HSBC Bank USA, N.A. as Trustee for OMAC-3, a Mortgage Backed Security v. United States of America et al

Filing 10

Stipulation and ORDER DISMISSING ACTION, signed by Judge Oliver W. Wanger on 7/9/2010. CASE CLOSED. (Verduzco, M)

HSBC Bank USA, N.A. as Trustee for OMAC-3, a Mortgage Backed Security v. U...tates of America et al

Doc. 10

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Michael J. Lampe #82199 Michael P. Smith #206927 Matthew D. Owdom #258779 Law Offices of Michael J. Lampe 108 West Center Avenue Visalia, California 93291 Telephone [phone] Facsimile [phone] Attorneys for Plaintiff

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STIPULATION AND ORDER

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

HSBC BANK USA, N.A., as Trustee for OMAC-3, a Mortgage Backed Security, Plaintiff, vs. DENNIS J. SCHMIDT, THE INTERNAL REVENUE SERVICE, U.S. BANK, N.A., as Trustee for Terwin Mortgage Trust 2005-5SL, Asset-Backed Certificates, Series 2005-5SL, and DOES 1-25, inclusive, Defendants.

Case No. 1:10-cv-00385-OWW-DLB STIPULATION AND ORDER

Plaintiff HSBC BANK USA, a National Assocation, as Trustee for OMAC-3, (HSBC) and Defendants DENNIS J. SCHMIDT (Schmidt), THE UNITED STATES OF AMERICA, Internal Revenue Service (United States), U.S. BANK, N.A., as Trustee for Terwin Mortgage Trust 2005-5SL, Asset-Backed Certificates, Series 2005-5SL (U.S. Bank), hereby stipulate as follows and request an order resolving the above-captioned matter.

Dockets.Justia.com

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THIS STIPULATION IS ENTERED INTO WITH RESPECT TO THE FOLLOWING FACTS: 1. On or about February 11, 2010, HSBC commenced an action against Defendants

Schmidt, the United States, and U.S. Bank by filing a complaint (the Complaint) in the Superior Court of the State of California in and for the County of Stanislaus, Case No. 650489 (the action). 2. On March 4, 2010, the United States removed the action to the United States

District Court for the Eastern District of California, where the action was docketed as Case No. 1:10-cv-00385-OW W -SMS. In the action, HSBC seeks to enforce a deed executed in 2005 by Schmidt but lost prior to recordation, equitable subrogation, an equitable lien, and declaratory relief with respect to certain real property that is the subject of the action, commonly known as 2220 Boston Way, Modesto, California, 95355, in Stanislaus County (the Modesto Property), and more particularly described as follows: LOT 6 IN BLOCK 11150 OF BEACON HILL NO. 2, PHASE 2, AS PER MAP THEREOF RECORDED FEBRUARY 22, 1989 IN BOOK 33 OF MAPS, AT PAGE 73, STANISLAUS COUNTY RECORDS. APN: 077-36-45-101 3. The parties wish to resolve any outstanding disputes relating to the causes of

action set forth in the Complaint.

IT IS THEREFORE AGREED BETWEEN THE PARTIES AND REQUESTED THAT THE FOLLOWING IS ORDERED BY THE COURT: 4. Schmidt shall execute and notarize a valid, recordable, interspousal transfer deed

transferring his interest in the Modesto Property to his wife, Amelia M. Schmidt, in order to replace the instrument which was lost prior to recordation during a 2005 refinance transaction concerning the Modesto Property. HSBC shall provide the deed to be executed to Schmidt's counsel forthwith. Dennis J. Schmidt shall execute the deed within 14 days of receipt, and shall forward the executed and notarized deed to HSBC's counsel for recordation in the Official Records of Stanislaus County. __________________________________
STIPULATION AND ORDER

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5.

The United States agrees to treat the re-executed interspousal transfer deed

referenced in paragraph 4, above, as if it were recorded on March 17, 2005, for purposes of determining the priority of the parties' respective interests in the Modesto Property. Thus, the United States agrees that the secured interest in the Modesto Property held by HSBC and evidenced by the Deed of Trust recorded on March 28, 2005, as Document No. 2005-0050436 of the of the Official Records of Stanislaus County, is senior to and has priority over its federal tax lien evidenced by the Notice of Federal Tax Lien recorded on May 20, 2009, as Document No. 2009-0050148 of the Official Records of Stanislaus County. 6. U.S. Bank, the holder of a second Deed of Trust on the Modesto Property, hereby

relinquishes and disclaims any interest in the Modesto Property adverse to HSBC, however, U.S. Bank reserves and retains all applicable rights and remedies under the laws of the United States and the State of California as a junior encumbrancer. 7. HSBC, Schmidt, the United States, and U.S. Bank request that this case be

dismissed on the grounds that a stipulated settlement has been reached between the parties, the terms of which are contained and agreed to herein, to be ordered by the Court, with a waiver of costs such that all parties will bear their own costs and attorney's fees, if any there be. 8. The parties stipulate to the Court's retention of jurisdiction for purposes of

enforcing the terms of this agreement.

7/2/10 Dated: _______________

/S/ ________________________________ CRABTREE & SCHMIDT Attorneys for Dennis J. Schmidt By:W alter Schmidt

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STIPULATION AND ORDER

/S/ ________________________________ LAW OFFICES OF MICHAEL J. LAMPE Attorneys for HSBC Bank USA, N.A. By: Matthew D. Owdom

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7/8/10 Dated: _______________

/S/ ________________________________ SPECIALIZED LOAN SERVICING LLC Authorized Agent for U.S. BANK, N.A. By:______________________________

BENJAMIN B. WAGNER United States Attorney 6/30/10 /S/ ________________________________ Adair Boroughs Trial Attorney, Tax Division U.S. Department of Justice

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STIPULATION AND ORDER

IT IS SO ORDERED. Dated: July 9, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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