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

Filing 242

ORDER Authorizing Receiver's Sale of Real Property Located at 3009 River Boulevard, Bakersfield, CA 93305, signed by Chief Judge Lawrence J. O'Neill on 6/8/17. (Gonzalez, R)

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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 3009 RIVER BOULEVARD, BAKERSFIELD, CA 93305 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 30, 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 3009 River Boulevard, Bakersfield, CA 3 93305 Assessor's Parcel Number 021-041-32-00-5 (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 21 22 All that certain real property in the County of Kern, State of California, described as follows: Lot 41 except the northerly 5 feet thereof of Tract 1684 in the City of Bakersfield, County of Kern, State of California, as per map recorded May 7, 1953 in Book 8, Page 56 of Maps, in the Office of the County Recorder of said County. Except therefrom all oil, gas and other minerals within said land whether now known to exist or hereafter discovered and all oil, gas and other mineral rights belonging or appertaining to said property and the exclusive right to produce, mine, extract and remove oil, gas and other minerals upon, from and through said property and the exclusive right to inject in, store under and thereafter withdraw from said property oil, gas and other minerals and products thereof, whether produced from said property or elsewhere, but unless the second part, its successors and assigns shall give written consent to the drilling of wells upon the surface of said land, all of the foregoing rights shall be exercised only by the drilling of wells into or through said property at depths below 100 feet from the surface of the ground from locations on adjacent or neighboring lands and in such manner as not to disturb the surface of said property or any improvements located upon the surface thereof, as reserved in deed from Kern County Land Company, recorded April 10, 1953 in Book 2067, Page 27 of Official Records. By Quitclaim Deed recorded May 18, 1953 in Book 2070, Page 317 of Official Records, the right to use said land for the above purposes above 300 feet below the surface of said land was relinquished. 23 24 APN: 021-041-32-00-5 25 Having confirmed the Receiver's compliance with the Sales Procedures, and 26 the 15-day notice period provided for in the Stipulation having lapsed without 27 28 1 objection to the Receiver's proposed sale of the Property, this Court orders as 2 follows: 3 1. The terms of the purchase and sale agreement, and all attendant 4 documents (collectively, the "PSA"), by and between the Receiver and B and R 5 Holdings ("Buyer") in connection with the Receiver's proposed sale of the Property 6 to Buyer are approved; 7 2. The Court ratifies the Receiver's execution of the PSA and authorizes 8 the Receiver to perform all of his obligations under the PSA; 9 3. The Receiver's is authorized to sell the Property to Buyer or Buyer's 10 designee, as contemplated in the PSA, in exchange for the aggregate sum of 11 $120,000 subject to the applicable terms of this Order; 12 4. The Receiver is further authorized to pay any commissions provided 13 for in the PSA and in connection with the consummation of his sale of the Property; 14 5. In accordance with the terms of the PSA, and without limiting those 15 terms, Buyer or Buyer's designee shall purchase the Property on an "as-is / where-is" 16 basis, without any representations or warranties whatsoever by the Receiver and his 17 agents and/or attorneys including, without limitation, any representations or 18 warranties as to the condition of the Property, except as expressly set forth in the 19 PSA. Buyer or its designee is responsible for all due diligence, including but not 20 limited to inspection of the condition of and title to the Property, and is not relying 21 on any representation or warranty of the Receiver, except as expressly set forth in 22 the PSA; 23 6. In the performance of his obligations pursuant to this Order, the 24 Receiver's liability in connection with the PSA and the sale of the Property to the 25 Buyer shall be limited to the assets of the receivership estate (the "Estate"). Neither 26 the Receiver nor his professionals shall have any personal liability for claims arising 27 out of or relating to the performance of any actions necessary to complete the sale of 28 the Property as provided for herein; 1 7. Provided Buyer or Buyer's designee consents, in writing, the Receiver 2 is hereby authorized to amend or otherwise modify the PSA, in writing, as necessary 3 to complete the sale of the Property in the event that the Receiver determines, in his 4 reasonable business judgment, that such amendment or modification is reasonable 5 and necessary, will benefit the Estate, avoid the imposition of any liability upon the 6 Estate, or is required pursuant to the terms of the PSA or any other amendment or 7 modification thereto, provided that any such amendment or modification does not 8 change the material terms of the contract, including the parties to the PSA and the 9 purchase price for the Property; 10 8. The Receiver is hereby authorized to take all actions and execute all 11 documents necessary to consummate and otherwise effectuate the sale of the 12 Property to Buyer or Buyer's designee, including, but not limited to, the PSA itself, 13 any other documents required to be executed pursuant to the PSA, and any related 14 documentation, escrow instructions, or conveyance documents consistent with 15 selling and conveying title to the Property to Buyer or Buyer's designee. The 16 Receiver shall execute all documents necessary to consummate and otherwise 17 effectuate the sale of the Property as "David P. Stapleton, Court-appointed receiver" 18 or any reasonable variation thereof which clearly identifies the Receiver as a court19 appointed receiver; 20 9. The Receiver is hereby authorized to execute and acknowledge a 21 receiver's deed, or similar instrument, conveying title to the Property to Buyer or 22 Buyer's designee (the "Receiver's Deed") to effectuate the conveyance, and cause 23 the Receiver's Deed to be recorded on the date on which close of escrow occurs 24 pursuant to the terms of the PSA, or as determined by and between the Receiver and 25 Buyer or Buyer's designee; 26 10. Any licensed title insurer may rely on this Order as authorizing the 27 Receiver to transfer title to the Property as provided in the PSA and as authorized 28 herein; 1 11. This Court shall retain jurisdiction over any dispute involving the 2 Receiver in connection with the sale of the Property; and 3 12. The Receiver shall provide Buyer or Buyer's designee with a certified 4 copy of this Order, as entered by the Court, directly or through escrow, at least five 5 (5) days before Close of Escrow, or as provided for in the PSA, and Buyer or 6 Buyer's designee shall acknowledge receipt of a copy of this Order, in writing. A 7 certified copy of this Sale Order may be recorded concurrently with the Receiver's 8 Deed or at any time before the close of escrow, provided, however, that failure to 9 record this Order shall not affect the enforceability of this Order, the enforceability 10 and viability of the PSA, or the validity of the Receiver's Deed. 11 12 IT IS SO ORDERED. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: June 8, 2017 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE

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