Bank of Southside Virginia v. Host & Cook, LLC

239 F.R.D. 441, 2007 U.S. Dist. LEXIS 6206, 2007 WL 187723
CourtDistrict Court, E.D. Virginia
DecidedJanuary 11, 2007
DocketCiv.A. No. 3:06CV348
StatusPublished
Cited by6 cases

This text of 239 F.R.D. 441 (Bank of Southside Virginia v. Host & Cook, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Southside Virginia v. Host & Cook, LLC, 239 F.R.D. 441, 2007 U.S. Dist. LEXIS 6206, 2007 WL 187723 (E.D. Va. 2007).

Opinion

MEMORANDUM OPINION

PAYNE, District Judge.

This matter is before the Court on the MOTION FOR ENTRY OF DEFAULT JUDGMENT (Docket No. 6) filed by the plaintiff, Bank of Southside Virginia (“BSV”) and the MOTIONS TO SET ASIDE ENTRY OF DEFAULT AND TO ENLARGE TIME TO FILE RESPONSIVE PLEADINGS OF THE DEFENDANT HOST & COOK, LLC (Docket Nos. 9 and 10) filed by the defendant, Host & Cook, LLC (“H & C”). The motions have been fully briefed and an evi-dentiary hearing has been held. For the reasons set forth below, the MOTION FOR ENTRY OF DEFAULT JUDGMENT (Docket No. 6) is granted and the MOTIONS TO SET ASIDE ENTRY OF DEFAULT AND TO ENLARGE TIME TO FILE RESPONSIVE PLEADINGS OF THE DEFENDANT HOST & COOK, LLC (Docket Nos. 9 and 10) are denied.

STATEMENT OF FACTS

This declaratory judgment action arose out of the default on a promissory note that was secured by a lien on a hotel and the subsequent attempt by H & C to purchase the hotel. It is helpful, therefore, briefly to recount the dealings between BSV and H & C respecting H & C’s efforts to purchase the hotel.

A. Negotiations Related To The Sale Of The Hotel

In 2003, SRK Hospitality, LLC (“SRK”) executed a Deed of Trust Demand Note payable to BSV. The note was secured by (1) a lien on a hotel in Fayetteville, North Carolina (the “Hotel”), in favor of BSV and (2) a Security Agreement lien on personal property associated with the Hotel. In 2005, SRK defaulted on the note, and BSV began taking steps to enforce its rights.

In October 2005, H & C, a North Carolina limited liability company of which Mashud Reza is the sole member, commenced negotiations with BSV to release its lien on the Hotel and the associated personal property, it being H & C’s intent to buy them from SRK. On November 7, 2005, BSV and H & C executed a Lien Release Agreement in which BSV agreed to release its lien and security interest in the Hotel and related property in return for $3.5 million from H & C. The terms of the Lien Release Agreement were as follows:

(1) H & C was to pay BSV $10,000 on or before the date of execution (November 7, 2005), and H & C was to deliver $350,000 to an Escrow Agent;
(2) On the Lien Release Date—2:00 p.m. on January 31, 2006—H & C was to pay BSV the balance of the Lien Release Price ($3.14 million). Alternatively, if H & C delivered an additional $175,000 to the Escrow Agent by January 30, 2006, the Lien Release Date would be extended until February 28, 2006, whereupon the balance of the Lien Release Price would be $2.965 million. The Lien Release Agreement provided that “time is of the essence”;
(3) If H & C strictly complied with the terms of the Lien Release Agreement, then these funds would be credited toward the Lien Release Price. If H & C failed strictly to comply, BSV would retain the $360,000 as liquidated damages.

In accordance with the Lien Release Agreement, H & C paid BSV $10,000 and delivered $350,000 to the Escrow Agent. However, H & C did not tender the Lien [443]*443Release Price to BSV on January 31, 2006, nor did H & C tender the $175,000 that would have extended the Lien Release Date to February 28. On February 1, 2006, the Escrow Agent disbursed the $350,000 to BSV.

Some time around or after1 January 31, 2006 BSV and H & C discussed the possibility that H & C might acquire the Hotel and associated property by buying it at BSV’s foreclosure sale on the Deed of Trust and Security Agreement that BSV had with SRK. To that end, H & C applied to BSV for a loan and, on February 22, 2006, BSV issued a proposed commitment letter (the “First Letter”), under which BSV proposed to loan H & C: (1) $3.14 million for H & C to acquire the Hotel, and (2) $360,000 for H & C to renovate it. The First Letter contained numerous other financing, operating, and management requirements. In order to accept the terms of the First Letter, H & C had to sign and return it to Robert Ford, a vice-president at BSV, by March 3, 2006 (the “Expiration Date”), or else the offer expired.

BSV delivered the First Letter on February 22. According to the affidavits of two BSV officers, J. Peter Clements and Robert S. Ford, Messrs. Clements and Ford met with Mr. Reza on February 27 to go over its terms. Mr. Reza objected to: (1) the proposed interest rate; (2) a requirement that other of Mr. Reza’s businesses sign as guarantors; (3) a requirement that H & C pay delinquent property taxes on the Hotel at closing; and (4) the prepayment terms. In response, BSV sent Mr. Reza a revised proposed commitment letter (the “Second Letter”) by multiple means on March 3 and March 6.2 The parties met on March 30 to go over the terms of the Second Letter.

At some point after this, negotiations broke down.3 On April 28, 2006, BSV gave written notice to H & C that it was terminating further discussions with respect to the acquisition of the Hotel. Several days later, BSV sold the Note and Deed of Trust to a third party.

B. Procedural History And The Steps Made By H & C To Retain Counsel

On May 8, 2006, H & C retained William Scheil to provide legal services related to the attempt to acquire the Hotel from SRK and BSV. Mr. Scheil drafted a two-count complaint to be filed in a Virginia state court, and sent a copy of that pleading to BSV by way of a Demand Letter dated May 11, 2006. The Demand Letter stated that, if BSV failed to return H & C’s “deposit” of $360,000 within seven calendar days, H & C would file the draft complaint.

The draft complaint asserted that: (1) H & C was entitled to $360,000, plus loss-of-expectation damages, because it timely had accepted the First Letter (and implicitly, that the $360,000 from the Lien Release Agreement was a component of the First Letter); and (2) that BSV and SRK had, in effect, defrauded H & C of $360,000 by hiding the fact that BSV was subsidizing the Hotel’s operations, and that, if H & C had known about the subsidies, it never would have entered into the Lien Release Agreement in the first place.

On May 17, BSV filed this action for declaratory judgment, asking the Court to:

(1) “determine and adjudicate the rights and liabilities of the parties hereto with [444]*444respect to the Lien Release Agreement and [First or Second Letters]”;

and,

(2) “find and declare that BSV is not obliged to pay Host & Cook $360,000 or any sum by virtue of (a) the Lien Release Agreement and/or the [First or Second Letters]; and/or (b) any transactions between the parties with respect to the Lien Release Agreement and the [First or Second Letters]; and/or (c) Host & Cook’s attempt to purchase the Hotel and Personal Property”4

BSV sent a copy of the declaratory judgment action to Mr. Scheil on May 18. On May 19, legal service was made on the Secretary of the Commonwealth as H & C’s statutory agent for service of process. The papers were forwarded by the Secretary of the Commonwealth to H & C, care of David B. Craig in Fayetteville, North Carolina by certified mail. Mr. Craig accepted service as H & C’s registered agent on May 22. Thus, H & C’s answer was due on June 12.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rawls v. Keen
W.D. Virginia, 2025
Pacelli v. FREEJUMPSYSTEM
W.D. Virginia, 2025
Pinpoint IT Services, L.L.C. v. Atlas IT Export Corp.
812 F. Supp. 2d 710 (E.D. Virginia, 2011)
Vick v. Wong
263 F.R.D. 325 (E.D. Virginia, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
239 F.R.D. 441, 2007 U.S. Dist. LEXIS 6206, 2007 WL 187723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-southside-virginia-v-host-cook-llc-vaed-2007.