USA v. Real Property located at 8804 Sailfish Bay, Sacramento, California, Sacramento County, APN: 115-1720-0192-0000 et al

Filing 57

STIPULATION and ORDER signed by Chief District Judge Kimberly J. Mueller on 3/5/2020. The stipulation re interlocutory sale of the real property is granted. The real property 6010 Power Inn Road, Sacramento, California, Sacramento County, APN: 038- 0071-011-0000, more fully described above, will be sold pursuant to the terms set forth above. The net proceeds from the sale of the real property will be substituted as the res herein and held by the U.S. Marshal Service, pending further order of the Court. (Mena-Sanchez, L)

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MCGREGOR W. SCOTT
United States Attorney
KEVIN C. KHASIGIAN
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: [phone]

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Attorneys for the United States

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 UNITED STATES OF AMERICA,
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2:18-CV-00751-KJM-CKD

Plaintiff,
v.

14 REAL PROPERTY LOCATED AT 8804
SAILFISH BAY, SACRAMENTO,
15 CALIFORNIA, SACRAMENTO COUNTY,
APN: 115-1720-0192-0000, INCLUDING ALL
16 APPURTENANCES AND IMPROVEMENTS
THERETO,
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REAL PROPERTY LOCATED AT 9085
18 COBBLE FIELD DRIVE, SACRAMENTO,
CALIFORNIA, SACRAMENTO COUNTY,
19 APN: 121-0700-093-0000, INCLUDING ALL
APPURTENANCES AND IMPROVEMENTS
20 THERETO,

STIPULATION AND ORDER RE
INTERLOCUTORY SALE OF
REAL PROPERTY LOCATED AT
6010 POWER INN ROAD

21 REAL PROPERTY LOCATED AT 13390
IVIE ROAD, GALT, CALIFORNIA,
22 SACRAMENTO COUNTY, APN: 152-0270005-0000, INCLUDING ALL
23 APPURTENANCES AND IMPROVEMENTS
THERETO,
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REAL PROPERTY LOCATED AT 1950
25 ESTEREL WAY, SACRAMENTO,
CALIFORNIA, SACRAMENTO COUNTY,
26 APN: 052-0270-001-0000, INCLUDING ALL
APPURTENANCES AND IMPROVEMENTS
27 THERETO,
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Stipulation and Order for Interlocutory Sale of Real Property

1 REAL PROPERTY LOCATED AT 21
JEANROSS COURT, SACRAMENTO,
2 CALIFORNIA, SACRAMENTO COUNTY,
APN: 052-0270-015-0000, INCLUDING ALL
3 APPURTENANCES AND IMPROVEMENTS
THERETO,
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REAL PROPERTY LOCATED AT 5935 64TH
5 STREET, SACRAMENTO, CALIFORNIA,
SACRAMENTO COUNTY, APN: 027-02966 006-0000, INCLUDING ALL
APPURTENANCES AND IMPROVEMENTS
7 THERETO,
8 REAL PROPERTY LOCATED AT 6010
POWER INN ROAD, SACRAMENTO,
9 CALIFORNIA, SACRAMENTO COUNTY,
APN: 038-0071-011-0000, INCLUDING ALL
10 APPURTENANCES AND IMPROVEMENTS
THERETO,
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Defendants.

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The United States of America and lien holders Loan Simple, Inc., and Prober & Raphael agree

15 and stipulate to the following interlocutory sale pursuant to Rule G(7) of the Supplemental Rules for
16 Admiralty or Maritime Claims and Asset Forfeiture Actions:
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1.

The defendant property subject to this stipulation is Real Property located at 6010 Power

18 Inn Road, Sacramento, California, Sacramento County, APN: 038-0071-011-0000, including all
19 appurtenances and improvements thereto (“defendant property”), and more fully described as:
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THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
SACRAMENTO, COUNTY OF SACRAMENTO, STATE OF CALIFORNIA AND IS DESCRIBED
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AS FOLLOWS:
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ALL THAT PORTION OF LOT 1, AS SHOWN ON THE "PLAT OF SOUTH SACRAMENTO
GARDENS", RECORDED IN BOOK 14 OF MAPS, MAP NO. 40, RECORDS OF SAID
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COUNTY, DESCRIBED AS FOLLOWS:
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BEGINNING AT A POINT ON THE EAST LINE OF SAID LOT 1, AND ON THE CENTER
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LINE OF POWER INN ROAD, 60.00 FEET IN WIDTH FROM WHICH THE NORTHEAST
CORNER OF SAID LOT 1 BEARS NORTH 09 DEGREE 05' WEST 50.00 FEET; THENCE
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FROM SAID POINT OF BEGINNING SOUTH 00 DEGREE 04' EAST 40.00 FEET ALONG
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THE EAST LINE OF SAID LOT 1 AND ALONG THE CENTERLINE OF SAID PUBLIC
ROAD; THENCE SOUTH 89 DEGREE 40' WEST 160.00 FEET; THENCE NORTH 00
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Stipulation and Order for Interlocutory Sale of Real Property

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DEGREE 04' WEST 40.00 FEET; THENCE NORTH 89 DEGREE 40' EAST 160.00 FEET TO
THE POINT OF BEGINNING.
2.

On April 3, 2018, the United States filed a Verified Complaint for Forfeiture In Rem

4 alleging that the defendant property, including any right, title and interest in the whole of any lot or tract
5 of land and any appurtenances or improvements thereon, is subject to forfeiture to the United States
6 pursuant to 21 U.S.C. §§ 881(a)(6) and 881(a)(7) because it constitutes other things of value furnished in
7 exchange for a controlled substance or listed chemical, or proceeds traceable to such an exchange, and/or
8 was used and intended to be used to commit or facilitate a violation of 21 U.S.C. §§ 841 et seq.
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3.

The recorded owner of the defendant real property is Vo Huu Duc Nguyen.

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4.

Beginning on April 20, 2018, for at least thirty consecutive days, the United States

11 published Notice of the Forfeiture Action on the official internet government forfeiture site
12 www.forfeiture.gov. A Declaration of Publication was filed on May 21, 2018. (ECF No. 14)
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5.

The defendant property was posted with a copy of the Verified Complaint for Forfeiture In

14 Rem and Notice of the Complaint on July 23, 2018, by the U.S. Marshals Service. See Process Receipt
15 and Return filed July 25, 2018. (ECF No. 33).
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6.

In addition to the public notice on the official internet government forfeiture site

17 www.forfeiture.gov, actual notice or attempted notice was given to the following individual(s):
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a.

Vo Huu Duc Nguyen

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b.

Loan Simple, Inc.

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7.

On January 29, 2020, lien holders Loan Simple, Inc. and Prober & Raphael filed a claim

21 (ECF No. 55). The Note is presently in default as a result of Vo Huu Duc Nguyen’s failure to make the
22 regular monthly payment due on May 1, 2018 and has continuously been in default since May 11, 2018.
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8.

Vo Huu Duc Nguyen has not filed a claim or answer. The Clerk of the Court entered a

24 Clerk’s Certificate of Entry of Default against Xiulan Yang on July 26, 2018. (ECF No. 36)
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9.

No other parties have filed claims or answers in this matter as to the defendant property,

26 and the time in which any person or entity may file a claim and answer has expired. .
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10.

The parties agree that the U.S. Marshals Service (or a designee) shall be authorized to sell

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Stipulation and Order for Interlocutory Sale of Real Property

1 the defendant property in accordance with the terms and conditions of this Stipulation pursuant to the
2 paragraphs below.
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The U.S. Marshals Service (or a designee) shall list and sell the defendant property, in the

4 most commercially feasible manner, as soon as reasonably possible, for the maximum price. Through the
5 sale of the defendant property, the United States shall receive the net proceeds, less payments for costs of
6 selling the property, cleanup, other expenses incurred, and any legitimate liens that exist on the defendant
7 property.
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a.

The U.S. Marshals Service shall have the defendant property appraised by a

9 licensed appraiser of its choosing. The U.S. Marshals Service and the appraiser may have access to the
10 defendant property and structures, buildings, or storage sheds thereon upon 24 hours telephonic notice.
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b.

If necessary, the U.S. Marshals Service, and any real estate broker employed by

12 the U.S. Marshals Service, shall have the right to put a "lock box" on the property to facilitate the
13 marketing and sale of the defendant property.
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c.

The following costs, expenses and distributions shall be paid in escrow from the

15 gross sales price in the following priority and to the extent funds are available:
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i.

The costs incurred by the U.S. Marshals Service to the date of close of
escrow, including the cost of posting, service, advertising, and
maintenance.

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ii.

Any unpaid real property taxes which are due and owing.

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iii.

A real estate commission not to exceed the U.S. Marshals Service
contractual brokerage fee.

iv.

The seller shall pay any county transfer taxes.

v.

To claimant Loan Simple, Inc.- a sum to satisfy an indebtedness under the
Deed of Trust recorded in the official records of Sacramento County
Document Number 201801301246 on January 30, 2018, in the principal
amount of $213,750.00 plus all unpaid interest at the contractual (not
default) rate, plus any advances and costs incurred by Loan Simple, Inc., up
to the date of the payoff of the loan, including, but not limited to reasonable
attorney’s fees, any insurance advances, and tax advances on the defendant
property. As of January 15, 2020, the total amount due and owing under
the note is $241,014.89.

vi.

To the United States of America: the net proceeds from the sale of the
defendant property after payment has been made to lien holder Loan
Simple, Inc. All right, title, and interest in said funds shall be
substituted for the defendant real property and forfeited to the United States
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Stipulation and Order for Interlocutory Sale of Real Property

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pursuant to 18 U.S.C. §§ 881(a)(6) and 881(a)(7), to be disposed of
according to law.

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d.

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Any liens or encumbrances against the defendant property that appear on record

4 subsequent to the recording of plaintiff's lis pendens documents on April 9, 2018, and prior to the close of
5 escrow may be paid out of escrow. The United States may pay any such lien or encumbrance at its sole
6 discretion.
e.

The costs of a lender's policy of title insurance (ALTA policy) shall be paid for by

f.

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All loan fees, "points" and other costs of obtaining financing shall be paid for by

8 the buyer.
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10 the buyer of the defendant property.
g.

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Each party shall execute all documents necessary to close escrow, if such

12 signatures are required by the title insurer.
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12.

The net proceeds from the sale of the defendant property will be deposited in the

14 Department of Justice Seized Asset Fund and substituted as the property in this action pending a final
15 judgment in this case.
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13.

Each party to this Stipulation shall execute all documents and provide signatures

17 necessary to close escrow, as required by the title company.
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14.

All parties to this Stipulation hereby release the United States and its servants, agents, and

19 employees from any and all liability arising out of or in any way connected with the posting or sale of the
20 defendant property. This is a full and final release applying to all unknown and unanticipated injuries,
21 and/or damages arising out of said posting or sale, as well as to those now known or disclosed. The
22 parties to this Stipulation waive the provisions of California Civil Code § 1542, which provides:
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A general release does not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the debtor.

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15.

All parties are to bear their own costs and attorneys' fees in connection with the sale of the

26 defendant property and the preparation of this stipulation.
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16.

Pending the sale of the defendant property, and the disposition of the proceeds, the Court

28 shall maintain jurisdiction to enforce the terms of this stipulation.
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Stipulation and Order for Interlocutory Sale of Real Property

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17.

The interlocutory sale of the defendant property, the substitution of the net sales proceeds

2 in the civil case, and this stipulation shall not affect any rights or remedies the parties may have to litigate
3 their claims to the property.
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IT IS SO STIPULATED

5 Dated: 2/3/2020

MCGREGOR W. SCOTT
United States Attorney

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By:

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

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10 Dated:

1/31/2020

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/s/ Lee Raphael
LEE RAPHAEL
Attorney for Lienholders Loan Simple, Inc. and
Prober & Raphael

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ORDER FOR INTERLOCUTORY SALE

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

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1.

The stipulation re interlocutory sale of the real property is granted.

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2.

The real property 6010 Power Inn Road, Sacramento, California, Sacramento County,

20 APN: 038-0071-011-0000, more fully described above, will be sold pursuant to the terms set forth above.
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3.

The net proceeds from the sale of the real property will be substituted as the res herein and

22 held by the U.S. Marshal Service, pending further order of the Court.
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IT IS SO ORDERED.

24 DATED: February 5, 2020.
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Stipulation and Order for Interlocutory Sale of Real Property