Sage Point Lender Services, LLC v. Kidd, et al

Filing 12

STIPULATION and ORDER TO LIEN PRIORITY, RELEASE OF LIABILITY AND DISTRIBUTION OF DEPOSITED INTERPLEADED FUNDS signed by Chief Judge Morrison C. England, Jr. on 06/05/15 ORDERING the Clerk to distribute the funds on deposit with the Court registry in this case as detailed in the order (cc: Financial). (Benson, A)

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JOHN A. PERRY, ESQ.
State Bar No. 265951
Law Offices
ROBERT E. WEISS INCORPORATED
920 Village Oaks Drive
Covina, California 91724
Phone [phone]
Facsimile [phone]
[e-mail]
Attorneys for Plaintiff
SAGE POINT LENDER SERVICES, LLC
UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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920 VILLAGE OAKS DRIVE
COVINA, CA 91724
TELEPHONE [phone] – FAX [phone]

Law Offices

ROBERT E. WEISS INCORPORATED

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SAGE POINT LENDER SERVICES,
LLC,

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Plaintiff,

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vs.

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SHARON A. KIDD, INDIVIDUALLY
AND AS ADMINISTRATOR OF THE
ESTATE OF SHELVIE DOUGLAS
KIDD AKA SHELVIE D. KIDD
ALAMEDA PROBATE CASE NO.
RP12634226; GARY KIDD; PEDRO
TRUST aka PATRICK KAY, COTRUSTEE OF THE PEDRO TRUST;
INTERNAL REVENUE SERVICE;
AND DOES 1 THROUGH 20,
INCLUSIVE

CASE NO. 2:15-cv-00175-MCE-EFB
STIPULATION TO LIEN
PRIORITY, RELEASE OF
LIABILITY, AND
DISTRIBUTION OF DEPOSITED
INTERPLEADED FUNDS; AND
ORDER
DEPT:
“7”
BEFORE: HON. MORRISON C.
ENGLAND, JR.

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Defendants.

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Stipulation to Lien Priority, Release of Liability, and Distribution of Deposited Interpleaded Funds;
and Order
Case No. 2:15-cv-00175-MCE-EFB

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IT IS HEREBY STIPULATED AND AGREED by Plaintiff Sage Point Lender

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Services, LLC (“Sage Point”), the United States of America (“United States”), and

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Defendants Sharon Kidd, individually and in her capacity as Successor Trustee of the

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PEDRO Trust, and Gary Kidd (collectively referred to herein as “the Kidds”) that:

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1.

Sage Point, a foreclosure trustee, filed this Interpleader action in

Sacramento County Superior Court on December 17, 2014.
2.

The Interpleader litigation was commenced to resolve conflicting

920 VILLAGE OAKS DRIVE
COVINA, CA 91724
TELEPHONE [phone] – FAX [phone]

“Surplus Funds”), which represents surplus proceeds from the May 28, 2014

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Law Offices

demands for payment of the sum of $141,794.32 (plus accrued interest, if any) (the

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ROBERT E. WEISS INCORPORATED

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foreclosure sale of real property located in the County of Alameda, State of California,

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commonly known as 1232 Oregon Street, Berkeley, CA 94702 (hereinafter the

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“Property”) previously owned by decedent Shelvie Kidd.

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3.

The United States removed this matter from the Superior Court on

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January 22, 2015 pursuant to 28 U.S.C. §§ 1442(a)(1), 1444 and 28 U.S.C. § 2410

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because it involves the collection of revenue and the United States’ claims to enforce

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its federal tax liens against codefendant and claimant Gary Kidd.

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4.

Following the removal to this Court, Sage Point caused the Surplus Funds

to be deposited with the Court registry on March 24, 2015.
5.

Defendants Gary Kidd and Sharon Kidd were named as defendants in this

matter based on their status as heir and claimants to the property of Shelvie Kidd.
6.

The Kidds have each asserted a claim to 50% of the funds at issue in this

matter.
7.

The United States has asserted a claim to a portion of the proceeds based

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upon its rights under the Federal Tax Lien Act and Internal Revenue Code allowing it

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to collect the “property and rights to property” of Gary Kidd in satisfaction of certain

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federal individual income tax liabilities. See Rec. Doc. 5.

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Stipulation to Lien Priority, Release of Liability, and Distribution of Deposited Interpleaded Funds;
and Order
Case No. 2:15-cv-00175-MCE-EFB

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8.

Sharon Kidd asserts herself as the Successor Trustee of the PEDRO

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TRUST.

A true and correct copy of a Certification of Trust, made pursuant to

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California Probate Code Section 18100.5 and executed by Sharon Kidd attesting to her

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status as Successor Trustee of the PEDRO Trust, is attached hereto as Exhibit “1”.

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9.

The PEDRO Trust, through its Successor Trustee, Sharon Kidd, hereby

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disclaims any interest in the deposited Surplus Funds and releases its prior claim

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thereto. The PEDRO Trust hereby consents to the disbursement of the Surplus Funds

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in accordance with Paragraph 13 herein below.

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10.

After due consideration, the parties have stipulated and agreed to a release

920 VILLAGE OAKS DRIVE
COVINA, CA 91724
TELEPHONE [phone] – FAX [phone]

Law Offices

of liability between Sage Point and the Kidds and to the priority of various claims and

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ROBERT E. WEISS INCORPORATED

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distribution of the Surplus Funds currently deposited in the registry of the Court.

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11.

Sage Point and the Kidds, including Sharon Kidd (both individually and

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in her capacity as Successor Trustee of the PEDRO Trust) and Gary Kidd, on behalf of

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themselves, their descendants, ancestors, dependents, heirs, executors, administrators,

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directors, officers, assigns, agents, employees, representatives, attorneys, affiliates and

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successors hereby release and discharge the other party and that parties’ descendants,

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ancestors, dependents, heirs, executors, administrators, directors, officers, assigns, agents,

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employees, representatives, attorneys, affiliates and successors from all rights, claims and

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actions which each party and the above-mentioned successors now have against the other

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party and the above-named successors, stemming from their differences described in the

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underlying Complaint in Interpleader hereof; provided, however, nothing in this

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Agreement shall release, waive, modify or effect Sage Point and/or the Kidds’

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obligations pursuant to the terms contained in this Stipulation.

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12.

A.

Sage Point and the Kidds acknowledge and agree that the release

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they give to the other party upon executing this Agreement applies to

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all claims for injuries, damages, or losses to their own person and

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property, real or personal (whether those injuries, damages, or losses

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Stipulation to Lien Priority, Release of Liability, and Distribution of Deposited Interpleaded Funds;
and Order
Case No. 2:15-cv-00175-MCE-EFB

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are known or unknown, foreseen or unforeseen, patent or latent)

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which that party may have against the other party arising from or in

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conjunction with the distribution of the Surplus Funds that are issue

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in the above-captioned Interpleader litigation. Sage Point and the

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Kidds hereby waive application of California Civil Code § 1542.

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B.

Sage Point and the Kidds certify that they have read and understood
the following provisions of California Civil Code § 1542:

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920 VILLAGE OAKS DRIVE
COVINA, CA 91724
TELEPHONE [phone] – FAX [phone]

Law Offices

“A general release does not extend to claims which the

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ROBERT E. WEISS INCORPORATED

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creditor does not know or suspect to exist in his or her

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favor at the time of executing the release which if known

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by him or her must have materially affected his or her

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settlement with the debtor.”

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C.

Sage Point and the Kidds understand and acknowledge that the

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significance and consequence of this waiver of California Civil Code

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§ 1542 is that even any of the said parties should eventually suffer

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additional damages arising out of the facts referred to in the

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Complaint in Interpleader, that party will not be able to make any

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claim for those damages. Furthermore, said parties acknowledge that

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they consciously intend these consequences even as to claims for

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damages that may exist as of the date of this release but which that

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party does not know exists, and which, if known, would materially

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affect that party’s decision to execute this release, regardless of

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whether that party’s lack of knowledge is the result of ignorance,

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oversight, error, negligence, or any other cause. However, nothing in

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Stipulation to Lien Priority, Release of Liability, and Distribution of Deposited Interpleaded Funds;
and Order
Case No. 2:15-cv-00175-MCE-EFB

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this Stipulation shall release, waive, modify or effect each party’s

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obligations pursuant to the terms contained herein.
13.

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The parties request an Order directing the Clerk to distribute the funds on

deposit with the Court registry in this case as follows:
a.

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First, Sage Point shall receive the sum of $15,989.99 for attorney’s

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fees and costs incurred in the investigation of the priority and

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claims to the Surplus Funds and incurred bringing this Interpleader

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litigation, made payable as follows:
Robert E. Weiss Incorporated Trust Account
C/O John A. Perry, Esq.
920 S. Village Oaks Drive
Covina, California 91724

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920 VILLAGE OAKS DRIVE
COVINA, CA 91724
TELEPHONE [phone] – FAX [phone]

Law Offices

ROBERT E. WEISS INCORPORATED

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b.

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the amount of $28,624.43 with the name “Gary Kidd” and the case

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number indicated in the memo line, mailed to:
Tax FLU, Office of Review
Department of Justice
P.O. Box 310
Ben Franklin Station
Washington DC 20044-0310

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c.

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follows:
Palmieri Trust Account
317 Evelyn Avenue
Roseville, California 95678

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Third, Sharon Kidd shall receive the sum of $63,544.18 in
satisfaction of her claim as heir of Shelvie Kidd, made payable as

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Second, by check made payable to the “United States Treasury,” in

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Stipulation to Lien Priority, Release of Liability, and Distribution of Deposited Interpleaded Funds;
and Order
Case No. 2:15-cv-00175-MCE-EFB

d.

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Fourth, Gary Kidd shall receive the sum of $33,635.72 in

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satisfaction of his claim as heir of Shelvie Kidd, made payable as

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follows:
Palmieri Trust Account
317 Evelyn Avenue
Roseville, California 95678

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e.

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be disbursed equally to Sharon Kidd and Gary Kidd, made payable

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as follows:
Palmieri Trust Account
317 Evelyn Avenue
Roseville, California 95678

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920 VILLAGE OAKS DRIVE
COVINA, CA 91724
TELEPHONE [phone] – FAX [phone]

Law Offices

ROBERT E. WEISS INCORPORATED

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f.

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Fifth, accrued interest on the deposited Surplus Funds, if any, shall

Distribution in this manner is intended to exhaust the funds on
deposit the with the Court registry.

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This Stipulation is intended by the parties to resolve the entirety of the

above-captioned Interpleader litigation.

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Dated: June 1, 2015
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CAROLINE D. CIRAOLO
Acting Assistant Attorney General

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BY:_/s/ Aaron M. Bailey
AARON M. BAILEY
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
Washington, D.C. 20044
[phone]
[phone] (fax)
[e-mail]

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Stipulation to Lien Priority, Release of Liability, and Distribution of Deposited Interpleaded Funds;
and Order
Case No. 2:15-cv-00175-MCE-EFB

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Dated: June 2, 2015

/s/ Pamela Palmieri
PAMELA PALMIERI
317 Evelyn Avenue
Roseville, California 95678
916-899-3669
Attorney for Pedro Trust, Sharon Kidd
and Gary Kidd

Dated: June 2, 2015

/s/ Sharon Kidd
SHARON KIDD
Successor Trustee of PEDRO Trust

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ROBERT E. WEISS INCORPORATED

920 VILLAGE OAKS DRIVE
COVINA, CA 91724
TELEPHONE [phone] – FAX [phone]

Law Offices

ROBERT E. WEISS INCORPORATED

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Dated: June 3, 2015

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BY:/s/ John A. Perry, Esq.
JOHN A. PERRY, ESQ.
Robert E. Weiss Incorporated
920 S. Village Oaks Drive
Covina, California 91724
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Sage Point Lender Services

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THE COURT, having reviewed the foregoing Stipulation, and good cause
appearing,
IT IS SO ORDERED.
Dated: June 5, 2015

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Stipulation to Lien Priority, Release of Liability, and Distribution of Deposited Interpleaded Funds;
and Order
Case No. 2:15-cv-00175-MCE-EFB