacts of Different Types of Sales.” Journal of Planning Education and Research 0739456X15589815, first published on July 16, 2015 DOI: 10.1177/0739456X15589815

Article source:

South Jersey towns create ‘zombie foreclosure’ registry

Two-Story Steps Away From the Bay and Marina Sponsor Listing

Abandoned homes have become much more commonplace in the years after the housing crisis.

Ten Gloucester County towns fed up with the blighted buildings are creating a registry of abandoned homes to more easily fine the owners who let their properties deteriorate — or work out a deal with the banks to get the homes back on the market.

According to Gloucester County administrator Chad Bruner, municipalities can have difficulty tracking down a property owner across a complicated paper trail.

“The experience that we’ve been hearing is: they call, they dial around, they keep getting pushed around from one to another to another,” said Bruner. “This program here is supposed to stop all that.”

Go to for more on the registry.

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Safe house for homeless and abuse victims facing foreclosure


A place where the victims of domestic violence go to feel safe is on the brink of closing. Since 1997, the Shepherd’s Inn has helped nearly 2,000 women and children feel safe. Now, it’s the shelter that needs saving.

Executive Director Paul Gabinet told me they are behind on 4 months of mortgage payments and late fees. The bills add up to more than $9,000.

Gabinet says the shelter gets $12,000 a year from the City of Elizabethton, and then relies upon grants, fundraisers and donations to stay open.

Its largest fundraiser during the night race at Bristol Motor Speedway in August raises between $15,000 to $20,000. However, the house will be foreclosed on before the race comes to town next month.

“If the money is not raised in time, and it’s not huge amounts, what we’ve done for 18 years will no longer be here to serve,” Gabinet said. “We’ve got to get the money to pay and make certain the bank will stop this foreclosure.”

The notice from the Bank of Tennessee says the foreclosure sale will be held on the steps of the Carter County Courthouse on Aug. 13.     

Gabinet is asking the community to make donations so they can pay back the bills before the house is lost.

Donations can be sent to:

Shepherd’s Inn
P.O. Box 2214
Elizabethton, TN – 37643
(423) 542-0180

First Baptist Church
212 E F St.
Elizabethton, TN 37643
(423) 543-1931

Article source:

Real estate agents, HOAs battle over liens | Las Vegas Review-Journal – Las Vegas Review

It’s a Nevada Supreme Court decision that didn’t resolve much.

The court’s September ruling in SFR Investments Pool 1 LLC v. U.S. Bank gave homeowner associations the right to wipe out entire mortgages through foreclosures for late dues. But it also launched a legislative effort to reverse the right to what’s called a super-priority lien.

Today, the battle continues between real estate agents, who say the rules put banks on the brink of a local lending boycott, and HOAs, who say the system is finally working the way it should.

Both sides have taken to courts and to Carson City to make the case for additional change. The results could have long-term implications for Southern Nevada’s housing market.

One thing the legal challenges and legislative changes have yet to accomplish is to seal the bitter division between the two sides.

Question of fairness

It’s “rank unfairness” to let an HOA with a claim of $3,000 or $4,000 in late dues and fees foreclose on a lender and wipe out a $300,000 first mortgage, said Keith Lynam, president of the Greater Las Vegas Association of Realtors.

Allowing super priority also undermines the local real estate market.

“Lenders have made it clear that extinguishment of noteholders needs to be addressed. If it’s not, it will be addressed for us,” Lynam said. “They have made it clear they will not lend here.”

Association managers counter that the real unfairness happens when banks let delinquent homes languish, HOA dues unpaid.

The Supreme Court’s decision helped patch that problem, said Norman Rosensteel, vice president of the Nevada chapter of the Community Associations Institute and president of ATC Collections Group.

The ruling “made a lot of banks step up and pay assessments,” he said.

Without the fear of seeing their note nixed, nothing forced banks to pay up, Rosensteel added. Sometimes they would delay paying for years, because pulling the plug on a delinquent loan and selling a foreclosed home would put bad numbers on the books and force a sale in a down market.

“A lot of associations had to decide what bills they could pay and what services they had to cut back on,” Rosensteel said. “Typically, they cut back on security companies and patrol services. Some tried to cut back on landscape maintenance. Many associations stopped making monthly transfers to fund their reserves.”

Most association board members have no interest in the hassles of buying or renting out a delinquent unit, so in most cases HOAs simply quitclaimed the foreclosed home back to the homeowner for the amount owed, Rosensteel said.

The problem was, the amount owed wasn’t simply past-due assessments. Homeowners, including banks, had to shell out thousands more in collection fees. So what associations really did was make a fortune on administrative charges, sometimes through companies their management firms owned, Lynam said.

“It’s created tremendous revenue for HOA managers and their collections companies. It’s a system rife with abuses,” he said.

Still, the biggest potential fallout a lending embargo — isn’t borne out by the numbers.

Statistics from real estate research firm RealtyTrac show that lenders originated 15,435 local mortgages in the first quarter of this year. That was down 5 percent from last year’s third quarter, when the Supreme Court issued its decision. But originations fell even more nationwide, dropping 10.6 percent in the same period, to 1.6 million.

RealtyTrac Vice President Daren Blomquist tied the declines to an uptick in mortgage rates in late 2014.

Year over year, originations in Las Vegas were up significantly, jumping 14 percent from 13,568 in the first quarter of 2014, as interest rates dipped in early 2015 and new federal rules made mortgage insurance and down payments more affordable.

“At least in practice, lenders are not pulling back,” Blomquist said.

A state law scheduled to take effect Oct. 1 could keep it that way, at least in the near term.

Tougher notification laws

Senate Bill 306 will “add a lot of protections and clarifications” to super-priority laws, Rosensteel said.

For starters, it will toughen notification laws. Banks today have to record a request for notice of an HOA sale. After October, they’ll automatically be notified.

Banks will have to do their part, too: HOAs have trouble finding details on who should get notices, and where. Starting Oct. 1, lenders will have to provide the state Financial Institutions Division with the name and address of a contact in case of HOA default. Contact information will appear on the division’s website.

There’s also a redemption period that lets lenders reclaim a property within 60 days of an HOA foreclosure sale.

All of those regulations should mean fewer HOA foreclosures.

“It cleaned up the process and went a long ways toward helping,” Lynam said.

There’s just one problem, he said: The law will still allow HOAs to extinguish first deeds of trust, continuing uncertainty for lenders.

So sales agents and lenders are eyeing other lawsuits and future legislative sessions for more fixes.

Lien laws seen changing

Several cases involving super priority are working their way through federal courts, so lien laws will keep changing, said Zach Ball, a local real estate attorney and managing partner of the Ball Law Group.

But the Nevada Supreme Court’s ruling “solidified” much of the state’s law, he said.

“The majority of arguments being pushed forward at this point are minor. The laws might change in limited cases, but I think overall, the Supreme Court’s decision will stand that super priority wipes out the holder of the first deed of trust.”

That’s why real estate agents and banks are looking forward to the state’s 2017 legislative session.

Lynam all but guaranteed the law will change then. A bill to end super priority passed the Assembly in the spring, but it missed the deadline to shift to the Senate by less than an hour.

“I’m very confident we have the votes,” Lynam said.

But with two years until the next session, Lynam said he can only hope that super-priority liens won’t hurt the market anymore.

“Let’s hope there are so few of these that it doesn’t become an issue and the feds don’t pull their lending out.”

That’s not likely, Blomquist said.

The 15,435 local mortgages that lenders issued in the first quarter had a volume of more than $3.6 billion.

“It depends on the level of risk, but that’s a lot of money on the table for lenders to walk away from,” he said. “It would have to be a very serious threat for them to do that. And there are tools for them to mitigate that risk by monitoring HOA foreclosure notices.”

Ball agreed that the borrowing outlook should stay relatively healthy.

“You hear the battle cry that banks aren’t going to lend, yet the banking community goes forward with making loans in the state. Fees may go up, and interest rates may increase, but to stop lending in a major metro area like Las Vegas would seem like a real loss of business.”

Contact Jennifer Robison at Follow @J_Robison1 on Twitter.

Article source:

Niagara Falls changing way it conducts tax foreclosure auctions – City …

NIAGARA FALLS – The City of Niagara Falls is planning to change the way it conducts tax foreclosure auctions by prioritizing available properties for people who want to be homeowners, according to city officials.

Every year, hundreds of parcels around the city hit the auction block due to unpaid taxes.

The typically vacant parcels or abandoned buildings get scooped up, often by speculators or people who neglect their properties.

The same thing happens year after year, a cyclical occurrence that’s led to untold numbers of boarded-up buildings, a blight on the city.

“Land speculators and real estate speculators and – frankly I don’t know what else to call them – slumlords have learned how to game this system,” Mayor Paul A. Dyster told lawmakers last week. “They’ve figured out how to make the rules and regulations work to their advantage and we have to stay one step ahead of them.”

So here’s what a reform plan developed by the Dyster administration would do:

• Hold a “homeownership auction” prior to the city’s regular tax foreclosure auction, an event that would give potential homeowners essentially the right of first refusal for single-family and two-family dwellings coming available.

• Require the winning bidder for any single-family or two-family home to put down a 10 percent bond that the city would hold onto and reimburse when a certificate of occupancy is issued.

• Host smaller tax foreclosure auctions after the homeownership auctions – where the total number of properties available would be no more than 50 – instead of holding one big auction annually.

“We want to make the tax foreclosure process smaller, easier to track,” said Seth A. Piccirillo, director of the city’s Community Development Department.

With fewer properties changing hands at one time, there wouldn’t be a rush on city departments to handle a flood of new work in addition to the day-to-day work of employees, Piccirillo said.

Piccirillo’s department has tested these proposed changes in two “mini” homeownership auctions held in September 2013 and this past May.

At the 2013 auction, the city sold three homes near Niagara Falls Memorial Medical Center. Among the city’s requirements for those properties, the winning bidders agreed to live in the home for five years, submit a rehabilitation plan to the city within 60 days and be in good financial standing with the city in order to finalize the purchases.

Those parameters would carry forward and be used in the new homeownership auctions.

“Our goals are to prioritize homeownership, force realistic renovation standards and timelines and to ultimately stop the process of property neglect and tax evasion, especially among multi-unit buildings,” Piccirillo said.

Piccirillo said the city does not stand to take a financial hit from the change.

He said the 192 properties sold at the foreclosure auction last December brought in an average of $8,900.

At the homeownership auction this past May, seven houses were sold for an average of $9,100, he said.

It is not necessary for a new law to be passed for the Dyster administration’s proposals to be enacted, Piccirillo said.

Another potential change in years to come would be to move the auctions to the spring to increase the chances properties can be turned around in a single construction season.

And having more homeowners in a neighborhood strengthens that neighborhood, Piccirillo said.

“Ultimately, what is needed for this to work is buy-in,” he said.


Article source:

Louisiana theater shooter known as angry man with radical views – Spokesman …

John Russell Houser, then a club owner, speaks at a LaGrange (Ga.) City Council meeting in 2001. Houser’s alcohol licenses were revoked that year. Houser killed himself Thursday at a theater in Lafayette, La., after opening fire on moviegoers.
(Full-size photo)(All photos)

For decades before he opened fire in a Louisiana movie theater and killed two people, John Russell Houser was known as a man prone to anger, a loudmouth provocateur never afraid to share his opinion.

His family said they feared him so much they hid his guns and had him hospitalized. A local TV host frequently invited him as a guest, knowing he’d be a lightning rod who could light up the phone lines with rants against abortion and working women. In one prominent fight with local officials, he unfurled a 6-foot-by-6-foot banner outside his west Georgia bar picturing a swastika surrounded by the words, “Welcome to LaGrange.”

“He was the kind of guy who would say, ‘I’m going to get you,’ but then again you get that a lot in local politics,” said Jeff Hardin, former mayor of Phenix City, Alabama. For years, Houser lived and worked there and neighboring Columbus, Georgia.

Talk-show regular

In the early ’90s, he was a regular guest on a local call-in television show where he’d be the conservative Republican pitted against a Democrat. The host, Calvin Floyd, said Houser had radical opinions that included advocating violence against abortion providers, keeping women out of the workplace and fearing a military takeover of civilian government.

“He made a lot of wild accusations,” said Floyd, who hosted the show on WLTZ-TV in Columbus for more than two decades. “He could make the phones ring.”

Yet Houser had a dark side that went way beyond talk. In 1989, court records say, he was accused of hiring someone to burn down a Columbus lawyer’s law office. His wife and other relatives filed papers accusing him of domestic violence in 2008. He was accused of virtually destroying a foreclosed home he was being evicted from in 2014.

In Lafayette, Louisiana, police said Houser stood up during a showing of the movie “Trainwreck” Thursday night and started shooting without a word. Two people were killed and nine were injured; authorities said Houser shot himself to death as officers pursued him in the theater.

“I wasn’t a bit shocked that it happened,” Floyd said. “As many times as I had him on it was obvious he had a screw loose.”

The churchgoing son of a longtime city tax official in Columbus, Houser received degrees in accounting and law but never applied to take the bar exam in Alabama.

Club owner

Houser posted on an online career website that he was an entrepreneur who owned and operated two nightclubs in Columbus and LaGrange in the 1980s and 1990s. But his stint as a club operator ended sourly when he was accused of selling alcohol to minors at Rusty’s Buckhead Pub.

In April 2001, the LaGrange mayor and city council voted to revoke all of Houser’s alcoholic beverage pouring licenses based on five convictions of selling alcohol to minors in the span of a year from 1999 to 2000, according to a court filing. Houser appealed, but the court found the mayor and council acted correctly.

Houser put up the swastika banner in protest, according to an April 28, 2001, story in the LaGrange Daily News.

He told the newspaper he was “completely against” the Nazi philosophy but chose the symbol because it represents a government’s ability to do what it wants.

“The people who used it – the Nazis – they did what they damn well pleased,” Houser told the newspaper, accusing police officers of lying on the stand during his trial.

It was not the last time he’d invoke that type of imagery, according to the Southern Poverty Law Center. Heidi Beirich, director of the SPLC’s Intelligence Project, said he’d been on the group’s radar since 2005.

Last January, he wrote on one online forum: “Hitler is loved for the results of his pragmatism.”

He also posted on a forum dedicated to the New York chapter of Golden Dawn, Greece’s far-right neo-Nazi political party.

Family disputes

In April 2008, Houser’s wife, Kellie, his daughter and others filed court papers seeking a temporary protective order against Houser, saying he had “perpetrated various acts of family violence” and had a history of bipolar disorder.

At the time, records show, Houser was vehemently opposed to the upcoming marriage of his daughter. A judge had Houser committed, but the man told his wife he would continue trying to stop the wedding and his “threatening behavior” once he got out of the hospital.

A police report included with the request for a protective order said Houser believed his daughter and her fiance, who were 23 and 26 at the time, were far too young to wed and that he was mad at his wife for not stopping the marriage.

“Kellie told me that she removed all of the guns from their house in Phenix City … and he should not have one unless he obtained it illegally. She said he has made the statements that this wedding will not happen, although he has not overtly threatened anyone,” the report says.

Home foreclosure

Last year, Houser was evicted from his Phenix City home but later returned and caused some damage, including pouring concrete in plumbing pipes and tampering with a gas line, said Russell County Sheriff Heath Taylor.

Norman Bone, 77, had bought the house out of foreclosure for his daughter, Beth Bone. Houser, angry he was being evicted, left it behind completely uninhabitable, they said. Even the fuse box was cemented shut.

The day that Houser was evicted, Norman Bone said he walked into the house to find it was booby-trapped: the gas fireplace logs were removed and the gas starter tube was twisted out and ignited. Paint cans were scattered already.

“He was hoping the house would catch on fire. That’s what the investigators told me,” Norman Bone said.

Neighbors recalled Houser as being odd but said they never saw signs that he was violent or dangerous or had guns.

Houser flew a large Confederate flag on a flagpole outside his house for a time, said neighbor Rick Chancey, but Houser later replaced it with a smaller rebel battle flag.

By this spring, relatives had lost touch with Houser. In a divorce filing on March 24, Kellie Houser said she didn’t know where her husband was.

Police characterized him after the shooting as a drifter who hadn’t spent much time in Lafayette. He had been living at least briefly out of a Motel 6; investigators found wigs and disguises in that room and said he tried to blend in with the fleeing crowd to escape the theater before running back inside when he saw officers in front of him. As police made their way in, they heard a single gunshot. Houser lay dead when they entered.

Article source:

Nader Agha avoids foreclosure on his Moss Landing property for at least two …

If you were hoping to put in a bid for Nader Agha’s Moss Landing Commercial Park, which was scheduled for a foreclosure sale July 27 in Salinas, today was a good day.

If you are Nader Agha, or one if his attorneys, today was a good day 

For the second time in two months, Agha’s attorneys staved off foreclosure on his Moss Landing property, and Monterey County Superior Court Judge Susan Matcham issued an injunction to prevent another sale of the property through Sep. 25.

A little backstory: Agha still has about $18 million in unpaid debt on the property, with $7.5 of it being held by Bank of the Sierra, which sued last August to foreclose on the property. 

Matcham halted the first scheduled foreclosure sale in early May, agreeing with Agha’s attorneys that foreclosure could cause “irreparable harm” to the other three parties that own debt, one of whom is Agha himself.

This morning, Matcham heard two separate issues surrounding the property’s litigation. In the first, she continued the Bank of the Sierra’s request to add a writ of attachment for the Trustee of the Molasses Trust, which is essentially a request to add Agha’s personal assets as collateral to his unpaid debts.

Matcham said she needed more clarity as to why the property itself wasn’t enough collateral, and said she would like to hear more argument on that in the next hearing. 

Second, Matcham considered once again as to whether to allow the foreclosure. Agha’s attorneys, led by David Balch, argued that an arbitration about the foreclosure matter is scheduled for Sep. 3, and that both parties agreed to it. 

Matcham heard those arguments, and again reiterated that the sale could cause “irreparable harm,” both financially and if the owner had plans in the works for using the property. 

The Bank of the Sierra is the “lead” bank in the loan, which usually means it can decide when to foreclose. But the loan agreement is complex, and is contradictory in places, allowing for a majority of stakeholders to stop foreclosure. In this case, Bank of the Sierra hold 42 percent of the debt, and the other parties—who are united in opposition to the foreclosure—hold 58 percent.

Matcham called the agreement “unusual,” and said it was a “difficult case.”

She set a case management conference for Sep. 25, at which point, pending the outcome of arbitration, further rulings on the matter might become moot. 

Bank of the Sierra attorney Don Pool indicated that, pending the outcome of arbitration, his client might schedule another foreclosure sale as soon as Sep. 28.

Article source:

Well-known Orange County farmer trying to stop foreclosure – Times Herald

Posted Jul. 22, 2015 at 9:13 PM
Updated Jul 22, 2015 at 9:23 PM

Article source:

Balsam Mountain Trust Nature Center caught in foreclosure quagmire

The future of the nature center at Balsam Mountain Preserve has been in limbo for years. It was spared from foreclosure once, but a deed dispute has hung over the nature center like a dark cloud on the horizon.

The nature center’s predicament dates back to 2005, when the original developers borrowed $19.8 million from the real estate lending firm Vestlyn.

The recession hit, and the rest is history. The developers couldn’t pay off the loan, so the lending firm foreclosed in 2009 and took title to development.

At the time, the nature center was exempt from the foreclosure. But the lender has now come calling and wants to cash in on the lingering lien it’s held on the nature center property.

Balsam Mountain Trust, the nonprofit that operates the nature center, has tried unsuccessfully over the years to convince Vestlyn to untether it from the ill-fated $19.8 million loan.

Vestlyn maintains the nature center property was part of the collateral for the original loan — albeit a very small part — and it’s perfectly fair to call in its long-held lien.

However, Balsam Mountain Trust claims it never should have been mixed up in the deal. The nature center was supposed to be off the table, carved out as a stand-alone entity to protect it from this very scenario.

As a last resort, the nonprofit sued the investment lender in court, challenging its lien on the nature center property, but lost that battle this spring.

Now, Vestlyn has finally set the wheels of foreclosure in motion, leaving the nature center at a crossroads.

“We are proceeding on two parallel paths,” said Rob Howard, the chairman of the board of Balsam Mountain Trust, the nonprofit that’s over the nature center.

Ideally, they could pay off Vestlyn and strike a bargain to call off the foreclosure so they don’t have to move out of their home. 

“Is there some settlement we could reach that would preclude the foreclosure?” said Howard. “Meanwhile, we have operations that have to go forward, so we have to assume we won’t find a resolution, so we are looking at a place to relocate to.”

Moving the nature center’s snakes, birds and other live critters, along with its botanical repository and museum exhibits would be a hassle to say the least.

But, “We have to plan that we won’t have that nature center to live in at some point in the next several months, and that’s what we are doing in spades,” Howard said.

An alternative location within the development has been found already should the nature center be evicted, Howard said, but it’s smaller than its current facility. Some of the live animals would likely have to be farmed out to other nature centers in the region and some of its exhibits and inventory put in storage.

The nature center would hopefully only stay in the downsized home for a few years, however, while raising money to build a new permanent home, Howard said.


Calling in the chips

There is certainly one way the nature center could avoid the foreclosure.

“They could buy it from us to keep it at that location,” said Mark Antoncic, founder and managing partner of the real estate investment firm that is foreclosing on the nature center. “If it is so important to them and their grandchildren, they should pay for it.”

Otherwise, the nature center will be evicted, Antoncic said.

The past chair of Balsam Mountain Trust asked Antoncic to give up his claim on the nature center at one point “Because ‘it is simply the right thing to do,’” Antoncic recounted in court filings.

But he said he can’t simply declare the nature center a charity case and write it off.

From Antoncic’s perspective, he can and should try to get back every dime of investor’s money that was put into Balsam Mountain Preserve. The $19.8 million loan Vestlyn made to the original developers was other people’s money. Antoncic said he’s obligated to earn them the highest return he can — even if it now means cashing in on its lien against the nature center.

His asking price on paper is $900,000 for the two-acre lot the nature center sits on.

But the nonprofit can’t afford that. More so, it’s not worth that much, Howard said.

“No one in the world would pay $900,000,” Howard said.


A stacked deck

There have been several attempts over the past decade to convince Antoncic to give up Vestlyn’s lien on the property. As soon as the ink dried on the original $19.8 million loan in 2005, the original developers tried to get Antoncic to cut the nature center loose.

But Antoncic countered that if Vestlyn gave up the nature center, it would diminish the value of Vestlyn’s collateral for the loan.

“Vestlyn expressed concern that the value of the property would be materially affected if they released (the nature center) without obtaining other substitute collateral,” court papers recount.

So the original developers, Chaffin and Light, proposed a swap. They gave Vestlyn a two-acre lot elsewhere in the development in exchange for the nature center property. Only Vestlyn refused to give up the nature center in exchange, according to court allegations.

“Vestlyn has received the substitute lot that it bargained for but it has refused to release the nature center property,” according to court filings. 

But Antoncic claims he never made any such promise.

“I specifically recall telling Mr. Chaffin more than once that Vestlyn would not agree to that request. It would have been absolutely irresponsible to consent to giving up Vestlyn’s security interest in (the nature center) while the loan was in default,” Antoncic said in a deposition.

The financial outlook of the original developers grew increasingly dire, and by 2009 the reality of foreclosure by Vestlyn became more and more likely. The developers made a last-ditch attempt to save the nature center on their way out. They sold it to Balsam Mountain Trust for only $10, with a deed caveat that it could be used only for community purposes.

“It became a community resource that no longer has the characteristics of a saleable lot,” according to court filings.

When Vestlyn pulled the trigger on foreclosure against the entire development in 2009, Balsam Mountain Trust was prepared to mount a legal fight to exempt the nature center, which would have stalled the whole foreclosure from moving ahead.

Eager “to stop the bleeding,” Antoncic voluntarily took the nature center off the table so the dispute wouldn’t hold things up, according to his court deposition. But the lien “remained as a cloud upon the title” of the nature center, the trust claimed.

Balsam Mountain Trust periodically made forays to get Antoncic to drop Vestlyn’s lien, but he wouldn’t.

Then, in late 2013, Vestlyn made a deal to sell its lien against the nature center for $900,000 to the new owner of the development at the time, David Carlile.

Balsam Mountain Trust countered by filing a civil lawsuit. The suit claimed Vestlyn’s interest in the nature center had already been slaked when Vestlyn was given a substitute lot as collateral years earlier.

“We challenged the validity of the lien. We didn’t think the lien was proper because they actually gave them another lot,” Howard said.

A jury found otherwise and Balsam Mountain Trust lost the lawsuit, but in the meantime, Carlile had backed out of his $900,000 offer. Vestlyn has now sued Carlile for breach of contract, and initiated foreclosure against the nature center to boot.


The next hand

It’s now up to Balsam Mountain Trust to strike a deal with Antoncic to stop the foreclosure and avoid being evicted. While Antoncic has asked for $900,000, that’s not a realistic market value for the two-acre lot, Howard said.

 The nature center can’t be sold to a private owner — it can only exist as a nature center or “related purposes that are of significant benefit to the Balsam Mountain Preserve community,” according to the deed restriction put in place by the original developer.

Given its limited potential uses, Balsam Mountain Trust believes the market value is far less than what Antoncic is asking. A foreclosure hearing is scheduled for the first week in August.

Realistically, the retrofitted old house isn’t an ideal setup for the nature center anyway.

“We either need to do mega upgrades to that house or build something new,” Howard said. “We are developing a strategic plan as we speak so we can make intelligent choices.”



Balsam Mountain Preserve: defying the conservation development oxymoron

Balsam Mountain Preserve has long been a symbol of the luxury second-home market in the mountains.

It was one of the first mega-developments in the region when it was launched in 2000, encompassing a whopping 4,400 acres between Waynesville and Sylva. Locals historically fished, hunted and camped on the land and didn’t take kindly to rich out-of-state developers coming along and locking them out.

But as far as developments go, it was among the first in this region to capitalize on an eco-centric model. Despite its size, it has only 350 home sites, with the vast majority of property — around 3,400 acres — set aside for conservation.

An on-site nature center has served as the visible face of the development’s conservation ethos. The signature Arnold Palmer golf course aside, the nature center is the darling of the development. What other private gated community can boast its own botanical fern inventory or live bald eagle? 

The nature center offers in-house programs for property owners, from kids summer camps to ecology talks to guided hikes. But it is also a resource to the larger community — putting on live animal programs and field days for local youth, rehabilitating injured wildlife and hosting environmental research projects (see related article in the Outdoors section on page 34.)

And it also serves as the headquarters for the Balsam Mountain Trust, a nonprofit that champions the protection and environmental management of conserved land within the development’s borders.

Until now, the nature center has escaped the rollercoaster ride of foreclosures and sales that have rocked Balsam Mountain Preserve since the real estate crash.

There’s been a revolving door of owners — three in six years since the original developers. But it was the original developers, Chaffin and Light, who instilled the nature-based philosophy behind the development. Those roots have persisted, embedded in the collective psyche of homeowners who have insisted those values be upheld by whoever the developer du jour may be.

“I like to wander through the woods, and no amount of foreclosures or low lot sales or high lot sales keep me off these trails,” said Rob Howard, a homeowner and chair of the Balsam Mountain Trust board of directors. “That is the way most of us think.”

— By Becky Johnson, staff writer

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