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

Filing 285

ORDER AUTHORIZING RECEIVER'S SALE OF REAL PROPERTY LOCATED AT 8913 LANORA AVE., BAKERSFIELD, CA 93306, signed by Chief Judge Lawrence J. O'Neill on 9/6/2017. (Kusamura, W)

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 8913
LANORA AVE., BAKERSFIELD, CA 93306

COMMISSION,

Plaintiff,

14

v.
Ctrm:
Judge:

15

BIC REAL ESTATE DEVELOPMENT
16 CORPORATION and DANIEL R. NASE,
individually and d/b/a BAKERSFIELD
17 INVESTMENT CLUB,

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 August 30,
2017, Declaration of David P. Stapleton, the Court-appointed receiver (the "Receiver") regarding

28
ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY
-1-

1 his proposed sale of the real property located at and commonly known as 8913 Lanora Ave.,
2 Bakersfield, CA 93306, assessor's parcel number 388-252-09-00-1 (the "Property"). The legal
3 description for the Property is as follows:
4

All that certain real property in the County of Kern, State of California, described
as follows:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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.
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.
APN: 388-252-09-00-1
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 Pablo C. Garcia ("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's is authorized to sell the Property to Buyer or Buyer's designee, as

contemplated in the PSA, in exchange for the aggregate sum of $175,000 subject to the applicable
terms of this Order;
4.

The Receiver is further authorized to pay any commissions provided for in the PSA

in connection with the consummation of the sale of the Property;
5.

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

or Buyer's designee shall purchase the Property on an "as-is / where-is" basis, without any
representations or warranties whatsoever by the Receiver and his agents and/or attorneys
including, without limitation, any representations or warranties as to the condition of the Property,

28
ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY
-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
ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY
-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

Dated:

/s/ Lawrence J. O’Neill _____

September 6, 2017

UNITED STATES CHIEF DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY

-4-