STIPULATION AND ORDER RE INTERLOCUTORY SALE OF REAL PROPERTY LOCATED AT 474 LAURELLEN ROAD
KIMBERLY J. MUELLER, District Judge.
The United States of America and claimant lienholder Zinc Financial, Inc., a California corporation ("Zinc Financial"), agree and stipulate to the following interlocutory sale pursuant to Rule G(7) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions:
1. The defendant property subject to this stipulation is Real Property located at 474 Laurellen Road, Marysville, California, Yuba County, APN: 018-280-016, including all appurtenances and improvements thereto ("defendant property"), and more fully described in Exhibit A attached hereto.
2. On April 3, 2018, the United States filed a Verified Complaint for Forfeiture In Rem alleging that the defendant property, including any right, title and interest in the whole of any lot or tract of land and any appurtenances or improvements thereon, is subject to forfeiture to the United States pursuant to 21 U.S.C. §§ 881(a)(6) and 881(a)(7), because it constitutes other things of value furnished in exchange for a controlled substance or listed chemical, or proceeds traceable to such an exchange, and/or was used and intended to be used to commit or facilitate a violation of 21 U.S.C. §§ 841 et seq.
3. The recorded owner of the defendant real property is Yifeng Ren.
4. Beginning on May 9, 2018, for at least thirty consecutive days, the United States published Notice of the Forfeiture Action on the official internet government forfeiture site www.forfeiture.gov. A Declaration of Publication was filed on July 13, 2018. (ECF No. 21)
5. The defendant Laurellen Road Property was posted with a copy of the Verified Complaint for Forfeiture In Rem and Notice of the Complaint on April 30, 2018, by the U.S. Marshals Service. See Process Receipt and Return filed May 16, 2018. (ECF No. 4)
6. On May 25, 2018, lien holder Zinc Financial, Inc. filed a claim (ECF No. 9), and an answer to the complaint on June 15, 2018 (ECF No. 12). The Note is presently in default as a result of Yifeng Ren's failure to make the regular monthly payment due on May 1, 2018 and has continuously been in default since May 3, 2018.
7. Yifeng Ren has not filed a claim or answer. The Clerk of the Court entered a Clerk's Certificate of Entry of Default against Yifeng Ren on July 17, 2018. (ECF No. 23)
8. No other parties have filed claims or answers in this matter as to the Laurellen Road Property, and the time in which any person or entity may file a claim and answer has expired.
9. The parties agree Zinc Financial (or their designee) shall be authorized to sell the Laurellen Road Property in accordance with the terms and conditions of this Stipulation pursuant to Paragraphs 10 through 18 below.
10. Upon entry of an order granting this Stipulation, claimant Zinc Financial (or their designee) shall list the Laurellen Road Property for sale and shall have sole power and authority, other than review and approval by the U.S. Attorney's Office to: (a) select the means of sale, including sale by internet or through a licensed real estate broker, and (b) market and sell the Laurellen Road Property. Claimant Zinc Financial's (or their designee's) request for the U.S. Attorney's Office approval shall be made by e-mail to kevin.khasigian@usdoj.gov and shall not be unreasonably delayed or withheld. In the event the U.S. Attorney's Office fails to approve or disapprove claimant Zinc Financial's (or their designee's) request for approval within 48 hours of the request being made, said request for approval shall be deemed automatically approved.
11. Zinc Financial (or their designee) shall instruct the escrow officer to wire all of the net proceeds from the sale of the Laurellen Road Property to the U.S. Marshals Service and to contact the U.S. Attorney's Office, Asset Forfeiture Unit, to obtain specific wiring instructions.
12. The "net proceeds" from the sale of the defendant property will include all money realized from the sale of the defendant property, except for the following:
a. Real estate commissions;
b. Amounts due to the holder of any valid lien which was recorded prior to the time the United States' Lis Pendens was recorded, which includes Zinc Financial;
c. Real estate property taxes which are due and owing;
d. Insurance costs, if any;
e. Title fees;
f. Escrow fees and expenses;
g. County transfer taxes; and
h. Any amounts paid by Zinc Financial to cure items "red tagged" by the County of Yuba, including violations of the Yuba County Code of Ordinances.
13. The United States will receive the remaining net proceeds from the sale of the defendant property. All right, title, and interest in said funds shall be substituted for the defendant property and forfeited to the United States pursuant to 21 U.S.C. §§ 881(a)(6) and 881(a)(7), to be disposed of according to law.
14. Each party to this Stipulation shall execute all documents and provide signatures necessary to close escrow, as required by the title company.
15. All parties to this Stipulation hereby release the United States and its servants, agents, and employees from any and all liability arising out of or in any way connected with the posting or sale of the defendant property. This is a full and final release applying to all unknown and unanticipated injuries, and/or damages arising out of said posting or sale, as well as to those now known or disclosed. The parties to this Stipulation waive the provisions of California Civil Code § 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
16. All parties are to bear their own costs and attorneys' fees in connection with the sale of the defendant property and the preparation of this stipulation. Except as so indicated, this provision is not intended as a waiver of claimants' right to seek fees upon resolution of the forfeiture action.
17. Pending the sale of the property, and the disposition of the proceeds, the Court shall maintain jurisdiction to enforce the terms of this stipulation.
18. The interlocutory sale of the defendant property, the substitution of the net sales proceeds in the civil case, and this stipulation shall not affect any rights or remedies the parties may have to litigate their claims to the property.
IT IS SO STIPULATED.
ORDER FOR INTERLOCUTORY SALE
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1. The stipulation re interlocutory sale of the real property is granted.
2. The real property located at 474 Laurellen Road, Marysville, California, Yuba County, APN: 018-280-016, and more fully described in Exhibit A attached hereto, will be sold pursuant to the terms set forth above.
3. The net proceeds from the sale of the real property will be substituted as the res herein and held by the U.S. Marshal Service, pending further order of the Court.
IT IS SO ORDERED.
EXHIBIT A
Real property at 474 Laurellen Road, Marysville, California
The land described herein is situated in the State of California, County of Yuba, unincorporated area, described as follows:
Portion of Lot 10, as shown on the map entitled, "Laurellen Tract", filed in the office of the County Recorder of Yuba County, California, in Book 3 of Maps, Page 26, and being more particularly described as follows:
Beginning at the Northwesterly corner of said Lot 10; thence North 89° 30' 00" East along the Northerly line of said Lot 10, a distance of 218.00 feet; thence South 0° 10' 00" West, a distance of 121.44 feet; thence South 47° 53' 13" East, a distance of 13.81 feet; thence South 00° 10' 00" West 133.22 feet to the Southerly line of said certain parcel of land described in Affidavit of Death-Trustee, recorded November 15, 2007, as instrument no. 2007R-019281, Official Records; thence South 89° 30' 00" West along said Southerly line, a distance of 225.20 feet to the Westerly line of said Lot 10; thence along said Westerly line, north 00° 30'00" West, a distance of 264.00 feet, more or less, to the point of beginning.
EXCEPTING therefrom that portion conveyed to the County of Yuba, by Grant Deed recorded May 4, 1964, Book 392, Page 496, Official Records.
