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)

JS-6
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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: [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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EASTERN DIVISION
) ED CV 11-01606 VAP(SPx)
UNITED STATES OF AMERICA,
)
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Plaintiff,
) CONSENT JUDGMENT OF FORFEITURE
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vs.
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REAL PROPERTY LOCATED IN
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WILDOMAR, CALIFORNIA, (YAP),
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Defendant.
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_______________________________ )
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WELLS FARGO BANK, NATIONAL
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ASSOCIATION,
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Claimant.
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)

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This action was filed on October 6, 2011.

Notice was given

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and published in accordance with law.

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Wells Fargo Bank, National Association (“Wells Fargo”) filed a

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claim and answer on December 8, 2012 and January 25, 2012,

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respectively.

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principal amount of $337,500.00(“Loan”), which Loan is secured

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by, among other documents, a Deed of Trust (the “Deed of Trust”)

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executed by Stephen Yap and dated August 17, 2006, and recorded

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against the defendant property on August 25, 2006 with the

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Riverside County Recorder, as instrument no. 2006-0628774.

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Deed of Trust and all other documents executed in connection

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with the Loan, or perfecting a security interest granted in

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connection with the Loan, shall hereinafter be referred to as

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the “Loan Documents.”)

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filed, and the time for filing claims and answers has expired.

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Plaintiff United States of America (“the government”) and Wells

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Fargo have reached an agreement that, without further litigation

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and without an admission of any wrongdoing, is dispositive of

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the government’s claims against the defendant property, and

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hereby request that the Court enter this Consent Judgment of

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Forfeiture.

Claimant and lienholder

Wells Fargo provided a loan in the original

(The

No other claims or answers have been

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WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:

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1.

As used throughout, the following terms shall have the

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following meaning:

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defendant real property located at 33030 Mission Trail,

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Wildomar, California; and (b) “illegal purpose” shall mean any

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purpose that furthers or facilitates the distribution or sale of

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marijuana in violation of federal law, including, but not

(a) “defendant property” shall mean the

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limited to, renting space to a person or entity that sells or

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distributes marijuana; or the renting of space to or permitting

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the continued tenancy of any person or entity that sells,

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distributes or facilitates the sale or distribution of

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marijuana.

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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.
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Wells Fargo filed a timely claim and answer.

No other

claimant has appeared in this action.
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Notice of this action has been given in accordance

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with law.

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Louree Burriss Yap, the titleholders of the defendant property,

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on May 17, 2012.

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by any person other than Wells Fargo, the Court deems that all

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other potential claimants admit the allegations of the Complaint

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to be true.

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pursuant to 21 U.S.C. § 881(a)(7).

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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

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forthwith seek relief from the automatic stay resulting from the

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filing of the bankruptcy petition by Stephen Michael Yap and

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Louree Burriss-Yap in the United States Bankruptcy Court for the

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Central District of California (Riverside), Bankruptcy Petition

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#:6:12-bk-17367-MJ.

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stay, Wells Fargo shall, as provided for in the Loan Documents,

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forthwith exercise its rights of foreclosure against the

Upon the granting of such relief from the

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defendant property, subject to the following:

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its cost and expense, shall have the right to perform an

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environmental inspection and audit of the defendant property.

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If, following a Phase I Environmental Site Assessment and/or any

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further environmental subsurface or other investigation of the

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defendant property (the “Environmental Investigation”), Wells

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Fargo determines that hazardous substances or other adverse

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environmental conditions exist at or beneath the defendant

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property, or are emanating from the defendant property, Wells

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Fargo has the right to refuse to foreclose upon the defendant

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property. Wells Fargo shall notify the government within 30 days

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of completion of the Environmental Investigation that it has

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decided not to exercise its rights to foreclose.

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the government will have the right to exercise its rights to

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take possession of and sell the defendant property pursuant to

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paragraph 14 below.

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owner of the defendant property, whether as a result of

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foreclosure of the Deed of Trust or otherwise, Wells Fargo shall

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lawfully use and occupy the defendant property in accordance

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with the restrictions imposed by paragraph 7 below.

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Fargo fails to comply with any of the terms of paragraph 7, the

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interest of Wells Fargo in the defendant property shall be

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forfeited to the government pursuant to paragraph 8 below.

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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:

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a.

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for any illegal purpose (as defined above), nor shall

shall not use or occupy the defendant property

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it allow the defendant property to be used or occupied

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for, or involved in, any illegal purpose.

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b.

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destruction to or diminution in value of the defendant

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property and any fixtures thereto resulting from any

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illegal purpose.

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c.

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allow the use or occupancy of the defendant property to

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(i) any former tenant who used or occupied the

shall take reasonable precautions to prevent any

shall not knowingly rent, lease or otherwise

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defendant property for any illegal purpose; or (ii) any

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person Wells Fargo has reason to believe may use or

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occupy the defendant property for any illegal purpose.

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d.

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defendant property from being listed in any

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advertisement, publication, directory or internet site

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which advertises or indicates that marijuana is

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available at the location of the defendant property.

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8.

shall take reasonable steps to prevent the

In the event that Wells Fargo fails to comply with any

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of the terms of paragraph 7 of this Consent Judgment during the

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four (4) year period following the entry of this judgment, the

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entirety of Wells Fargo’s interest in the defendant property

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shall be ordered condemned and forfeited to the United States,

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subject to the “notice” and “cure” provisions set forth below.

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In the event of forfeiture, the Riverside County Recorder shall

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index this Judgment in the grantor index under the name of Wells

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Fargo Bank, N.A. and in the grantee index in the name of the

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United States of America.

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Fargo has failed to comply with any provision of paragraph 7, it

If the government believes that Wells

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shall provide written notice of such failure to Wells Fargo (as

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well as its respective undersigned counsel), describing the

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provision believed to have been violated.

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have fifteen (15) days from its receipt of such notice to cure

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the violation, or in the event of a failure to comply that

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cannot be cured within the fifteen day period, initiate within

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that period steps sufficient to cure the failure in a reasonable

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period(e.g., initiation of an unlawful detainer action or a

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default of a loan), and thereafter continue and complete all

Wells Fargo shall

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reasonable and necessary steps to produce compliance as soon as

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reasonably practicable.

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are not taken, as required above, the government shall file a

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Notice of Non-Compliance and Forfeiture with the Court, setting

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out the violation and the failure of Wells Fargo to timely cure

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the violation.

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information supporting its allegation that there has been non-

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compliance.

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from the filing of the Notice to file a motion to seek relief

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from forfeiture, wherein the moving party may argue that, among

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other things, it is an “innocent owner” pursuant to 18 U.S.C.

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§983(d).

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no further action until the motion has been determined.

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such motion is timely filed, the defendant property shall be

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forfeited to the United States on the fifteenth (15th) day after

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the filing of the Notice of Non-Compliance and Forfeiture,

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unless the Court orders otherwise.

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terms of this paragraph, the government shall have the right to

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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

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If no

Upon forfeiture under the

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of the Court, and the United States Marshals Service, or its

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representatives, shall, without further order of the Court,

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proceed to take physical possession of the defendant property

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and its fixtures, and may evict any and all persons, pets,

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livestock, and personal property from the defendant property as

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it deems necessary or appropriate.

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this Consent Judgment accompanied by a "filed"-stamped copy of a

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Notice of Noncompliance and Forfeiture and/or order of the

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Court, shall be sufficient to establish the forfeiture of the

A "filed"-stamped copy of

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defendant property.

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forfeited to the government, Wells Fargo agrees that the United

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States Marshals Service may proceed to sell the defendant

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property.

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its representatives, shall promptly proceed to dispose of the

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defendant property and to distribute any proceeds from the sale

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in accordance with the law.

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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

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defendant property,, or with the consent of the current owner of

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the defendant property, or upon court order despite a lack of

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such consent from the current owner, the United States Marshals

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Service, or its representatives, shall be allowed to enter the

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defendant property for purposes of inspection and inventory.

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Such entry shall be permitted by Wells Fargo at a reasonable

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time to be agreed upon by the parties.

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the government may apply to the Court for a writ of entry for

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purposes of protecting the government's interests in the

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defendant property, in connection with which Wells Fargo may

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request a hearing.
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Absent such agreement,

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This consent judgment shall only be recorded in

accordance with the provisions of paragraph 8 above.

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In consideration of the government’s agreement not to

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pursue Wells Fargo’s interest in the defendant property, Wells

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Fargo shall pay the sum of $8,000.00 to the government not later

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than fifteen days following entry of this consent judgment by

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the Court.

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cashier’s check made payable to the United States Marshals

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Service, and shall be delivered to Assistant United States

Such payment shall be made in the form of a

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Attorney P. Greg Parham, 312 N. Spring Street, 14th Floor, Los

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Angeles, California 90012.

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to the United States of America and no other right, title or

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interest shall exist therein.

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Service is ordered to dispose of the funds in accordance with

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law.

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Said sum is hereby ordered forfeited

The United States Marshals

In consideration of Wells Fargo’s agreement to forfeit

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the above-described funds, the government agrees to forego its

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attempts to forfeit Wells Fargo’s interest in the defendant

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property in connection with any conduct committed up to and

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including the date of the filing of this proposed consent

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judgment.

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provided in paragraph 11, it shall execute and record a

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Withdrawal of Lis Pendens with the County Recorder of Riverside

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County within ten days of such payment.

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13.

The government agrees that if payment is made as

Should Wells Fargo fail to make the payment required

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herein within fifteen days following entry of this consent

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judgment, the government shall acquire a lien against the

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defendant real property in the sum of $8,000.00.
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The

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government’s lien shall include a right of sale, allowing the

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government to take possession of and sell the defendant property

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at any time after fifteen days after entry of this consent

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judgment, unless the parties agree otherwise in writing.

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government shall give written notice to Wells Fargo by letter

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directed to Roger D. Reynolds, Senior Counsel, 21680 Gateway

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Center Dr., Suite 280, Diamond Bar, California 91765, thirty

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(30) days before the government intends to enforce its right of

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sale of the property.

The

At the conclusion of that thirty day

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period, any occupants or personal property shall be removed from

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the property.

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authorized to remove any occupants and/or personal property

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remaining on the defendant property thirty days after the giving

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of written notice without further order of this Court.

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United States Marshal Service shall thereafter sell the

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property.

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the extent proceeds are available:

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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

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Marshals Service in taking possession of and

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selling the defendant property;

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b.

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this judgment; and

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Second, to the payment due under the terms of

c.
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Third, to Wells Fargo.

The obligations of Wells Fargo pursuant to this

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consent judgment, other than the payment by Wells Fargo set

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forth in paragraph 11, shall terminate and be of no further

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effect upon the sale or other transfer of ownership of the

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defendant property to a third party (including the United States
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Marshals Service), or of the surrender by Wells Fargo of any

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interest in the property.

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terminate and be of no further effect in the event that the

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defendant property is forfeited to the government.

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Additionally, these obligations shall

Except as otherwise set forth in this Consent Judgment

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and in particular paragraph 8 above, Wells Fargo has released

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the United States of America, its agencies, agents, and

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officers, including, without limitation, employees and other

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representatives of the Drug Enforcement Administration, from any

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and all claims, defenses, actions, or liabilities arising out of

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or related to this action against the defendant real property,

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including, without limitation, any and all claims for attorneys'

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fees, costs or interest which may be asserted by them or on

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their behalf.

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16.

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The parties shall each bear their own costs and

attorneys' fees in this action.
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The Court shall retain jurisdiction over this matter

to enforce the provisions of this Consent Judgment.
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All notices and other communications provided for in

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this Consent Judgment shall be in writing and shall be effective

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when given on the earliest of the following dates:

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date when actually delivered if delivered in person to the

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recipient; (ii)

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such notice with a reputable independent nationally-recognized

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overnight courier service addressed to the recipient as set

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forth below; or (iii)

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such notice in a sealed envelope in the United States mail,

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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

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requested, addressed to, except as otherwise provided in this

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Consent Judgment, the recipient at the address set forth below:

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To the Government:

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Asset Forfeiture Section, 312 N. Spring Street, 14th Floor, Los

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Angeles, CA 90012.

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To Wells Fargo: Roger D. Reynolds, Senior Counsel, 21680 Gateway

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Center Dr., Suite 280, Diamond Bar, California 91765,

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with a copy to Aaron S. Dyer, Pillsbury Winthrop Shaw Pittman

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LLP, 725 S. Figueroa St., Suite 2800, Los Angeles, CA 90017.

P. Greg Parham, Assistant U.S. Attorney,

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Any notice so given by mail shall be deemed to have been given

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as of the date of delivery (whether accepted or refused)

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established by the U.S. Post Office return receipt or the

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overnight courier’s proof of delivery, as the case may be.

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Dated: June 18, 2012

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_
THE HONORABLE VIRGINIA A. PHILLIPS
UNITED STATES DISTRICT JUDGE

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Approved as to Content:
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DATED: June 14, 2012

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/s/ P. Greg Parham
P. GREG PARHAM
Assistant United States Attorney

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Attorneys for Plaintiff
United States of America

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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

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By:

__/s/ Kimberly Hasen_

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Name: __Kimberly Hasen____

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Title:

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DATED: June 14, 2012

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Approved as to form:

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__Vice President___

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/s/ Roger D. Reynolds
ROGER D. REYNOLDS
Attorney for Claimant
WELLS FARGO BANK, NATIONAL ASSOCIATION

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