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

Filing 196

ORDER Authorizing Receiver's Sale of Real Property Located at 8100 Lexington Avenue, Bakersfield, CA 93306 signed by Chief Judge Lawrence J. O'Neill on 04/10/2017. (Flores, E)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12 SECURITIES AND EXCHANGE
COMMISSION,
13
Plaintiff,
14
v.
15
BIC REAL ESTATE DEVELOPMENT
16 CORPORATION and DANIEL R.
NASE, individually and d/b/a
17 BAKERSFIELD INVESTMENT CLUB,
18

Case No. 1:16-cv-00344-LJO-JLT
ORDER AUTHORIZING RECEIVER'S
SALE OF REAL PROPERTY
LOCATED AT 8100 LEXINGTON
AVENUE, BAKERSFIELD, CA 93306

Defendants,

19 BIC SOLO 401K TRUST and
MARGARITA NASE,
20
Relief Defendants.
21
22
23
24
25
26
27
28

ORDER
In accordance with its September 19, 2016 Order Granting Stipulation to
Waive Requirements of 28 U.S.C. § 2001(a) and (b) in Connection with, and to
Establish Sales Procedures for, Receiver's Sales of Residential Real Property (the
"Stipulation") and the sales procedures approved therein (the "Sales Procedures"),
this Court has reviewed the March 20, 2017, Declaration of David P. Stapleton, the

1 Court-appointed receiver (the "Receiver") regarding his proposed sale of the real
2 property located at and commonly known as 8100 Lexington Avenue, Barkersfeild,
3 CA 93306, Assessor's Parcel Number 388-091-01-00-4 (the "Property"). The legal
4 description for the Property is as follows:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

ALL THAT CERTAIN REAL PROPERTY IN THE COUNTY OF KERN,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
ALL THAT CERTAIN REAL PROPERTY IN THE COUNTY OF KERN,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
LOT 11 AND THE SOUTH 2.5 FEET OF LOT 10 OF TRACT 1655, IN
THE COUNTY OF KERN, STATE OF CALIFORNIA, AS PER MAP
RECORDED DECEMBER 18, 1952 IN BOOK 8, PAGES 40 AND 41 OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPTING THEREFROM 50% OF THE MINERAL AND
HYDROCARBON SUBSTANCES THEREON OR UNDERLYING SAID
PROPERTY, TOGETHER WITH THE RIGHT OF THE GRANTORS TO
TAKE ALL OF THE USUAL, NECESSARY AND CONVENIENT MEANS
FOR PROSPECTING, EXPLORING, WORKING AND TAKING AWAY
SAID MINERALS AND/OR HYDROCARBON SUBSTANCES
INCLUDING THE RIGHT OF INGRESS, REGRESS AND EGRESS OVER
AND ACROSS SAID PROPERTY AND TO USE SUCH PARTS OF THE
SURFACE OF SAID PROPERTY AS MAY BE NECESSARY FOR THE
RECOVERY OF ALL OIL OR MINERALS TO BE PRODUCED
THEREFROM AS RESERVED BY ANIDA B. HAFER, A WIDOW AND
LOUIS C. PREST IN DEED RECORDED JUNE 29, 1945 IN BOOK 1248
PAGE 467, OF OFFICIAL RECORDS.

21
22
23
24
25
26
27
28

APN: 388-091-01-00-4
Having confirmed the Receiver's compliance with the Sales Procedures, and
the 15-day notice period provided for in the Stipulation having lapsed without
objection to the Receiver's proposed sale of the Property, this Court orders as
follows:

1

1.

The terms of the purchase and sale agreement, and all attendant

2 documents (collectively, the "PSA"), by and between the Receiver and Rocio Lopez
3 ("Buyer") in connection with the Receiver's proposed sale of the Property to Buyer
4 are approved;
5

2.

The Court ratifies the Receiver's execution of the PSA and authorizes

6 the Receiver to perform all of his obligations under the PSA;
7

3.

The Receiver's is authorized to sell the Property to Buyer or Buyer's

8 designee, as contemplated in the PSA, in exchange for the aggregate sum of
9 $172,000, subject to the applicable terms of this Order;
10

4.

The Receiver is further authorized to pay any commissions provided

11 for in the PSA and in connection with the consummation of his sale of the Property;
12

5.

In accordance with the terms of the PSA, and without limiting those

13 terms, Buyer or Buyer's designee shall purchase the Property on an "as-is / where-is"
14 basis, without any representations or warranties whatsoever by the Receiver and his
15 agents and/or attorneys including, without limitation, any representations or
16 warranties as to the condition of the Property, except as expressly set forth in the
17 PSA. Buyer or its designee is responsible for all due diligence, including but not
18 limited to inspection of the condition of and title to the Property, and is not relying
19 on any representation or warranty of the Receiver, except as expressly set forth in
20 the PSA;
21

6.

In the performance of his obligations pursuant to this Order, the

22 Receiver's liability in connection with the PSA and the sale of the Property to the
23 Buyer shall be limited to the assets of the receivership estate (the "Estate"). Neither
24 the Receiver nor his professionals shall have any personal liability for claims arising
25 out of or relating to the performance of any actions necessary to complete the sale of
26 the Property as provided for herein;
27

7.

Provided Buyer or Buyer's designee consents, in writing, the Receiver

28 is hereby authorized to amend or otherwise modify the PSA, in writing, as necessary

1 to complete the sale of the Property in the event that the Receiver determines, in his
2 reasonable business judgment, that such amendment or modification is reasonable
3 and necessary, will benefit the Estate, avoid the imposition of any liability upon the
4 Estate, or is required pursuant to the terms of the PSA or any other amendment or
5 modification thereto, provided that any such amendment or modification does not
6 change the material terms of the contract, including the parties to the PSA and the
7 purchase price for the Property;
8

8.

The Receiver is hereby authorized to take all actions and execute all

9 documents necessary to consummate and otherwise effectuate the sale of the
10 Property to Buyer or Buyer's designee, including, but not limited to, the PSA itself,
11 any other documents required to be executed pursuant to the PSA, and any related
12 documentation, escrow instructions, or conveyance documents consistent with
13 selling and conveying title to the Property to Buyer or Buyer's designee. The
14 Receiver shall execute all documents necessary to consummate and otherwise
15 effectuate the sale of the Property as "David P. Stapleton, Court-appointed receiver"
16 or any reasonable variation thereof which clearly identifies the Receiver as a court17 appointed receiver;
18

9.

The Receiver is hereby authorized to execute and acknowledge a

19 receiver's deed, or similar instrument, conveying title to the Property to Buyer or
20 Buyer's designee (the "Receiver's Deed") to effectuate the conveyance, and cause
21 the Receiver's Deed to be recorded on the date on which close of escrow occurs
22 pursuant to the terms of the PSA, or as determined by and between the Receiver and
23 Buyer or Buyer's designee;
24

10.

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

25 Receiver to transfer title to the Property as provided in the PSA and as authorized
26 herein;
27

11.

This Court shall retain jurisdiction over any dispute involving the

28 Receiver in connection with the sale of the Property; and

1

12.

The Receiver shall provide Buyer or Buyer's designee with a certified

2 copy of this Order, as entered by the Court, directly or through escrow, at least five
3 (5) days before Close of Escrow, or as provided for in the PSA, and Buyer or
4 Buyer's designee shall acknowledge receipt of a copy of this Order, in writing. A
5 certified copy of this Sale Order may be recorded concurrently with the Receiver's
6 Deed or at any time before the close of escrow, provided, however, that failure to
7 record this Order shall not affect the enforceability of this Order, the enforceability
8 and viability of the PSA, or the validity of the Receiver's Deed.
9
10 IT IS SO ORDERED.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Dated:

April 10, 2017

/s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE