In Summary, Shad Khan Loses Foreclosure Bid for Barnett

[Metro Jacksonville]

Shad Khan Loses Foreclosure Bid for Barnett



Recently Stache Investments filed a motion for summary foreclosure of the Barnett Building, a downtown landmark owned in partnership with Steve Atkins' Barnett Tower Group.  After reviewing the evidence, Judge Daniel of the Circuit Court dismissed the motion today.  Read the actual Order to Deny the motion for summary foreclosure.

Read More: http://www.metrojacksonville.com/article/2015-jul-shad-khan-loses-foreclosure-bid-for-barnett

[thelakelander]

Sounds like this is not over yet.....

[Chris Hand]

Respectfully, I recommend a change in the headline, as this ruling does not mean that "Shad Khan Loses Foreclosure Bid for Barnett." He has not lost that effort. The Court's decision simply means that Stache cannot make use of a streamlined, summary foreclosure procedure authorized by state law.

Instead, the parties will now engage in the normal litigation discovery process -- sharing documents, answering written questions under oath, taking depositions, etc. -- so that the Court can make a final decision on foreclosure with the benefit of that evidence. It is entirely possible that Stache will ultimately prevail when the Court examines its claims and Barnett Tower's defenses following the discovery process.

Suggested new headline: "Court Denies Streamlined Foreclosure Process in Barnett Tower Case"

[jaxnyc79]

Hey Chris!

Thanks for the suggestion, but I think if you read the order, It seems like the judge is pretty clearly giving a temperature of the court's opinion on how such a foreclosure attempt would play out.

Unless I'm reading the docket wrong, the order is to deny the only motion on the docket, which is to foreclose through summary judgement.

Which motion, Stache Investments just lost.

Considering the precedents cited in the order, which the Judge mentioned as guiding his judgement, if you were the plaintiff in this case, would you file a further action for foreclosure in this court?

I would think that the judge has clearly signaled that this is a conflict in equity, and would require that the plaintiff respond in equity wouldn't you?

Sounds like in these proceedings, the court didn't test the veracity of the stories presented by either side...
Summary foreclosure is denied and both sides must move on to a final showdown, following a "discovery" period...

If I understood correctly, Barnett Group can completely halt a foreclosure proceeding if they can prove that Stache engaged in misleading conduct.  Ultimately, without real skin in the game, Barnett seems to be acting more like a Broker or Service Provider to Stache, and not a true equity partner.  In the end, Stache needs to do a better job of following some sort of foreclosure process and will probably reclaim the building...

Would love to hear additional facts and other interpretations...

[jaxnyc79]

Hey Chris!

Thanks for the suggestion, but I think if you read the order, It seems like the judge is pretty clearly giving a temperature of the court's opinion on how such a foreclosure attempt would play out.

Unless I'm reading the docket wrong, the order is to deny the only motion on the docket, which is to foreclose through summary judgement.

Which motion, Stache Investments just lost.

Considering the precedents cited in the order, which the Judge mentioned as guiding his judgement, if you were the plaintiff in this case, would you file a further action for foreclosure in this court?

I would think that the judge has clearly signaled that this is a conflict in equity, and would require that the plaintiff respond in equity wouldn't you?

Sounds like in these proceedings, the court didn't test the veracity of the stories presented by either side...
Summary foreclosure is denied and both sides must move on to a final showdown, following a "discovery" period...

If I understood correctly, Barnett Group can completely halt a foreclosure proceeding if they can prove that Stache engaged in misleading conduct.  Ultimately, without real skin in the game, Barnett seems to be acting more like a Broker or Service Provider to Stache, and not a true equity partner.  In the end, Stache needs to do a better job of following some sort of foreclosure process and will probably reclaim the building...

Would love to hear additional facts and other interpretations...

Well an order denying summary judgement isn't the place to test the veracity of the arguments, merely to decide whether there are valid grounds for considering an argument in equity.

That this (fairly conservative) judge found that there are in fact, grounds for an equity argument, is a simple recognition that the arguments likely hold some validity---a very bad sign for the plaintiff in this case.  Especially considering the active (and I think, tortious) interference directly with several of the intended leases at the time of the contract signing (i.e., KYN and the Charter school you mentioned in the other thread) on the part of the Plaintiff.

I can't imagine that this will fail to signify with the attorneys for both sides.

Was the plan for a Charter School ever widely reported in the press?

[Chris Hand]

Stephen,

I did read the entire order before I posted, and I know something about this process both as an attorney and because the City used a similar summary procedure to foreclose on and force the sale of the Bostwick Building. As an aside unrelated to this case, that seems to have turned out pretty well for Downtown.

And just to be clear, I am posting because I want to help with an understanding of the process. There are truly excellent attorneys on both sides of this case and it will be interesting to follow the litigation going forward. 

The Court's job on this kind of motion was to determine if Barnett Tower, through Mr. Adkins' affidavit, raised an issue of genuine material fact to prevent the entry of a final judgment of foreclosure at this very early stage in the case. So it examined the affidavit to see if it set forth assertions that, if proven, would constitute a valid defense to this foreclosure action. Please also note that in making this decision, the Court was obligated to view the Adkins' affidavit in the light most favorable to Barnett Tower.

That hardly means the Court has made up its mind and is sending some sort of signal for the future. In fact, the order repeatedly makes clear that the Adkins affidavit must be "proven". The Court explicitly stated that "[a]t this stage, it should be emphasized that the parties have not engaged in any discovery to test the truth and veracity of the claims in Mr. Adams' affidavit and all of Barnett's allegations are subject to proof at a final hearing." Morever, the Court concluded the order by stating that "In the end, Barnett's defenses may ultimately not be legally or factually viable, but it would be improper on the record as it currently stands to totally preclude Barnett from conducting discovery in an effort to develop the necessary evidence to support them."

I'm not saying that Barnett Tower will or won't be able to prove the assertions in the affidavit, but they now will be tested through discovery (as will Stache's claims).

I have no doubt that Stache would have preferred to resolve this now. Novak Djokovic would have preferred to resolve the Wimbledon final in three sets. But the fact that he lost an early set to a determined and talented opponent didn't ultimately preclude him from winning the championship. The same is true here. The parties will take discovery and ultimately return to the Court for a final ruling based on all of the evidence. Stache may win. Barnett may win. But at this point, neither party has won or lost.

[exnewsman]

Stephen,

I did read the entire order before I posted, and I know something about this process both as an attorney and because the City used a similar summary procedure to foreclose on and force the sale of the Bostwick Building. As an aside unrelated to this case, that seems to have turned out pretty well for Downtown.

And just to be clear, I am posting because I want to help with an understanding of the process. There are truly excellent attorneys on both sides of this case and it will be interesting to follow the litigation going forward. 

The Court's job on this kind of motion was to determine if Barnett Tower, through Mr. Adkins' affidavit, raised an issue of genuine material fact to prevent the entry of a final judgment of foreclosure at this very early stage in the case. So it examined the affidavit to see if it set forth assertions that, if proven, would constitute a valid defense to this foreclosure action. Please also note that in making this decision, the Court was obligated to view the Adkins' affidavit in the light most favorable to Barnett Tower.

That hardly means the Court has made up its mind and is sending some sort of signal for the future. In fact, the order repeatedly makes clear that the Adkins affidavit must be "proven". The Court explicitly stated that "[a]t this stage, it should be emphasized that the parties have not engaged in any discovery to test the truth and veracity of the claims in Mr. Adams' affidavit and all of Barnett's allegations are subject to proof at a final hearing." Morever, the Court concluded the order by stating that "In the end, Barnett's defenses may ultimately not be legally or factually viable, but it would be improper on the record as it currently stands to totally preclude Barnett from conducting discovery in an effort to develop the necessary evidence to support them."

I'm not saying that Barnett Tower will or won't be able to prove the assertions in the affidavit, but they now will be tested through discovery (as will Stache's claims).

I have no doubt that Stache would have preferred to resolve this now. Novak Djokovic would have preferred to resolve the Wimbledon final in three sets. But the fact that he lost an early set to a determined and talented opponent didn't ultimately preclude him from winning the championship. The same is true here. The parties will take discovery and ultimately return to the Court for a final ruling based on all of the evidence. Stache may win. Barnett may win. But at this point, neither party has won or lost.

You gotta love it when Novak Djokovic  gets brought into a Jacksonville real estate argument. Nicely done Mr. Hand.

[tufsu1]

Respectfully, I recommend a change in the headline, as this ruling does not mean that "Shad Khan Loses Foreclosure Bid for Barnett." He has not lost that effort. The Court's decision simply means that Stache cannot make use of a streamlined, summary foreclosure procedure authorized by state law.

I'm with Chris on this...the headline is misleading

[mtraininjax]

I'm with Chris on this...the headline is misleading

+1

In a hearing earlier this month, Stache's attorney Bill Adams requested a summary foreclosure, which is basically a fast-track. In an order filed Monday, Circuit Court Judge James Daniel denied the summary foreclosure. The case now continues through the standard foreclosure procedure with the eventual possibility of going to trial.

moral of the story, pay your bills on time and you don't go to foreclosure court.

[Tacachale]

Respectfully, I recommend a change in the headline, as this ruling does not mean that "Shad Khan Loses Foreclosure Bid for Barnett." He has not lost that effort. The Court's decision simply means that Stache cannot make use of a streamlined, summary foreclosure procedure authorized by state law.

I'm with Chris on this...the headline is misleading

I totally agree.

[mtraininjax]

and win.

Or just make more bumpers and count your cash.

[Native Girl]

Stephen,

I did read the entire order before I posted, and I know something about this process both as an attorney and because the City used a similar summary procedure to foreclose on and force the sale of the Bostwick Building. As an aside unrelated to this case, that seems to have turned out pretty well for Downtown.

And just to be clear, I am posting because I want to help with an understanding of the process. There are truly excellent attorneys on both sides of this case and it will be interesting to follow the litigation going forward. 

The Court's job on this kind of motion was to determine if Barnett Tower, through Mr. Adkins' affidavit, raised an issue of genuine material fact to prevent the entry of a final judgment of foreclosure at this very early stage in the case. So it examined the affidavit to see if it set forth assertions that, if proven, would constitute a valid defense to this foreclosure action. Please also note that in making this decision, the Court was obligated to view the Adkins' affidavit in the light most favorable to Barnett Tower.

That hardly means the Court has made up its mind and is sending some sort of signal for the future. In fact, the order repeatedly makes clear that the Adkins affidavit must be "proven". The Court explicitly stated that "[a]t this stage, it should be emphasized that the parties have not engaged in any discovery to test the truth and veracity of the claims in Mr. Adams' affidavit and all of Barnett's allegations are subject to proof at a final hearing." Morever, the Court concluded the order by stating that "In the end, Barnett's defenses may ultimately not be legally or factually viable, but it would be improper on the record as it currently stands to totally preclude Barnett from conducting discovery in an effort to develop the necessary evidence to support them."

I'm not saying that Barnett Tower will or won't be able to prove the assertions in the affidavit, but they now will be tested through discovery (as will Stache's claims).

I have no doubt that Stache would have preferred to resolve this now. Novak Djokovic would have preferred to resolve the Wimbledon final in three sets. But the fact that he lost an early set to a determined and talented opponent didn't ultimately preclude him from winning the championship. The same is true here. The parties will take discovery and ultimately return to the Court for a final ruling based on all of the evidence. Stache may win. Barnett may win. But at this point, neither party has won or lost.

I really don't mean to be snarky this is just a pet peeve of mine.  I have to wonder how well you really did read the order.  His name is Atkins, not Adkins as you refer to him throughout.  At one point, you also refer to him as Mr. Adams.  Mr. Atkins' name is mentioned numerous times in the order.

[fieldafm]

His name is Atkins, not Adkins as you refer to him throughout.  At one point, you also refer to him as Mr. Adams.  Mr. Atkins' name is mentioned numerous times in the order.

Mr Adams is the attorney who represented Stache in this case.

Despite a (pretty common) spelling error on Steve Atkins' name... Mr Hand is pretty spot on in his assesment

[Chris Hand]

Stephen,

I did read the entire order before I posted, and I know something about this process both as an attorney and because the City used a similar summary procedure to foreclose on and force the sale of the Bostwick Building. As an aside unrelated to this case, that seems to have turned out pretty well for Downtown.

And just to be clear, I am posting because I want to help with an understanding of the process. There are truly excellent attorneys on both sides of this case and it will be interesting to follow the litigation going forward. 

The Court's job on this kind of motion was to determine if Barnett Tower, through Mr. Adkins' affidavit, raised an issue of genuine material fact to prevent the entry of a final judgment of foreclosure at this very early stage in the case. So it examined the affidavit to see if it set forth assertions that, if proven, would constitute a valid defense to this foreclosure action. Please also note that in making this decision, the Court was obligated to view the Adkins' affidavit in the light most favorable to Barnett Tower.

That hardly means the Court has made up its mind and is sending some sort of signal for the future. In fact, the order repeatedly makes clear that the Adkins affidavit must be "proven". The Court explicitly stated that "[a]t this stage, it should be emphasized that the parties have not engaged in any discovery to test the truth and veracity of the claims in Mr. Adams' affidavit and all of Barnett's allegations are subject to proof at a final hearing." Morever, the Court concluded the order by stating that "In the end, Barnett's defenses may ultimately not be legally or factually viable, but it would be improper on the record as it currently stands to totally preclude Barnett from conducting discovery in an effort to develop the necessary evidence to support them."

I'm not saying that Barnett Tower will or won't be able to prove the assertions in the affidavit, but they now will be tested through discovery (as will Stache's claims).

I have no doubt that Stache would have preferred to resolve this now. Novak Djokovic would have preferred to resolve the Wimbledon final in three sets. But the fact that he lost an early set to a determined and talented opponent didn't ultimately preclude him from winning the championship. The same is true here. The parties will take discovery and ultimately return to the Court for a final ruling based on all of the evidence. Stache may win. Barnett may win. But at this point, neither party has won or lost.

I really don't mean to be snarky this is just a pet peeve of mine.  I have to wonder how well you really did read the order.  His name is Atkins, not Adkins as you refer to him throughout.  At one point, you also refer to him as Mr. Adams.  Mr. Atkins' name is mentioned numerous times in the order.

Mea Culpa. I apologize for the spelling error and certainly meant no disrespect to Steve. Dangers of trying to post from an IPad without having time to verify spelling. Thanks for letting me know so I can be more careful in the future. Good lesson for this Newbie!

[Chris Hand]

His name is Atkins, not Adkins as you refer to him throughout.  At one point, you also refer to him as Mr. Adams.  Mr. Atkins' name is mentioned numerous times in the order.

Mr Adams is the attorney who represented Stache in this case.

Despite a (pretty common) spelling error on Steve Atkins' name... Mr Hand is pretty spot on in his assesment

Thanks Mike. I can assure you I won't make that particular error again!