IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PNC BANK, NATIONAL )

ASSOCIATION, )

 )

Plaintiff, )

)

v. ) MISC. ACTION 13-0009-WS-M

 )

OM PROPERTIES, LLC, et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on the Receiver’s “Motion (1) for Approval of 

Private Sale of Assets Held by Receiver and (2) for Order Related to Personal Property that is 

Not Receivership Property” (doc. 21). Also before the Court are the sealed Purchase Agreement 

(doc. 24) for the subject real property, the Receiver’s Submission of Evidentiary Material (doc. 

26), and the Receiver’s Supplement to Motion (doc. 28). The undersigned having reviewed all 

of these materials, and defendants not having availed themselves of a reasonable opportunity to 

be heard in response, the Motion is now ripe.

On July 22, 2013, the undersigned entered an Order (doc. 5) granting plaintiff PNC 

Bank’s Motion for Appointment of Post-Judgment Receiver. The factual grounds for 

appointment of a receiver included the $2.4 million judgment PNC had obtained against 

defendants in a Florida state court for breach of promissory notes and guaranties, as well as 

PNC’s representation that an offer of sale for certain collateral real property owned by 

defendants was set to expire on August 15, 2013. On the basis of these representations – and 

after providing defendants with notice and a reasonable opportunity to be heard, of which they 

did not avail themselves – the Court entered an order appointing Metcalfe & Company, Inc. as 

receiver under specified terms and conditions. Among the powers granted to Metcalfe pursuant 

to the July 22 Order was authority, “subject to approval by the Court, [to] conduct a receiver’s 

sale of all or a portion of the Receivership Property, free and clear of liens, claims and other 

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encumbrances, under such terms and conditions as PNC may, in its sole discretion, deem 

appropriate or desirable.” (Doc. 5, at 6.)

The assets for which Metcalfe was appointed as receiver include that certain

condominium unit found at Unit 215 of Holiday Isle, a Condominium, located on Dauphin 

Island, Alabama (the “Property”). In its Motion for Approval of Private Sale of Assets, Metcalfe 

requests judicial approval to exercise its authority to conduct a receiver’s sale of the Property. 

To support this request, Metcalfe explains that it has actively marketed the Property for several 

months and has now negotiated and entered into a Purchase Agreement (doc. 24), pursuant to 

which the Glenna Girdner Housing Trust has agreed to purchase same, with closing set to occur 

on or before February 27, 2014. With regard to purchase price, Metcalfe offers the Affidavit of 

Adam J. Metcalfe, Associate Broker and Vice President of Metcalfe & Company, Inc. (doc. 26). 

Based on his 28 years of experience in property management, leasing and sales in this 

geographic market, Mr. Metcalfe opines that the agreed-upon purchase price for the Property 

“represents a fair and reasonable price that can be achieved based on market conditions.” (Doc. 

26, ¶ 4.) To bolster and elaborate on this opinion, Mr. Metcalfe documents the negotiation 

history for the Property, shows that Metcalfe successfully negotiated a purchase price higher than 

the prospective buyer’s initial offer, and identifies pending sales for comparable units at the same 

condominium complex, with explanations for why the agreed-upon prices at those units are 

higher than that for the Property based on unit-specific considerations. (Id., ¶¶ 6-7.) Through 

this evidence, Metcalfe has made a substantial showing that the negotiated sales price for the 

Property is, in fact, fair and reasonable under existing market conditions.

On January 17, 2014, the undersigned entered an Order (doc. 23) that, inter alia, directed 

defendants to file any objection to the contemplated sale of the Property on or before February 7, 

2014. (Notices of the January 17 Order and Metcalfe’s evidentiary materials were served 

electronically on counsel for defendants, OM Properties, LLC, P.K. Garg Family, LLC and 

Purushottam Kumar Garg, via this District Court’s CM/ECF system.) The January 17 Order 

stated in bold type, “Defendants are cautioned that this is their one and only opportunity to be 

heard as to the proposed sale, and that failure to respond by the specified deadline will be 

construed as a waiver of any objections they may have.” (Doc. 23, at 4.) The February 7 

deadline has come and gone, with no filing or response from defendants; therefore, it is assumed 

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that they have no objection to the proposed sale of the Property under the terms specified in the 

Purchase Agreement.

In light of the foregoing facts and circumstances, and upon examination of the record as a 

whole, the Court agrees with Metcalfe that the sale of the Property as proposed in the Purchase 

Agreement is in the best interests of all parties affected by the receivership, including defendants. 

Accordingly, it is ordered as follows:

1. The Motion for Approval of Private Sale of Assets Held by Receiver and for 

Order Related to Personal Property that is Not Receivership Property (doc. 21) is 

granted in part;

2. The Motion is granted insofar as the Receiver seeks judicial approval of the 

proposed sale of Unit 215 at Holiday Isle, a Condominium. In that regard, the 

Purchase Agreement (doc. 24) is approved, and the Receiver is authorized to 

sell the Property in accordance with said Purchase Agreement;

3. The Motion is moot insofar as the Receiver requested an order providing for the 

disposition of personal property that is not receivership property;1

4. The sale shall be deemed free and clear of all liens, claims and encumbrances (of 

which none other than that of PNC Bank are known to exist), and any such liens, 

claims and encumbrances to the Property will be transferred to the proceeds of the 

sale in the same order and priority as they were attached to the Property;

5. All expenses of the sale and administrative fees specified in the Order appointing 

the Receiver shall be paid out of gross proceeds of the sale, with the remaining 

proceeds to be paid to PNC Bank; and

6. Metcalfe and PNC Bank are ordered to notify the Court in writing after the 

closing has occurred, so that the Purchase Agreement (which is presently being 

maintained under seal in the court file to protect the parties’ interests in the event 

 1 The Receiver’s Motion indicated that the Property contained unspecified 

furnishings and personal property (the “Contents”) that were outside the scope of the Purchase 

Agreement, and sought an order from the Court providing for disposition of such Contents. In a 

Supplement filed on February 4, 2014, however, Metcalfe shows that defendants have now 

removed all Contents from the Property. (Doc. 28, Exh. A.) As such, the Contents issue has 

been resolved by the parties, and no order of this Court is needed to arrange for the orderly 

disposition of such non-receivership personal property.

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that the deal falls through) may be unsealed by the Clerk of Court at that time to 

vindicate the public’s right of access to court proceedings.

DONE and ORDERED this 11th day of February, 2014.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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