United States of America v. Real property located at 105 Three Hills Road, Hayfork, California, APN: 019-530-23-00 et al

Filing 23

STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr on 2/29/12 ORDERING that the defendant properties be sold pursuant to the terms set forth above in the Stipulation for Interlocutory Sale; the net proceeds from the sale of the defendant pr operties shall be deposited into the U.S. Department of theTreasury Suspense Account, substituted as the res herein, and held pending further order of the Court; and the forfeiture action pending shall proceed against the substitute res in lieu of the defendant properties sold pursuant to this Stipulation. (Meuleman, A)

1

4

BENJAMIN B. WAGNER
United States Attorney
KEVIN C. KHASIGIAN
Assistant U.S. Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: [phone]

5

Attorneys for the United States

2
3

6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

UNITED STATES OF AMERICA,

12

Plaintiff,

13
14
15
16

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

v.
REAL PROPERTY LOCATED AT 105
THREE HILLS ROAD, HAYFORK,
CALIFORNIA, TRINITY COUNTY,
APN: 019-530-23-00 INCLUDING
ALL APPURTENANCES AND
IMPROVEMENTS THERETO,

17
18
19
20
21
22
23

REAL PROPERTY LOCATED AT 1150
CHROME MINE ROAD, HAYFORK,
CALIFORNIA, TRINITY COUNTY,
APN: 019-530-24-00 INCLUDING
ALL APPURTENANCES AND
IMPROVEMENTS THERETO,
REAL PROPERTY LOCATED AT 241
THREE HILLS ROAD, HAYFORK,
CALIFORNIA, TRINITY COUNTY,
APN: 019-530-26-00 INCLUDING
ALL APPURTENANCES AND
IMPROVEMENTS THERETO,

24
25
26
27

REAL PROPERTY LOCATED AT 1180
CHROME MINE ROAD, HAYFORK,
CALIFORNIA, TRINITY COUNTY,
APN: 019-530-27-00 INCLUDING
ALL APPURTENANCES AND
IMPROVEMENTS THERETO, and

28

1

2:11-CV-02738-GEB-DAD
STIPULATION AND ORDER FOR
INTERLOCUTORY SALE OF
DEFENDANT PROPERTIES

Stipulation and Order
for Interlocutory Sale

1
2
3
4

REAL PROPERTY LOCATED AT 1210
CHROME MINE ROAD, HAYFORK,
CALIFORNIA, TRINITY COUNTY,
APN: 019-530-28-00 INCLUDING
ALL APPURTENANCES AND
IMPROVEMENTS THERETO,

5

)
)
)
)
)
)
)
)
)
)

Defendants.

6
7
8
9

The United States and claimants Lapoe Smith and Katherine
Renee Smith hereby agree and stipulate to the following

10

interlocutory sale pursuant to Rule G(7) of the Supplemental

11

Rules for Admiralty or Maritime Claims and Asset Forfeiture

12

Actions:

13

1.

The defendants in this action are described as real

14

property located 105 Three Hills Road, Hayfork, California,

15

Trinity County, APN: 019-530-23-00

16

Mine Road, Hayfork, California, Trinity County, APN: 019-530-24-

17

00 (Parcel No. 2); 241 Three Hills Road, Hayfork, California,

18

Trinity County, APN: 019-530-26-00 (Parcel No. 3); 1180 Chrome

19

Mine Road, Hayfork, California, Trinity County, APN: 019-530-27-

20

00 (Parcel No. 4); and 1210 Chrome Mine Road, Hayfork,

21

California, Trinity County, APN: 019-530-28-00 (Parcel No. 5)

22

including all appurtenances and improvements thereto and more

23

fully described in Exhibit A attached hereto and incorporated

24

herein by reference.

25

2.

(Parcel No. 1); 1150 Chrome

On October 14, 2011, the United States filed a

26

Verified Complaint for Forfeiture In Rem alleging that the

27

defendant properties were subject to forfeiture on the grounds

28

that the properties were involved in or traceable to a violation

2

Stipulation and Order
for Interlocutory Sale

1

of 31 U.S.C. § 5324(a)(3), or any conspiracy to commit such

2

violation, and are therefore subject to forfeiture to the United

3

States pursuant to 31 U.S.C. § 5317(c)(2);

4

properties were used or intended to be used, in any manner or

5

part, to commit, or to facilitate the commission of, a violation

6

of 21 U.S.C. §§ 841 et seq., an offense punishable by more than

7

one year's imprisonment, and are therefore subject to forfeiture

8

to the United States pursuant to 21 U.S.C. § 881(a)(7).

9
10
11

3.

and the real

The record owner of the defendant properties is Lapoe

Smith, a married man as his sole and separate property.
4.

Beginning on November 9, 2011, for at least 30

12

consecutive days, the United States published Notice of the

13

Forfeiture Action on the official internet government forfeiture

14

site www.forfeiture.gov.

15

on December 23, 2011.

16

5.

A Declaration of Publication was filed

On November 11, 2011, Lapoe Smith filed a Verified Claim

17

in this action.

Furthermore, on November 11, 2011, Katherine

18

Renee Smith filed a Verified Claim in this action.

19

9, 2011, Lapoe Smith and Katherine Renee Smith filed a joint

20

Answer.

21

6.

On December

There are no liens against the defendant properties.
In late 2011, the claimants placed the defendant

22

properties on the market to be sold with Sharon Eggleston Real

23

Estate.

24

offer in the amount of $160,000.00 on the defendant properties.

25

Escrow is estimated to close in the middle of March 2012.

26

buyer of the defendant properties are Toua Cheng and Roger Vue.

27
28

7.

On or about January 3, 2012, claimants accepted a sales

The

No other parties have filed claims or answers in this

action, and the time in which any person or entity may file a

3

Stipulation and Order
for Interlocutory Sale

1
2

claim and answer has expired.
8.

The parties herein agree that the proposed sale of

3

defendant properties should proceed pursuant to Paragraphs 9

4

through 20 below.

5

9.

Claimants shall instruct the title/escrow officer, Sandy

6

Pope of First American Title in Redding, California, to wire the

7

net proceeds from the sale of the defendant properties to the

8

U.S. Department of the Treasury and to contact the U.S.

9

Attorney's Office, Asset Forfeiture Unit, to obtain specific

10
11

wiring instructions.
10.

The net proceeds from the sale of the defendant

12

properties will include all money realized from the sale of the

13

defendant properties, except for the following: real estate

14

commissions, amounts due to the holder of any valid lien which

15

was recorded prior to the time the United States' Lis Pendens

16

were recorded, real estate property taxes which are due and

17

owing, insurance costs, and any other miscellaneous costs/fees

18

incurred at closing through escrow.

19

11.

The net proceeds from the sale of the defendant

20

properties shall be wired to the U.S. Department of the Treasury,

21

at the close of escrow, to be deposited in the U.S. Department of

22

the Treasury Suspense Account.

23

as the res in this action and held pending further order of the

24

Court.

25

12.

Said proceeds will be substituted

Claimants will retain custody, control, and

26

responsibility of the defendant properties until the

27

interlocutory sale that is the subject of this Stipulation has

28

been completed.

4

Stipulation and Order
for Interlocutory Sale

1

13.

Each party to this Stipulation shall execute all

2

documents and provide signatures necessary to close escrow, as

3

required by the title company.

4

14.

All parties to this Stipulation hereby release the

5

United States and its servants, agents, and employees from any

6

and all liability arising out of or in any way connected with the

7

posting or sale of the defendant properties.

8

final release applying to all unknown and unanticipated injuries,

9

and/or damages arising out of said posting or sale, as well as to

This is a full and

10

those now known or disclosed.

11

waive the provisions of California Civil Code § 1542.

12

15.

The parties to this Stipulation

Claimants shall maintain the defendant properties in

13

the same condition and repair as existed as of the date of the

14

posting, normal wear and tear excepted, until their custody,

15

control and responsibility have ceased.

16

shall include, but is not limited to, keeping the properties free

17

of hazard and structural defects; keeping all heating, air

18

conditioning, plumbing, electrical, gas, oil, or other power

19

facilities in good working condition and repair; keeping the

20

properties clean and performing such necessary sanitation and

21

waste removal; keeping the properties in good condition by

22

providing for lawn and yard maintenance; and other ordinary and

23

necessary items of routine maintenance.

24

16.

The term "maintain"

Claimants shall maintain all insurance policies

25

currently in effect with respect to the defendant properties,

26

including hazard insurance to cover all buildings and other

27

improvements that are now located on the properties until the

28

interlocutory sale is completed.

5

The insurance must cover loss

Stipulation and Order
for Interlocutory Sale

1

or damage caused by fire, hazards normally covered by "extended

2

coverage" hazard insurance policies, and liability to persons

3

injured on said properties and for property damage to the

4

defendant properties.

5

17.

Except as specifically provided herein, claimants shall

6

not convey, transfer, encumber, lien, or otherwise pledge the

7

defendant properties without the prior, written approval of the

8

United States.

9

18. All parties are to bear their own costs and attorneys'

10

fees.

11

///

12

///

13

///

14

///

15

///

16

///

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

6

Stipulation and Order
for Interlocutory Sale

1

19.

Pending the sale of the property, and the disposition

2

of the proceeds, the parties hereby stipulate that the U.S.

3

District Court for the Eastern District of California, Hon.

4

Garland E. Burrell, Jr., District Judge, shall retain

5

jurisdiction to enforce the terms of this compromise settlement.

6

Dated: 2/27/12

BENJAMIN B. WAGNER
United States Attorney

7
8

By:

9

/s/ Kevin C. Khasigian
KEVIN C. KHASIGIAN
Assistant U.S. Attorney

10
11

DATED: 2/21/12

/s/ LaPoe Smith
LAPOE SMITH
Claimant

12
13
14

ACKNOWLEDGMENT

15

State of

Texas

16

County of

Bexar

17

On
2/21/12
, before me, David Zamarripa
, Notary
Public, personally appeared LaPoe Smith
, who proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.

18
19
20

)
)
)

21
22

I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.

23

WITNESS my hand and official seal.

24
25

Signature /s/ David H. Zamarripa

26

///

27

///

28

DAVID H. ZAMARRIPA
Notary Public, State of Texas
My Commission Expires

///

7

Stipulation and Order
for Interlocutory Sale

1
2

DATED: 2/21/12

/s/ Katherine Smith
KATHERINE RENEE SMITH
Claimant

3
4
5

ACKNOWLEDGMENT

6

State of

Texas

7

County of

Bexar

8

On
2/21/12
, before me, David Zamarripa
, Notary
Public, personally appeared
Katherine R. Smith
, who proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.

9
10
11

)
)
)

12
13

I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.

14

WITNESS my hand and official seal.

15
Signature /s/ David H. Zamarripa

DAVID H. ZAMARRIPA
Notary Public, State of Texas
My Commission Expires

16
17
18
19

Dated: 2-24-12

20
21
22

/s/ David M. Michael
DAVID M. MICHAEL
Attorney for claimants
Lapoe Smith and Katherine
Renee Smith
(Original signatures retained by
attorney)

23

///

24

///

25

///

26

///

27

///

28

///

8

Stipulation and Order
for Interlocutory Sale

ORDER

1
2
3
4

1.

The defendant properties 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

5

properties shall be deposited into the U.S. Department of the

6

Treasury Suspense Account, substituted as the res herein, and

7

held pending further order of the Court.

8
9
10
11
12

3.

The forfeiture action pending shall proceed against the

substitute res in lieu of the defendant properties sold pursuant
to this Stipulation.
IT IS SO ORDERED.
Dated:

February 29, 2012

13
14
15

GARLAND E. BURRELL, JR.
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28

9

Stipulation and Order
for Interlocutory Sale

1
2

Exhibit A

The real property situated in the County of Trinity, State of
California, Described as follows:

3
Parcel No. 1:
4
5
6
7
8
9

Lot 1, Block 23 of Trinity Pines Subdivision, Unit 2, according
to the Official Plat thereof recorded on August 28, 1968 in book
4 of Maps and Surveys pages 109-122 inclusive, in the Office of
the County Recorder of Trinity County.
EXCEPTING THEREFROM one-half (1/2) of all oil, gas and minerals
lying more than 500 feet below the surface thereof, but without
the right of surface entry thereto, as reserved in the Deed
recorded December 29, 1980 in book 214 of Official Records page
328.

10

Parcel No. 2:

11

Lot 2, Block 23 of Trinity Pines Subdivision, Unit 2, according
to the Official Plat thereof recorded on August 28, 1968 in book
4 of Maps and Surveys pages 109-122 inclusive, in the Office of
the County Recorder of Trinity County.

12
13
14
15

EXCEPTING THEREFROM one-half (1/2) of all oil, gas and minerals
lying more than 500 feet below the surface thereof, but without
the right of surface entry thereto, as reserved in the Deed
recorded November 15, 1979 in book 205 of Official Records page
65.

16
Parcel No. 3:
17
18
19
20

Lot 4, Block 23 of Trinity Pines Subdivision, Unit 2, according
to the Official Plat thereof recorded on August 28, 1968 in book
4 of Maps and Surveys pages 109-122 inclusive, in the Office of
the County Recorder of Trinity County.

22

EXCEPTING THEREFROM one-half (1/2) of all oil, gas and minerals
lying more than 500 feet below the surface thereof, but without
the right of surface entry thereto, as reserved in the Deed
recorded September 23, 1974 in book 166 of Official Records page
777.

23

Parcel No. 4:

24

Lot 5, Block 23 of Trinity Pines Subdivision, Unit 2, according
to the Official Plat thereof recorded on August 28, 1968 in book
4 of Maps and Surveys pages 109-122 inclusive, in the Office of
the County Recorder of Trinity County.

21

25
26
27
28

EXCEPTING THEREFROM one-half (1/2) of all oil, gas and minerals
lying more than 500 feet below the surface thereof, but without
the right of surface entry thereto, as reserved in the Deed
recorded January 22, 1979 in book 197 of Official Records page

10

Stipulation and Order
for Interlocutory Sale

1

371.

2

Parcel No. 5:

3

Lot 6, Block 23 of Trinity Pines Subdivision, Unit 2, according
to the Official Plat thereof recorded on August 28, 1968 in book
4 of Maps and Surveys pages 109-122 inclusive, in the Office of
the County Recorder of Trinity County.

4
5
6
7
8

EXCEPTING THEREFROM one-half (1/2) of all oil, gas and minerals
lying more than 500 feet below the surface thereof, but without
the right of surface entry thereto, as reserved in the Deed
recorded July 24, 1978 in book 193 of Official Records page 57.

11

TOGETHER WITH a non-exclusive easement for ingress, egress and
public utilities over those portions of all units of the Trinity
Pines Subdivision that are designated as private streets on the
Maps thereof on file in the office of the County Recorder of
Trinity County, as described in the deed to Michael T. Sheehy, et
ux, recorded December 29, 1980 in book 214 of Official Records
page 328.

12

Affects:

13

16

TOGETHER WITH a non-exclusive easement for ingress, egress and
public utilities over those portions of all units of the Trinity
Pines Subdivision that are designated as private streets on the
Maps thereof on file in the office of the County Recorder of
Trinity County, as described in the deed to C. Max Dougherty, et
ux, recorded November 15, 1979 in book 205 of Official Records
page 65.

17

Affects:

18

21

TOGETHER WITH a non-exclusive easement for ingress, egress and
public utilities over those portions of all units of the Trinity
Pines Subdivision that are designated as private streets on the
Maps thereof on file in the office of the County Recorder of
Trinity County, as described in the deed to Felix V. Bastas, et
al, recorded September 23, 1974 in book 166 of Official Records
page 777.

22

Affects:

23

26

TOGETHER WITH a non-exclusive easement for ingress, egress and
public utilities over those portions of all units of the Trinity
Pines Subdivision that are designated as private streets on the
Maps thereof on file in the office of the County Recorder of
Trinity County, as described in the deed to C. Max Dougherty, et
ux, recorded January 22, 1979 in book 197 of Official Records
page 371.

27

Affects:

28

TOGETHER WITH a non-exclusive easement for ingress, egress and

9
10

14
15

19
20

24
25

Parcel No. 1

Parcel No. 2

Parcel No. 3

Parcel No. 4

11

Stipulation and Order
for Interlocutory Sale

1
2
3

public utilities over those portions of all units of the Trinity
Pines Subdivision that are designated as private streets on the
Maps thereof on file in the office of the County Recorder of
Trinity County, as described in the deed to Dan F. Wallace, et
ux, recorded July 24, 1978 in book 193 of Official Records page
57.

4
Affects:

Parcel No. 5

5
6

APN Nos: 019-530-23-00; 019-530-24-00; 019-530-26-00; 019-530-2700 and 019-530-28-00

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

12

Stipulation and Order
for Interlocutory Sale