United States of America et al v. Real Property Located in Wildomar, California (YAP)

Filing 24

CONSENT JUDGMENT OF FORFEITURE by Judge Virginia A. Phillips ( MD JS-6. Case Terminated ) (am)

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JS-6 1 2 3 4 5 6 7 8 9 10 11 12 ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division STEVEN R. WELK Assistant United States Attorney Chief, Asset Forfeiture Section P. GREG PARHAM Assistant United States Attorney California Bar Number 140310 Federal Courthouse, 14th Floor 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 894-6528 Facsimile: (213) 894-7177 E-mail: Greg.Parham@usdoj.gov Attorneys for Plaintiff United States of America 13 UNITED STATES DISTRICT COURT 14 FOR THE CENTRAL DISTRICT OF CALIFORNIA 15 16 17 18 19 20 21 22 23 24 25 EASTERN DIVISION ) ED CV 11-01606 VAP(SPx) UNITED STATES OF AMERICA, ) ) Plaintiff, ) CONSENT JUDGMENT OF FORFEITURE ) vs. ) ) REAL PROPERTY LOCATED IN ) WILDOMAR, CALIFORNIA, (YAP), ) ) Defendant. ) _______________________________ ) ) WELLS FARGO BANK, NATIONAL ) ASSOCIATION, ) ) Claimant. ) ) ) ) 26 27 28 1 1 This action was filed on October 6, 2011. Notice was given 2 and published in accordance with law. 3 Wells Fargo Bank, National Association (“Wells Fargo”) filed a 4 claim and answer on December 8, 2012 and January 25, 2012, 5 respectively. 6 principal amount of $337,500.00(“Loan”), which Loan is secured 7 by, among other documents, a Deed of Trust (the “Deed of Trust”) 8 executed by Stephen Yap and dated August 17, 2006, and recorded 9 against the defendant property on August 25, 2006 with the 10 Riverside County Recorder, as instrument no. 2006-0628774. 11 Deed of Trust and all other documents executed in connection 12 with the Loan, or perfecting a security interest granted in 13 connection with the Loan, shall hereinafter be referred to as 14 the “Loan Documents.”) 15 filed, and the time for filing claims and answers has expired. 16 Plaintiff United States of America (“the government”) and Wells 17 Fargo have reached an agreement that, without further litigation 18 and without an admission of any wrongdoing, is dispositive of 19 the government’s claims against the defendant property, and 20 hereby request that the Court enter this Consent Judgment of 21 Forfeiture. Claimant and lienholder Wells Fargo provided a loan in the original (The No other claims or answers have been 22 WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: 23 1. As used throughout, the following terms shall have the 24 following meaning: 25 defendant real property located at 33030 Mission Trail, 26 Wildomar, California; and (b) “illegal purpose” shall mean any 27 purpose that furthers or facilitates the distribution or sale of 28 marijuana in violation of federal law, including, but not (a) “defendant property” shall mean the 2 1 limited to, renting space to a person or entity that sells or 2 distributes marijuana; or the renting of space to or permitting 3 the continued tenancy of any person or entity that sells, 4 distributes or facilitates the sale or distribution of 5 marijuana. 6 7 8 9 10 11 12 13 2. This Court has jurisdiction over the parties to this judgment and the subject matter of this action. 3. On or about October 6, 2012, the government filed a Complaint for Forfeiture pursuant to 21 U.S.C. § 881(a)(7) against the defendant real property. 4. Wells Fargo filed a timely claim and answer. No other claimant has appeared in this action. 5. Notice of this action has been given in accordance 14 with law. 15 Louree Burriss Yap, the titleholders of the defendant property, 16 on May 17, 2012. 17 by any person other than Wells Fargo, the Court deems that all 18 other potential claimants admit the allegations of the Complaint 19 to be true. 20 pursuant to 21 U.S.C. § 881(a)(7). 21 6. The court entered the default of Stephen M. Yap and No appearances having been made in this action The Complaint states a valid claim for relief Upon execution of this Agreement, Wells Fargo shall 22 forthwith seek relief from the automatic stay resulting from the 23 filing of the bankruptcy petition by Stephen Michael Yap and 24 Louree Burriss-Yap in the United States Bankruptcy Court for the 25 Central District of California (Riverside), Bankruptcy Petition 26 #:6:12-bk-17367-MJ. 27 stay, Wells Fargo shall, as provided for in the Loan Documents, 28 forthwith exercise its rights of foreclosure against the Upon the granting of such relief from the 3 1 defendant property, subject to the following: 2 its cost and expense, shall have the right to perform an 3 environmental inspection and audit of the defendant property. 4 If, following a Phase I Environmental Site Assessment and/or any 5 further environmental subsurface or other investigation of the 6 defendant property (the “Environmental Investigation”), Wells 7 Fargo determines that hazardous substances or other adverse 8 environmental conditions exist at or beneath the defendant 9 property, or are emanating from the defendant property, Wells 10 Fargo has the right to refuse to foreclose upon the defendant 11 property. Wells Fargo shall notify the government within 30 days 12 of completion of the Environmental Investigation that it has 13 decided not to exercise its rights to foreclose. 14 the government will have the right to exercise its rights to 15 take possession of and sell the defendant property pursuant to 16 paragraph 14 below. 17 owner of the defendant property, whether as a result of 18 foreclosure of the Deed of Trust or otherwise, Wells Fargo shall 19 lawfully use and occupy the defendant property in accordance 20 with the restrictions imposed by paragraph 7 below. 21 Fargo fails to comply with any of the terms of paragraph 7, the 22 interest of Wells Fargo in the defendant property shall be 23 forfeited to the government pursuant to paragraph 8 below. 24 25 7. Wells Fargo, at In that event, In the event that Wells Fargo becomes the If Wells In the event Wells Fargo becomes the owner of the property, during the time it owns the property, Wells Fargo: 26 a. 27 for any illegal purpose (as defined above), nor shall shall not use or occupy the defendant property 28 4 1 it allow the defendant property to be used or occupied 2 for, or involved in, any illegal purpose. 3 b. 4 destruction to or diminution in value of the defendant 5 property and any fixtures thereto resulting from any 6 illegal purpose. 7 c. 8 allow the use or occupancy of the defendant property to 9 (i) any former tenant who used or occupied the shall take reasonable precautions to prevent any shall not knowingly rent, lease or otherwise 10 defendant property for any illegal purpose; or (ii) any 11 person Wells Fargo has reason to believe may use or 12 occupy the defendant property for any illegal purpose. 13 d. 14 defendant property from being listed in any 15 advertisement, publication, directory or internet site 16 which advertises or indicates that marijuana is 17 available at the location of the defendant property. 18 8. shall take reasonable steps to prevent the In the event that Wells Fargo fails to comply with any 19 of the terms of paragraph 7 of this Consent Judgment during the 20 four (4) year period following the entry of this judgment, the 21 entirety of Wells Fargo’s interest in the defendant property 22 shall be ordered condemned and forfeited to the United States, 23 subject to the “notice” and “cure” provisions set forth below. 24 In the event of forfeiture, the Riverside County Recorder shall 25 index this Judgment in the grantor index under the name of Wells 26 Fargo Bank, N.A. and in the grantee index in the name of the 27 United States of America. 28 Fargo has failed to comply with any provision of paragraph 7, it If the government believes that Wells 5 1 shall provide written notice of such failure to Wells Fargo (as 2 well as its respective undersigned counsel), describing the 3 provision believed to have been violated. 4 have fifteen (15) days from its receipt of such notice to cure 5 the violation, or in the event of a failure to comply that 6 cannot be cured within the fifteen day period, initiate within 7 that period steps sufficient to cure the failure in a reasonable 8 period(e.g., initiation of an unlawful detainer action or a 9 default of a loan), and thereafter continue and complete all Wells Fargo shall 10 reasonable and necessary steps to produce compliance as soon as 11 reasonably practicable. 12 are not taken, as required above, the government shall file a 13 Notice of Non-Compliance and Forfeiture with the Court, setting 14 out the violation and the failure of Wells Fargo to timely cure 15 the violation. 16 information supporting its allegation that there has been non- 17 compliance. 18 from the filing of the Notice to file a motion to seek relief 19 from forfeiture, wherein the moving party may argue that, among 20 other things, it is an “innocent owner” pursuant to 18 U.S.C. 21 §983(d). 22 no further action until the motion has been determined. 23 such motion is timely filed, the defendant property shall be 24 forfeited to the United States on the fifteenth (15th) day after 25 the filing of the Notice of Non-Compliance and Forfeiture, 26 unless the Court orders otherwise. 27 terms of this paragraph, the government shall have the right to 28 take possession of the defendant property without further order If such actions to cure the violation The government shall provide Wells Fargo with Wells Fargo shall have fourteen (14) court days If such a motion is filed, the government shall take 6 If no Upon forfeiture under the 1 of the Court, and the United States Marshals Service, or its 2 representatives, shall, without further order of the Court, 3 proceed to take physical possession of the defendant property 4 and its fixtures, and may evict any and all persons, pets, 5 livestock, and personal property from the defendant property as 6 it deems necessary or appropriate. 7 this Consent Judgment accompanied by a "filed"-stamped copy of a 8 Notice of Noncompliance and Forfeiture and/or order of the 9 Court, shall be sufficient to establish the forfeiture of the A "filed"-stamped copy of 10 defendant property. 11 forfeited to the government, Wells Fargo agrees that the United 12 States Marshals Service may proceed to sell the defendant 13 property. 14 its representatives, shall promptly proceed to dispose of the 15 defendant property and to distribute any proceeds from the sale 16 in accordance with the law. 17 9. In the event that the defendant property is Thereafter, the United States Marshals Service, or In the event Wells Fargo becomes the owner of the 18 defendant property,, or with the consent of the current owner of 19 the defendant property, or upon court order despite a lack of 20 such consent from the current owner, the United States Marshals 21 Service, or its representatives, shall be allowed to enter the 22 defendant property for purposes of inspection and inventory. 23 Such entry shall be permitted by Wells Fargo at a reasonable 24 time to be agreed upon by the parties. 25 the government may apply to the Court for a writ of entry for 26 purposes of protecting the government's interests in the 27 defendant property, in connection with which Wells Fargo may 28 request a hearing. 7 Absent such agreement, 1 2 10. This consent judgment shall only be recorded in accordance with the provisions of paragraph 8 above. 3 11. In consideration of the government’s agreement not to 4 pursue Wells Fargo’s interest in the defendant property, Wells 5 Fargo shall pay the sum of $8,000.00 to the government not later 6 than fifteen days following entry of this consent judgment by 7 the Court. 8 cashier’s check made payable to the United States Marshals 9 Service, and shall be delivered to Assistant United States Such payment shall be made in the form of a 10 Attorney P. Greg Parham, 312 N. Spring Street, 14th Floor, Los 11 Angeles, California 90012. 12 to the United States of America and no other right, title or 13 interest shall exist therein. 14 Service is ordered to dispose of the funds in accordance with 15 law. 16 12. Said sum is hereby ordered forfeited The United States Marshals In consideration of Wells Fargo’s agreement to forfeit 17 the above-described funds, the government agrees to forego its 18 attempts to forfeit Wells Fargo’s interest in the defendant 19 property in connection with any conduct committed up to and 20 including the date of the filing of this proposed consent 21 judgment. 22 provided in paragraph 11, it shall execute and record a 23 Withdrawal of Lis Pendens with the County Recorder of Riverside 24 County within ten days of such payment. 25 13. The government agrees that if payment is made as Should Wells Fargo fail to make the payment required 26 herein within fifteen days following entry of this consent 27 judgment, the government shall acquire a lien against the 28 defendant real property in the sum of $8,000.00. 8 The 1 government’s lien shall include a right of sale, allowing the 2 government to take possession of and sell the defendant property 3 at any time after fifteen days after entry of this consent 4 judgment, unless the parties agree otherwise in writing. 5 government shall give written notice to Wells Fargo by letter 6 directed to Roger D. Reynolds, Senior Counsel, 21680 Gateway 7 Center Dr., Suite 280, Diamond Bar, California 91765, thirty 8 (30) days before the government intends to enforce its right of 9 sale of the property. The At the conclusion of that thirty day 10 period, any occupants or personal property shall be removed from 11 the property. 12 authorized to remove any occupants and/or personal property 13 remaining on the defendant property thirty days after the giving 14 of written notice without further order of this Court. 15 United States Marshal Service shall thereafter sell the 16 property. 17 the extent proceeds are available: 18 The United States Marshals Service is hereby The The proceeds of sale shall be applied as follows, to a. First, to the costs incurred by the United States 19 Marshals Service in taking possession of and 20 selling the defendant property; 21 b. 22 this judgment; and 23 24 Second, to the payment due under the terms of c. 14. Third, to Wells Fargo. The obligations of Wells Fargo pursuant to this 25 consent judgment, other than the payment by Wells Fargo set 26 forth in paragraph 11, shall terminate and be of no further 27 effect upon the sale or other transfer of ownership of the 28 defendant property to a third party (including the United States 9 1 Marshals Service), or of the surrender by Wells Fargo of any 2 interest in the property. 3 terminate and be of no further effect in the event that the 4 defendant property is forfeited to the government. 5 15. Additionally, these obligations shall Except as otherwise set forth in this Consent Judgment 6 and in particular paragraph 8 above, Wells Fargo has released 7 the United States of America, its agencies, agents, and 8 officers, including, without limitation, employees and other 9 representatives of the Drug Enforcement Administration, from any 10 and all claims, defenses, actions, or liabilities arising out of 11 or related to this action against the defendant real property, 12 including, without limitation, any and all claims for attorneys' 13 fees, costs or interest which may be asserted by them or on 14 their behalf. 15 16. 16 17 18 19 The parties shall each bear their own costs and attorneys' fees in this action. 17. The Court shall retain jurisdiction over this matter to enforce the provisions of this Consent Judgment. 18. All notices and other communications provided for in 20 this Consent Judgment shall be in writing and shall be effective 21 when given on the earliest of the following dates: 22 date when actually delivered if delivered in person to the 23 recipient; (ii) 24 such notice with a reputable independent nationally-recognized 25 overnight courier service addressed to the recipient as set 26 forth below; or (iii) 27 such notice in a sealed envelope in the United States mail, 28 postage prepaid, by registered or certified mail, return receipt (i) the on the first (1st) business day after depositing on the third (3rd) day after depositing 10 1 requested, addressed to, except as otherwise provided in this 2 Consent Judgment, the recipient at the address set forth below: 3 To the Government: 4 Asset Forfeiture Section, 312 N. Spring Street, 14th Floor, Los 5 Angeles, CA 90012. 6 To Wells Fargo: Roger D. Reynolds, Senior Counsel, 21680 Gateway 7 Center Dr., Suite 280, Diamond Bar, California 91765, 8 with a copy to Aaron S. Dyer, Pillsbury Winthrop Shaw Pittman 9 LLP, 725 S. Figueroa St., Suite 2800, Los Angeles, CA 90017. P. Greg Parham, Assistant U.S. Attorney, 10 Any notice so given by mail shall be deemed to have been given 11 as of the date of delivery (whether accepted or refused) 12 established by the U.S. Post Office return receipt or the 13 overnight courier’s proof of delivery, as the case may be. 14 Dated: June 18, 2012 15 _ THE HONORABLE VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE 16 Approved as to Content: 17 18 DATED: June 14, 2012 19 20 21 22 /s/ P. Greg Parham P. GREG PARHAM Assistant United States Attorney 23 24 Attorneys for Plaintiff United States of America 25 26 ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division STEVEN R. WELK Assistant United States Attorney Chief, Asset Forfeiture Section DATED: June 13, 2012 WELLS FARGO BANK, NATIONAL ASSOCIATION 27 By: __/s/ Kimberly Hasen_ 28 11 Name: __Kimberly Hasen____ 1 Title: 2 3 DATED: June 14, 2012 __ Approved as to form: 4 __Vice President___ 5 6 /s/ Roger D. Reynolds ROGER D. REYNOLDS Attorney for Claimant WELLS FARGO BANK, NATIONAL ASSOCIATION 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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