UNITED STATES DISTRICT COURT DISTRICT OF OREGON

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1 John Casey Mills, P.C. OSB No Bruce A. Rubin, P.C. OSB No U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon Telephone: (503) Facsimile: (503) Attorneys for Plaintiff First-Citizens Bank & Trust Company UNITED STATES DISTRICT COURT DISTRICT OF OREGON FIRST-CITIZENS BANK & TRUST COMPANY, v. Plaintiffs, CV No. COMPLAINT (Action on Note; Action on Guaranty; Replevin; Action for Appointment of Receiver; Foreclosure of Deed of Trust) MISSCOM, LLC, an Oregon limited liability company; DAN L. BERREY and FRAN H. BERREY, trustees of The Dan & Fran Berrey Living Trust dated 10/26/92 as amended; DAN L. BERREY; MICHAEL LIU; MICHAEL LIU, trustee of The Liu Living Trust dated 9/30/05 as amended; CHERI C. WULF; CHERI C. WULF, trustee of The Cheri C. Wulf Revocable Page 1 -

2 Living Trust dated 1/15/91 as amended; PAUL R. WULF; PAUL R. WULF, as trustee of The Paul R. Wulf Revocable Living Trust dated 1/15/91 as amended; ROBERT COOLEY; INGRID COOLEY; and THE MERIDIAN CONDOMINIUM ASSOCIATION, an Oregon nonprofit organization,, Defendant. Plaintiff, First-Citizens Bank & Trust Company ("First"), hereby states and alleges as follows: Parties 1. At all materials times, First has been and now is a bank chartered under the laws of the state of North Carolina with its principal place of business in Raleigh, North Carolina. 2. MissCom, LLC ("MissCom"), is an Oregon limited liability company, maker of the Note and the Loan Agreement and a co-maker of the Deed of Trust and Security Agreement, as those terms are defined below. It is believed that the sole member of MissCom is defendant Dan L. Berrey. 3. Dan L. Berrey is believed to be a resident of Deschutes County, Oregon, and a maker of one of the Guaranties, as defined below. 4. Dan L. Berrey and Fran H. Berry, as co-trustees of The Dan & Fran Berrey Living Trust dated 10/26/92 (as amended, the "Berrey Trust"), are believed to be residents of Deschutes County, Oregon, and makers of one of the Guaranties, as defined below. Page 2 -

3 5. Michael Liu is believed to be a resident of Marion County, Oregon, and is a maker of one of the Guaranties, as defined below. 6. Michael Liu, as trustee of The Liu Revocable Living Trust dated 9/30/05 (as amended, the "Liu Trust"), is a maker of one of the Guaranties, as defined below. 7. Cheri C. Wulf is believed to be a resident of Marion County, Oregon, and is a maker of one of the Guaranties, as defined below. 8. Cheri C. Wulf, as trustee of The Cheri C. Wulf Revocable Living Trust dated 1/15/91 (as amended, the "Cheri Wulf Trust"), is a maker of one of the Guaranties, as defined below. 9. Paul R. Wulf is believed to be a resident of Marion County, Oregon, and is a maker of one of the Guaranties, as defined below. 10. Paul R. Wulf, as trustee of The Paul R. Wulf Revocable Living Trust dated 1/15/91 (as amended, the "Paul Wulf Trust"), is a maker of one of the Guaranties, as defined below. 11. Robert Cooley and Ingrid Cooley are believed to be residents of Linn County, Oregon, and are makers of two of the Guaranties, as defined below. 12. The Meridian Condominium Association is an Oregon nonprofit organization who may have an interest in the Real Property, as defined below. Jurisdiction and Venue 13. Jurisdiction exists under 28 U.S.C as this is an action between citizens of different states and the amount in controversy exceeds the sum of $75,000 exclusive of interest and costs. Page 3 -

4 14. Venue is proper under 28 U.S.C as all defendants reside in Oregon, the property at issue is located in Oregon and a substantial part of events giving rise to the claim occurred in Oregon. Factual Allegations 15. On or about July 9, 2007, MissCom executed and delivered to First Regional Bank ("FRB") a construction loan agreement, a true copy of which is attached hereto as Exhibit A (the "Loan Agreement"). 16. On or about July 9, 2007, MissCom executed and delivered to FRB a promissory note in the principal amount of $36,200,000, a true copy of which is attached hereto as Exhibit B (the "Note"). 17. On or about July 9, 2007, MissCom, John C. Trumbly, Shona Trumbly, Richard H. Witt and Barbara L. Witt as trustees of the Witt Family Trust, Leon C. Reed and Susan G. Reed as co-trustees of the Reed Family Trust, and Richard A. Boudreau (collectively, the "Granting Parties") executed and delivered to FRB a line of credit instrument (the "Deed of Trust") describing in the real and personal property at 777 Commercial Street, SE, Salem, Oregon, which is more particularly described in the Deed of Trust (the "Real Property"). The Deed of Trust was recorded on July 25, 2007, in the real property records of Marion County, Oregon, at Reel 2844, Page 261. A true copy of the Deed of Trust is attached hereto as Exhibit C. 18. On or about July 9, 2007, the Granting Parties executed and delivered to FRB an Assignment of Leases and Rents (the "Assignment"). The Assignment was recorded Page 4 -

5 July 25, 2007, in the real property records of Marion County, Oregon, at Reel 2844, Page 262. A true copy of the Assignment is attached hereto as Exhibit D. 19. On or about July 9, 2007, the Granting Parties executed and delivered to FRB a Commercial Security Agreement, a true copy of which is attached hereto as Exhibit E (the "Security Agreement"). FRB perfected the interest provided by the Security Agreement by filing a UCC financing statement with the Oregon Secretary of State, a true copy of which is attached hereto as Exhibit F. The Real Property, together with the property described in the Assignment and Security Agreement, are collectively referred to in this complaint as the "Collateral." 20. All of the Granting Parties, other than MissCom, subsequently deeded their interests in the Collateral to MissCom. 21. On or about July 9, 2007, Mr. Berrey, the Berrey Trust, Mr. Liu, the Liu Trust, Mr. and Mrs. Wulf, the Cheri Wulf Trust, and the Paul Wulf Trust (collectively, the "Guarantor Defendants") all executed and delivered to FRB Commercial Guaranties (collectively, the "Guaranties"). The Guaranties from Mr. Berrey and the Berrey Trust are unlimited. All remaining Guaranties are subject to certain dollar limitations. True copies of the Guaranties are attached hereto as Exhibit G. 22. MissCom defaulted in its obligations to FRB by, among other things, failing to satisfy the Note at maturity. 23. On January 29, 2010, FRB closed and the Federal Deposit Insurance Corporation was appointed receiver. First acquired FRB's interest in the Loan Agreement, the Note, the Deed of Trust, the Assignment, the Security Agreement, and the Guaranties. Page 5 -

6 24. There is presently due and owing from MissCom to First the principal amount of $33,780, plus accrued and unpaid interest of $1,410, through December 29, 2009, with interest accruing thereafter at the prime rate set forth in the Wall Street Journal plus 0.5 percent provided, however, that the interest rate may not be less than 8.75 percent. 25. Pursuant to the Note, Loan Agreement, the Deed of Trust, and the Security Agreement (collectively, the "Loan Documents"), First is entitled to recover the fees and costs incurred by FRB and First in the enforcement and interpretation of any of those documents as well as those incurred by FRB and First in the protection of their interests in the Collateral. 26. FRB and First have performed of all duties and obligations required of them under the Loan Documents. through 26 of this complaint. the Note. First Claim for Relief (Breach of Contract on Note) (Against MissCom) 27. First realleges and incorporates herein by reference paragraph Pursuant to the Note, MissCom is obligated to pay the indebtedness under 29. All of the obligations under the Note are now immediately due and payable. MissCom's failure to satisfy the obligations under the Note constitutes a breach of the Note. 30. As a direct and proximate result of MissCom's breach, First is entitled to recover from MissCom, damages under the Note, in the form of unpaid principal and interest and Page 6 -

7 late fees in the amount of $35,190,147.88, plus interest on the principal amount of $33,780, at the prime rate announced by the Wall Street Journal, plus 0.5 percent per annum, but not less than 8.75 percent per annum, from December 29, 2009, until the date a judgment is entered. 31. First is entitled to recover from MissCom such additional sums, including attorneys fees and costs both before and after this complaint is filed, incurred by FRB and First in the enforcement of MissCom's obligations, and protection of FRB's and First's interests and rights, under the Loan Documents. through 31 of this complaint. Second Claim for Relief (Breach of Contract on Guaranties) (Against Guarantor Defendants) 32. First realleges and incorporates herein by reference paragraph The obligations of MissCom to First are guaranteed by Guarantor Defendants pursuant to the Guaranties. Mr. Berrey and the Berrey Trust provided their unlimited and unconditional guaranties of the obligations of MissCom to First. Mr. Liu and the Liu Trust are both liable for up to 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs related to the Note, provided that the aggregate of their liability does not exceed $7,240,000. Mr. and Mrs. Cooley are both liable for up to 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs related to the Note, provided that the aggregate of their liability does not exceed $7,240,000. Mr. and Mrs. Wulf and their revocable living trusts are obligated for up to 20 percent of the principal Page 7 -

8 amount of the Note, together with interest thereon and all fees and costs related to the Note, provided that the aggregate of their liability does not exceed $7,240, The failure by the Guarantor Defendants to timely make required payments under the Guaranties constitutes a breach of the Guaranties. As a direct and proximate result of the breach by the Guarantor Defendants, First is entitled to recover damages in the following amounts from the following Guarantors Defendants: (a) From Mr. Berrey and the Berrey Trust, the amount of $35,190,147.88, plus interest accruing on the principal amount of $33,780, at the prime rate announced by the Wall Street Journal, plus 0.5 percent per annum, but no less than 8.75 percent per annum, from December 29, 2009, until the date a judgment is entered, plus the fees and costs incurred by FRB and First in their lending relationships with MissCom both before and after this complaint is filed; (b) From Mr. Liu and the Liu Trust, 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs incurred by FRB and First in their lending relationships with MissCom, both before and after this complaint is filed, provided that the aggregate amount of their liability does not exceed $7,240,000; (c) From Mr. and Mrs. Cooley, 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs incurred by FRB and First in their lending relationships with MissCom, both before and after this complaint is filed, provided that the aggregate amount of their liability does not exceed $7,240,000; (d) From Mr. and Mrs. Wulf and their revocable living trusts, 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs incurred by Page 8 -

9 FRB and First in their lending relationships with MissCom, both before and after this complaint is filed, provided that the aggregate amount of their liability does not exceed $7,240,000. through 31 of this complaint. Third Claim for Relief (Replevin) (Against MissCom) 35. First realleges and incorporates herein by reference paragraph As a result of MissCom's defaults under the Note, the Loan Agreement, and the Security Agreement, First is entitled to take immediate possession of the Collateral that is personal property, including property in the possession of the defendants hereto or any of their agents. through 36 of this complaint. Fourth Claim for Relief (Foreclosure of Real and Personal Property) (Against All Defendants) 37. First realleges and incorporates herein by reference paragraph No other action has been instituted or is now pending on the Note. 39. As a result of MissCom's defaults under the Note, First is entitled to judgment foreclosing its interest in the Collateral by directing the sale of the Collateral and proceeds of the sale to be applied to MissCom's obligations to First as provided in the Loan Documents and applicable law. 40. The interest of all of the defendants, and persons claiming by, through, or under them, in the Collateral are junior to the interest of First. Page 9 -

10 through 40 of this complaint. Fifth Claim for Relief (Appointment of Receiver) (Against All Defendants) 41. First realleges and incorporates herein by reference paragraph Because of defaults under the Note, First is now entitled to exercise all of its rights and remedies as a secured creditor against the Collateral. by the Collateral. 43. The value of the Collateral is less than the amount of First's claim secured 44. Despite demand, neither MissCom nor the Guarantor Defendants have, after default, made any material payments to apply to First's claims against them. 45. Construction of the Real Property is not complete. Additional funds are required to complete, maintain, and preserve the Collateral. MissCom is unwilling or unable to provide such additional funding. First is unwilling to provide such funding unless there is a receiver. 46. It is impractical and impossible for First to enjoy the rights granted to it under the Loan Documents without the appointment of a receiver who has exclusive power and authority to take possession of, control, manage, and operate the Collateral. 47. An order appointing a receiver for the Collateral should be granted providing the receiver with all appropriate powers and duties. 48. Pursuant to the terms of the Deed of Trust and the Security Agreement, First is entitled to the appointment of a receiver to take possession of, control, and manage the Collateral for purposes of preserving, protecting, and selling the Collateral and using the Page 10 -

11 proceeds from the operations or sale thereof to pay the obligations of MissCom to First during the pendency of this action. 49. Pursuant to the terms of the Loan Documents, First is entitled to recover its reasonable attorney fees incurred in the preservation of its interests in the Collateral. First has incurred, and anticipates that it will continue to incur, attorneys fees and costs in connection with this matter. Prayer for Relief WHEREFORE, First prays for relief as follows: 50. That First have judgment against MissCom, Mr. Berrey, and Mr. and Mrs. Berry as trustees of the Berrey Trust, jointly and severally, for the sum of unpaid principal and accrued interest under the Note in the amount of $35,190,147.88, plus interest on the principal amount of $33,780, at the Wall Street Journal's prime rate plus 0.5 percent per annum, but no less than 8.75 percent per annum, from December 29, 2009, until the date a judgment is entered. 51. That First have judgment against MissCom, Mr. Berrey, and Mr. and Mrs. Berrey as trustees of the Berrey Trust, jointly and severally, for the full amount of FRB's and First's attorney fees and costs incurred in FRB's and First's lending relationships with MissCom including but not limited to the fees and costs incurred by First in this case. 52. That First have judgment against the Guarantor Defendants other than Mr. Berrey and the Berrey Trust as follows: (a) From Mr. Liu and the Liu Trust, 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs incurred by FRB and First in their Page 11 -

12 lending relationships with MissCom, both before and after this complaint is filed, provided that the aggregate amount of their liability does not exceed $7,240,000; (b) From Mr. and Mrs. Cooley, 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs incurred by FRB and First in their lending relationships with MissCom, both before and after this complaint is filed, provided that the aggregate amount of their liability does not exceed $7,240,000; (c) From Mr. and Mrs. Wulf and their revocable living trusts, 20 percent of the principal amount of the Note, together with interest thereon and all fees and costs incurred by FRB and First in their lending relationships with MissCom, both before and after this complaint is filed, provided that the aggregate amount of their liability does not exceed $7,240, That interest be awarded on the entire judgment at the maximum legal rate from the date of judgment until paid. 54. That First be awarded immediate possession of the Collateral that is personal property. 55. That a receiver be immediately appointed to possess, manage, control, and liquidate the Collateral. 56. That in the event of nonpayment of the judgment forthwith upon its entry: (a) That the interest of First in the Collateral be declared a valid first lien on the Collateral, that the interest of First in such Collateral be foreclosed and sold at one or more foreclosure sales in the manner provided by law, and that the proceeds of the foreclosure sales be applied to the obligations of MissCom under the Note, together with any additional amounts that Page 12 -

13 First has incurred or may advance under the terms of the Notes, the Deed of Trust, the Security Agreement, or the Loan Agreement, together with interest thereon from the date of payment; (b) That by such foreclosure sales, the interest of all defendants and persons claiming by, through, or under them subsequent to the execution of the Deed of Trust and Security Agreement, be adjudged subordinate to First's interest and be forever foreclosed except only for the statutory right of redemption; and (c) That First be permitted to be a bidder for and purchaser of the Collateral, or any part thereof, and that the successful purchaser(s) at the foreclosure sales be permitted to take immediate possession of the Collateral purchased. 57. That if any deficiency remains after application of the proceeds from any sale of the Collateral, execution be issued for the deficiency against MissCom and the Guarantors, and against any of their property not exempt from execution limited to the amounts of judgments against them. For any other and further relief that the court deems just and equitable. Page 13 -

14 Dated this 1st day of March, /s/ John Casey Mills John Casey Mills, P.C. OSB No Bruce A. Rubin, P.C. OSB No Phone: (503) Fax: (503) Attorneys for Plaintiff First-Citizens Bank & Trust Company Page 14 -

Case 3:18-cv BAJ-RLB Document 1 08/17/18 Page 1 of 12 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Case 3:18-cv BAJ-RLB Document 1 08/17/18 Page 1 of 12 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA Case 3:18-cv-00776-BAJ-RLB Document 1 08/17/18 Page 1 of 12 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA CHEVRON TCI, INC., ) ) Plaintiff, ) ) v. ) C.A. No. 18-776 ) CAPITOL HOUSE HOTEL MANAGER,