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

Filing 234

ORDER Authorizing Receiver's Sale of Real Property Located at 8913 Lanora Avenue, Bakersfield, CA 93306 signed by Chief Judge Lawrence J. O'Neill on 06/03/2017. (Flores, E)

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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 8913 LANORA 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 May 16, 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 8913 Lanora Avenue, Bakersfield, CA 3 93306, Assessor's Parcel Number 388-252-09-00-1 (the "Property"). The legal 4 description for the Property is as follows: 5 6 7 8 All that certain real property in the County of Kern, State of California, described as follows: Lot 3 of Tract No. 4058, in the County of Kern, State of California, as per map recorded August 14, 1979 in Book 29, Pages 78 and 79 of Maps, in the office of the County Recorder of said County. 9 10 11 12 Excepting therefrom all oil, gas, minerals and other hydrocarbon substances lying below the surface of said land, but with no right of surface entry, as provided in deeds of record. 388-252-09-00-1 13 14 Having confirmed the Receiver's compliance with the Sales Procedures, and 15 the 15-day notice period provided for in the Stipulation having lapsed without 16 objection to the Receiver's proposed sale of the Property, this Court orders as 17 follows: 1. 18 The terms of the purchase and sale agreement, and all attendant 19 documents (collectively, the "PSA"), by and between the Receiver and Richard 20 Medley ("Buyer") in connection with the Receiver's proposed sale of the Property to 21 Buyer are approved; 2. The Court ratifies the Receiver's execution of the PSA and authorizes 22 23 the Receiver to perform all of his obligations under the PSA; 3. The Receiver's is authorized to sell the Property to Buyer or Buyer's 24 25 designee, as contemplated in the PSA, in exchange for the aggregate sum of 26 $187,000 subject to the applicable terms of this Order; 27 4. The Receiver is further authorized to pay any commissions provided 28 for in the PSA and in connection with the consummation of his sale of the Property; 1 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; 10 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; 16 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; 25 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; 7 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; 13 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; 16 11. This Court shall retain jurisdiction over any dispute involving the 17 Receiver in connection with the sale of the Property; and 18 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 24 record this Order shall not affect the enforceability of this Order, the enforceability 25 and viability of the PSA, or the validity of the Receiver's Deed. 26 IT IS SO ORDERED. 27 28 Dated: June 3, 2017 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE

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