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

Filing 362

ORDER Authorizing Receiver's Sale of Real Property Located at 1413 Penny St., Bakersfield, CA 93306 signed by Chief Judge Lawrence J. O'Neill on 3/26/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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12 SECURITIES AND EXCHANGE
COMMISSION,
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Plaintiff,
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v.
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BIC REAL ESTATE DEVELOPMENT
16 CORPORATION and DANIEL R. NASE,
individually and d/b/a BAKERSFIELD
17 INVESTMENT CLUB,
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Case No. 1:16-cv-00344-LJO-JLT
ORDER AUTHORIZING RECEIVER'S SALE
OF REAL PROPERTY LOCATED AT 1413
PENNY ST., BAKERSFIELD, CA 93306
Ctrm:
Judge:

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Hon. Lawrence J. O'Neill

Defendants,

19 BIC SOLO 401K TRUST and MARGARITA
NASE,
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Relief Defendants.
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ORDER
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In accordance with its September 19, 2016 Order Granting Stipulation to Waive
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Requirements of 28 U.S.C. § 2001(a) and (b) in Connection with, and to Establish Sales
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Procedures for, Receiver's Sales of Residential Real Property (the "Stipulation") and the sales
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procedures approved therein (the "Sales Procedures"), this Court has reviewed the March 16,
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2018, Declaration of David P. Stapleton, the Court-appointed receiver (the "Receiver") regarding
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ORDER APPROVING AND
AUTHORIZING RECEIVER'S SALE
OF REAL PROPERTY
1057348.02/LA

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1 his proposed sale of the real property located at and commonly known as 1413 Penny St.,
2 Bakersfield, CA 93306, assessor's parcel number 388-092-04-00-0 (the "Property"). The legal
3 description for the Property is as follows:
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All that certain real property in the County of Kern, State of California, described
as follows:

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THE NORTH 38.5 FEET OF LOT 30 AND THE SOUTH 20.5 FEET OF LOT
29 OF TRACT 1655 IN THE COUNTY OF KERN, STATE OF CALIFORNIA,
AS PER MAP RECORDED DECEMBER 18, 1952 IN BOOK 8, PAGES 40
AND 41 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPTING THEREFROM 50% OF THE MINERALS AND
HYDROCARBON SUBSTANCES THEREON OR UNDERLYING SAID
PROPERTY, TOGETHER WITH THE RIGHT OF THE GRANTORS TO
TAKE ALL OF THE USUAL, NECESSARY AND CONVENIENT MEANS
FOR PROSPECTING, EXPLORING, WORKING AND TAKING AWAY SAID
MINERALS AND/OR HYDROCARBON SUBSTANCES INCLUDING THE
RIGHT OF INGRESS, REGRESS AND EGRESS OVER AND ACROSS SAID
PROPERTY AND TO USE SUCH PARTS OF THE SURFACE OF SAID
PROPERTY AS MAY BE NECESSARY FOR THE RECOVERY OF ALL
OILS OR MINERALS TO BE PRODUCED THEREFROM AS RESERVED BY
ANIDA B. HAFER, A WIDOW AND LOUIS C. PREST IN DEED RECORDED
JUNE 29, 1945 IN BOOK 1248, PAGE 467 OF OFFICIAL RECORDS.

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APN: 388-092-04-00-0

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Having confirmed the Receiver's compliance with the Sales Procedures, and the 15-day
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notice period provided for in the Stipulation having lapsed without objection to the Receiver's
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proposed sale of the Property, this Court orders as follows:
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1.

The terms of the purchase and sale agreement, and all attendant documents

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(collectively, the "PSA"), by and between the Receiver and Esther Romero ("Buyer") in
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connection with the Receiver's proposed sale of the Property to Buyer are approved;
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2.

The Court ratifies the Receiver's execution of the PSA and authorizes the Receiver

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to perform all of his obligations under the PSA;
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ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY
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3.

The Receiver is authorized to sell the Property to Buyer or Buyer's designee, as

2 contemplated in the PSA, in exchange for the aggregate sum of $135,000 subject to the applicable
3 terms of this Order;
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The Receiver is further authorized to pay any commissions provided for in the PSA

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

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

7 or Buyer's designee shall purchase the Property on an "as-is / where-is" basis, without any
8 representations or warranties whatsoever by the Receiver and his agents and/or attorneys
9 including, without limitation, any representations or warranties as to the condition of the Property,
10 except as expressly set forth in the PSA. Buyer or its designee is responsible for all due diligence,
11 including but not limited to inspection of the condition of and title to the Property, and is not
12 relying on any representation or warranty of the Receiver, except as expressly set forth in the PSA;
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6.

In the performance of his obligations pursuant to this Order, the Receiver's liability

14 in connection with the PSA and the sale of the Property to the Buyer shall be limited to the assets
15 of the receivership estate (the "Estate"). Neither the Receiver nor his professionals shall have any
16 personal liability for claims arising out of or relating to the performance of any actions necessary
17 to complete the sale of the Property as provided for herein;
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7.

Provided Buyer or Buyer's designee consents, in writing, the Receiver is hereby

19 authorized to amend or otherwise modify the PSA, in writing, as necessary to complete the sale of
20 the Property in the event that the Receiver determines, in his reasonable business judgment, that
21 such amendment or modification is reasonable and necessary, will benefit the Estate, avoid the
22 imposition of any liability upon the Estate, or is required pursuant to the terms of the PSA or any
23 other amendment or modification thereto, provided that any such amendment or modification does
24 not change the material terms of the contract, including the parties to the PSA and the purchase
25 price for the Property;
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8.

The Receiver is hereby authorized to take all actions and execute all documents

27 necessary to consummate and otherwise effectuate the sale of the
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ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY
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1 Property to Buyer or Buyer's designee, including, but not limited to, the PSA itself, any other
2 documents required to be executed pursuant to the PSA, and any related documentation, escrow
3 instructions, or conveyance documents consistent with selling and conveying title to the Property
4 to Buyer or Buyer's designee. The Receiver shall execute all documents necessary to consummate
5 and otherwise effectuate the sale of the Property as "David P. Stapleton, Court-appointed receiver"
6 or any reasonable variation thereof which clearly identifies the Receiver as a court-appointed
7 receiver;
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The Receiver is hereby authorized to execute and acknowledge a receiver's deed, or

9 similar instrument, conveying title to the Property to Buyer or Buyer's designee (the "Receiver's
10 Deed") to effectuate the conveyance, and cause the Receiver's Deed to be recorded on the date on
11 which close of escrow occurs pursuant to the terms of the PSA, or as determined by and between
12 the Receiver and Buyer or Buyer's designee;
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Any licensed title insurer may rely on this Order as authorizing the Receiver to

14 transfer title to the Property as provided in the PSA and as authorized herein;
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This Court shall retain jurisdiction over any dispute involving the Receiver in

16 connection with the sale of the Property; and
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12.

The Receiver shall provide Buyer or Buyer's designee with a certified copy of this

18 Order, as entered by the Court, directly or through escrow, at least five (5) days before Close of
19 Escrow, or as provided for in the PSA, and Buyer or Buyer's designee shall acknowledge receipt
20 of a copy of this Order, in writing. A certified copy of this Sale Order may be recorded
21 concurrently with the Receiver's Deed or at any time before the close of escrow, provided,
22 however, that failure to record this Order shall not affect the enforceability of this Order, the
23 enforceability and viability of the PSA, or the validity of the Receiver's Deed.
24 IT IS SO ORDERED.
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Dated:

/s/ Lawrence J. O’Neill _____

March 26, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY

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ORDER APPROVING AND AUTHORIZING
RECEIVER'S SALE OF REAL PROPERTY
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