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Agenda 11/10/2009 Item #16A 9 .Agenda Item No 16A9 November 10. 2009 Page 1 of 12 EXECUTIVE SlJMJVL\RY -_....l_..4!> ...-_ Recommendation to accept a proposeu settlt~rnt~nt. providing for Partial Release of one Lien and one Order in the Code Enforcement Actions entitled Collier County v. Thomas and 1l1arian Baker, Code Enforcement Eoard C:!~~ Nus. 2003-26 and 2006-62, for payment of $8,458, to release property known as 2i59 Lakeview Drive (parcel ID 48173480001), located within Collier County, Florida. OBJECTIVE: That the Board of County Commissioners ("Board") accept a proposed settlement agreement with Deutsche Bank, mortgage holder, to pmiially release a $188,659.15 code enforcement lien imposed in the Code Enforcement Board action entitled Collier County v. Thomas and Marian Baker, CEB Case No. 2003-026, and to partially release the finding of fact order in CEB Case No. 2006-62, in exchange for payment of $8,458, in order to settle a foreclosure lawsuit where the County has asselied its lien interests. CONSIDERATIONS: As a result of various code violations at 5643 Taylor Road, the Code Enforcement Board ordered the imposition of a lien against the owners, Thomas and Marian Baker (the "Bakers"), in eEB Case No. 2003-026. This "Order Imposing Lien" was recorded in the OHicial Public Records at OR Book 3552, Page 0938, and encumbers all real and personal property owned by the Bakers. .-~- As a result of various code violations at 5705 Taylor Road, the Code Enforcement Board entered a "Finding of Fact, Conclusions of Law and Order of the Board," which was recorded at OR Book 4163, Page 0625. This order has not resulted in the imposition 0 f a lien against all real and personal property owned by Thomas and Marian Baker, but it has been recorded in the public record. This order functions as notice to subsequent purchasers (assigns, etc.) of code violations at 5705 Taylor Road as described in the order. The Bakers also hold title to other property in Collier County, and in May, 2009, Deutsche Bank filed an action to foreclose on property lmown as 2759 Lakeview Drive (in Circuit COUli Case No. 09-4249-CA), which is cunently owned by Thomas and Marian Baker. Because the County held the above-described encumbrances against the Bakers, the County asserted its interests as superior to Deutsche Bank's mortgage interest in this foreclosure case. As a result of the County asseliing its interests in this foreclosure lawsuit, Deutsche Bank has offered to settle the foreclosure lawsuit wjth respect to the County, by paying a sum which represents 50% of their calculated "pro rata" value of the Order Imposing Lien encumbering 2759 Lakeview Drive. Deutsche Bank's proposed settlement letter and related communications are attached as Exhibit A; an October 21. 2009 intemal memorandum with additional infonnation is attached as Exhibit B (without attachments). ...""......' If approved, the Order Imposing Lien (OR Book 3552, Page 0938) would be partially released with respect to 2759 Lakeview Drive, but will continue to encumber all other (non-homestead) real and personal property owned by the Bakers. In addition, the order recorded at OR Book 4163, Page 0625 would be partially released with respect to 2759 Lakeview Drive, but would continue to function as notice to subsequent purchasers of violations at 5705 Taylor Road, as described in the order. Agenda Item r\)o, 16A9 November 10. 2009 Page 2 of 12 Finally, because the underlying lier.. in Ca3e No. 2003-026 is so large (over $180,000) and the violations at 5643 Taylor Road have been abated, the Code Enforcement Department, together wlth the County Attorney's Office, are \vorking actively l..\Iith the Bakers to resolve this lien on reasonable- terms. Any such reso 1m 1011 uidi F'(IlJ1xe fi.1tIife Board approv,Jl FISCAL IMPACT: Deutsche Bank has provided payment of $8,458, representing the proposed settlement sum, as a good faith commitment to this agreement, and this payment is currently being held by the County Attorney's Office pending resolution of this agenda item. The balance on the S 188,659.15 lien would be reduced by $8,458, to $180,201.15, and the lien would continue to encumber all real and personal propeliy owned by the Bakers, except 2759 Lakeview Drive. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. -JW RECOMMENDATION: rhat the Board ot County CommissIOners accept the proposed settlement offer trom Mortgage Lender, Deutsche Bank, and authorizes the Chairman to sign the attached Partial Release of Lien and Pal1ial Release. PREPARED BY: Marlene Serrano, Code Enforcement Operations Manager ."'......... - ..1. u.b\",.o 1. Vl. 1. Agenda Item No, 16A9 November 10. 2009 Page 3 of 12 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Meeting Date: 161>,9 ~ecommendation to accept a proposed settlement providing tor Partial Release ot one Lien and one Order in the Code Enforcement !~ctions entitled Collier County v, Thomas and Marian Baker, Code Enforcement Board Case Nos. 2003-26 and 2006-62. for payment of $8.458, to release property known as 2759 Lakeview Drive (parcellD 48173480001), located Within Collier County, Honda, 11/10/2009 9:00:00 AM Item Number: !tem Summary: Prepared By Marlene Serrano Investigative Supervisor Date CDES Code Enforcement 10/29/2009 2:Q2:55 PM A pproved By Community Development & Environmental Services Operations Analyst Community Development & Environmental Services Admin, Date Judy Puig 10/29/20094:55 PM Approved By Diane B. Flagg Code Enforcement Director Date Community Development & Environmental Services Code Enforcement 10129/20095:19 PM Approved By Joseph K. Schmitt Community Development & Environmental Services Adminstrator Date Community Development & Environmental Services Community Development & Environmental Services Admin. 10/30/20098:57 AM Approved By Jeff Wright Assistant County Attorney Date County Attorney County Attorney Office 1013012009 10:36 AM Approved By OMS Coordinator OMS Coordinator Date County Manager's Office Office of Management & Budget 10/30/2009 1 :08 PM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 10130/2009 3:21 PM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 10/30/20094:03 PM .c::l_.II~.\A__~_..1_'T'__..L\r:'_~~___.-.l-'1""'Ollr..T____u_L_~"1A "",{\{\{\\1C nfl.1\.TCq-O'')".T.... Al'Il'lIr..TT"'\A\1/:.-\ 1'Ir'\.lt.K 11 IA '''""\fll\r\ Agenda Item No, 1GA9 November 10, 2009 Page 4 of 12 This instrument prepared by: JeffE. Wright Assistant County Attorney 2800 N, Horseshoe Drive. Ste 30 J Naples, Florida 34104 (239) 2] 3-2939 PARTIAL RELEASE OF LIEN This is to certify that the claim of lien ("Lien") arising out of the Code Enforcement Board Order dated April 26, 2U04, a certified copy of which was recorded on April 29, 2004, in O.R. Book 3552, Pages 938, et seq., of the Public Records of Collier County, Florida, against all real and personal property located in Collier County, owned by Thomas and Marian Baker, has been partially discharged, only with respect to the following: Address/Folio No.: Cost: Reference: 2759 Lakeview Drive/48173480001 $8,458.00 (by negotiated settlement) Case No. CEB 2003-26 (cross-ref. CEB 2006-62) The undersigned is authorized to and does hereby partially release this Lien, only with respect to the above-named party and parcel, and consents to this Lien being partially discharged of record with respect to said party. This partial release does not operate to release any other party or parcel from the Lien or the terms therein. Dated this day of ,2009. ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: ,By: , Deputy Clerk DO~1NA FIALA, CHAIRMAN Approved as to form and legal sufficiency: . right nt County Attorney - Agenda Item No,16;:".9 November 1 O. 2009 Page 5 of 12 This instrument prepared by: JeffE. Wright Assistant County Attorney 2800 N. Horseshoe Drive, Ste 301 Naples, Florida 34104 (239) 213-2939 PARTIAL RELEASE This is to certify that any claim of lien or encumbrance arising out of the Code Enforcement Board Order ("Order") dated December 22, 2006, a certified copy of which was recorded on January 2, 2007, in O.R. Book 4163, Pages 625, et seq., of the Public Records of Collier County, Florida, against all real and personal property located in Collier County, owned by Thomas and Marian Baker, has been partially discharged, only with respect to the following: AddresslFolio No.: Cost: Reference: 2759 Lakeview Drive/48173480001 $8,458.00 (by negotiated settlement) Case No. CEB 2006-62 (cross-ref. eEB 2003-26) The undersigned is authorized to and does hereby partially release this Order, only with respect to the above-named party and parcel, and consents to this Order being partially discharged of record with respect to said party and parcel. This partial release does not operate to release any other party or parcel from the Order or the terms therein. Dated this day of ,2009. ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COlJNTY COMMISSIONERS COLLIER COUNTY, FLORlDA By: By: , Deputy Clerk DONNA FIALA, CHAIRMAN Approved as to form and legal sufficiency: ~ , \ lef right Assistant County Attorney 9zun1es /Bm4v w 1595 Panther Lane Suite 300 \,!pb Florida 34]f)9-7874 Tel 239.262,5959 ~;;x 23~,43H9l)~ ;\'Ww.qU:lflcs,com Agenda Item No, 16,t,9 November 10, 2009 Page 6 of 12 AttQrnc}'s at Lau' in: Phoenix and Tucson, Arizo1Ul Naples. Fforida Chicago, Illinois Milwaukee and Madison, Wisconsin Writer's Direct Dial 239,659,5026 ""'riter's Fax: 239,213.5426 E-Mail: benjamin.brown@quarles.com f";, ~.~ ~...-- ~C '- ,- Z -i-; ~~ .~..\". -(;'" October 14, 2009 '. c:> c-, --.1 VL4 U.S. MAIL JeffE. Wright, Esq. Assistant County Attorney Office of the Collier County Attorney 3301 Tamiami Trail E. Harmon Turner Building, 8th FIr. Naples,FL 34112 en :;:,.. J: '.J :=~-1~: a '-.0 ;, )2I ;..~~ fl"'.' -0 RE: Deutsche Bank National Trust Company as TrusteeJor the GSAA Home Equity Trust 2006-8, et aL v. Baker, et at.; Collier Country Circuit Case No. 09- 004249-CA. Dear Jeff: Please find enclosed a check made payable to the Collier County Board of County Commissioners in the amount of $8,458.00. This check represents the agreed-upon settlement for the release of the two code enforcement liens and the dismissal of Collier County's claims, as more particularly set forth in my September 24, 2009 correspondence, a copy of which is also attached. Until such time as the Board votes to approve the settlement, please hold the check un cashed in escrow. Also, once the agenda item is prepared, let me know the date when this matter is set for approval before the Board so I can attend the meeting, Best, QUAR~s.E~& BRADY LLP ~- ---_..---~_.- , ,<.:_..=~~- ~--Benfiin~; Brown B B 13 :jw Enclosure cc: ClIent Mark A. Olivera, Esq. (via U.S, mail) Diane Flagg (via email onlytodianeflagg@colliergov.net) ~ EXHIBIT ~ A '" g ~ Co eS' ~ Ao "- 08\8994360,1 ..-- .-- Agenda Item No, 16A9 November 10. 2009 Page 7 of 12 Quarles /Bmdy LL? r 395 p..lI1ther Lane Suite :WO Naples, Borida 34109-7874 Tel 239.262.5959 fllX 239.434.4999 www.quarles.com Attorneys at Law in: Phoenix and Tucson, Arizona Naples, Florida Chicago, Illinois Milwaukee Clnd Madison, Wisconsir: Writer's Direct Dial: 239,659.5026 Writer's Fax: 239,213.5426 E-Mail: benJamin.brown@quarles,colll September 24,2009 VIA EMAIL (jeffivright@.colliergov.net)ANDU.S.MAIL JeffE. Wright, Esq. Assistant County Attorney Office of the Collier County Attorney 3301 Tamiami Trail E. Harmon Turner Building, 8th FIr. Naples, FL 34112 RE: Deutsche Bank Nation.al Trust Company as Trustee for the GSAA Home Equity Trust 2{)06-8, et aL v. Baker, et al.: Collier Country Circuit Case No. 09- 004249-CA. Dear Jeff: It appears that Deutsche Bank and Collier County may be able to reach an early settlement in the above-referenced lawsuit. Before any agreement is made, I would like to confirm the terms. Upon payment of $8,458.00 by check made payable to the Collier County Board of County Commissioners, Deutsche Bank requires that Collier County: 1. Within ten days, dismiss with prejudice all counts of its counterclaim/crossclaim and affirmative defenses; 2. Within thirty days, execute and record a partial release of the liens recorded at Official Records Book 3552, Page 938, et seq, and Official Records Book 4163, Page 625, et seq. as to the property known as 2759 Lakeview Drive, Naples, Florida 34112, and more formally described as "Lot 7, Block 5, Gulf Shores, according to the Plat Recorded in pl<it Book 4, Page 50, Public Records of Collier County, Florida;" 3. Release the subject property from any other lien, encumbrance, claim or lIability that may arise out of CEB-2003-026, CEB-2006-62, or any other code enforcement action, in existence as of the date of settlement; and 4. Agree that each party will bear its own costs and attomeys' fees incurred. Please confirm whether Collier County agrees to the tem1S above. If so, given that this matter must be approved by the CCBCC, I presume you are better familiar with the fonn of settlement agreement necessary and would defer to you to fonnalize the agreement and prepare same for the CCBCC's consent agenda. QB\8868562, J i6,genda item No, 16A9 November 10. 2009 Page 8 of 12 JeffE. Wright, Esq, September 24,2009 Page 2 If you have any questions or care to discuss this matter in further detail, please do not l1esitate to contact me Best, QUARLES & BRADY LLP ~ -l Benjamin B. Brow~ BBB:jw cc: Client Mark A. Olivera, Esq. (via C.S t'Hiil) Diane Flagg (via email onlytodianeflagg@colliergov.net) QB\8868562. ] 2 - - -- "t ^ M lo"R I ~'S ~ 0-1 ~ 9000 E Pima Center Parkway Scottsdale, AZ' 85258 Agendal~~388,~~ r\lovember 10,2009 Page 9 of 12 'Supplier Number I 90399 ---, --.. _._. ---_.__._~ ,- Customer Number Invoice Date Invoice Number Reference Invoice Amount Description PO Number 06-0ct-2009 FL-0901203619 8,458.00 3-FL-0901203619 I Total 8,458.00 11'00 ~o 2B8 28 bll' ': ~ 2 2 2... ~ 255': ~o ~oo ~OoOOIl' QuorltslBmdy UP 139; Panther Lane Suite 300 !'iap!c", Florida 34109-7874 Ie] 23926259;9 Fax 239.4344999 wv,w,quarles,com l>,qenda Item No, 1 GA.9 -' ~Jo\lember 10. 2009 Page 10 of 12 Attorne)'s at Law in: Phoenix and Tucson, Arizona Naples, Florida Chicago, Illinois Milwaukee and Madison, Wisconsil Writer's Direct Dial: 239,659,5026 Writer's Fax: 239.2] 3,5426 E-Mail: benjamin.brown@quarles.com -;-, ~~~ /". ~..-~~ ~~. -:-.. -.;..... -I:~~' -<:: j:~r::' September 18, 2009 :. C) ~-,.) VIA EMAIL ljeffwright@.colliergov.net)ANDU.S.MAIL JeffE. Wright, Esq. Assistant County Attorney Board of County Commissioners Collier County, Florida Harmon Turner Building, 8th FIr. 3301 Tamiami Trail E. Naples, FL 34112 ::-::~ ._;-',~ ~ ;~---." c.rJ "-..) RE: Deutsche Bank National Trust Company as Trustee for the GSAA Home Equity Trust 2006-8, et aL v. Baker, et aL; Collier Country Circuit Case No. 09-CA-004249 PURSUANT TO S 90.408, FLORIDA ST A TUTES, THIS LETTER CONTAINS AN OFFER TO COMPROMISE A DISPUTED CLAIM AND IS INADMISSIBLE IN ANY PROCEEDING. Dear Jeff: As you know, I represent Deutsche Bank in the above referenced lawsuit. Per Collier County's Answer and Counterclaimlcrossclaim, it claims first priority code enforcement liens on the property located at 2759 Lakeview Drive, Naples, Florida (the "subject property"), in the total amount of $188,659.15. Additionally, Collier County has taken the position that its liens attached to all properties then o\'med J.."1d thereafter acquired by Marian & Thomas Baker. Deutsche Bank disagrees with Collier County's position, as__g?}li~r__ County Ordinance 99-26 specifically excluded any other property owned by the Bakers.-- such as the subject property. However, assuming arguendo that Collier County is correct and that the two liens attached to all properties owned by the Bakers, the liens would attach to the following properties which have the following assessed values per the Collier County Property Appraiser: Gulf Shores Blk 6 Lot 4 5705 Taylor Rd. 338 Ridge Dr. 1585 Pine Ridge Rd. 2759 Lakeview Drive 5643 Taylor Rd. $196,560 $474,132 $829,622 $705,160 $289,380 $732,531 Q8\8816020, : " v\'t-'1 ~~1t . '"-~ Agenda Item ~~o. 16A9 November 10, 2009 Page 11 of 12 \ ' JeffE. Wright, Esq. September 18, 2009 Page 2 Accordingly, the total value of all the properties is $3,227,385 and the proportionate value of the subject property is 8.9%. As such, the subject property's pro rata share of any indebtedness would only be $16,915.17. Furthermore, you indicated during our last conversation that Collier County would be willing to waive the late fees (totaling $164,700), or a substantial portion thereof, given that: I) the subject property was not the violating property; 2) any code violation has long since been rectified; and 3) most of the late fees were incurred during the pendency of an appeal. As such, please let me know whether Collier County would agree to grant a partial release of its liens as to the subject property only (to the extent the liens ever attached) and a dismissal of its counterclaimlcrossclaim and affirmative defenses relating to the liens, with prejudice, in return for the payment of $2,500.00, with each party to bear its own attorneys' fees and costs. I look forward to hearing from you. Best, .QUARLES & BRADY LLP ~'''- -- ~own BBB:jw cc: Client Mark A. Olivera, Esq. (via U.S. mail) QD\88 ] 6020, I __ 'fIl. MEMORANDUM Agenda Item tJo, 16/1,9 November 10. 2009 Page 12 of 12 To; Diane Flagg, Director, Code Enforcement/PJjment Jeff Wright, Assistant County Attorney t1 October 21, 2009 From: Date: Subject: PROPOSED SETTLEMENT PAYMENT - Collier County v. Thomas and Marian Baker (CEB Case Nos. CEB-2003-026 and CEB 2006-62, Circuit Court Case No. 09-4249-CA) Attached please find correspondence and a copy of a check (First American Title Insurance Company check no. 10288286) in the amount of $8,458.00, representing a proposed settlement in relation to the following cases: 1, CEB 2003-026 (lien at OR Book 3552, Paqe 938): This is a $188,659.15 lien; the property is in compliance. This is the case where citizen Tom Baker went to some length to bring property (5643 Taylor Road) into compliance (he also appealed the code case in court and lost). Deutsche Bank is in the process of foreclosing on 2759 Lakeview Drive, and we have asserted the "Taylor Road" lien in the foreclosure action. The attached check represents approximately 8.9% (the calculated "pro rata share") of the total value of this lien relative to Baker's other 5 properties, or $16,915,17, multiplied by 50%. If approved, a partial release will be recorded in the public record (releasing this property, and this party, from the 'Taylor Road" lien), 2. CEB 2006-62 (order at OR 4163, Paqe 625): This case (with fines exceeding $10,000) does not involve a lien (yet), and they are requesting release from this "finding of fact" order (relating to vegetation removal at 5705 Taylor Road). Since it does not yet involve a lien, it has not yet attached to the Lakeview Drive property, and the underlying infraction is in compliance, I have no problem releasing Deutsche Bank from this "finding of fact order". If the BCC approves a partial release from this order, the lien can still be imposed, but it would not encumber the 123 1 st St property. Deutsche Bank's attorney, Ben Brown, Esq., has requested that I hold the check uncashed, pending BCC approval of the settlement. Please let me know whether you are comfortable going to the BCC with a settlement recommendation (partial release for 123 1 st Street, on both cases, for payment of $8,458). '" '" '" 'f' ;;; i ~ '" ~ EXHIBIT 13 cc: Jeffrey A. Klatzkow, County Attorney Office of the Collier County Attorney -