United States District Court, W.D. Arkansas, Fort Smith Division
ORDER
P. K.
HOLMES, III, U.S. DISTRICT JUDGE
Before
the Court is Plaintiff Entegra Bank's
(“Entegra”) renewed motion (Doc. 37) for default
judgment against Separate Defendants Wald Wood Products, Inc.
(“Wald Wood”) and Funding Metrics, LLC
(“Funding”) and brief (Doc. 38) in support.
Entegra also filed a motion (Doc. 47) for default judgment
against Separate Defendants Thomas Wald and Karen Wald
(collectively “the Walds”) and brief (Doc. 48) in
support. The Court finds and orders as follows:
1. On
April 11, 2018, Entegra filed this action for breach of
contract, replevin, and foreclosure to enforce its rights
under a loan agreement with Wald Wood. All Defendants except
Simmons Bank failed to answer or otherwise respond to the
complaint despite being properly served and failed to appear
at all in this matter. On August 16, 2018, the Clerk of Court
entered an order of default against Wald Wood and Funding. On
November 26, 2018, the Clerk of Court entered an order of
default against the Walds. Because of the entry of default,
Defendants are deemed to have admitted the factual
allegations in the complaint as true. Fed.R.Civ.P. 8(b)(6)
(“An allegation-other than one relating to the amount
of damages-is admitted if a responsive pleading is required
and the allegation is not denied.”); Murray v.
Lene, 595 F.3d 868, 871 (8th Cir. 2010) (“Upon
default, the factual allegations of a complaint (except those
relating to the amount of damages) are taken as
true.”).
2. On
October 26, 2018, Entegra filed a renewed motion for default
judgment against Wald Wood and Funding supported by the
affidavit of Anderson Ernst, Vice President of Entegra Bank.
On December 20, 2018, Entegra filed a motion for default
judgment against the Walds which was also supported by an
affidavit of Ernst. The motions for default judgment (Docs.
37 & 47) will be GRANTED.
3. On
October 28, 2015, Entegra entered into a loan agreement with
Wald Wood. (Doc. 1-1). Entegra agreed to extend Wald Wood a
loan of $1, 369, 00.00. For valuable consideration and to
obtain the loan, Wald Wood executed a promissory note in the
principal amount of $1, 369, 00.00 payable to Entegra Bank.
(Doc. 1-2). The note required monthly payments in the amount
of $9, 811.79. (Doc. 1-2, p. 2).
4. The
Walds, as president and secretary of Wald Wood, executed the
note on behalf of Wald Wood. The Walds also executed
individual guarantees on the note. Under the guarantees, the
Walds guaranteed payment to Entegra of all amounts owed under
the note. (Doc. 1-3). The terms of the loan agreement and
note provide for default if the Walds or Wald Wood failed to
make the required monthly payments. (Doc. 1-1, p. 6; Doc.
1-2, p. 3). In the event of default, Entegra has the right to
declare the entire unpaid balance of the note immediately due
and payable.
5. To
secure payment of the note, Wald Wood and the Walds granted
Entegra a first priority mortgage interest on the following
six tracts of real property:
Tract 1:
Part of the Northeast Quarter (NE ¼) of the Southeast
Quarter (SE ¼) of Section 10, Township 9 North Range
32 West, Crawford County, Arkansas, Being more Particularly
Described as follows: Commencing at an Existing Rebar marking
the Northeast Corner of Said Northeast Quarter (NE ¼)
of the Southeast (SE ¼), Said point also marking the
Northeast Corner of a previous 1.79 Acre Survey by RLS # 147,
Job #21, 107, Dated 2-13-1997; Thence
N86°29”27”W, Along the North Line of said
previous survey, 225.00' to a set mag nail at the
Northwest corner of said previous survey also being the Point
of Beginning; Thence S03°34'44”W for a distance
of 78.74' to a set half inch rebar and cap stamped 1558
in the center of Foster Branch Creek; Thence continuing along
said creek S47°48'53”W for a distance
257.49' to a set half inch rebar and cap stamped 1558;
Thence leaving said creek N32°48'43”W for
135.93' to a set half inch rebar and cap; Thence N01
°21'51”E for a distance of 153.59' to a set
half inch rebar and cap set on the North side of Pevehouse
Road, said point being in the North line of said Southeast
Quarter (SE ¼); Thence
S86°29'27”E for a distance of 266.21' to
the Point of Beginning, Containing 1.10 acres more or less,
subject to any road right-of-ways or easements of record.
Property Address: 2539 E. Pevehouse Road, Van Buren, AR
72956.
Tract 2:
Part of the Northeast Quarter (NE ¼) of the Southeast
Quarter (SE ¼) of Section 10, Township 9 North Range
32 West, Crawford County, Arkansas, Being more Particularly
Described as follows: Commencing at an Existing Rebar marking
the Northeast Corner of Said Northeast Quarter (NE ¼)
of the Southeast (SE¼), Said point also marking the
Northeast Corner of a previous 1.79 Acre Survey by RLS # 147,
Job #21, 107, Dated 2-13-1997; Thence
N86°29”27”W, Along the North Line of said
previous survey, 491.21' to a set half inch rebar and cap
on the North side of Pevehouse Road; Thence
S01°21'51”W for a distance of 153.59' to a
set half inch rebar and cap; Thence S32°48'43”E
for a distance of 135.93' to a set rebar and cap in
Foster Branch Creek; Thence along said creek
S47°48'53”W for a distance of 20.00' to a
set half inch rebar and cap stamped 1558; Thence continuing
along said creek S12°22'16”N for a distance of
84.21' to a set half inch rebar and cap stamped 1558;
Thence continuing along said creek S09°27'32”E
for a distance of 156.20' to a set half inch rebar and
cap stamped 1558; Thence continuing along said creek
S32°39'48”W for a distance of 81.62' to a
set half inch rebar and cap stamped 1558; Thence leaving said
creek N85°11'43”W for a distance of 149.38'
to a set half inch rebar and cap stamped 1558; Thence
S22°43'2”W for a distance of 45.31' to a
set half inch rebar and cap stamped 1558; Thence crossing
said creek S02°52'56”W for a distance of
124.58' to a set half inch rebar and cap stamped 1558;
Thence N62°53'35”W for a distance of
129.29' to a set half inch rebar and cap stamped 1558 in
the center of said creek; Thence leaving said Foster Branch
Creek N03°37'31”E for a distance of 696.24'
to a set mag nail on the north side of Pevehouse Road, said
point being on the North line of said Southeast Quarter (SE
¼); Thence S86°29'27”E for a
distance of 225.35' to the Point of Beginning, containing
4.07 acres more or less subject to any road right-of-ways or
easements of record.
Property Address: 2601 E. Pevehouse Road, Van Buren, AR
72956.
Tract 3:
Beginning at the Northwest corner of the Southwest Quarter of
the Northeast Quarter, thence South 2 degrees 0 minutes 00
seconds East 43.43 feet to the South right of way of Arkansas
Highway #22, thence North 87 degrees 33 minutes 00 seconds
East along said right of way 433.40 feet to the place of
beginning, thence along an existing fence line South 2
degrees 09 minutes 50 seconds East 600 feet more or less, to
point which is 642 feet South of the North line of the
Southwest Quarter of the Northeast Quarter and also the
Northwest corner of a tract of land conveyed to John L. Koch
and Rose C. Koch by a deed recorded in Deed Book 66, page 78,
thence in an Easterly direction along this boundary line
394.60 feet more or less, to the Southwest comer of a tract
of land conveyed to John L. Koch and Rose C. Koch by deed
recorded in Deed Book 72 page 142, thence in a Northerly
direction along this boundary line for a distance of 600 feet
more or less, to the South right of way line of State Highway
#22, thence in a Westerly direction along the South right of
way line 394.60 feet more or less, to the place of beginning,
being a part of the Southwest Quarter of the Northeast
Quarter of Section 12, Township 7 North, Range 26 West,
containing 5.44 acres more or less. Subject to 1/2 of the
mineral rights reserved in a Warranty Deed from Arkansas
Valley Industries, Inc. to Garland L. Williams and Leona Mae
Williams, dated January 29, 1965, and recorded in Deed Book
66, page 220 in the office of the Recorder for the Northern
District of Logan County, Arkansas.
LESS AND EXCEPT: Two acres of even width located across the
north boundary of the property described below, located in
Logan County, Arkansas.
Property Address: 2204 E. Walnut Street, Paris, AR 72855.
Tract 4:
Two acres of even width located across the North boundary of
the property described below, located in Logan County,
Arkansas: Beginning at the Northwest comer of the Southwest
Quarter of the Northeast Quarter, thence South 2 degrees 0
minutes 00 seconds East 43.43 feet to the South right of way
of Arkansas Highway #22, thence North 87 degrees 33 minutes
00 seconds East along said right of way 433.40 feet to the
place of beginning, thence along an existing fence line South
2 degrees 09 minutes 50 seconds East 600 feet more or less,
to a point which is 642 feet South of the North line of the
Southwest Quarter of the Northeast Quarter and also the
Northwest corner of a tract of land conveyed to John L. Koch
and Rose C. Koch by a deed recorded in Deed Book 66, page 78,
thence in an Easterly direction along this boundary line
394.60 feet more or less, to the Southwest corner of a tract
of land conveyed to John L. Koch and Rose C. Koch by Deed
recorded in Deed Book 72, page 142, thence in a Northerly
direction along this boundary line for a distance of 600 feet
more or less, to the South right of way line of State Highway
#22, thence in a Westerly direction along the South right of
way line 394.60 feet more or less, to the place of beginning,
being a part of the Southwest Quarter of the Northeast
Quarter of Section 12, Township 7 North, Range 26 West,
containing 5.44 acres, more or less. Subject to 1/2 of the
mineral rights reserved in a Warranty Deed from Arkansas
Valley Industries, Inc. to Garland L. Williams and Leona Mae
Williams, dated January 29, 1965, and recorded in Deed Book
66, page 220 in the office of the Recorder for the Northern
District of Logan County, Arkansas.
Property Address: 2204 E. Walnut Street, Paris, ...