United States District Court, D. New Jersey
WELLS FARGO BANK, N.A., as Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-through Certificates, Series 2006-IQ12, Plaintiff,
LIGHTER GATEWAY IV, LLC, CLAIRE LICHTER, individually and in her capacity as Executrix of the ESTATE OF ALFRED LICHTER, JOSEPH SCHWARTZ, SUZETTE SCHWARTZ, THE ALFRED LICHTER 2000 FAMILY TRUST, AND GATEWAY CONCOURSE ASSOCIATION, INC., Defendants.
plaintiff, Wells Fargo Bank, N.A., as Trustee for Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-through
Certificates, Series 2006-IQ12 ("Wells Fargo"),
brings this action against defendants, Lichter Gateway IV,
LLC ("Lichter Gateway"); Claire Lichter,
individually and in her capacity as Executrix of the Estate
of Alfred Lichter, Joseph Schwartz, Suzette Schwartz, the
Alfred Lichter 2000 Family Trust (collectively,
"Guarantor", with Lichter Gateway and Guarantor
being referred to collectively as "Lichter"); and
the Gateway Concourse Association, Inc. ("the
essentially a commercial foreclosure, brought by Wells Fargo
as mortgagee against Lichter Gateway as mortgagor, and other
parties as guarantors. Lichter Gateway is currently in
default to the tune of nearly $57 million in principal that
has come due at maturity.
Fargo moved for the appointment of a receiver to manage the
property during the pendency of this litigation. Its primary
concern was waste. Most pertinently, Lichter Gateway had
failed to make required payments to the Association for the
repair and upkeep of common areas in the Gateway complex, and
the Association had responded by placing liens on the
property. That concern, however, has been allayed. State
court litigation brought against Lichter Gateway by the
Association was recently settled, and the Association has
agreed to vacate its liens. Although Wells Fargo has other
concerns, I do not find them sufficiently weighty to justify
the drastic remedy of a receiver to manage the property
Fargo has also moved for the appointment of a rent receiver.
As to that request I have a different view. Lichter Gateway
has collected rents pursuant to a revocable license from
Wells Fargo. Under the terms of the loan documents, that
license was automatically revoked as a result of
Lichter's default. Under the circumstances, I find that
appointment of a rent receiver during the pendency of this
litigation is appropriate.
Lichter moves under Federal Rule of Civil Procedure 12(b)(6)
to dismiss part of Count 6 of the complaint for failure to
state a claim upon which relief can be granted. That motion
Fargo has succeeded to the position of mortgagee of the $61
million commercial mortgage loan at issue. (Cplt.
¶¶ 21, 26-32) Lichter Gateway is the current owner
of the mortgaged premises, Gateway IV, a commercial building
located at 100 Mulberry Street in Newark, New Jersey.
Id. ¶¶ 2-3. The Association maintains
certain common areas in the complex, and assesses building
owners for the cost of doing so. (See Id.
October 24, 2006, Heritage Gateway, LLC
("Heritage"), Marine One Associates III, LLC
("Marine"), Ridgewood 2000 Associates III, LLC
("Ridgewood"), JPG Real Estate III, LLC
("JPG"), and Ivy Gateway, LLC ("Ivy")
executed a Promissory Note evidencing a $61 million loan made
by LaSalle Bank National Association ("LaSalle") to
Heritage, Marine, Ridgewood, JPG, and Ivy (collectively, the
"original borrower"). Id. ¶ 10; ECF
no. 1-2, Ex. A. The maturity date under the Note was November
1, 2016. Id. ¶ 15; ECF no. 1-2, Ex. B§
around October 24, 2006, the original borrower entered into a
loan agreement with LaSalle. Id. ¶ 11; ECF no.
1-3, Ex. B. The Note incorporates the terms of that
agreement. See ECF no. 1-2, Ex. A.
Mortgage and Security Agreement, dated October 25, 2006, was
executed by the original borrower, as mortgagor, to LaSalle,
as mortgagee. Id. ¶ 16; ECF no. 1-4, Ex. C. An
Assignment of Leases and Rents, dated October 25, 2006, was
also executed by the original borrower to LaSalle.
Id. ¶ 18; ECF no. 1-5, Ex. D.
December 2006, LaSalle assigned the loan and loan
documents to Wells Fargo. Id.
¶ 22. See ECF nos. 1-6, Ex. E;
1-7, Ex. F; 1-8, Ex. G.
Assumption of Loan Documents by Newark 300, LLC
about June 12, 2009, Ivy transferred 24% of its initial 40%
ownership interest in Gateway IV to Newark 300, LLC.
Id. ¶ 24. Newark 300, LLC "agreed to
become jointly and severally liable as tenants-in-common with
[the] original borrower under the . . . loan documents."
Id. See ECF no. 1-9, Ex. H.
Assumption of Loan Documents by Lichter Gateway
about January 3, 2011, the original borrower and Newark 300,
LLC transferred Gateway IV to defendant Lichter Gateway.
Id. ¶ 26. Defendants Lichter Gateway, Alfred
Lichter, Claire Lichter, Joseph Schwartz, Suzette Schwartz,
and the Alfred Lichter 2000 Family Trust "assumed all
obligations under the Loan Documents and released the
original borrower [Newark 300, LLC], and Original Guarantor
from certain obligations pursuant to the Loan Documents,
subject to the provisions set forth in the Borrower
Assumption Agreement." Id. Wells Fargo, Lichter
Gateway, the original borrower, and Newark 300, LLC, "as
well as Steven Greenberg, Jeffrey Greenberg, and Ivy . . .
(collectively, the 'Original Guarantor')"
executed the Borrower Assumption Agreement, dated January 3,
2011. Id. ¶ 27; ECF no. 1-10, Ex. I. In
substance, Lichter Gateway stepped into the shoes of the
connection with Lichter Gateway's assumption of the Note,
Defendants Alfred Lichter, Claire Lichter, Joseph Schwartz,
Suzette Schwartz, and the Alfred Lichter 2000 Family Trust,
executed a Guaranty, dated January 3, 2011. Id.
¶ 27; ECF no. 1-11, Ex. J. In substance, those parties
stepped into the shoes of the guarantor.
Lichter Gateway's Failure to Pay by Maturity
Gateway failed to pay all amounts due to Wells Fargo under
the loan documents on the maturity date of November 1, 2016.
Cplt. ¶¶ 33-34. According to Wells Fargo, Lichter
Gateway is in default of its obligations to Wells Fargo under
the Note and Mortgage. Id.
January 4, 2017, Wells Fargo sent the Lichter defendants a
notice of maturity default letter, informing them of their
default and demanding payment. Id. ¶ 35; ECF
no. 1-14, Ex. M. As of March 28, 2017, the date of the filing
of the Complaint, Lichter Gateway had failed to pay all sums
due under the loan documents, including $56, 959, 629.12 in
principal, and therefore was in default. Id.
The Association's Filing of Liens against Gateway
Gateway is a party to the "Amended and Restated Grant
and Agreement, by and among the Association, Third Newark
Gateway Urban Renewal Association, Gateway Four Urban
Renewal, L.P., Gateway South Urban Renewal Association, and
the Prudential Insurance Company of America, " dated
December 21, 1999 (the "Concourse Agreement").
Id. ¶ 47. Under the Concourse Agreement,
defendant Lichter Gateway is obligated to pay the Association
for the Association's "costs for performing its
duties to maintain and service certain of the concourses and
walkways at or near" Gateway IV. Id.
December 2012, Lichter Gateway "voluntarily ceased
payment" of those cost assessments, thereby defaulting
under the Concourse Agreement. Id. ¶¶
50-51. As a result of that default, the Association filed
three liens against Gateway IV. Id. ¶ 52. The
first lien was recorded in July 2013, the second in June
2015, and the third in March 2016. Id. The
Association commenced an action to compel Lichter Gateway to
pay the assessments in the Superior Court of New Jersey, Law
Division, Essex County. Gateway Concourse Association,
Inc. v. Lichter Gateway IV LLC, ESX-L-001075-16 (the
"State Action"). Id. ¶ 53.
Fargo asserts that, as a result of Lichter Gateway's
unpaid assessments, the Association "has ceased
maintaining the concourses and walkways" at or near
Gateway IV. Id. ¶ 54. In particular, an
escalator and revolving door which provide access to Gateway
IV "are broken and remain unrepaired." Id.
¶ 55. Wells Fargo alleges that, "as a result of
deteriorating conditions ... a tenant at [Gateway IV] has
declared an event of default against [Lichter Gateway] under
the terms of its lease." Id. ¶ 56.
Fargo says that neither Lichter Gateway nor the Association
informed it of the default under the Concourse Agreement or
the existence of the liens. Id. ¶ 57. Rather,
from 2013 to 2016, Lichter Gateway submitted annual operating
statements to Wells Fargo which indicated that Lichter
Gateway had paid "association fees." Id.
¶ 58. It also provided budgets to Wells Fargo which
included as budgeted costs the payment of the Association
assessments. Id. Indeed, Lichter Gateway requested
and obtained funds from Wells Fargo to pay those costs.
Id. According to Wells Fargo, Lichter Gateway
"failed or omitted to notify [Wells Fargo] that [it] was
voluntarily withholding payment of the Concourse Assessments,
" from which Wells Fargo infers that it "either
misappropriated, misapplied, converted, or failed to use such
funds for the purpose of paying the Concourse
March 28, 2017, Wells Fargo filed this action. (Cplt., ECF
no. 1) The Complaint asserts six causes of action against
Lichter and the Association: (1) mortgage foreclosure; (2)
possession; (3) security interest foreclosure; (4) rent
receiver; (5) breach of promissory note; and (6) breach of
guaranty. (Id. ¶¶ 69-88) Attached to the
Complaint are thirteen exhibits. (ECF nos. 1-2 to 1-14).
5, 2017, Wells Fargo filed the current motion for appointment
of a receiver. (ECF no. 6) In support, it submitted a brief
(Pl. Br.), and a declaration from Michael Nikula, a Servicing
Officer of C-Ill Asset Management LLC, the Special Servicer
for Wells Fargo, in support of its motion. (ECF no. 6-1).
Fifteen exhibits were attached to the declaration. (ECF nos.
6-2 to 6-16).
5, 2017, the Association filed an Answer to the Complaint.
(ECF no. 14) On that same date, in lieu of an answer, Lichter
filed a motion to dismiss part of Count Six of the Complaint.
19, 2017, Wells Fargo filed a brief in opposition to the
motion to dismiss. (Pl. Opp.) Also on that date, Lichter
filed its brief in opposition to Wells Fargo's motion for
appointment of a receiver. (Def. Opp.) In support of that
brief, Lichter submitted a declaration from Abraham Schwartz,
the manager at Lichter & Lichter, L.P., and a declaration
from Steven Greenberg, the principal of Heritage Newark
Management Company, the property management company for
Gateway IV. (ECF nos. 19-1, 19-4) The declaration of Abraham
Schwartz attached two exhibits, and the declaration of Steven
Greenberg attached five exhibits. (ECF nos. 19-2 and 19-3;
ECF nos. 19-5 to 19-9)
26, 2017, Lichter filed a reply memorandum of law in further
support of its motion to dismiss, in part, Count Six of the
Complaint. (Def. Reply) On that same date, the Association
submitted a letter in support of Wells Fargo's motion to
appoint a receiver, and "in reply to the opposition . .
. filed by Lichter." (ECF no. 22) Attached to the letter
are the declaration of David L. Menzel, Esq., counsel for the
Association, and exhibits related to the State Action. (ECF
same date, Wells Fargo filed a reply brief in further support
of its motion for appointment of a receiver. (Pl. Reply) It
also submitted a "reply declaration" from Mr.
Nikula with an Exhibit (ECF nos. 23-1, 23-2), and a
declaration from James Postell, its proposed receiver (ECF
days later, on June 28, 2017, Lichter filed a letter
requesting permission to respond to the Association's
"untimely and reckless" filing. (ECF no. 24 at 3)
It argued that the Association's letter should be
rejected by this Court pursuant to Local Civil Rule
7.1(d)(7). (ECF no. 24 at 2) The next day, both the
Association and Wells Fargo filed their respective responses.
(ECF nos. 25, 26)
October 19, 2017, I heard oral argument on the motions and
reserved decision; among other things, I was awaiting news on
the progress of the State Action between the Association and
Lichter Gateway IV, which was imminently scheduled for trial.
On October 25, 2017, the Association and Lichter Gateway IV
reached a settlement in the State Action. (ECF no. 39 at 1)
Fargo's position at oral argument and in its briefing
heavily relied on the existence of the Association dispute
and the alleged waste resulting from that dispute. I
therefore entered a text order asking each party to submit a
letter describing how the resolution of the State Action
would bear on the pending application for a receiver. (ECF
no. 35) Supplemental letters were filed. (ECF nos. 38 to 40)
Lichter's submission attaches a copy of the settlement
agreement as Exhibit A. (ECF no. 39, Ex. A) Wells Fargo's
submission attaches a copy of March and October 2017 e-mails
between Mr. Nikula and Nanette Jerlat of Heritage, which is
Lichter Gateway's property management agent. (ECF no. 40,
Section III, infra, I address Wells Fargo's
motion for appointment of a receiver, and in Section IV,
infra, I address the motion to dismiss part of Count
6 of the complaint.
Motion to Appoint Receiver
Rule of Civil Procedure 66 empowers a federal court to
appoint a receiver in a pending litigation. The remedy is a
drastic one, and the power to appoint a receiver is one that
should be exercised with great caution. "Such an
appointment . . . should not be made lightly; it is
appropriate only in the face of compelling circumstances and
in the absence of a less drastic remedy." Leone
Indus, v. Associated Packaging, Inc., 795 F.Supp. 117,
120 (D.N.J. 1992). See 12 Wright, Miller, Kane &
Marcus, Federal Practice and Procedure, § 2983 (2d ed.)
("The appointment of a receiver is considered to be an
extraordinary remedy that should be employed with the utmost
caution and granted only in cases of clear necessity to
protect plaintiffs interests in the property.")
(footnote omitted); Maxwell v. Enter. Wall Paper Mfg.
Co., 131 F.2d 400, 403 (3d Cir. 1942) (recognizing that
"it has been judicially noted almost innumerable times
that the appointment of a receiver is an extraordinary, a
drastic ... remedy ... not to be resorted to if milder
measures will give the plaintiff, whether creditor or
shareholder, adequate protection for his rights.")
(internal citations omitted).
in federal diversity actions like this one, federal law
governs the decision of whether a receiver should be
appointed. See 12 Wright, Miller, Kane 65 Marcus,
supra, § 2983 ("Whether a federal court
should appoint a receiver in a diversity action appears to be
a question properly determined on the basis of federal
law."); 13-66 Moore's Federal Practice-Civil §
66.09 ("Federal law and federal practice govern the
appointment of a federal equity receiver.... [T]o use federal
law is not inconsistent with the Erie doctrine ...
because the appointment of a receiver does not directly
affect the outcome of the case. By definition, the
appointment of a receiver is ancillary to the primary relief
being sought, so the appointment of a receiver does not
directly affect the outcome of a particular action.");
but see Mintzer v. Arthur L. Wright & Co., Inc.,
263 F.2d 823, 825 (3d Cir.1959) (concluding that federal
courts sitting in diversity should apply state law to the
appointment of a receiver).
courts in the Third Circuit have applied federal law to a
motion to appoint a receiver. See Fimbel v. Fimbel Door
Corp., No. CV141915FLWDEA, 2016 WL 1379788, at *2
(D.N.J. Apr. 7, 2016) (identifying cases in the Third Circuit
that have applied federal law when considering the
appointment of a receiver, and applying federal law in its
analysis); but see New England Mutual Life Ins. Co. v.
Troy Ventures, Ltd., Civ. No. 94-3299, 1994 WL 705411,
at *8 (D.N.J. Dec. 14, 1994) (applying Pennsylvania state law
parties in this case both cite federal law, and have not
identified any significant difference between state and
federal standards. Given the weight of the authority, and
the parties' evident agreement, I will apply federal
standards for the appointment of a receiver. See
Section IV.B, infra.
all parties submitted affidavits and exhibits, no party
sought an evidentiary hearing in connection with this motion.
While the court may require live testimony in an appropriate
case, an evidentiary hearing is not needed if "the
record discloses sufficient facts to warrant appointment of a
receiver." Leone Indus., 795 F.Supp. at 120 n.6
(citation omitted). I think the parties' approach is
sound, in that the essential facts may be gleaned from the
documents; any disputes that would involve the credibility of
witnesses are not essential to my decision. I therefore
decide this motion on the papers, as supplemented by oral
Analysis of Motion to Appoint Receiver
mortgage loan is in default. Wells Fargo seeks an order
appointing a receiver who will 1) collect all rents and
income, and 2) operate and manage the property. (Pl. Br. at
8, 13). As will become clear, I do not think that those two
aspects of Wells Fargo's motion stand on the same
evaluating the appointment of a receiver in the context of a
mortgage foreclosure, a district court has ""broad
discretion in appointing a receiver... [I]t may consider a
host of relevant factors ... [N]o one factor is
dispositive."' Wells Fargo Bank, N.A. v. CCC
Atl., LLC, 905 F.Supp.2d 604, 614 (D.N.J. 2012) (quoting
Canada Life Assurance Co. v. Alfred R. LaPeter, 563
F.3d 837, 845 (9th Cir. 2009)). Courts have generally
considered the following six factors: (1) whether "the
property is inadequate security for the loan"; (2)
whether "the mortgage contract contains a clause
granting the mortgagee the right to a receiver"; (3)
"the continued default of the mortgagor"; (4)
"the probability that foreclosure will be delayed in the
future"; (5) "the unstable financial status of the
mortgagor"; and (6) "the misuse of project funds by
the mortgagor." Id. (quoting United States
v. Berk & Berk, 767 F.Supp. 593, 597 (D.N.J. 1991))
(footnote omitted). "The presence of a contractual
stipulation to the appointment of a receiver 'is given
considerable weight in the court's evaluation of whether
a rent receiver should be appointed." In re
Inv'rs Warranty of Am., Inc. v. B.W.E. Dev., L.L.C.,
No. CIV.09-4490, 2010 WL 2557559, at *5 (D.N.J. June 23,
2010)(quoting Barclays Bank, P.L .C. v. Davidson Ave.
Assoc, Ltd., 644 A.2d 685, 687 ( N.J.Super.Ct.App.Div.
Jul. 8, 1994)).
appointment of a managing receiver, as opposed to a mere
receiver of rents, is a more drastic remedy that implicates
additional concerns. When a moving party seeks a receiver who
will manage and operate the mortgaged property pending
foreclosure, courts are particularly cautious in appointing a
receiver, and therefore consider whether the evidence
demonstrates "something more" than just "the
doubtful financial standing" of the defendant and the
"inadequacy of the security." Wells Fargo Bank,
N.A., 905 F.Supp.2d at 614. Accordingly, additional
factors may be considered, including
(1) the danger of waste; (2) delays in foreclosure; (3) the
defendant's fraudulent conduct; (4) imminent danger that
property will be lost, concealed, injured, diminished in
value, or squandered; (5) the inadequacy of the available
legal remedies; (6) the probability that harm to plaintiff by
denial of the appointment would be greater than the injury to
the parties opposing appointment; and (7) the plaintiffs
probable success in the action and the possibility of
irreparable injury to his interests in the property.
Id. at 614-15 (internal quotation marks, brackets,
and citation omitted)(quoting Canada Life Assurance
Co., 563 F.3d 837 at 845; Chase Manhattan Bank, N.A.
v. Turabo Shopping Ctr., Inc., 683 F.2d 25, 26-27 (1st
the parties did not address (5) the inadequacy of the
available legal remedies, or (7) Wells Fargo's probable
success in the action and the possibility of irreparable
injury to its interests in Gateway IV. They did, however,
address other relevant factors. I consider them in turn.
Fargo stresses that it is entitled to such relief because
under the mortgage agreement, Lichter "expressly
consented to the appointment of a receiver" in the event
of default, "which has indisputably occurred." (Pl.
Br. at 9-10).
in regard to a managing receiver, as opposed to a rent
receiver, Wells Fargo relies on Section 7.1(g) of the
mortgage agreement, which provides that in the event of
default, as defined by the loan agreement,  Wells Fargo
may . . . (g) apply for the appointment of a receiver,
trustee, liquidator or conservator of the [Mortgaged
Premises], without notice and without regard for the adequacy
of the security for the [Loan] and without regard for the
solvency of Borrower, any guarantor, indemnitor with respect
to the Loan or of any [p]erson liable for the payment of the
[Loan]. . .
(ECF No. 1-4, Ex. C, §7.1(g))
as it must, acknowledges this provision, but urges that it
falls short of "explicit consent" to the
appointment of a receiver. Rather, it authorizes Wells Fargo
to "apply for the appointment of a
receiver." (Def. Opp. at 17, 33) (emphasis in original,
quoting Mortgage Agreement §7.1(g), supra). I
eschew Lichter's excessively literal approach, which
would reduce this to an illusory promise (after all, anybody
can apply for anything). I do accept, however, that
it falls short of a full, self-executing consent to
appointment of a receiver for any and all purposes upon
default. Particularly as to the appointment of a receiver to
operate and manage the property, it is relevant but not
dispositive. Neither, however, is it Wells Fargo's only
argument from the wording of the relevant agreements;
additional provisions in the assignments of rents and leases
strengthen its hand, at least as to a rent receiver.
Fargo also points out that under the mortgage agreement and
the Assignment of Leases, it possesses equitable title to the
income and rents generated by Gateway IV, because
Lichter's revocable license to collect the rents has been
automatically terminated as a result of its default.
Id. at 10 to 11; (ECF. Nos. 6-4, Ex. C, at 4 to 5;
6-5, Ex. D, at 1 to 2)
regard, Wells Fargo relies on Section 1.2 of the mortgage
agreement, entitled "ASSIGNMENT OF RENTS." Section
1.2 provides as follows:
Borrower hereby absolutely and unconditionally assigns to
Lender all of Borrower's right, title and interest in and
to all current and future Leases and Rents; it being intended
by Borrower that this assignment constitutes a present,
absolute assignment and not an assignment for additional
security only. Nevertheless, subject to the terms of the
Assignment of Leases and Section 7.1(h) of this Security
Instrument, Lender grants to Borrower a revocable license to
collect, receive, use and enjoy the Rents. Borrower shall
hold the Rents, or a portion thereof sufficient to discharge
all current sums due on the Debt, for use in the payment of
(ECF No. 1-4, Ex. C, §1.2)
related is the Assignment of Leases, in which Lichter
"absolutely and unconditionally" assigned the right
to leases and rents of Gateway IV to Wells Fargo, and granted
"[t]he right, at [Wells Fargo]'s option upon
revocation of the license granted herein, to enter upon
[Gateway IV] in person, by agent or by court-appointed
receiver, to collect the Rents." (ECF No. 1-5, Ex. D,
§ 1.1(c), (h)). Under Section 2.1 of that Assignment,
Lichter does not possess title to the rents; it enjoys only a
revocable license from Wells Fargo to "collect,
receive, use and enjoy the Rents, as well as other sums due
under the Lease Guaranties." (ECF No. 1-5, Ex. D,
Assignment of Leases explicitly spells out the consequences
of default. Section 3.1 of that Assignment provides that
"[u]pon the occurrence of an Event of Default, the
license granted to Borrower in Section 2.1 of this Assignment
shall automatically be revoked, and Lender shall immediately
be entitled to possession of all Rents and sums due under any
Lease Guaranties, whether or not Lender enters upon or takes
control of the Property." (ECF No. 1-5, Ex. D,
§3.1) Moreover, under that Section, Lichter also
consents and agrees that Wells Fargo may enter onto the
property, eject Lichter, and collect rents:
[Wells Fargo] may, at its option, without waiving such Event
of Default, without regard to the adequacy of the security
for the Debt, either in person or by agent, nominee or
attorney, with or without bringing any action or proceeding,
or by a receiver appointed by a court, dispossess Borrower
and its agents and servants from the Property, without
liability for trespass, damages or otherwise and exclude
Borrower and its agents or servants wholly therefrom, and
take possession of the Property and all books, records and
accounts relating thereto and have, hold, manage, lease and
operate the Property on such terms and for such period of
time as [Wells Fargo] may deem proper and either with or
without taking possession of the Property in its own name,
demand, sue for or otherwise collect and receive all Rents
and sums due under all Lease Guaranties, including those past
due and unpaid with full power to make from time to time all
alterations, renovations, repairs or replacements thereto or
thereof as [Wells Fargo] may deem proper . . .
the mortgage agreement, the assignments of rents and leases
have rents and leases as their primary focus. As to the right
to receive rents, the Assignment of Leases is far clearer
than Section 7.1(g) of the mortgage agreement,
supra, and it purports to be self-executing on
default. According to Wells Fargo, the Assignment of Leases
also authorizes it to enter onto the property without
invoking legal process, and to manage and operate it. Wells
Fargo, however, is not (or at least is not currently)
exercising its claimed right to self-help under that
Assignment. Understandably, it seeks the protection of a
court order (as well as the insulation from liability
afforded by a third-party manager). That being the case,
however, Wells Fargo must take the bitter with the sweet; to
invoke the powers of the Court and the protection of a Court
order, it must submit to the ...