Onions Etc., Inc. et al v. Z & S Fresh, Inc. et al

Filing 713

ORDER Authorizing receiver to sell propoerty, Approving Agreement with Approving Buyer, and Approving Overbid Procedures, Filing Bids Deadline: 7/19/2011, Hearing set for 7/20/2011 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, signed by Judge Oliver W. Wanger on 7/14/2011. (Kusamura, W)

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DON J. POOL 166468
THE LAW FIRM OF POWELL & POOL
7522 North Colonial Avenue, Suite 100
Fresno, California 93711
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]

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Attorneys for JOHN VAN CUREN, Court-Appointed Receiver

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ONIONS, ETC., INC. and DUDA FARM
FRESH FOODS, INC.,

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Plaintiffs,
v.
Z&S FRESH, INC. fdba Z&S
DISTRIBUTING CO., INC., MARTIN J.
ZANINOVICH, LOREN SCHOENBURG,
and MARGARET aka MARGE
SCHOENBURG,
Defendants.

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Case No. 1:09-cv-00906-OWW-MJS
ORDER (1) AUTHORIZING
RECEIVER TO SELL PROPERTY; (2)
APPROVING AGREEMENT WITH
PROPOSED BUYER; AND (3)
APPROVING OVERBID
PROCEDURES
Date: July 13, 2011
Time: 12:00 PM
Place: Courtroom 3
U.S. Courthouse
2500 Tulare St., Ste. 1501
Fresno, California
The Honorable Oliver W. Wanger

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The hearing on the Motion for Order (1) Authorizing Receiver to Sell the

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Property; (2) Approving Agreement with Proposed Buyer; and (3) Approving Overbid

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Procedures in the above-captioned proceeding (“Motion”) by JOHN VAN CUREN, the duly

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Court-Appointed, qualified and acting Receiver in the above-captioned matter (“Receiver”),

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came on for hearing on July 13, 2011, at 12:00 p.m., in Courtroom 3, before the Honorable

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Oliver W. Wanger, United States District Court Judge, Eastern District of California, Fresno

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Division, at the United States Government Courthouse, located at 2500 Tulare Street, Suite
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Order Authorizing Receiver to Sell Property, etc.

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1501, Fresno, California, pursuant to the Court’s Order Shortening Time entered on July 5,

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2011. Don J. Pool, The Law Firm of Powell & Pool, appeared on behalf of Receiver. Other

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appearances were noted on the record.

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The Court, having duly considered the papers and pleadings on file herein, as

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well as oral argument presented at the hearing on the Motion, and having been fully advised

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thereon, and finding good cause to support the Receiver’s Motion, IT IS HEREBY

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ORDERED that:

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1.

The Motion is GRANTED;

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2.

The Purchase Offer and Sales Agreement dated June 24, 2011

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(hereinafter the “PSA”) between Receiver, John Van Curen, in his sole capacity as Receiver

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for ZM Fresh Special T’s, Inc. (“ZM Fresh”), and buyer Scott Critchley (hereinafter “Mr.

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Critchley”), or his nominee, concerning the real property commonly known as a 18.79 acre

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packing house and cold storage facility, located at 39303 Road 56, Dinuba, California 93618

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(APN 029-070-010), as more particularly described in exhibit A, along with the description

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of the personal property, also subject of this action (the “Receivership Estate” or the

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“Property”), attached hereto and incorporated herein by this reference, is hereby approved

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and confirmed. The Receiver is hereby authorized to perform his obligations under the PSA

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on the terms and conditions set forth in the PSA, and on such terms and conditions as are

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likely to avoid any further liability to the Receivership Estate, provided that such terms are

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substantially similar to the terms of the PSA. Such obligations include, without limitation,

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opening a sale escrow account (“Escrow”) with Chicago Title Company, and taking such

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actions as are necessary to cause the sale of the Receivership Estate to close pursuant to the

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terms of the PSA, as the PSA may be amended or otherwise modified provided that any

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amendments or modifications to the PSA contain terms substantially similar to the PSA;

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3.

The purchase price of $3,700,000.00 is approved;

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4.

The sales price for the sale of the Receivership Estate is fair and

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reasonable and represents fair market value;

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Order Authorizing Receiver to Sell Property, etc.

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IT IS HEREBY FURTHER ORDERED:

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5.

The request for overbid hearing is GRANTED. The overbid hearing

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and auction will be held on July 20, 2011 at 12:00p.m., in this Courtroom, under the Court’s

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supervision in accordance with the following terms and conditions:

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a.

Any potential bidder shall deliver to the Receiver, not later than

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the close of business July 19, 2011, $250,000.00 in certified funds payable to escrow holder

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Chicago Title, which amount shall be non-refundable to the high bidder if for any reason (a)

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the high bidder fails to close the sale such that title transfers no later than the closing date or

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(b) the high bidder fails to provide the balance of the purchase price to the Receiver one day

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prior to the closing date ;

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b.

An initial overbid shall be at a cash price of at least

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$3,800,000.00, with any successive bids at least $25,000.00. The Court may reject any and

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all bids following the conclusion of the Auction;

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c.

All bids submitted must be on terms and conditions substantially

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identical to the terms and conditions of the PSA except for modifications accepted by the

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Receiver in his sole discretion, or such other terms as may be approved by the Court;

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d.

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the overbid hearing; and

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e.

Mr. Critchley, or his nominee, may bid against any third party at

If the overbid of a party other than Mr. Critchley, or nominee, is

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the successful and accepted bid at the overbid hearing, then the deposits delivered by Mr.

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Critchley shall be promptly refunded to Mr. Critchley.

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6.

The Receiver is authorized to execute a Grant Deed to transfer title to

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the Property pursuant to the terms of the PSA. The Buyer is purchasing the Receivership

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Estate on an “AS-IS,” “WHERE IS,” and “WITH ALL FAULTS” basis, without any

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representations or warranties whatsoever by the Receiver, except as expressly set forth in the

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PSA. The Buyer is responsible for all due diligence, including but not limited to inspection

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of and title to the Receivership Estate being acquired and is not relying on the representation

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or warranty of the Receiver, except as expressly set forth in the PSA;
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Order Authorizing Receiver to Sell Property, etc.

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7.

The Receiver is authorized to pay out of the sale proceeds at the Close

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of Escrow any unpaid taxes, including penalties, and amounts necessary to cause the removal

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of any tax liens applicable to the Property, all other closing costs that are the responsibility of

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the Receiver, as set forth on the final closing statement prepared by Chicago Title Company,

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and reimbursement of any out of pocket costs that the Receiver incurs in connection with the

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sale of the Receivership Estate and other expenses set forth in the PSA that are the

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responsibility of the Receiver as Seller thereunder;

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8.

Subject to the foregoing, the remaining proceeds from the sale of the

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Receivership Estate shall be paid over to the Receiver for deposit in an interest-bearing

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account until approval of the Receiver’s outstanding fees and charges and deduction of same,

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with the remaining net sales proceeds to be placed by the Receiver in a blocked interest-

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bearing account in the sole name of Fresno-Madera Federal Land Bank Association, FLCA;

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9.

The Receiver is authorized to take all actions and execute all

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documents necessary to consummate and otherwise effectuate the sale of the Receivership

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Estate including, but not limited to, amendments and modifications to the PSA (provided that

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any amendments or modifications to the PSA contain terms substantially similar to the PSA),

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the other documents required to be executed pursuant to the PSA, and related documentation

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and conveyance documents consistent with selling and conveying title to the Property. The

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Receiver shall execute all documents necessary to consummate and otherwise effectuate the

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sale of the Receivership Estate as “John Van Curen in his sole capacity as Receiver” on

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behalf of ZM Fresh;

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10.

the Receiver to transfer legal title to the Receivership Estate as stated in Paragraph 9 above;

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Any licensed title insurer may rely on this Sale Order as authorizing

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The Receiver and Buyer acted in good faith in connection with the

negotiation, execution, delivery, and consummation of the sale of the Receivership Estate;

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12.

A certified copy of this Order is to be recorded with the Recorder’s

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Office for Tulare County, California;

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Order Authorizing Receiver to Sell Property, etc.

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13.

This Court retains jurisdiction over any dispute involving the Receiver

with respect to the sale of the Receivership Estate authorized by this Sale Order;
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The Buyer of the Receivership Estate is to be provided a copy of this

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Sale Order by the Receiver or through Escrow at least five (5) days before Close of Escrow

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and will acknowledge receipt of a copy of this Sale Order by initialing a copy of this Sale

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Order on the acknowledgment space below.

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15.

Notice for the Receiver’s Motion was proper.

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IT IS SO ORDERED.

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Dated: July 14, 2011
/s/ OLIVER W. WANGER
THE HONORABLE OLIVER W. WANGER
UNITED STATES DISTRICT COURT JUDGE

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PURCHASER’S ACKNOWLEDGMENT OF
RECEIPT OF THIS SALE ORDER

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Order Authorizing Receiver to Sell Property, etc.

EXHIBIT A
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