Securities and Exchange Commission v. BIC Real Estate Development Corporation et al

Filing 180

ORDER Authorizing Receiver's Sale of Real Property Located at 2813 Blade Avenue, Bakersfield, CA 93306-1928 signed by Chief Judge Lawrence J. O'Neill on 03/22/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SECURITIES AND EXCHANGE 12 COMMISSION, ORDER AUTHORIZING RECEIVER'S SALE OF REAL PROPERTY LOCATED AT 2813 BLADE AVENUE, BAKERSFIELD, CA 93306-1928 Plaintiff, 13 14 Case No. 1:16-cv-00344-LJO-JLT v. 15 BIC REAL ESTATE DEVELOPMENT CORPORATION and DANIEL R. 16 NASE, individually and d/b/a BAKERSFIELD INVESTMENT CLUB, 17 Defendants, 18 BIC SOLO 401K TRUST and 19 MARGARITA NASE, 20 Relief Defendants. 21 22 ORDER 23 In accordance with its September 19, 2016 Order Granting Stipulation to 24 Waive Requirements of 28 U.S.C. § 2001(a) and (b) in Connection with, and to 25 Establish Sales Procedures for, Receiver's Sales of Residential Real Property (the 26 "Stipulation") and the sales procedures approved therein (the "Sales Procedures"), 27 this Court has reviewed the February 15, 2017, Declaration of David P. Stapleton, 28 the Court-appointed receiver (the "Receiver") regarding his proposed sale of the real 1 property located at and commonly known as 2813 Blade Avenue, Bakersfield, CA 2 93306-1928, Assessor's Parcel Number 383-032-08-00-9 (the "Property"). The 3 legal description for the Property is as follows: 4 All that certain real property in the County of Kern, State of California, 5 described as follows: 6 LOT 19 OF TRACT NO. 1824, IN THE CITY OF BAKERSFIELD, COUNTY OF KERN, STATE OF CALIFORNIA, AS PER MAP RECORDED APRIL 10, 1957 IN BOOK 9, PAGE 126 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ANY AND ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER MINERALS OF ANY AND EVERY KIND WITHIN AND UNDERLYING SAID LAND AT A DEPTH OF MORE THAN 100 FEET BELOW THE SURFACE OF THE GROUND AS RESERVED BY CHANSLOR-CANFIELD MIDWAY OIL COMPANY, A CORPORATION, IN DEED RECORDED JUNE 3, 1953 IN BOOK 2088, PAGE 51 OF OFFICIAL RECORDS, WHICH DEED PROVIDES TOGETHER WITH THE RIGHT OF PROSPECTING AND/OR DRILLING FOR, PRODUCING AND/OR REMOVING THE SAME THEREFROM, PROVIDED, HOWEVER, THAT SAID FIRST PARTY, ITS SUCCESSORS AND ASSIGNS, SHALL NOT HAVE THE RIGHT TO ENTER UPON THE SURFACE OF SAID LAND FOR THE PURPOSE OF DRILLING FOR, EXTRACTING AND REMOVING SAID OIL, GAS, OTHER HYDROCARBON SUBSTANCES OR OTHER MINERALS, NOR FOR ANY PURPOSE IN CONNECTION THEREWITH. 7 8 9 10 11 12 13 14 15 16 17 18 19 APN: 383-032-08-00-9 20 21 Having confirmed the Receiver's compliance with the Sales Procedures, and 22 the 15-day notice period provided for in the Stipulation having lapsed without 23 objection to the Receiver's proposed sale of the Property, this Court orders as 24 follows: 25 1. The terms of the purchase and sale agreement, and all attendant 26 documents (collectively, the "PSA"), by and between the Receiver and Marcus 27 28 1 Crompton ("Buyer") in connection with the Receiver's proposed sale of the Property 2 to Buyer are approved; 3 2. The Court ratifies the Receiver's execution of the PSA and authorizes 4 the Receiver to perform all of his obligations under the PSA; 5 3. The Receiver's is authorized to sell the Property to Buyer or Buyer's 6 designee, as contemplated in the PSA, in exchange for the aggregate sum of 7 $142,000, subject to the applicable terms of this Order; 8 4. The Receiver is further authorized to pay any commissions provided 9 for in the PSA and in connection with the consummation of his sale of the Property; 10 5. In accordance with the terms of the PSA, and without limiting those 11 terms, Buyer or Buyer's designee shall purchase the Property on an "as-is / where-is" 12 basis, without any representations or warranties whatsoever by the Receiver and his 13 agents and/or attorneys including, without limitation, any representations or 14 warranties as to the condition of the Property, except as expressly set forth in the 15 PSA. Buyer or its designee is responsible for all due diligence, including but not 16 limited to inspection of the condition of and title to the Property, and is not relying 17 on any representation or warranty of the Receiver, except as expressly set forth in 18 the PSA; 19 6. In the performance of his obligations pursuant to this Order, the 20 Receiver's liability in connection with the PSA and the sale of the Property to the 21 Buyer shall be limited to the assets of the receivership estate (the "Estate"). Neither 22 the Receiver nor his professionals shall have any personal liability for claims arising 23 out of or relating to the performance of any actions necessary to complete the sale of 24 the Property as provided for herein; 25 7. Provided Buyer or Buyer's designee consents, in writing, the Receiver 26 is hereby authorized to amend or otherwise modify the PSA, in writing, as necessary 27 to complete the sale of the Property in the event that the Receiver determines, in his 28 reasonable business judgment, that such amendment or modification is reasonable 1 and necessary, will benefit the Estate, avoid the imposition of any liability upon the 2 Estate, or is required pursuant to the terms of the PSA or any other amendment or 3 modification thereto, provided that any such amendment or modification does not 4 change the material terms of the contract, including the parties to the PSA and the 5 purchase price for the Property; 6 8. The Receiver is hereby authorized to take all actions and execute all 7 documents necessary to consummate and otherwise effectuate the sale of the 8 Property to Buyer or Buyer's designee, including, but not limited to, the PSA itself, 9 any other documents required to be executed pursuant to the PSA, and any related 10 documentation, escrow instructions, or conveyance documents consistent with 11 selling and conveying title to the Property to Buyer or Buyer's designee. The 12 Receiver shall execute all documents necessary to consummate and otherwise 13 effectuate the sale of the Property as "David P. Stapleton, Court-appointed receiver" 14 or any reasonable variation thereof which clearly identifies the Receiver as a court15 appointed receiver; 16 9. The Receiver is hereby authorized to execute and acknowledge a 17 receiver's deed, or similar instrument, conveying title to the Property to Buyer or 18 Buyer's designee (the "Receiver's Deed") to effectuate the conveyance, and cause 19 the Receiver's Deed to be recorded on the date on which close of escrow occurs 20 pursuant to the terms of the PSA, or as determined by and between the Receiver and 21 Buyer or Buyer's designee; 22 10. Any licensed title insurer may rely on this Order as authorizing the 23 Receiver to transfer title to the Property as provided in the PSA and as authorized 24 herein; 25 11. This Court shall retain jurisdiction over any dispute involving the 26 Receiver in connection with the sale of the Property; and 27 12. The Receiver shall provide Buyer or Buyer's designee with a certified 28 copy of this Order, as entered by the Court, directly or through escrow, at least five 1 (5) days before Close of Escrow, or as provided for in the PSA, and Buyer or 2 Buyer's designee shall acknowledge receipt of a copy of this Order, in writing. A 3 certified copy of this Sale Order may be recorded concurrently with the Receiver's 4 Deed or at any time before the close of escrow, provided, however, that failure to 5 record this Order shall not affect the enforceability of this Order, the enforceability 6 and viability of the PSA, or the validity of the Receiver's Deed. 7 8 9 IT IS SO ORDERED. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 22, 2017 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE

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