United States Of America v. Agullana et al

Filing 55

STIPULATION FOR ENTRY OF ORDER OF SALE (whalc2, COURT STAFF) (Filed on 9/2/2008)

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney THOMAS MOORE (ASBN 4305-O78T) Assistant United States Attorney 10th Floor Federal Building 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: [phone] Attorneys for United States of America

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the reason that the ninety-seven year old mother of the Agullana defendants recently moved from the subject real property, it can now be sold as previously ordered . However, because real property values have decreased, it is necessary that the ordered sale of the property be made pursuant to specified terms and conditions to reduce or eliminate buyer uncertainty so that a fair price may be obtained at the sale of the subject property. For the foregoing reasons it is hereby stipulated by and between plaintiff United States of America and defendants, individually or through their respective counsel, that the sale of the subject real property be made pursuant to the following terms and conditions; 1. Pursuant to 28 U.S.C., §§ 2001 and 2002 and 26 U.S.C. §§ 7402 and 7403, the Court UNITED STATES OF AMERICA, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) Plaintiff, ) ) v. ) ) JESSIE AGULLANA, et al., ) ) Defendants. ) ____________________________________) Case No. C-04-2016-WHA STIPULATION FOR ENTRY OF ORDER OF SALE

rules and orders as follows: 2. Jessie and Rosalinda Agullana own the property which is the subject of this suit is real

property located at 32530 Sheila Way, Union City, California, (hereinafter referred to as the

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("Property") and as described in the Official Records in the office of the County Recorder, Alameda County, California, as follows: Lot 33, Tract 3475, Filed January 3, 1974, Map book 81, Page 93, Alameda County Records. A.P.N. 483-0110-011 3. The United States Marshal for the Northern District of California, his/her representative,

6 or an Internal Revenue Service Property Appraisal and Liquidation Specialist ("PALS"), is authorized 7 and directed under 28 U.S.C. §§ 2001 and 2002 to offer for public sale and to sell the Property. The 8 United States may choose either the United States Marshal or a PALS to carry out the sale under this 9 order and shall make the arrangements for any sale as set forth in this Order. 10 4 11 free access to the Property and to take all actions necessary to preserve the Property, including, but not 12 limited to, retaining a locksmith or other person to change or install locks or other security devices on 13 any part of the property, until the deed to the Property is delivered to the ultimate purchaser(s). 14 5. 15 a. 16 Rosalinda Agullana; State of California Franchise Tax Board; County of Alameda Tax Collector; 17 Beneficial California, Inc., dba as Beneficial Finance; Aaron, Mueller & Sinclair, and Michael 18 Cosentino. 19 b. 20 and governmental regulations (including building and zoning ordinances) affecting the property, and 21 easements and restrictions of record, if any; 22 c. 23 is located, on the Property's premises, or at any other place in accordance with the provisions of 28 24 U.S.C. §§ 2001 and 2002; 25 d. 26 representative, or a PALS; 27 e. 28
Stipulation for Entry of Order of Sale (NO. C-04-2016-WHA)

The Marshal, his or her representative, or a PALS representative is authorized to have

The terms and conditions of the sale of the Property are as follows: the sale of the Property shall be free and clear of the interests of Jessie and

the sale shall be subject to the building lines, if established, all laws, ordinances,

the sale shall be held at the courthouse of the county or city where the Property

the date and time for sale are to be announced by the United States Marshal, his

notice of the sale shall be published once a week for at least four consecutive

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weeks before the sale in at least one newspaper regularly issued and of general circulation in Alameda County, and at the discretion of the Marshal, his representative, or a PALS, by any other notice deemed appropriate. The notice shall contain a description of the property and shall contain the terms and conditions of the sale in this order of sale; f. the minimum bid will be set by the United States of America. If the minimum

bid is not met or exceeded, the Marshal, his or her representative, or a PALS may, without further permission of this court, and under the terms and conditions in this order of sale, hold a new public sale, if necessary, and reduce the minimum bid or sell to the second highest bidder; g. the successful bidder(s) shall be required to deposit at the time of the sale with

the Marshal, his representative, or a PALS a minimum of Ten Thousand Dollars ($10,000), with the deposit to be made by a certified or cashier's check payable to the Marshal, his representative, or a PALS, whoever conducted the sale. Before being permitted to bid at the sale, bidders shall display to the Marshal, his/her representative, or a PALS proof that they are able to comply with this requirement. No bids will be received from any person(s) who have not presented proof that, if they are the successful bidder(s), they can make the deposit required by this order of sale; h. the balance of the purchase price for the Property is to be paid to the United

States Marshal or a PALS (whichever person is conducting the sale) within twenty (20) days after the date the bid is accepted, by a certified or cashier's check payable to the Marshal, his representative, or a PALS, whoever is conducting the sale. If the bidder fails to fulfill this requirement, the deposit shall be forfeited and shall be applied to cover the expenses of the sale, including commissions due under 28 U.S.C. § 1921(c), with any amount remaining to be applied to the tax liabilities of Jessie and Rosalinda Agullana at issue herein. The Property shall be again offered for sale under the terms and conditions of this order of sale. The United States may bid as a credit against its judgment without tender of cash; i. the sale(s) of the property shall be subject to the confirmation by this Court. The

Marshal or a PALS shall file a report of sale with the Court, together with a proposed order of confirmation of sale and proposed deed, within 20 days from the date of the balance of the purchase price;
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 redemption. 6.

k.

on confirmation of the sale, all interests in, liens against, or claims to, the

property that are held or asserted by all parties to this action (as stated in (a) above) are discharged and extinguished; l. on confirmation of the sale, the recorder of deeds Alameda County, California

shall cause transfer of the properties to be reflected on upon that county's register of title; and m. the sale is ordered pursuant to 28 U.S.C. § 2001, and is made without right of

Until the Property is sold, defendants Jessie and Rosalinda Agullana shall take all

reasonable steps necessary to preserve the properties (including all building improvements, fixtures and appurtenances on the property) in its current condition, including, without limitation, maintaining a fire and casualty insurance policy on the property. They shall neither commit waste against the property nor cause or permit anyone else to do so. They shall neither do anything that tends to reduce the value or marketability of the property, nor cause or permit anyone else to do so. They shall not record any instruments, publish any notice, or take any other action (such as running newspaper advertisements or posting signs) that may directly or indirectly tend to adversely affect the value of the property or that may tend to deter or discourage potential bidders form participating in the public auction, nor shall they cause or permit anyone else to do so. 7. All persons occupying the Property shall leave and vacate the property permanently

within sixty (60) days of the date of this Order, each taking with them his or her personal property (but leaving all improvements, buildings, fixtures and appurtenances to the property). If any person fails or refuses to leave and vacate the property by the time specified in this Order, the United States Marshal's Office, alone, is authorized to take whatever action it deems appropriate to remove such person(s) from the premises, whether or not the sale of such property is being conduction by a PALS. If any person fails or refuses to remove his or her personal property from the property by the time specified herein, the personal property remaining on the property thereafter is deemed forfeited and abandoned, and the United States Marshal's Office is authorized to remove it and to dispose of it in any manner it deems appropriate, including sale, in which the proceeds of the sale are to be applied first to the expenses of the sale and the balance to be distributed pursuant to further Order of this Court. See, e.g., U.S. v.
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Burdline, 205 F.Supp.2d 1175, 1180-81 (W.D. Wash. 2002) (ordering sale proceeds from tax foreclosure to be distributed first to allowed costs of sale); cf. 26 U.S.C. § 6342 (providing that, where the United States seizes and sells property in satisfaction of a federal tax lien, the proceeds of the sale shall be used first to pay "the expenses of levy and sale"). The proceeds arising from sale are to be held and distributed by the United States Marshal or PALS, whoever sold the real property, pursuant to the Order confirming the sale of the Property and ordering disbursal of the sale proceeds.

JERRY BROWN Attorney General /s/ Karen W. Yiu KAREN W. YIU Counsel for California Franchise Tax Board /s/ John Vaught JON VAUGHT VAUGHT & BOUTRIS, LLP Counsel for Jessie & Rosalinda Agullana /s/ Michael Cosentino MICHAEL COSENTINO

JOSEPH P. RUSSONIELLO United States Attorney /s/ Thomas Moore THOMAS MOORE Assistant United States Attorney /s/ Claude Kolm CLAUDE KOLM Counsel for County of Alameda

UNIT ED

20 21 22 23 24 25 26 27 28 Dated:

C AT PURSUANT TO STIPULATION, IT IS TSO ORDERED.

ISTRIC ES D T

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September 2, 2008

ER C N UNITED STATES TDISTRICT JUDGE F D IS T IC O

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Stipulation for Entry of Order of Sale (NO. C-04-2016-WHA)

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