United States of America v. Real Property Located at 11786 Miller Peak Road, Oroville, California

Filing 17

STIPULATION and ORDER for Interlocutory Sale of defendant real property signed by Judge John A. Mendez on 1/27/2010. (Matson, R)

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BENJAMIN B. WAGNER United States Attorney SARALYN M. ANG-OLSON, SBN 197404 Special Assistant U.S. Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: [phone] Attorneys for Plaintiff United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff, v. REAL PROPERTY LOCATED AT 11786 MILLER PEAK ROAD, OROVILLE, CALIFORNIA, BUTTE COUNTY, APN: 058-200-075, INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, Defendant.

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2:09-cv-02547-JAM-GGH STIPULATION AND ORDER FOR INTERLOCUTORY SALE OF DEFENDANT REAL PROPERTY

Plaintiff United States of America, by and through Saralyn M. Ang-Olson, Special Assistant United States Attorney for the Eastern District of California, and claimants J. Scott Rader and Susan C. Rader, as trustees of the J. Scott Rader and Susan C. Rader 2006 Trust ("claimants"), by and through their counsel of record, hereby agree and stipulate to the following interlocutory sale pursuant to Rule G(7) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions and 18 U.S.C. § 983(j): ///

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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1.

The defendant in this action is described as real

property located at 11786 Miller Peak Road, Oroville, California, Butte County, APN: 058-200-075, ("defendant real property") more fully described and attached hereto in Exhibit A. 2. On September 11, 2009, the United States filed a

Verified Complaint for Forfeiture In Rem alleging that the defendant real property was subject to forfeiture on the grounds that said real property was used or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of 21 U.S.C. § 841 et seq., an offense punishable by more than one year's imprisonment, and is therefore subject to forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(7). 3. The recorded owners of the defendant real property are

J. Scott Rader and Susan C. Rader, as trustees of the J. Scott Rader and Susan C. Rader 2006 Trust. 4. On October 9, 2009, claimants filed a Verified Statement

of Interest, in their capacity as trustees and on behalf of the beneficiaries of the Trust. Furthermore, on October 29, 2009,

claimants filed an Answer to Complaint for Forfeiture In Rem. There are no liens against the defendant real property. 5. On September 3, 2009, claimants placed the defendant

real property on the market to be sold with Coldwell Banker Ponderosa Real Estate realty. On or about December 16, 2009,

claimants accepted a sales offer in the amount of $215,000.00 on the defendant real property. week of January 25, 2010. Escrow is estimated to close the

The buyer of the defendant real

property is Elizabeth Shayne Brown Trust, Kris Kuzmich, Trustee.

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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6.

No other parties have filed claims or answers in this

action, and the time by which any person or entity may file a claim and answer has expired. 7. The parties herein agree that the proposed sale of

defendant real property should proceed pursuant to Paragraphs 8 through 19 below. 8. Claimants shall instruct the title/escrow officer, Cheri

Hovey, at Mid Valley Title and Escrow to wire the net proceeds from the sale of the defendant real property to the U.S. Marshals Service and to contact the U.S. Attorney's Office, Asset Forfeiture Unit, to obtain specific wiring instructions. 9. The net proceeds from the sale of the defendant real

property will include all money realized from the sale of the defendant real property, except for the following: real estate

commissions, amounts due the holder of any valid lien which was recorded prior to the time plaintiff's Notice of Lis Pendens was recorded, real estate property taxes which are due and owing, or which become a lien prior to the sale of the defendant real property, insurance costs, and any other miscellaneous costs/fees incurred at closing through escrow. 10. The net proceeds from the sale of the defendant real

property shall be wired to the U.S. Marshals Service, at the close of escrow, to be deposited in the Department of Justice Seized Asset Deposit Fund. Said proceeds will be substituted as

the res in this action and held pending further order of the Court. 11. Claimants will retain custody, control, and

responsibility of the defendant real property until the

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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interlocutory sale that is the subject of this Stipulation has been completed. 12. Each party to this Stipulation shall execute all

documents and provide signatures necessary to close escrow, as required by the title company. 13. All parties to this Stipulation hereby release

plaintiff United States of America and its servants, agents, and employees from any and all liability arising out of or in any way connected with the posting, forfeiture, or sale, of the defendant real property. This is a full and final release applying to all

unknown and unanticipated injuries, and/or damages arising out of said posting, forfeiture, or sale, as well as to those now known or disclosed. The parties to this Stipulation waive the

provisions of California Civil Code § 1542. 14. Claimants shall maintain the defendant real property in

the same condition and repair as existed as of the date of the posting, normal wear and tear excepted, until their custody, control, and responsibility have ceased. The term "maintain"

shall include, but is not limited to, keeping the property free of hazard and structural defects; keeping all heating, air conditioning, plumbing, electrical, gas, oil, or other power facilities in good working condition and repair; keeping the property clean and performing such necessary sanitation and waste removal; keeping the property in good condition by providing for lawn and yard maintenance; and other ordinary and necessary items of routine maintenance. 15. Claimants shall maintain all insurance policies

currently in effect with respect to the defendant real property,

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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including hazard insurance to cover all buildings and other improvements that are now located on the property until the interlocutory sale is completed. The insurance must cover loss

or damage caused by fire, hazards normally covered by "extended coverage" hazard insurance policies, and liability to persons injured on said property and for property damage to the defendant real property. 16. Except as specifically provided herein, claimants shall

not convey, transfer, encumber, lien, or otherwise pledge the defendant real property without the prior, written approval of the United States. 17. There was reasonable cause for the posting of the

defendant real property, and the Court may enter a Certificate of Reasonable Cause pursuant to 28 U.S.C. § 2465. 18. fees. 19. Pending the sale of the property, and the disposition All parties are to bear their own costs and attorneys'

of the proceeds, the Court shall maintain jurisdiction to enforce the terms of the final judgment in this action. IT IS SO STIPULATED. Dated: 1/26/2010 BENJAMIN B. WAGNER United States Attorney

/s/ Saralyn M. Ang-Olson SARALYN M. ANG-OLSON Special Assistant U.S. Attorney Attorneys for Plaintiff United States of America /// ///

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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Dated: 1/26/2010

/s/ J. Scott Rader J. SCOTT RADER individually and as Trustee for the J. Scott Rader and Susan C. Rader 2006 Trust

ACKNOWLEDGMENT 6 State of California 7 County of Sonoma 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// /// By /s/ Robert W. MacKenzie ROBERT W. MACKENZIE Attorney for Claimants J. Scott Rader, Susan C. Rader, and the J.Scott Rader and Susan C. Rader 2006 Trust Dated: 1/26/10 MACKENZIE LAND LAW I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature /s/ Patricia Mlekus
P A T R I C I A MLEKUS Commission #1683376 Notary Public - California S o n o m a County M y Comm. Expires July 23, 2010

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On 1-26-2010 , before me, PATRICIA MLEKUS , Notary Public, personally appeared J. SCOTT RADER , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in her/his authorized capacity, and that by her/his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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Dated: 1-26-2010

/s/ Susan C. Rader SUSAN C. RADER individually and as Trustee for the J. Scott Rader and Susan C. Rader 2006 Trust

ACKNOWLEDGMENT State of California County of Sonoma ) ) )

On 1-26-2010 , before me, PATRICIA MLEKUS , Notary Public, personally appeared SUSAN C. RADER , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature /s/ Patricia Mlekus
P A T R I C I A MLEKUS Commission #1683376 Notary Public - California S o n o m a County M y Comm. Expires July 23, 2010

Dated: 1/26/10

MACKENZIE LAND LAW

By

/s/ Robert W. MacKenzie ROBERT W. MACKENZIE Attorney for Claimants J. Scott Rader, Susan C. Rader, and the J.Scott Rader and Susan C. Rader 2006 Trust (Signatures retained by Attorney)

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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ORDER The defendant real property shall be sold pursuant to

the terms set forth above in the Stipulation for Interlocutory Sale. 2. The net proceeds from the sale of the defendant real

property shall be wired to the U.S. Marshals Service to be deposited into the Department of Justice Seized Asset Deposit Fund, substituted as the res herein, and held pending further order of the Court. 3. The forfeiture action pending shall proceed against the

substitute res in lieu of the defendant real property sold pursuant to this Stipulation. IT IS SO ORDERED. Dated: January 27, 2010 /s/ John A. Mendez JOHN A. MENDEZ United States District Court

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Stipulation and Order for Interlocutory Sale of Defendant Real Property

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Parcel One:

Exhibit A (Real Property located at 11786 Miller Peak Road, Oroville, California, Butte County, APN: 058-200-075)
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF BUTTE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:

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Commencing at the Southwest corner of said Section 27; thence along the West line of said Section, North 0E 05' 51" East, 2673.82 feet to the West quarter corner of said Section, and the true point of beginning for the Parcel of land herein described; thence from said true point of beginning, along the West line of said Section, North 0E 05' 51" East, 2005.36 feet to the Southwest corner of the North half of the Northwest quarter of the Northwest quarter of said Section 27; thence along the South line thereof, South 87E 14' 21" East, 1331.69 feet to the Southeast corner of said North half of the Northwest quarter of the Northwest quarter of Section 27; thence South 0E 13' 51" West, 2022.68 feet; thence Excepting therefrom the North half of the Northwest quarter of the Northwest quarter of said Section 27. Also excepting therefrom the following described Parcel of land: Beginning at the Southwest corner of the North half of the Northeast quarter of the Southwest quarter of said Section 27; thence North along the West line of the East half of the West half of said Section 27, a distance of 660 feet, more or less, to a point at the Southwest corner of the land described in the Deed to J. Paul Little and wife, dated September 6, 1973 and recorded December 12, 1973, in Book 1879, Page 369, Official Records of Butte County; thence South 86E 30' 11" East, along the South line of said Section 27, a distance of 1327.82 feet to a point on the North and South centerline of said Section 27; thence South 0E 22' 04" West, along the North and South centerline of said Section 27, a distance of 660 feet, more or less, to a point at the Southeast corner of the North half of the Northeast quarter of the Southwest quarter of said Section 27; thence West along the South line of the North half of the Northeast quarter of the Southwest quarter, a distance of 1320 feet, more or less, to the point of beginning. Also the West half of the West half of Section 27, Township 22 North, Range 4 East, M.D.B. & M. A portion of the West half of Section 27, Township 22 North, Range 4 East, M.D.B. & M., and more particularly described as follows:

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North 86E 29' 04" West, 1327.80 feet to the point of beginning. Also excepting therefrom the following described Parcel of land: Being a portion of the Southwest quarter of Section 27, Township 22 North, Range 4 East, M.D.B. & M., and being more particularly described as follows: Parcel 1, 2, and 3, as shown on that certain Map filed for Record in the Office of the Recorder, County of Butte, State of California, on February 27, 1987, in Book 105 of Maps, at Page(s) 93. Parcel Two:

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Parcel Three: A non-exclusive easement 60 feet in width for road and public utilities as shown on Parcels 1, 2 and 3, of that certain Map filed for Record in the Office of the Recorder, County of Butte, State of California, on February 27, 1987, in Book 105 of Maps, at Page(s) 93.

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Beginning at the Northwest corner of Section 34, Township 22 North, Range 4 East, M.D.B.& M.; thence following along the Northerly boundary line of the Northwest quarter of said Section 34, South 87E 48' 23" East, 637.27 feet to the true point of beginning for the road centerline herein described; thence from said true point of beginning, South 3E 55' 08" East, 67.56 feet; thence South 25E 02' 18" East, 155.35 feet; thence South 37E 52' 48" East, 151.82 feet; thence South 60E 02' 48" East, 278.23 feet; thence South 67E 17' 48" East, 208.01 feet; thence South 86E 11' 34" East, 60.42 feet to a point located 32.0 feet Westerly and at right angles to the Easterly boundary line of the Northwest quarter of the Northwest quarter of said Section 34; thence South 0E 33' 18" East, parallel to and 32.0 feet Westerly of said Easterly boundary line, for a distance of 60.17 feet to a point located in the centerline of the Pinkston County Road; thence North 0E 33' 18" West, 60.17 feet; thence North 86E 11' 34" West, 60.42 feet; thence North 67E 17' 48" West, 208.01 feet; thence North 60E 02' 48" West, 278.23 feet; thence North 37E 52' 48" West, 151.82 feet; thence North 25E 02' 18" West, 155.35 feet; thence North 3E 55' 08" West, 67.56 feet to a point located in the aforesaid Northerly boundary line of the Northwest quarter of Section 34, (said point being the true point of beginning for the road centerline described herein); thence continuing North 3E 55' 08" West 25.14 feet to a point located 25.0 feet A non-exclusive easement for road and utility purposes, over a strip of land 60.0 feet in width, lying 30.0 feet on each side of the following described road centerline:

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Northerly and at right angles to said Northerly boundary line of the Northwest quarter of Section 34; thence North 87E 48' 23" West, parallel to and 25.0 feet Northerly of said Northerly boundary line of the Northwest quarter of Section 34, for 76.52 feet; thence North 54E 57' 03" West, 248.57 feet; thence North 61E 07' 33" West, 197.0 feet; thence North 65E 10' 53" West, 200.63 feet to a point located in the Westerly boundary line of the Southwest quarter of said Section 27; thence South 65E 10' 53" East, 200.63 feet; thence South 61E 07' 33" East, 197.0 feet; thence South 54E 57' 03" East, 248.57 feet; thence South 87E 48' 23" East, parallel to and 25.0 feet Northerly of the Southerly boundary line of said Southwest quarter of Section 27, for 76.52 feet; thence continuing South 87E 48' 23" East, parallel to said Southerly boundary line of the Southwest quarter of Section 27, 469.14 feet; thence North 61E 31' 42" East, 58.78 feet; thence North 9E 37' 22" East, 402.52 feet; thence North 1E 32' 57" East, 204.78 feet; thence North 29E 23' 53" West, 214.77 feet; thence North 13E 48' 17" East, 202.01 feet; thence North 50E 48' 28" West, 286.0 feet; thence North 53E 10' 08" West, 281.61 feet; thence North 12E 07' 22" East, 257.46 feet; thence North 48E 15' 02" East, 163.63 feet; thence North 37E 50' 12" East, 371.74 feet; thence North 34E 12' 57" East, 444.83 feet; thence North 23E 28' 07" East, 250.96 feet; thence North 70E 49' 32" East, 239.69 feet; thence South 81E 11' 38" East, 425.21 feet; thence South 6E 35' 02" West, 221.46 feet; thence South 85E 03' 42" West, 226.64 feet; thence South 41E 01' 02" West, 202.29 feet; thence South 29E 06' 48" East, 196.05 feet; thence South 54E 56' 58" East, 190.97 feet; thence South 54E 03' 18" East, 155.67 feet; thence North 88E 47' 02" East, 540.0 feet, more or less, to the Easterly boundary line of said Southwest quarter of Section 27; thence South 88E 47' 02" West, 540.0 feet; thence North 54E 03' 18" West, 155.67 feet; thence North 54E 56' 58" West, 190.97 feet; thence North 29E 06' 48" West, 196.05 feet; thence North 41E 01' 02" East, 202.29 feet; thence North 85E 03' 42" East, 226.64 feet; thence North 6E 35' 02" East, 221.46 feet; thence North 81E 11' 38" West, 425.21 feet; thence South 70E 49' 32" West, 239.69 feet; thence North 2E 26' 27" East, 199.09 feet; thence North 47E 31' 07" East, 189.55 feet; thence North 60E 20' 19" East, 322.49 feet; thence South 85E 37' 23" East, 632.69 feet; thence North 35E 22' 33" West, 231.35 feet; thence North 50E 43' 03" West, 147.67 feet; thence North 2E 12' 14" East, 169.18 feet; thence South 30E 53' 18" East, 204.39 feet; thence South 69E 10' 28" East, 280.0 feet, more or less, to the Easterly boundary line of the Northwest quarter of said Section 27 and the end of said road centerline. Excepting therefrom that portion lying within the bounds of Parcel One, described herein. Assessor's Parcel No: 058-200-075

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Stipulation and Order for Interlocutory Sale of Defendant Real Property