April 14, 2011
FEDERAL TRADE COMMISSION, PLAINTIFF,
JEREMY JOHNSON, INDIVIDUALLY, AS OFFICER OF DEFENDANTS I WORKS, INC., CLOUD NINE, INC., CPA UPSELL, INC., ELITE DEBIT, INC., INTERNET ECONOMY, INC., MARKET FUNDING, INC., AND SUCCESS MARKETING, INC.; AS A MEMBER OF DEFENDANT NETWORK AGENDA LLC; AND AS THE DE FACTO PRINCIPAL OF NUMEROUS DEFENDANT SHELL COMPANIES IDENTIFIED BELOW; DUANE FIELDING, INDIVIDUALLY, AS AN OFFICER OF ANTHON HOLDINGS, INC., AND AS A MEMBER OF DEFENDANT NETWORK AGENDA LLC; ANDY JOHNSON, INDIVIDUALLY, AS A MANAGER OF I WORKS, INC., AND AS TITULAR PRINCIPAL OF NUMEROUS DEFENDANT SHELL COMPANIES IDENTIFIED BELOW; LOYD JOHNSTON, INDIVIDUALLY, AS A MANAGER OF I WORKS, INC., AND AS TITULAR PRINCIPAL OF NUMEROUS DEFENDANT SHELL COMPANIES IDENTIFIED BELOW; SCOTT LEAVITT, INDIVIDUALLY, AS A MANAGER OF I WORKS, INC., AND AS A PRINCIPAL OF DEFENDANT EMPLOYEE PLUS, INC.; SCOTT MUIR, INDIVIDUALLY AND AS TITULAR PRINCIPAL OF NUMEROUS DEFENDANT SHELL COMPANIES IDENTIFIED BELOW; BRYCE PAYNE, INDIVIDUALLY, AS A MANAGER OF I WORKS, INC., AND AS TITULAR PRINCIPAL OF DEFENDANT JRB MEDIA, INC., A SHELL COMPANY; KEVIN PILON, INDIVIDUALLY AND AS TITULAR PRINCIPAL OF NUMEROUS DEFENDANT SHELL COMPANIES IDENTIFIED BELOW; RYAN RIDDLE, INDIVIDUALLY, AS A FORMER MANAGER OF I WORKS, INC., AND AS TITULAR PRINCIPAL OF DEFENDANT DIAMOND J MEDIA, INC., A SHELL COMPANY; TERRASON SPINKS, INDIVIDUALLY AND AS PRINCIPAL OF DEFENDANT JET PROCESSING, INC., A SHELL COMPANY; AND WORKS, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Roger L. Hunt Chief United States District Judge
NUNC PRO TUNC CORRECTION OF ORDER #181
(Motion for Reconsideration--#145)
On April 14, 2011, the Court entered an Order (#181) granting Claimant 249 Investors, LLC's motion. Claimant has filed a Stipulation for Entry of Amended Order and Proposed Amended Order (##182/183, filed Apr. 14, 2011) to correct an inadvertent omission in the original Order. Specifically, Claimant seeks to modify a single sentence of the Conclusion on page 4 of the Order to include the language "by non-judicial foreclosure sale" to the existing sentence. The Court therefore issues this nunc pro tunc correction order for the limited purpose of making the record reflect what was inadvertently omitted in the original order. See In re Warren, 568 F.3d 1113, 1116 n.1 (9th Cir. 2009).
Before the Court is Claimant 249 Investors, LLC's Motion for Reconsideration (#145, filed Mar. 15, 2011)of the Court's Order (#143) denying its Motion Relief from Temporary Restraining Order and Preliminary Injunction (#135). The Court has also considered the Receiver's Statement of Non-Opposition (#151, filed Mar. 22, 2011). No other responses were filed.
The Court, having considered the Motion for Reconsideration, the initial Motion for Relief, the supporting Affidavit and Exhibits, and the Receiver's Statement of Non-Opposition hereby finds as follows:
1. Tabernacle Towers, LLC owns certain real property located in the State of Utah which is commonly known as 249 East Tabernacle Street, St. George, Utah and is more particularly described as:
The West 25.5 feet of Lot 1, the East 49.5 feet of Lot 2, the East 49.5 feet of Lot 3, and the West 96.0 feet of Lot 8, Block 64, Plat "B", ST. GEORGE CITY SURVEY, Washington County, Utah. Being more particularly described as follows: Beginning at a point on the South line of Lot 2, Block 64, Plat "B", ST. GEORGE CITY SURVEY, said point being South 89 51'16" East along the monument line 245.00 feet and North 008'44" East, 36.59 feet from the city survey monument at the intersection of 200 East and Tabernacle Streets, and running thence North 008'44" East, 264.26 feet to the North line of Lot 3; thence South 8953'42" East along the Lot line 145.50 feet; thence South 008'44" West, 132.08 feet; thence North 8954'55" West, 70.50 feet; thence South 008'44" West, 132.10 feet to the South line of said Block 64; thence North 8956'08" West along said South line 75.00 feet to the point of beginning.
Tax Serial No.: SG-1218-A-2-RD
All of West 99.0 feet of Lot One (1), Block Sixty-Four (64), Plat "B", ST. GEORGE CITY SURVEY, as platted on the Official Map of said survey on file in the Office of the Recorder of Washington County, State of Utah. Less and Excepting therefrom the West 25.5 feet.
Tax Serial No.: SG-1218-A-1-RD
2. 249 Investors holds the rights to a Deed of Trust, Security Agreement and Assignment of Leases and Rents (the "Trust Deed") executed by Tabernacle and recorded against the Property on July 11, 2006, with the Washington County Recorder, State of Utah as Entry No. 20060030455.
3. A Notice of Default under the Trust Deed was recorded against the Property on February 11, 2010.
4. On January 13, 2011, this Court entered a Temporary Restraining Order (Dkt. #44) that prohibited 249 Investors from selling the Property.
5. On February 10, 2011, the Court entered a Preliminary Injunction (Dkt. #130) consistent with the Temporary Restraining Order.
6. As of January 11, 2011, the amount due under the Trust Deed was $2,126,606.97.
7. The amount due under the Trust Deed significantly exceeds the fair market value of the Property.
Accordingly, and for good cause appearing,
IT IS HEREBY ORDERED that Claimant 249 Investors' Motion for Reconsideration (#145) is hereby GRANTED.
IT IS FURTHER ORDERED that Claimant 249 Investors may immediately proceed with enforcement of the Trust Deed by non-judicial foreclosure in accordance with Utah law.
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