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Valois Dynasty, LLC v. City National Bank

Court of Appeals of Arkansas, Division I

March 2, 2016

VALOIS DYNASTY, LLC, APPELLANT
v.
CITY NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AS SUCCESSOR IN INTEREST TO IMPERIAL CAPITAL BANK, APPELLEE

Page 206

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION. NO. 60CV-14-3095. HONORABLE ALICE S. GRAY, JUDGE.

         For Appellant: PAMELA GAY PERRY.

         For Appellee: REX M TERRY.

         BRANDON J. HARRISON, Judge. ABRAMSON and GLOVER, JJ., agree.

          OPINION

Page 207

          BRANDON J. HARRISON, Judge

         Valois Dynasty, LLC (Dynasty) appeals a June 2015 order from the Pulaski County Circuit Court that denied its motion to intervene and motion to set aside or amend the confirmation and approval of sale in a judicial foreclosure that involved three commercial properties. We affirm.

         I. Facts

         In December 2010, Dynasty contracted with Little Rock Group, LLC (Little Rock Group) and Steve St. Clair. The parties dispute the terms and meaning of the agreement. The contract was drafted using the Arkansas Realtors Association's standard real-estate contract and is titled " Real Estate Contract (Commercial)." The contract lists Dynasty as the " Buyer" and St. Clair and Little Rock Group collectively as the " Seller." Paragraph 3 of the contract states:

3. PURCHASE PRICE. Buyer shall pay the following to Seller for the Property (the " Purchase Price" ). $4,750,000 payable as follows:
$600,000 cash at close, the balance of $4,150,000 less pay-off amount to lender at the time of closing will be paid in cash to Seller when fixed rate adjusts within two years. Buyers are purchasing into the LLC and taking on full responsibility as such. In so doing, they are relieving Steve St. Clair from any and all responsibility. At closing, Buyer will be totally responsible for all payments, upkeep, maintenance, management, accounts payable, accounts receivable, insurance, taxes, legal fees, utilities, and other debt or liability. Seller will be indemnified from any and all liability concerning these properties and Little Rock Group, LLC. Buyer will be indemnified from any and all claims prior to closing. Seller will remain on note and mortgage until fixed rate adjusts without recourse.

         The contract gives the address and legal description as " Little Rock Group, LLC [i]ncluding but not limited to the three apartment complexes: Willow Creek Apartments [], Mabelvale Pike Apartments [], and McCormick Apartments []." Paragraph 17, titled " CONTINGENCIES" lists as " additional requirements" that " It is understood and agreed that the LLC and it's [sic] properties are being purchased 'AS-IS, WHERE-IS.'"

         It is undisputed that no deed was ever recorded in favor of Dynasty. The parties also do not dispute that City National Bank (City Bank) held the promissory notes for the Willow Creek Apartments, Mabelvale Pike Apartments, and McCormick Apartments. We refer to these three apartment complexes collectively as " the property." City Bank filed a complaint for foreclosure in August 2014. City Bank named, and served, two defendants in the foreclosure action: Little Rock Group and Sunwest Bank. Sunwest Bank held second mortgages on the property, ...


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