STIPULATION FOR AUTHORIZATION FOR PRIVATE SALE AND [PROPOSED] ORDER AMENDED
MAXINE M. CHESNEY, District Judge.
This matter came before the Court for hearing on April 14, 2017, on two motions filed by Defendant Douglas Caraway, a Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) (ECF #226), and a Motion for Approval of Private Sale (ECF #238). Counsel for the United States of America, Fremont Bank, State of California Franchise Tax Board, Employment Development Department of the State of California, and Douglas Caraway were present along with defendant, Douglas Caraway. These parties hereby stipulate and agree as follows:
1. The Motion for Approval of Private Sale should be granted upon the terms and Conditions set forth in this Stipulation below. The Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) is moot should the Court order a private sale in accordance with the terms set forth in this Stipulation setting forth the terms for a private sale.
2. The United States filed this action to foreclose federal tax liens on a parcel of real property ("Subject Property") located at 734 Neal Avenue, San Carlos, California 94070, and described in the Official Records in the office of the County Recorder, San Mateo County, California as follows:
THE NORTHWESTERLY 50 FEET, FRONT AND REAR MEASUREMENTS OF LOT 2, as shown on that certain map entitled "REDWOOD HEIGHTS QUARTER ACRES, A SUBDIVISION OF LOTS 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of REDWOOD HEIGHTS NEAR REDWOOD CITY, SAN MATEO COUNTY, CALIFORNIA", which map was filed in the office of the Recorder of the County of San Mateo, State of California, on June 16, 1919, in Book 10 of Maps at page 20.
APN 051-142-140 JPN 051-014-142-14
3. By Judgment and Decree of Sale entered February 22, 2017 (ECF #224), this Court entered Judgment in favor of the United States and against Douglas Caraway for unpaid federal income taxes for: 1) tax years 1999 through 2004, inclusive, the sum of $163,897.25 plus statutory additions which have and will continue to accrue as provided by law from December 7, 2010 until paid; and 2) tax years 1995 and 1998 in the sum of $17,737.10 plus additions which have and will continue to accrue as provided by law from May 25, 2011 until paid. The Court also ordered that the Subject Property be offered for public sale pursuant to 28 U.S.C. § 2001 and 2002. The auction is scheduled for May 17, 2017.
4. The parties agree that the Subject Property can be privately sold for $1,219,000 on or before April 29, 2017, pursuant to First American Title Company Escrow No. 4101-5371483, subject to the following:
a.) The sale of the Property shall be free and clear of the interests of: Douglas Caraway; Fremont Bank; the State of California Employment Development Department; the State of California Franchise Tax Board; the San Joaquin County District Attorney's Office, Family Support Division; Chester J. Gilbert; John Eggli; Collection Bureau of America; Amanda Hummel; Fred Hummel; Florence Linor Rege, Stephen Caraway; Estate of Lorraine Caraway; Unknown Heirs of the Estate of Lorraine Caraway; and Patrick R. Giles.1
b.) Sales proceeds, in the amount of $1,219,000, shall be paid to First American Title Company Escrow No. 4101-5371483 ("FATC") and the following distributions made:
i.) County Taxes from 4/20/17 to 7/1/17 in the amount of $749;
ii.) County Taxes second installment 2016-2017 plus late charge and redemption fee in the total amount of $2,129.67;
iii.) County documentary transfer tax in the amount of $1,340.00;
iv.) Notary/signing fee to FATC of $150;
v.) Commission to Keller Williams of $36,570;
vi.) Commission to Dwell Realtors, Inc. of $30,475.00;
vii.) Fremont Bank in the total amount of $161,177.72, which includes interest through 5/1/17, re Deed of Trust recorded on 1/15/1992 under instrument No. 1992-005345 and Deed of Trust recorded on 1/15/1992 under instrument No. 1992-005346;
viii.) Chester Gilbert in the amount of $58,932.14 including interest, re Deed of Trust recorded on 10/18/2000 under instrument No. 2000-129987 in favor of Chester J. Gilbert by Assignment of Deed of Trust recorded on 8/27/02 under instrument No. 2002-167963;
ix.) United States of America in payment of the February 22, 2017 Judgment entered in favor of the United States of America and against Douglas Caraway for unpaid federal income taxes for: 1) tax years 1999 through 2004, inclusive, the sum of $163,897.25 plus statutory additions computed through May 1, 2017, for total sum of $201,874.86; and 2) tax years 1995 and 1998 in the sum of $17,737.10 plus additions computed through May 1, 2017, for a total of $22,849.29, re lis pendens recorded on 1/18/2012 in favor of Plaintiff, United States of America, under instrument No. 2012-006130, and re lien recorded in favor of the United States of America on 7/7/2008 as instrument No. 2008-052063, lien recorded in favor of the United States of America on 2/12/2009 as instrument No. 2009-014533, lien recorded in favor of the United States of America on 4/1/15 as instrument No. 2015-031300, lien recorded in favor of the United States of America on 12/30/15 as instrument No. 2015-136985, lien recorded in favor of the United States of America on 2/05/2015 as instrument No. 2015-010297, and lien recorded in favor of the United States of America on 4/1/2015 as instrument No. 2015-031301;
x.) Employment Development Department of the State of California in the total amount of $79,124.31 for California employment tax liability owed by Douglas Caraway dba Caraway Audio for the period from July 1, 1992 through December 31, 1995; through April 25, 2017, with interest accruing thereafter at a daily rate of 0.00010959, until fully paid, re lien in favor of the State of California, Employment Development Department recorded on 12/16/2002 under instrument No. 2002-266013 and refiled 11/9/2012 under instrument No. 2012-167013;
xi.) State of California Franchise Tax Board in the total amount of $74,237.98 through 4/25/17, for California income tax liability owed by Douglas Caraway for tax years 1995, 1996, 1997, 1999, 2000, 2001, re lien in favor of the State of California Franchise Tax Board recorded on 10/2/2008 as instrument No. 2008-110540, lien in favor of the State of California Franchise Tax Board recorded on 2/28/2011 as instrument No. 2011-024112, and lien in favor of the State of California Franchise Tax Board recorded on 12/3/2012 as instrument No. 2012180939, with interest accruing thereafter at a daily amount of $8.08 until paid;
xii.) Patrick R. Giles, in the principal amount of $19,618.70, plus interest in the amount of $10,786.69, re Judgment in favor of Patrick R. Giles recorded on 12/29/2011 as instrument No. 2011-162638;
xiii.) IRS in the total amount of $41,674.53, which includes interest and statutory additions through May 1, 2017, for federal income taxes owed by Douglas Caraway for 2005, 2006, 2007, 2008, 2009, 2010 and 2011, re lien in favor of the United States of America recorded on 3/7/2013 as Instrument No. 2013-036505;
xiv.) William E. Taggart, in the total sum of $154,444.76, which includes interest through, May 1, 2017, re Judgment recorded on 12/14/2016 as instrument No. 2016-132879;
xv.) Karen Hawkins, in the total sum of $3,296.92, which includes interest through, May 1, 2017, re Judgment in favor of Karen L. Hawkins recorded on 12/14/2016 as instrument No. 2016-132880;
xvi.) Deckard Law Firm $71,377.38, re Deed of Trust in favor of the Deckard Law Firm recorded on 1/13/2017 as instrument No. 2017-004344;
xvii.) Goodman Law Corporation in the total amount of $18,992;
xviii.) Stephen Caraway, deceased, has no interest in the subject property;
xix.) Remaining balance to Douglas Caraway.
5. The parties agree that if the sales price of $1,219,000 for a private sale is paid to escrow on or before April 29, 2017, then the statutory requirements of three appraisals and publication notification set forth in 28 U.S.C. § 2001 is waived by all parties.
6. The Clerk of the Court of the Northern District of California is holding $20,000 in forfeited funds paid by bidders at auctions of the subject property. Pursuant to Paragraph 8 h of the February 22, 2017 Judgment, which provides that if the sale of the subject property to bidders at auction fails, "the deposit shall be forfeited and shall be applied to cover the expenses of the sale, including commissions due under 28 U.S.C. § 1921(c), with any amount remaining to be applied to the tax liabilities of Douglas Caraway at issue herein," the sum of $5,501.41 for auction related costs shall be paid to the IRS from the $20,000 in forfeited auction deposits, with the balance of $14,498.59 to be deposited into the Registry of the Court and held until further order of this court.
7. If Douglas Caraway is unable to comply with the terms of the private sale as set forth above, the United States shall sell the property at auction on May 17, 2017, as authorized by this Court's Judgment and Decree of Sale entered February 22, 2017 (ECF #224).
8. Unless and until the Subject Property is sold, Douglas Caraway and any current or future tenant of the Subject Property shall keep the subject Property fully insured, shall not commit waste or allow any other person to commit waste on the Subject Property.
SO STIPULATED:
ORDER
This matter came before the Court for hearing on April 14, 2017, on two motions filed by Defendant Douglas Caraway, a Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) (ECF #226), and a Motion for Approval of Private Sale (ECF #238). Counsel for the United States of America, Fremont Bank, State of California Franchise Tax Board and Employment Development Department of the State of California, and Douglas Caraway, along with his counsel, were present. The Court, having heard arguments and having considered all pleadings and documents filed by the parties, IT IS ORDERED, ADJUDGED and AGREED as follows:
1. The Motion for Approval of Private Sale is granted upon the terms and conditions set forth below. The Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) to allow a private sale is moot in light of the ruling allowing the private sale.
2. The Subject Property may be sold at a private sale for a sales price of $1,219,000, on or before April 29, 2017, pursuant to First American Title Company Escrow No. 4101-5371483, subject to the following:
a. The sale shall be free and clear of the interests of: Douglas Caraway; Fremont Bank; the State of California Employment Development Department; the State of California Franchise Tax Board; the San Joaquin County District Attorney's Office, Family Support Division; Chester J. Gilbert; John Eggli; Collection Bureau of America; Amanda Hummel; Fred Hummel; Florence Linor Rege, Stephen Caraway; Estate of Lorraine Caraway; Unknown Heirs of the Estate of Lorraine Caraway; Collectronics, Inc.; and Patrick R. Giles. The liens, judgment and interests of the parties shall attach to the sales proceeds in the same extent, manner and priority as they attached to the Subject Property:
b. Sales proceeds, in the amount of $1,219,000, shall be paid to First American Title Company Escrow No. 4101-5371483 ("FATC") and the following distributions made:
i.) County Taxes from 4/20/17 to 7/1/17 in the amount of $749;
ii.) County Taxes second installment 2016-2017 plus late charge and redemption fee in the total amount of $2,129.67;
iii.) County documentary transfer tax in the amount of $1,340.00;
iv.) Notary/signing fee to FATC of $150;
v.) Commission to Keller Williams of $36,570;
vi.) Commission to Dwell Realtors, Inc. of $30,475;
vii.) Fremont Bank in the total amount of $161,177.72, which includes interest through 5/1/17, re Deed of Trust recorded on 1/15/1992 under instrument No. 1992-005345 and Deed of Trust recorded on 1/15/1992 under instrument No. 1992-005346;
viii.) Chester Gilbert in the amount of $58,932.14, including interest, re Deed of Trust recorded on 10/18/2000 under instrument No. 2000-129987 in favor of Chester J. Gilbert by Assignment of Deed of Trust recorded on 8/27/02 under instrument No. 2002-167963.
ix.) United States of America in payment of the February 22, 2017 Judgment entered in favor of the United States of America and against Douglas Caraway for unpaid federal income taxes for: 1) tax years 1999 through 2004, inclusive, the sum of $163,897.25 plus statutory additions computed through May 1, 2017, for total sum of $201,874.86; and 2) tax years 1995 and 1998 in the sum of $17,737.10 plus additions computed through May 1, 2017, for a total of $22,849.29, re lis pendens recorded on 1/18/2012 in favor of Plaintiff, United States of America, under instrument No. 2012-006130, and re lien recorded in favor of the United States of America on 7/7/2008 as instrument No. 2008-052063, lien recorded in favor of the United States of America on 2/12/2009 as instrument No. 2009-014533, lien recorded in favor of the United States of America on 4/1/15 as instrument No. 2015-031300, lien recorded in favor of the United States of America on 12/30/15 as instrument No. 2015-136985, lien recorded in favor of the United States of America on 2/05/2015 as instrument No. 2015-010297, lien recorded in favor of the United States of America on 4/1/2015 as instrument No. 2015-031301;
x.) Employment Development Department of the State of California in the total amount of $79,124.31 for California employment tax liability owed by Douglas Caraway dba Caraway Audio for the period from July 1, 1992 through December 31, 1995; through April 25, 2017, with interest accruing thereafter at a daily rate of 0.00010959, until fully paid, re lien in favor of the State of California, Employment Development Department recorded on 12/16/2002 under instrument No. 2002-266013 and reified 11/9/2012 under instrument No. 2012-167013;
xi.) State of California Franchise Tax Board in the total amount of $74,237.98 through April 25, 2017, for California income tax liability owed by Douglas Caraway for tax years 1995, 1996, 1997, 1999, 2000, 2001, re lien in favor of the State of California Franchise Tax Board recorded on 10/2/2008 as instrument No. 2008-110540, lien in favor of the State of California Franchise Tax Board recorded on 2/28/2011 as instrument No. 2011-024112, and lien in favor of the State of California Franchise Tax Board recorded on 12/3/2012 as instrument No. 2012180939, with interest accruing thereafter at a daily amount of $8.08 until paid;
xii.) Patrick R. Giles, in the principal amount of $19,618.70 plus interest in the amount of $10,786.69, re Judgment in favor of Patrick R. Giles recorded on 12/29/2011 as instrument No. 2011-162638;
xiii.) IRS in the total amount of $41,674.53, which includes interest and statutory additions through May 1, 2017, for federal income taxes owed by Douglas Caraway for 2005, 2006, 2007, 2008, 2009, 2010 and 2011, re lien in favor of the United States of America recorded on 3/7/2013 as Instrument No. 2013-036505;
xiv.) William E. Taggart, in the total sum of $154,444.76, which includes interest through May 1, 2017, re Judgment recorded on 12/14/2016 as instrument No. 2016-132879;
xv.) Karen Hawkins, in the total sum of $3,296.92, which includes interest through May 1, 2017, re Judgment recorded on 12/14/2016 as instrument No. 2016-132880;
xvi.) Deckard Law Firm, $71,377.38 re Deed of Trust in favor of the Deckard Law Firm recorded on 1/13/2017 as instrument No. 2017-004344;
xvii.) Goodman Law Corporation in the total amount of $18,992;
xviii.) Stephen Caraway, deceased, has no interest in the subject property;
xix.) Remaining balance to Douglas Caraway.
3. If the private sale for $1,219,000 is paid to escrow on or before April 29, 2017, then the statutory requirements of three appraisals and publication notification set forth in 28 U.S.C. § 2001 are waived by all parties.
4. The Clerk of the Court of the Northern District of California is holding $20,000 in forfeited funds paid by bidders at auctions of the subject property. Pursuant to Paragraph 8 h of the February 22, 2017 Judgment, which provides that if the sale of the subject property to bidders at auction fails, "the deposit shall be forfeited and shall be applied to cover the expenses of the sale, including commissions due under 28 U.S.C. § 1921(c), with any amount remaining to be applied to the tax liabilities of Douglas Caraway at issue herein," the sum of $5,501.41 for auction related costs shall be paid to the IRS from the $20,000 in forfeited auction deposits, with the balance of $14,498.59 to be deposited into the Registry of the Court and held until further order of this court. If Douglas Caraway is unable to comply with the terms of the private sale as set forth above, the United States shall sell the property at auction on May 17, 2017, as authorized by this Court's Judgment and Decree of Sale entered February 22, 2017 (ECF #224).
5. Unless and until the Subject Property is sold, Douglas Caraway and any current or future tenant of the Subject Property shall keep the subject Property fully insured, shall not commit waste or all any other person to commit waste on the Subject Property.
SO ORDERED.
