United States of America v. Eileen McGrew et al

Filing 82

FINDINGS OF FACT AND ORDER RE: STAY AND DISTRIBUTION OF PROCEEDS OF RE-FINANCE OF SUBJECT PROPERTY PENDING APPEAL by Judge Manuel L. Real: Upon Stipulation 80 , ORDER that upon the funding of the Refinance Loan, the outstanding balance on the PHH L oan shall be paid from the Escrow Account to PHH Mortgage Corporation or, if the loan has been assigned to another entity, to the assignee. Following the payment of the PHH Loan, $238,565.05 of the remaining funds shall be disbursed as follows: (a) $99,390.00 shall be paid to the United States Department of Justice; and (b) $139,175.05 shall be paid to McGrew's attorneys, Panitz & Kossoff, LLP, for immediate deposit into the Panitz & Kossoff, LLP client trust account. Any funds that remain following the disbursements specified in this Order above shall be paid to McGrew. See document for further details. (gk)

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SANDRA R. BROWN
Acting United States Attorney
THOMAS D. COKER
Assistant United States Attorney
Chief, Tax Division
PAUL H. ROCHMES (Cal. Bar No. 077928)
Assistant United States Attorney
Federal Building, Suite 7211
300 North Los Angeles Street
Los Angeles, California 90012
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
United States of America

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

16 EILEEN McGREW, PHH MORTGAGE
CORPORATION, STATE OF
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CALIFORNIA FRANCHISE TAX
18 BOARD,
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Defendants

No. CV 14-02647-R(ASx)
FINDINGS OF FACT AND ORDER RE:
STAY AND DISTRIBUTION OF
PROCEEDS OF RE-FINANCE OF
SUBJECT PROPERTY PENDING
APPEAL
No Hearing Required

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Based on the stipulation filed on December 29, 2017 (Doc. 80) (the “Stipulation”)

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between plaintiff United States of America and defendant Eileen McGrew, the pleadings

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previously filed in this case, the findings of fact and conclusions of law previously made

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by the Court, and good cause appearing, the Court hereby makes the following findings

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of fact and enters the following Order.

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FINDINGS OF FACT

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1.

On December 19, 2014, the district court entered a Judgment And Order of

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Sale (the “Judgment”), ordering that the real property that is the subject of this action

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(the “Property”) be sold by the Internal Revenue Service in partial satisfaction of certain

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federal tax liens (the “Tax Liens”) that encumber the Property. (Doc. 47, 69; Stipulation,

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¶ 1).

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2.

Defendant Eileen McGrew (McGrew”) is the legal owner of the Property.

(Stipulation, ¶ 2).
3.

The Property is located at 15303 Braun Court, Moorpark, California 93021

and is legally described as:

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Lot 66, Tract No. 3963-1, in the City of Moorpark, County of Ventura,

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State of California, as per map recorded in Book 107, page 90 through 103

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inclusive of maps, in the office of the County Recorder of said county.

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Except all of the coal, lignite, coal oil, petroleum, naptha asphault, maltha,

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brea, natural gas, and all kindred or similar substances and other rights as

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reserved by Simi Land and Water company in deed recorded November 16,

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1889, in Book 29, page 514, of deeds.

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By instruments recorded October 13, 1972, in book 4475, page 900 and

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October 7, 1986, as instrument 86-138922, official records, all rights to

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enter upon the surface of said land and to use any of the subsurface of said

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land above a depth of 100 feet below the surface thereof were relinquished.

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(Doc. 47; Stipulation, ¶ 3).
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4.

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Stipulation, ¶ 4).
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6.

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On November 29, 2016, McGrew filed a Petition for Panel Rehearing (the

“Petition”). (Stipulation, ¶ 6).
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On December 5, 2016, the Circuit Court denied the Petition. (Stipulation, ¶

8.

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On October17, 2016, the Ninth Circuit Court of Appeals (the “Circuit

Court”) affirmed the Judgment. (Doc. 58, 59; Stipulation, ¶ 5).

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On January 13, 2015, McGrew filed a notice of appeal. (Doc. 48;

On December 14, 2016, McGrew filed a Motion for Relief From Final

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Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (the “Rule

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60(b) Motion”). (Doc. 60; Stipulation, ¶ 8).

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9.

On March 7, 2017, the district court denied the Rule 60(b) Motion. (Doc.

67; Stipulation, ¶ 9).
10.

On March 23, 2017, McGrew filed a notice of appeal, appealing the denial

of the Rule 60(b) Motion (the “Second Appeal”). (Doc. 70; Stipulation, ¶ 10).
11.

On March 29, 2017, McGrew filed a motion to stay the execution of the

Judgment pending the Second Appeal (the “Stay Motion”). (Doc. 72; Stipulation, ¶ 11).
12.

On July 13, 2017, the district court denied the Stay Motion. (Doc. 79;

Stipulation, ¶ 12).
13.

The Second Appeal is currently pending before the Circuit Court.

(Stipulation, ¶ 13).
14.

McGrew has entered into an agreement with a lender to re-finance the

Property (the “Refinance Loan”). (Stipulation, ¶ 14).
15.

 The

Property is encumbered by a deed of trust that was entered into to

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secure a loan that was made by PHH Mortgage Corporation (the “PHH Loan).

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(Stipulation, ¶ 15).

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16.

Plaintiff United States of America is willing to stay the execution of the

Judgment pending the Second Appeal, provided that funds from the Re-Finance Loan are
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disbursed from an escrow account (the “Escrow Account”) as set forth below.

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(Stipulation, ¶ 16).

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ORDER

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1.

Upon the funding of the Refinance Loan, the outstanding balance on the

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PHH Loan shall be paid from the Escrow Account to PHH Mortgage Corporation or, if

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the loan has been assigned to another entity, to the assignee. (Stipulation, ¶ 17).

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2.

Following the payment of the PHH Loan, $238,565.05 of the remaining

funds shall be disbursed as follows:
(a) $99,390.00 shall be paid to the United States Department of Justice; and

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(b) $139,175.05 shall be paid to McGrew’s attorneys, Panitz & Kossoff, LLP,

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for immediate deposit into the Panitz & Kossoff, LLP client trust account

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(the “Client Trust Account”).

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(Stipulation, ¶ 18).
3.

Any funds that remain following the disbursements specified in paragraph

2 of this Order shall be paid to McGrew. (Stipulation, ¶ 19).
4.

The $139,175.05 referenced in paragraph 2(b) of this Order shall remain in

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the Client Trust Account pending the resolution of the Second Appeal, and further agree

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that they shall immediately issue a check to the United States Department of Justice (the

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“DOJ”) in the amount of $139,175.00 if:

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(a) (i) the Circuit Court affirms the district court’s denial of the Rule 60(b) motion,

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and (ii) McGrew either fails, within 90 days of the issuance of the Ninth Circuit’s

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mandate with respect to the Second Appeal to file a petition for a writ of certiorari

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in the Supreme Court, or McGrew files such a petition, and the petition is denied

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by the Supreme Court; or

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(b) the Supreme Court grants such a petition for writ of certiorari and then either

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(i) dismisses the writ or (ii) rules against McGrew with respect to the Ninth

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Circuit’s affirmance of the district court’s denial of the Rule 60(b) Motion.

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(Stipulation, ¶ 20).
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5.

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The United States of America shall not execute the Judgment pending the

resolution of the Second Appeal, provided that:

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(1) (a) the funds from the Refinance Loan are disbursed as described in paragraph

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2 of this Order, and

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(b) McGrew’s attorneys disburse $139,175.05 to the Department of Justice

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from the Client Trust Account within 90 days of the denial of the Second Appeal

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by the Ninth Circuit, or within 10 days of (i) the denial by the Supreme Court of

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McGrew’s petition for a writ of certiorari, (ii) the dismissal of any such petition or

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(iii) the denial of the writ or other ruling by the Supreme Court affirming the

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district court’s denial of the Rule 60(b) Motion, whichever is later; and further

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provided that

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(2) McGrew has continued to maintain the Property, timely pay all applicable real

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property taxes with respect to the Property, and has maintained fire insurance on

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the Property during the pendency of the Second Appeal and any related

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proceedings before the Supreme Court.

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(Stipulation, ¶ 21).
6.

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The United States of America shall release the Tax Liens from

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encumbering the Property upon the disbursement of the funds from the Refinance Loan

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as described in paragraph 18 (the “Discharge”), provided that McGrew has submitted to

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the Internal Revenue Service, and the Internal Revenue Service has accepted, a properly

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completed and executed Form 14135 (Application for Discharge) with respect to the Tax

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Liens. (Stipulation, ¶ 22).

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7.

Upon the Discharge, the Tax Liens will attach to the $139,175.05

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maintained in the Client Trust Account pursuant to Paragraph 18(b), until such time as

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(a) the $139,175.05 is paid to the United States pursuant to paragraph 21(b), or the Court

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of Appeals or the United States Supreme Court reverses the district court’s denial of the

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Rule 60(b) Motion, upon which time the Tax Liens will be released from the

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$139,175.05 without any further action by the court or the Internal Revenue Service.

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(Stipulation, ¶ 23).

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8.

The parties shall cooperate in the execution of any escrow instructions that

may be necessary to effectuate the disbursement of funds described in Paragraph 2 of
this Order. (Stipulation, ¶ 24).
9.

The district court shall retain jurisdiction to enforce this Order. (Stipulation,

¶ 25).

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Dated: January 8, 2018

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____________________________
Hon. MANUEL L. REAL
United States District Judge

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CC: FISCAL

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Submitted By:

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__/s/ Paul H. Rochmes ____
PAUL H. ROCHMES
Assistant United States Attorney
Attorneys for Plaintiff
United States of America

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