JOSEPH M. VANLEUVEN, OSB #824189 

j oevanleuven@dwt.com 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

Telephone: (503) 241-2300 

Facsimile: (503) 778-5299 

Attorneys for Plaintiff Banner Bank 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

BANNER BANK, a Washington State 

chartered bank, 

AT EUGENE 

Case No. 6: 15-cv-00029-AA 

PLAINTIFF, STIPULATION AND ORDER 

APPOINTING RECEIVER 

v. 

ALLEN J. RUSSELL, CAROL A. 

RUSSELL, RUSSELL CRANBERRY 

COMPANY, an Oregon corporation, and 

BANDON CRANBERRY COMPANY, an 

Oregon limited liability company, 

DEFENDANTS. 

IT IS HEREBY STIPULATED between: 

1. Plaintiff Banner Bank, 

2. Defendants Allen J. Russell, Carol A. Russell, Russell Cranberry Company, and 

Bandon Cranbeny Company, and 

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DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

(503) 241-2300 main· (503) 778-5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 1 of 9
3. The "Third Party Growers" listed on Exhibit A (but only as to Findings of Fact 1, 

2, 3, 13, 14, and 16, Conclusion ofLaw 4, and the Terms of Order Appointing 

Receiver forth below), 

by and through their respective counsel of record, as follows: 

FINDINGS OF FACT 

1. Allen J. Russell and Carol A. Russell ("Borrowers") own a cranberry farm located on 

Cranberry Lane, Bandon, Oregon 97 411 (the "Farm"). 

2. Russell Cranberry Company ("Russell") is an Oregon corporation owned by Borrowers, with 

its principal place of business located on the Farm and through which they conduct farming 

operations, growing cranben·ies on the Farm. 

3. Bandon Cranbeny Company ("Bandon") is an Oregon limited liability company, also owned 

by Borrowers, with its principal place of business located on the Farm, and is engaged in 

wholesale cranberry sales. 

4. Sterling Savings Bank ("Sterling"), predecessor-in-interest to Banner Bank ("Bank" or 

"Plaintiff'), loaned money to Borrowers to support operations on the Farm (the "Loans"). 

5. The Loans were evidenced by various "Loan Documents," including promissory notes 

originally executed in 2009 and 2010. The 2010 note is dated August 11, 2010 (the "2010 

Note"). The 2009 notes were replaced by a single note dated July 2, 2012 (the "2012 Note"). 

Collectively, the 2010 Note and 2012 Note are referred to herein as the "Notes." 

6. Bank succeeded to the interest of Sterling under the Loans and is the owner and holder of the 

Notes and other Loan Documents. 

7. Borrowers' obligations under the Loan Documents are secured by deeds of trust which 

encumber the Farm. 

8. Russell guaranteed payment and performance of the Loan obligations of Borrowers to Bank 

pursuant to a Commercial Guaranty dated July 30, 2009. 

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DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

(503) 241-2300 main· (503) 778-5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 2 of 9
9. Russell's obligations under the Commercial Guaranty are secured by a security interest in 

Defendants' crops, farm products, inventory, equipment, accounts and other personal 

property (the "Collateral") pursuant to two Agricultural Security Agreements dated July 30, 

2009 and August 11,2010. 

10. The terms of the Loans were modified by a Forbearance Agreement in July 2012, and further 

modified by a Loan Workout Agreement and Release dated as of September 5, 2012. 

11. Bon-owers are in default under the Loan Documents for failure to make payments when due. 

The principal balance now due on the 2010 Note is $191,871 and the principal balance now 

due on the 2012 Note is $551,973. 

12. Defendants have sold or transfen-ed some of the equipment Collateral without Bank's 

knowledge or consent in order to pay operating costs of the Farm. 

13. Bandon has been utilizing at least a portion of the remaining equipment Collateral in its 

business operations on the Farm, to clean and sort cranberries prior to sale. 

14. Bandon is engaged in the wholesale sale of cranben-ies, including but not limited to 

cranberries supplied by Russell. Bandon is also engaged in the sale of cranben·ies supplied by 

other third-party cranberry growers, identified on Exhibit A hereto (the "Third-Party 

Growers"). Bandon, in tum, sells fresh cranberries through Deep Blue LLC and "sort-outs" 

to Northwest Packing. 

15. All of the cranberries sold by Bandon, and the proceeds thereof, are part of the Collateral, 

including those supplied by the Third-Party Growers. However, Third-Party Growers who 

sold cranben-ies to or through Bandon may be entitled to payment for said berries prior to 

Banner Bank. 

16. Bank is entitled to the appointment of a receiver to protect and preserve the Collateral. 

17. The proposed receiver, the accounting firm of Hough, MacAdam, Wartnik, Fisher & 

Gorman, LLC, ("HMWF &G") is not presently interested in the above-captioned action or 

any other actions regarding the Collateral and is competent and qualified to act as the 

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DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

(503) 241-2300 main · (503) 778-5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 3 of 9
receiver of the Collateral. Shirley MacAdam, and Laura Fisher, both partners in HMWF&G, 

will have primary responsibility for the receivership. 

CONCLUSIONS OF LAW 

1. This Court has jurisdiction over the parties. Venue is proper in this Court because 

a substantial part of the events giving rise to these claims occurred in Oregon, and because 

Defendants are subject to personal jurisdiction in Oregon. 

2. Under the circumstances of this case, Bank is entitled to the appointment of a receiver to 

protect and preserve the Collateral. 

3. There is probable cause for sustaining the validity of the underlying claim. Bank's right to 

the Collateral is probable and Bank has the present right to repossess and foreclose upon the 

Collateral in accordance with the Uniform Commercial Code as adopted in Oregon. 

4. The appointment of a receiver is necessary to preserve and protect the Collateral and the 

proceeds and income therefrom. 

TERMS OF ORDER APPOINTING RECEIVER 

1. HMWF&G (the "Receiver") is appointed as receiver for the Collateral. 

2. The Receiver shall take charge of and preserve the Collateral, for the benefit of 

Bank and any Third Party Grower who may have an interest in cranberry inventory delivered to 

Bandon or proceeds thereof. 

3. The Receiver shall have reasonable access to the Farm during the Receivership, 

except that the Receiver shall have no right of access to Borrowers' residence, which is located 

on the Farm, except as they may allow. 

4. Promptly after entry of this order, Defendants shall make available to the 

Receiver originals or copies of (a) all past and present contracts, agreements and other records 

affecting the Collateral; (b) all insurance policies and records regarding the Collateral; (c) sales 

and accounts receivable records for the Collateral; and (d) all other records and documents 

reasonably necessary for the Receiver to assume control of the Collateral. 

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DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

(503) 241-2300 main· (503) 778-5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 4 of 9
5. Defendants shall provide the Receiver with access to their business computers and 

the necessary keys, passwords, computer access codes and instruction, to enable the Receiver 

access to books and records stored on such computers, and shall otherwise cooperate with the 

Receiver in the discharge of its duties. 

6. The Receiver is further authorized, empowered, and directed to do the following: 

a. cooperate with Bank in allowing Bank to repossess any equipment or 

other tangible Collateral (other than inventory) consistent with Bank's 

rights under the Loan Documents and applicable law; however, Receiver 

shall not, itself, be required to move such tangible Collateral or repossess 

it from any third party, 

b. take reasonable steps to determine the location of the tangible Collateral, 

c. investigate and determine who supplied Bandon with cranberries in 2014, 

in what amounts, on what terms, and any other relevant information about 

such transactions, 

d. investigate who purchased cranberries from Russell and/or Bandon in 

2014, in what amounts, on what terms, and any other relevant information 

about such transactions, 

e. investigate the terms of contracts for sale or brokerage of the 2014 

cranbeny inventory to any buyer, broker or processor to detennine the 

amount of all payments which have been received by Bandon, how much 

remains due and owing to Bandon, and how much is owed to Russell and 

the other cranbeny growers who supplied cranberries to Bandon, 

f. investigate whether any of Russell's cranbeny inventory was sold to any 

party other than Bandon, 

g. investigate Defendants' claims that the bulk of Russell's 2014 crop was 

unsaleable due to damage from elk, 

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DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

(503) 241-2300 main· (503) 778-5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 5 of 9
h. investigate Defendants~ bank accounts~ books and records regarding the 

Collateral and proceeds, 

i. facilitate the sale of any ofDefendant~s remaining cranberries, 

j. collect accounts receivable, including amounts owing to the Third-Party 

Growers who delivered cranberries to Bandon, 

k. consult with counsel for Defendants, Bank and Third-Party Growers 

regarding the Receiver~ s conclusions as to who is owed how much from 

Bandon's and Russell~s sale of the 2014 cranberry crop, 

1. take control of any Collateral proceeds in Defendants' bank accounts~ 

m. investigate Defendants~ transfer of equipment to third parties~ and 

n. take any other action authorized by the Court. 

7. Within thirty (30) days of its appointment, the Receiver shall provide the Court and counsel 

for the Bank, the Defendants and the Third-Party Growers with a report of its activities 

setting forth its progress in respect to the matters in paragraphs 2, 4, 5 and 6 above and a 

brief discussion of any significant issues that could affect the ongoing collection/liquidation 

of the Collateral or its value. 

8. The Receiver shall provide the Court, Bank~ the Defendants and counsel for the Third-Party 

Growers with an additional report setting forth the items described in the preceding 

paragraph within ninety (90) days of the filing of the Receiver's first report, and thereafter 

shall file such additional reports as ordered by the Court pending a final report when the 

receivership is closed. 

9. The Receiver shall maintain a client trust account (the "Account") in its name as Receiver at 

a federally insured bank. Upon receipt~ all Collateral proceeds (including proceeds of 

accounts receivable) shall be deposited by the Receiver into the account. Until further order 

of the Court, the Receiver shall apply the proceeds in this account to the costs and expenses 

of maintaining, managing~ and controlling the Collateral~ including but not limited to costs 

Page 6- STIPULATED ORDER APPOINTING RECEIVER 

DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S. W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

(503) 241-2300 main· (503) 778-5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 6 of 9
and expenses incurred by the Receiver in exercising its powers and authority set forth herein 

and to reserve for and pay the Receiver's reasonable compensation (subject to the procedural 

requirements below), and shall remit the balance as ordered by the Court. 

10. The Receiver's fees shall be charged at$ 150-$200 per hour, depending upon personnel, and 

the Receiver shall keep records of its time spent with separate time entries for each discrete 

task and person performing that task. The Receiver shall file monthly fee statements with the 

Court and shall supply copies of its time records to counsel for the parties upon request. The 

Receiver may pay its bills on a monthly basis, but such payment is without prejudice to the 

right of any party to object to the reasonableness of such fees and to the Court's authority to 

review such fees and require disgorgement to the extent the Court finds the fees to be 

unreasonable. 

11. If the Collateral proceeds provide insufficient revenue following appointment of the Receiver 

to pay the operating and liquidating expenses and charges of the Receiver, the Receiver may 

borrow money from Bank to enable the Receiver to pay such expenses and Bank may lend 

the amount in question to the receivership estate on the basis described below in this Order. 

Upon appointment of the Receiver, Bank shall make an initial loan in the amount of 

$5,050.00 (five-thousand and fifty dollars), to provide a $5,000 retainer for the Receiver to 

be paid immediately. The remaining $50.00 shall keep the account open until deposits are 

available from Collateral proceeds (including proceeds of accounts receivables) that the 

Receiver may collect on behalf of the Defendants. 

12. Any funds borrowed by the Receiver from Bank shall be deemed to be borrowings by 

Defendants. The Receiver may, if requested by Bank, execute and issue in favor of Bank 

promissory notes or other instruments evidencing the indebtedness with respect to all sums 

borrowed by the Receivership Estate from Bank; however, such executed note(s) shall not be 

required to establish the Receivership Estate's liability for the amounts loaned hereunder. All 

sums advanced by Bank to the Receiver pursuant to this order, together with interest thereon 

Page 7- STIPULATED ORDER APPOINTING RECEIVER 

DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S. W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

(503) 241-2300 main· (503) 778-5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 7 of 9
as provided in the loan agreements, and shall be secured by Bank's lien and security interest 

in the Collateral and Bank's trust deed on the Farm, and otherwise shall constitute a lien 

against the Collateral. 

13. Defendants waive any compensation for storage of the Collateral, and the Receiver may 

leave the Collateral on the Farm dming the receivership without paying rent or other 

compensation. 

14. The Receiver is not authorized to operate the Farm without further order of the court and 

shall not be liable for payment of Defendants' employees, contracts, expenses, taxes or 

obligations of any kind. 

15. From and after the date of this Order, Defendants and their agents, employees, assigns and 

members are enjoined tt·om selling, transferring off-premises, injuring, removing, 

encumbering or otherwise disposing of the Collate.ral or proceeds thereof. 

16. Plaintiff shall not be required to post a bond or other security. 

DATED February 19,2015. 

DATED February .2!2.., 2015. 

Attomeys for Plaintiff 

OLSEN DAINES PC 

By ~vl1 Rex K. Daines " OSB #952442 

Telephone: (503) 362-9393 

Facsimile: (503) 362-1375 

rdaincs@olsendaines.com 

Attorneys for Defendants 

Page 8- STIPULATED ORDER APPOINTING RECEIVER 

DAVIS WRIOHTTREMAINE LLP 

DWT 26021 126vS 0058243-000252 1300 S. W. !'I flit Avemw, Suite 2400 

Portland, Oregon 97201-5610 

(503) 24i·2300 mHin • (503) 178·5299 fax 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 8 of 9
DATED February 19, 2015. SUSSMAN SHANK LLP 

ORDER 

Based upon the foregoing Stipulation and good cause appearing therefore, 

IT IS SO ORDERED. 

United States District Comt Judge 

Page 9- STIPULATED ORDER APPOINTING RECEIVER 

DWT 26021126v5 0058243-000252 

DAVIS WRIGHT TREMAINE LLP 

1300 S, W, fifth Avenue, Suite 2400 

Porlland, Oregon 97201-5610 (~fl'l\ '1Al "'"" ···-~- /.f'O">) ,..,...,(\ -"'"'"~">" 

Case 6:15-cv-00029-AA Document 16 Filed 02/24/15 Page 9 of 9