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

Filing 202

ORDER Authorizing Receiver's Sale of Real Property Located at 409 Villa Street, Bakersfiled, CA 93307 signed by Chief Judge Lawrence J. O'Neill on 04/10/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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12 SECURITIES AND EXCHANGE
COMMISSION,
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Plaintiff,
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v.
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BIC REAL ESTATE DEVELOPMENT
16 CORPORATION and DANIEL R.
NASE, individually and d/b/a
17 BAKERSFIELD INVESTMENT CLUB,
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Case No. 1:16-cv-00344-LJO-JLT
ORDER AUTHORIZING RECEIVER'S
SALE OF REAL PROPERTY
LOCATED AT 409 VILLA STREET,
BAKERSFIELD, CA 93307

Defendants,

19 BIC SOLO 401K TRUST and
MARGARITA NASE,
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Relief Defendants.
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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 April 5, 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 409 Villa Street, Bakersfield, CA
3 93307, assessor's parcel number 139-262-08-00-5 (the "Property"). The legal
4 description for the Property is as follows:
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All that certain real property in the County of Kern, State of California,

6 described as follows:
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Lot(s) 4 and 5 in Block 5 of Union Avenue Tract Addition No. 1, in the City

8 of Bakersfield, County of Kern, State of California, as per map recorded June 22,
9 1911 in Book 2, Page 28 of Maps, in the office of the County Recorder of said
10 County.
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APN: 139-262-08-00-5
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.

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

documents (collectively, the "PSA"), by and between the Receiver and Y&M LLC
("Buyer") in connection with the Receiver's proposed sale of the Property to Buyer
are approved;
2.

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

the Receiver to perform all of his obligations under the PSA;
3.

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

designee, as contemplated in the PSA, in exchange for the aggregate sum of
$152,000 subject to the applicable terms of this Order;
4.

The Receiver is further authorized to pay any commissions provided

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

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5.

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

2 terms, Buyer or Buyer's designee shall purchase the Property on an "as-is / where-is"
3 basis, without any representations or warranties whatsoever by the Receiver and his
4 agents and/or attorneys including, without limitation, any representations or
5 warranties as to the condition of the Property, except as expressly set forth in the
6 PSA. Buyer or its designee is responsible for all due diligence, including but not
7 limited to inspection of the condition of and title to the Property, and is not relying
8 on any representation or warranty of the Receiver, except as expressly set forth in
9 the PSA;
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6.

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

11 Receiver's liability in connection with the PSA and the sale of the Property to the
12 Buyer shall be limited to the assets of the receivership estate (the "Estate"). Neither
13 the Receiver nor his professionals shall have any personal liability for claims arising
14 out of or relating to the performance of any actions necessary to complete the sale of
15 the Property as provided for herein;
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7.

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

17 is hereby authorized to amend or otherwise modify the PSA, in writing, as necessary
18 to complete the sale of the Property in the event that the Receiver determines, in his
19 reasonable business judgment, that such amendment or modification is reasonable
20 and necessary, will benefit the Estate, avoid the imposition of any liability upon the
21 Estate, or is required pursuant to the terms of the PSA or any other amendment or
22 modification thereto, provided that any such amendment or modification does not
23 change the material terms of the contract, including the parties to the PSA and the
24 purchase price for the Property;
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8.

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

26 documents necessary to consummate and otherwise effectuate the sale of the
27 Property to Buyer or Buyer's designee, including, but not limited to, the PSA itself,
28 any other documents required to be executed pursuant to the PSA, and any related

1 documentation, escrow instructions, or conveyance documents consistent with
2 selling and conveying title to the Property to Buyer or Buyer's designee. The
3 Receiver shall execute all documents necessary to consummate and otherwise
4 effectuate the sale of the Property as "David P. Stapleton, Court-appointed receiver"
5 or any reasonable variation thereof which clearly identifies the Receiver as a court6 appointed receiver;
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9.

The Receiver is hereby authorized to execute and acknowledge a

8 receiver's deed, or similar instrument, conveying title to the Property to Buyer or
9 Buyer's designee (the "Receiver's Deed") to effectuate the conveyance, and cause
10 the Receiver's Deed to be recorded on the date on which close of escrow occurs
11 pursuant to the terms of the PSA, or as determined by and between the Receiver and
12 Buyer or Buyer's designee;
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10.

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

14 Receiver to transfer title to the Property as provided in the PSA and as authorized
15 herein;
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11.

This Court shall retain jurisdiction over any dispute involving the

17 Receiver in connection with the sale of the Property; and
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12.

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

19 copy of this Order, as entered by the Court, directly or through escrow, at least five
20 (5) days before Close of Escrow, or as provided for in the PSA, and Buyer or
21 Buyer's designee shall acknowledge receipt of a copy of this Order, in writing. A
22 certified copy of this Sale Order may be recorded concurrently with the Receiver's
23 Deed or at any time before the close of escrow, provided, however, that failure to
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1 record this Order shall not affect the enforceability of this Order, the enforceability
2 and viability of the PSA, or the validity of the Receiver's Deed.
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4 IT IS SO ORDERED.
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Dated:

April 10, 2017

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