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

Filing 313

ORDER Authorizing Receiver's Sale of Real Property Located at 3509 Meeks Ave., Bakersfield, CA 93307 signed by Chief Judge Lawrence J. O'Neill on 11/01/2017. (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 3509 MEEKS AVE., BAKERSFIELD, CA 93307 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 October 24, 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 -1- 1 proposed sale of the real property located at and commonly known as 3509 Meeks Ave., 2 Bakersfield, CA 93307, assessor's parcel number 172-133-02-00-9 (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 LOT 135 OF TRACT NO. 1509, IN THE CITY OF BAKERSFIELD, COUNTY OF KERN, STATE OF CALIFORNIA, AS PER MAP RECORDED JULY 29, 1949 IN BOOK 7 PAGE 26 OF MAPS, IN THE OFFICE OF THE RECORDER OF SAID COUNTY. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXCEPTING THEREFROM 50% OF ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUSSTANCES AS RESERVED \ IN DEED FROM BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, DATED MARCH 21, 1939 AND " RECORDED JUNE 17, 1939 IN BOOK 875 PAGE 63 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM THE REMAINING 50% OF ALL MINERALS, AS RESERVED IN DEED FROM NOEL A. COSTES AND VICTORIA COSTES, HUSBAND AND WIFE, RECORDED MAY 18, 1949 IN BOOK 1549 PAGE 316 OF OFFICIAL RECORDS. APN: 172-133-02-00-9 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 Angel Herrera ("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 Buyer or Buyer's designee, as contemplated in the PSA, in exchange for the aggregate sum of $160,000 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; ORDER APPROVING AND AUTHORIZING RECEIVER'S SALE OF REAL PROPERTY -2- 1 5. In accordance with the terms of the PSA, and without limiting those terms, Buyer or 2 Buyer's designee shall purchase the Property on an "as-is / where-is" basis, without any 3 representations or warranties whatsoever by the Receiver and his agents and/or attorneys including, 4 without limitation, any representations or warranties as to the condition of the Property, except as 5 expressly set forth in the PSA. Buyer or its designee is responsible for all due diligence, including 6 but not limited to inspection of the condition of and title to the Property, and is not relying on any 7 representation or warranty of the Receiver, except as expressly set forth in the PSA; 8 6. In the performance of his obligations pursuant to this Order, the Receiver's liability 9 in connection with the PSA and the sale of the Property to the Buyer shall be limited to the assets 10 of the receivership estate (the "Estate"). Neither the Receiver nor his professionals shall have any 11 personal liability for claims arising out of or relating to the performance of any actions necessary to 12 complete the sale of the Property as provided for herein; 13 7. Provided Buyer or Buyer's designee consents, in writing, the Receiver is hereby 14 authorized to amend or otherwise modify the PSA, in writing, as necessary to complete the sale of 15 the Property in the event that the Receiver determines, in his reasonable business judgment, that 16 such amendment or modification is reasonable and necessary, will benefit the Estate, avoid the 17 imposition of any liability upon the Estate, or is required pursuant to the terms of the PSA or any 18 other amendment or modification thereto, provided that any such amendment or modification does 19 not change the material terms of the contract, including the parties to the PSA and the purchase 20 price for the Property; 21 8. The Receiver is hereby authorized to take all actions and execute all documents 22 necessary to consummate and otherwise effectuate the sale of the 23 Property to Buyer or Buyer's designee, including, but not limited to, the PSA itself, any other 24 documents required to be executed pursuant to the PSA, and any related documentation, escrow 25 instructions, or conveyance documents consistent with selling and conveying title to the Property to 26 Buyer or Buyer's designee. The Receiver shall execute all documents necessary to consummate 27 and otherwise effectuate the sale of the Property as "David P. Stapleton, Court-appointed receiver" 28 ORDER APPROVING AND AUTHORIZING RECEIVER'S SALE OF REAL PROPERTY -3- 1 or any reasonable variation thereof which clearly identifies the Receiver as a court-appointed 2 receiver; 3 9. The Receiver is hereby authorized to execute and acknowledge a receiver's deed, or 4 similar instrument, conveying title to the Property to Buyer or Buyer's designee (the "Receiver's 5 Deed") to effectuate the conveyance, and cause the Receiver's Deed to be recorded on the date on 6 which close of escrow occurs pursuant to the terms of the PSA, or as determined by and between 7 the Receiver and Buyer or Buyer's designee; 8 10. Any licensed title insurer may rely on this Order as authorizing the Receiver to 9 transfer title to the Property as provided in the PSA and as authorized herein; 10 11. This Court shall retain jurisdiction over any dispute involving the Receiver in 11 connection with the sale of the Property; and 12 12. The Receiver shall provide Buyer or Buyer's designee with a certified copy of this 13 Order, as entered by the Court, directly or through escrow, at least five (5) days before Close of 14 Escrow, or as provided for in the PSA, and Buyer or Buyer's designee shall acknowledge receipt of 15 a copy of this Order, in writing. A certified copy of this Sale Order may be recorded concurrently 16 with the Receiver's Deed or at any time before the close of escrow, provided, however, that failure 17 to record this Order shall not affect the enforceability of this Order, the enforceability and viability 18 of the PSA, or the validity of the Receiver's Deed. 19 20 IT IS SO ORDERED. 21 Dated: /s/ Lawrence J. O’Neill _____ November 1, 2017 UNITED STATES CHIEF DISTRICT JUDGE 22 23 24 25 26 27 28 ORDER APPROVING AND AUTHORIZING RECEIVER'S SALE OF REAL PROPERTY -4-

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