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

Filing 273

ORDER AUTHORIZING Receiver's Sale of Real Property Located at 4701 Cypress Glen Ct., Bakersfield, CA 93309 signed by Chief Judge Lawrence J. O'Neill on 08/02/2017. (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 Case No. 1:16-cv-00344-LJO-JLT 13 ORDER AUTHORIZING RECEIVER’S SALE OF REAL PROPERTY LOCATED AT 4701 CYPRESS GLEN CT., BAKERSFIELD, CA 93309 COMMISSION, Plaintiff, 14 v. 15 BIC REAL ESTATE DEVELOPMENT 16 CORPORATION and DANIEL R. NASE, individually and d/b/a BAKERSFIELD 17 INVESTMENT CLUB, Ctrm: Judge: 4 Hon. Lawrence J. O’Neill Defendants, 18 19 BIC SOLO 401K TRUST and MARGARITA NASE, 20 Relief Defendants. 21 22 23 24 25 26 27 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 July 25, 2017, Declaration of David P. Stapleton, the Court-appointed receiver (the “Receiver”) regarding his 28 ORDER APPROVING AND AUTHORIZING RECEIVER'S SALE OF REAL PROPERTY 1057348.02/LA -1- 1 proposed sale of the real property located at and commonly known as 4701 Cypress Glen Ct., 2 Bakersfield, CA 93309, assessor’s parcel number 403-260-17-00-3 (the “Property”). The legal 3 description for the Property is as follows: 4 5 6 7 8 9 All that certain real property in the County of Kern, State of California, described as follows: LOT 17 OF TRACT NO. 4655, IN THE CITY OF BAKERSFIELD, COUNTY OF KERN, STATE OF CALIFORNIA, AS PER MAP RECORDED FEBRUARY 7, 1984 IN BOOK 33, PAGES 43 AND 44 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN, ON AND UNDER SAID LAND, AS RESERVED IN PREVIOUS DEEDS OF RECORD. 10 APN: 403-260-17-00-3 11 Having confirmed the Receiver's compliance with the Sales Procedures, and the 15-day 12 notice period provided for in the Stipulation having lapsed without objection to the Receiver's 13 proposed sale of the Property, this Court orders as follows: 14 1. The terms of the purchase and sale agreement, and all attendant documents 15 (collectively, the “PSA”), by and between the Receiver and Chris Desborough (“Buyer”) in 16 connection with the Receiver's proposed sale of the Property to Buyer are approved; 17 2. The Court ratifies the Receiver’s execution of the PSA and authorizes the Receiver 18 to perform all of his obligations under the PSA; 19 3. The Receiver’s is authorized to sell the Property to Buyer or Buyer’s designee, as 20 contemplated in the PSA, in exchange for the aggregate sum of $139,500 subject to the applicable 21 terms of this Order; 22 4. The Receiver is further authorized to pay any commissions provided for in the PSA 23 in connection with the consummation of the sale of the Property; 24 5. In accordance with the terms of the PSA, and without limiting those terms, Buyer 25 or Buyer's designee shall purchase the Property on an “as-is / where-is” basis, without any 26 representations or warranties whatsoever by the Receiver and his agents and/or attorneys 27 including, without limitation, any representations or warranties as to the condition of the Property, 28 -2- 1 except as expressly set forth in the PSA. Buyer or its designee is responsible for all due diligence, 2 including but not limited to inspection of the condition of and title to the Property, and is not 3 relying on any representation or warranty of the Receiver, except as expressly set forth in the PSA; 4 6. In the performance of his obligations pursuant to this Order, the Receiver’s liability 5 in connection with the PSA and the sale of the Property to the Buyer shall be limited to the assets 6 of the receivership estate (the “Estate”). Neither the Receiver nor his professionals shall have any 7 personal liability for claims arising out of or relating to the performance of any actions necessary 8 to complete the sale of the Property as provided for herein; 9 7. Provided Buyer or Buyer’s designee consents, in writing, the Receiver is hereby 10 authorized to amend or otherwise modify the PSA, in writing, as necessary to complete the sale of 11 the Property in the event that the Receiver determines, in his reasonable business judgment, that 12 such amendment or modification is reasonable and necessary, will benefit the Estate, avoid the 13 imposition of any liability upon the Estate, or is required pursuant to the terms of the PSA or any 14 other amendment or modification thereto, provided that any such amendment or modification does 15 not change the material terms of the contract, including the parties to the PSA and the purchase 16 price for the Property; 17 8. The Receiver is hereby authorized to take all actions and execute all documents 18 necessary to consummate and otherwise effectuate the sale of the Property to Buyer or Buyer’s 19 designee, including, but not limited to, the PSA itself, any other documents required to be 20 executed pursuant to the PSA, and any related documentation, escrow instructions, or conveyance 21 documents consistent with selling and conveying title to the Property to Buyer or Buyer's 22 designee. The Receiver shall execute all documents necessary to consummate and otherwise 23 effectuate the sale of the Property as “David P. Stapleton, Court-appointed receiver” or any 24 reasonable variation thereof which clearly identifies the Receiver as a court-appointed receiver; 25 9. The Receiver is hereby authorized to execute and acknowledge a receiver's deed, or 26 similar instrument, conveying title to the Property to Buyer or Buyer's designee (the “Receiver’s 27 Deed”) to effectuate the conveyance, and cause the Receiver’s Deed to be recorded on the date on 28 -3- 1 which close of escrow occurs pursuant to the terms of the PSA, or as determined by and between 2 the Receiver and Buyer or Buyer's designee; 3 10. Any licensed title insurer may rely on this Order as authorizing the Receiver to 4 transfer title to the Property as provided in the PSA and as authorized herein; 5 11. This Court shall retain jurisdiction over any dispute involving the Receiver in 6 connection with the sale of the Property; and 7 12. The Receiver shall provide Buyer or Buyer's designee with a certified copy of this 8 Order, as entered by the Court, directly or through escrow, at least five (5) days before Close of 9 Escrow, or as provided for in the PSA, and Buyer or Buyer's designee shall acknowledge receipt 10 of a copy of this Order, in writing. A certified copy of this Sale Order may be recorded 11 concurrently with the Receiver's Deed or at any time before the close of escrow, provided, 12 however, that failure to record this Order shall not affect the enforceability of this Order, the 13 enforceability and viability of the PSA, or the validity of the Receiver’s Deed. 14 15 IT IS SO ORDERED. 16 17 Dated: /s/ Lawrence J. O’Neill _____ August 2, 2017 UNITED STATES CHIEF DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 -4-

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