United States of America v. Caraway et al

Filing 254

ORDER APPROVING STIPULATION FOR AUTHORIZATION FOR PRIVATE SALE. Signed by Judge Maxine M. Chesney on 04/26/17. (mmclc2, COURT STAFF) (Filed on 4/26/2017)

1 BRIAN J. STRETCH (CABN 163973)
United States Attorney
2 THOMAS MOORE (ALBN 4305-078T)
Chief, Tax Division
3 CYNTHIA STIER (DCBN 423256)
4 Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
Telephone: [phone]
FAX: [phone]

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Attorneys for the United States of America

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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UNITED STATES OF AMERICA,

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Plaintiff,
v.
DOUGLAS CARAWAY, et al.,
Defendants.

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No. C-08-4371 MMC
STIPULATION FOR AUTHORIZATION FOR
PRIVATE SALE AND [PROPOSED] ORDER
AMENDED

_____________________________)

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This matter came before the Court for hearing on April14, 2017, on two motions filed by

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Defendant Douglas Caraway, a Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) (ECF #226),

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and a Motion for Approval of Private Sale (ECF #238). Counsel for the United States of America,

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Fremont Bank, State of California Franchise Tax Board, Employment Development Department of the

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State of California, and Douglas Caraway were present along with defendant, Douglas Caraway. These

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parties hereby stipulate and agree as follows:

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1.

The Motion for Approval of Private Sale should be granted upon the terms and

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Conditions set forth in this Stipulation below. The Motion for Relief from Order FRCP 60(b)(2)(5) and

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(c)(2) is moot should the Court order a private sale in accordance with the terms set forth in this

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Stipulation setting forth the terms for a private sale.
Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

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2.

The United States filed this action to foreclose federal tax liens on a parcel of real

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property ("Subject Property") located at 734 Neal A venue, San Carlos, California 94070, and described

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in the Official Records in the office of the County Recorder, San Mateo County, California as follows:

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THE NORTHWESTERLY 50 FEET, FRONT AND REAR MEASUREMENTS OF
LOT 2, as shown on that certain map entitled "REDWOOD HEIGHTS QUARTER
ACRES, A SUBDIVISION OF LOTS 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 ofREDWOOD
HEIGHTS NEAR REDWOOD CITY, SAN MATEO COUNTY, CALIFORNIA", which
map was filed in the office of the Recorder of the County of San Mateo, State of California,
on June 16, 1919, in Book 10 of Maps at page 20.

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APN 051-142-140

JPN 051-014-142-14

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3.

By Judgment and Decree of Sale entered February 22, 2017 (ECF #224), this

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Court entered Judgment in favor of the United States and against Douglas Caraway for unpaid federal

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income taxes for: 1) tax years 1999 through 2004, inclusive, the sum of$163,897.25 plus statutory

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additions which have and will continue to accrue as provided by law from December 7, 2010 until paid;

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and 2) tax years 1995 and 1998 in the sum of $17,73 7.10 plus additions which have and will continue to

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accrue as provided by law from May 25, 2011 until paid. The Court also ordered that the Subject

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Property be offered for public sale pursuant to 28 U.S.C. § 2001 and 2002. The auction is scheduled for

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May 17, 2017.

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4.

The parties agree that the Subject Property can be privately sold for $1,219,000 on or

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before April 29, 2017, pursuant to First American Title Company Escrow No. 4101-5371483, subject to

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the following:

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a.) The sale of the Property shall be free and clear of the interests of: Douglas Caraway; Fremont

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Bank; the State of California Employment Development Department; the State of California

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Franchise Tax Board; the San Joaquin County District Attorney's Office, Family Support

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Division; Chester J. Gilbert; John Eggli; Collection Bureau of America; Amanda Hummel; Fred

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Hummel; Florence Linor Rege, Stephen Caraway; Estate of Lorraine Caraway; Unknown Heirs

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of the Estate of Lorraine Caraway; and Patrick R. Giles.

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1 Disclaimers

oflnterest have been filed by Collection Bureau of America (ECF #102); John
Eggli (ECF #6); C. Thomas Biscardi (ECF #7). Chester Gilbert filed a Disclaimer of Interest by virtue
of the assignment of a Deed of Trust and Assignment of Rents recorded 10/18/1998 and his sole claim to
the subject property is from the abstract of judgment recorded 12/19/00 in the amount of$49,666, plus
Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

2

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b.) Sales proceeds, in the amount of$1,219,000, shall be paid to First American Title Company
Escrow No. 4101-5371483 ("FATC") and the following distributions made:

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i.)

County Taxes from 4/20117 to 7/1/17 in the amount of $749;

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ii.)

County Taxes second installment 2016-2017 plus late charge and redemption fee
in the total amount of$2,129.67;

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iii.)

County documentary transfer tax in the amount of$1,340.00;

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iv.)

Notary/signing fee to FATC of$150;

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v.)

Commission to Keller Williams of$36,570;

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vi.)

Commission to Dwell Realtors, Inc. of$30,475 .00;

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vii.)

Fremont Bank in the total amount of $161,177.72, which includes interest through

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5/1117, re Deed of Trust recorded on 1/15/1992 under instrument No. 1992-

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005345 and Deed of Trust recorded on 1/15/1992 under instrument No. 1992-

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005346;

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viii.)

Chester Gilbert in the amount of$58,932.14 including interest, re Deed ofTrust

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recorded on 10/18/2000 under instrument No. 2000-129987 in favor of Chester J.

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Gilbert by Assignment of Deed of Trust recorded on 8/27/02 urtder instrument

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No. 2002-167963;

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ix.)

United States of America in payment of the February 22, 2017 Judgment entered

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in favor of the United States of America and against Douglas Caraway for unpaid

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federal income taxes for: 1) tax years 1999 through 2004, inclusive, the sum of

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$163,897.25 plus statutory additions computed through May 1, 2017, for total

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sum of$201,874.86; and 2) tax years 1995 and 1998 in the sum of$17,737.10

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plus additions computed through May 1, 2017, for a total of $22,849.29, re lis

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pendens recorded on 1/18/2012 in favor of Plaintiff, United States of America,

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under instrument No. 2012-006130, andre lien recorded in favor of the United

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States of America on 7/7/2008 as instrument No. 2008-052063, lien recorded in

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interes at l.O%(ECF #155). Collectronics, Inc. no longer has a valid lien.
Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

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favor of the United States of America on 2/12/2009 as instrument No. 2009-

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014533, lien recorded in favor of the United States of America on 4/1/15 as

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instrument No. 2015-031300, lien recorded in favor of the United States of

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America on 12/30/15 as instrument No. 2015-136985, lien recorded in favor of

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the United States of America on 2/05/2015 as instrument No. 2015-010297, and

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lien recorded in favor of the United States of America on 4/1/2015 as instrument

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No. 2015-031301;

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x.)

Employment Development Department of the State of California in the total
amount of $79,124.31 for California employment tax liability owed by Douglas

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Caraway dba Caraway Audio for the period from July 1, 1992 through December

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31 , 1995; through April 25, 2017, with interest accruing thereafter at a daily rate

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of0.00010959, until fully paid, re lien in favor ofthe State of California,

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Employment Development Department recorded on 12116/2002 under instrument

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No . 2002-266013 and refiled 11/9/2012 under instrument No. 2012-167013 ;

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xi.)

State of California Franchise Tax Board in the total amount of$74,237.98 through

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4/25/17 , for California income tax liability owed by Douglas Caraway for tax

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years 1995, 1996, 1997, 1999,2000, 2001, re lien in favor ofthe State of

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California Franchise Tax Board recorded on 10/2/2008 as instrument No. 2008-

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110540, lien in favor of the State of California Franchise Tax Board recorded on

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2/28/2011 as instrument No. 2011-024112, and lien in favor of the State of

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California Franchise Tax Board recorded on 12/3/2012 as instrument No.

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2012180939, with interest accruing thereafter at a daily amount of$8.08 until

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paid;

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xii.)

Patrick R. Giles, in the principal amount of$19,618.70, plus interest in the

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amount of$10,786.69, re Judgment in favor of Patrick R. Giles recorded on

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12/29/2011 as instrument No. 2011-162638;

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xiii.)

IRS in the total amount of$41,674.53, which includes interest and statutory
additions through May 1, 2017, for federal income taxes owed by Douglas

Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

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1

Caraway for 2005, 2006, 2007, 2008, 2009, 2010 and 2011, re lien in favor of the

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United States of America recorded on 3/7/2013 as Instrument No. 2013-036505;
xiv.)

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William E. Taggart, in the total sum of$154,444.76, which includes interest

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through, May 1, 2017, re Judgment recorded on 12114/2016 as instrument No.

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2016-132879;
xv.)

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Karen Hawkins, in the total sum of$3,296.92, which includes interest through,

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May 1, 2017, re Judgment in favor of Karen L. Hawkins recorded on 12114/2016

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as instrument No. 2016-132880;
xvi.)

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Deckard Law Firm $71,377.38, re Deed of Trust in favor of the Deckard Law
Firm recorded on 1113/2017 as instrument No. 2017-004344;

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xvii.) Goodman Law Corporation in the total amount of$18,992;

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xviii.) Stephen Caraway, deceased, has no interest in the subject property;

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xix.)

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5.

Remaining balance to Douglas Caraway.

The parties agree that if the sales price of$1 ,219,000 for a private sale is paid to escrow

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on or before April 29, 2017, then the statutory requirements of three appraisals and publication

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notification set forth in 28 U.S .C. § 2001 is waived by all parties.

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6.

The Clerk ofthe Court ofthe Northern District of California is holding $20,000 in

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forfeited funds paid by bidders at auctions of the subject property. Pursuant to Paragraph 8 h of the

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February 22, 2017 Judgment, which provides that if the sale of the subject property to bidders at auction

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fails, "the deposit shall be forfeited and shall be applied to cover the expenses of the sale, including

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commissions due under 28 U.S.C. § 1921(c), with any amount remaining to be applied to the tax

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liabilities of Douglas Caraway at issue herein," the sum of$5,501.41 for auction related costs shall be

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paid to the IRS from the $20,000 in forfeited auction deposits, with the balance of $14,498.59 to be

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deposited into the Registry of the Court and held until further order of this court.

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7.

If Douglas Caraway is unable to comply with the terms of the private sale as set forth

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above, the United States shall sell the property at auction on May 17, 2017, as authorized by this Court's

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Judgment and Decree of Sale entered February 22, 2017 (ECF #224).

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8.

Unless and until the Subject Property is sold, Douglas Caraway and any current or future

Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

5

tenant of the Subject Property shall keep the subject Prope1ty fully insured, shall not conm1it waste or
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allow any other person to commit waste on the Subject Property.
SO STIPULATED:
BRIAN STRETCH
United States Attorney

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Is/ Cvnthia Stier

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CYNTI-DA STIER
Assistant United States Attorney

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Diane Chamberlin Deckard
The Deckard Law Firm
96 North Third Street, Suite 350
San Jose, CA 95112
[phone]
Attorney for Douglas Caraway

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Terrance Lloyd Stinnett
Fremont Bank
39150 Fremont Blvd. 3rd Floor
Fremont, CA 94538
Attorney for Fremont Bank

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~-~

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Is/ Karen W. '-Yiu
Karen W. Yiu
Office of the Attorney General
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
510-879-1245
Attorney for EDD and FIB

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ORDER
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This matter came before the Court for hearing on April 14, 2017, on two motions fi led by
Defendant Douglas Caraway, a Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) (ECF #226),

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Stip For Authorization For Private Sale &
[proposed] Order; C-08-043 71-wfMC.

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tenant of the Subject Prope1ty shall keep the subject Propeliy fully insured, shall not commit waste or
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allow any other person to commit waste on the SubjeCt Prope1ty.
SO STIPULATED:

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BRIAN STRETCH
United States Attomey

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~ Ax'!-~

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' s'
1/cynt1
s
na her ~
CYNTHIA STIER
Assistant United States Attorney

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Diane Chamberlin Deckard
The Deckard Law Firm
96 Nmth Third Street, Suite 350
San Jose, CA 95112
[phone]
Attorney for Douglas Caraway

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Terrance Lloyd Stim1ett
Fremont Bank
39150 Fremont Blvd. 3rd Floor
Fremont, CA 94538
Attorney for Fremont Ban1c

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Is/ Karen W. Yiu
Karen W. Yiu
Office ofthe Attorney General
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
510-879-1245
Attorney for EDD and FTB

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ORDER
This matter came before the Court for hearing on April 14, 2017, on two motions filed by
Defendant Douglas Caraway, a Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) (ECF #226),

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Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

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1 and a Motion for Approval of Private Sale (ECF #238). Counsel for the United States of America,
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Fremont Bank, State of California Franchise Tax Board and Employment Development Department of

having

3 the State of California, and Douglas Caraway, along with his counsel, were present. The Court, after
4

heard arguments and having considered

hearing arguments, and considering all pleadings and documents filed by the parties, IT IS ORDERED,

5 ADJUDGED and AGREED as follows:

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l.

The Motion for Approval of Private Sale is granted upon the terms and conditions set

forth below. The Motion for Relief from Order FRCP 60(b)(2)(5) and (c)(2) to allow a private sale is

8 moot in light of the ruling allowing the private sale.
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2.

The Subject Property may be sold at a private sale for a sales price of$1,219,000, on or

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before April29, 2017, pursuant to First American Title Company Escrow No. 4101-5371483, subject to

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the following:

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a. The sale shall be free and clear of the interests of: Douglas Caraway; Fremont

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Bank; the State of California Employment Development Department; the State of California

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Franchise Tax Board; the San Joaquin County District Attorney's Office, Family Support

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Division; Chester J. Gilbert; John Eggli; Collection Bureau of America; Amanda Hummel; Fred

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Hummel; Florence Linor Rege, Stephen Caraway; Estate of Lorraine Caraway; Unknown Heirs

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of the Estate of Lorraine Caraway; and Patrick R. Giles. The liens, judgment and interests of the

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parties shall attach to the sales proceeds in the same extent, manner and priority as they attached

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to the Subject Property:

Collectronics, Inc.;
^

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b. Sales proceeds, in the amount of$1,219,000, shall be paid to First American

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Title Company Escrow No. 4101-5371483 ("FATC") and the following

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distributions made:

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i.)

County Taxes from 4/20/17 to 7/1/17 in the amount of $749;

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ii.)

County Taxes second installment 2016-20 17 plus late charge and redemption fee
in the total amount of$2,129.67;

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26

iii.)

County documentary transfer tax in the amount of$ 1,340.00;

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iv.)

Notary/signing fee to FATC of$150;

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v.)

Commission to Keller Williams of$36,570;

Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

7

1

vi.)

Commission to Dwell Realtors, Inc. of $30,475;

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vii.)

Fremont Bank in the total amount of$ 161,177.72, which includes interest

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through 5/1/17, re Deed of Trust recorded on 1/15/1992 under instrument No.

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1992-005345 and Deed ofTrust recorded on 1/15/1992 under instrument No.

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1992-005346;

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viii.)

Chester Gilbert in the amount of$58,932.14, including interest, re Deed of Trust

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recorded on 10/18/2000 under instrument No. 2000-129987 in favor of Chester J.

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Gilbert by Assignment of Deed ofTrust recorded on 8/27/02 under instrument

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No. 2002-167963.

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ix.)

United States of America in payment of the February 22, 2017 Judgment entered

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in favor of the United States of America and against Douglas Caraway for unpaid

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federal income taxes for: 1) tax years 1999 through 2004, inclusive, the sum of

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$163,897.25 plus statutory additions computed through May I, 2017, for total

14

sum of$201,874.86; and 2) tax years 1995 and 1998 in the sum of$17,737.10

15

plus additions computed through May 1, 2017, for a total of $22,849.29, re lis

16

pendens recorded on 1118/2012 in favor of Plaintiff, United States of America,

17

under instrument No. 2012-006130, andre lien recorded in favor of the United

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States of America on 7/7/2008 as instrument No. 2008-052063, lien recorded in

19

favor of the United States of America on 2/12/2009 as instrument No. 2009-

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014533, lien recorded in favor ofthe United States of America on 4/1115 as

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instrument No. 2015-031300, lien recorded in favor of the United States of

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America on 12/30115 as instrument No. 2015-136985 , lien recorded in favor of

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the United States of America on 2/05/2015 as instrument No. 2015-010297, lien

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recorded in favor of the United States of America on 4/1/2015 as instrument No.

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2015-031301;

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x.)

Employment Development Department of the State of California in the total

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amount of $79,124.31 for California employment tax liability owed by Douglas

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Caraway dba Caraway Audio for the period from July 1, 1992 through December
Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371 -MMC

8

. 31, 1995; through April25, 2017, with interest accruing thereafter at a daily rate

1

2

of0.00010959, until fully paid, re lien in favor of the State of California,

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Employment Development Department recorded on 12116/2002 under instrument

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No. 2002-266013 and refiled 11/9/2012 under instrument No. 2012-1670 13;

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xi.)

State of California Franchise Tax Board in the total amount of $74,237.98

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through April 25, 2017, for California income tax liability owed by Douglas

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Caraway for tax years 1995, 1996, 1997, 1,999, 2000, 2001, re lien in favor of the

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State of California Franchise Tax Board recorded on 10/2/2008 as instrument No.

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2008-110540, lien in favor of the State of California Franchise Tax Board

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recorded on 2/28/2011 as instrument No. 2011-024112, and lien in favor of the

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State of California Franchise Tax Board recorded on 12/3/2012 as instrument No.

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2012180939, with interest accruing thereafter at a daily amount of$8.08 until

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paid;

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xii.)

Patrick R. Giles, in the principal amount of$19,618.70 plus interest in the amount

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of$10,786.69, re Judgment in favor ofPatrick R. Giles recorded on 12/29/2011 as

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instrument No. 2011-162638;

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xiii.)

IRS in the total amount of$41,674.53, which includes interest and statutory

18

additions through May 1, 2017, for federal income taxes owed by Douglas

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Caraway for 2005, 2006, 2007, 2008, 2009, 2010 and 2011, re lien in favor of the

20

United States of America recorded on 3/7/2013 as Instrument No. 2013-036505;

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xiv.)

William E. Taggart, in the total sum of$154,444.76, which includes interest

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through May 1, 2017, re Judgment recorded on 12/14/2016 as instrument No.

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20 16-132879;

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xv.)

Karen Hawkins, in the total sum of $3,296.92, which includes interest through

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May 1, 2017, re Judgment recorded on 12/14/2016 as instrument No. 2016-

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132880;

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xvi.)

Deckard Law Firm, $71,377.38 re Deed ofTrust in favor of the Deckard Law
Firm recorded on 1/13/2017 as instrument No. 2017-004344;

Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

9

1

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xvii.)

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xviii.) Stephen Caraway, deceased, has no interest in the subject property;

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xix.)

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3.

Goodman Law Corporation in the total amount of$18,992;

Remaining balance to Douglas Caraway.

If the private sale for $1,219,000 is paid to escrow on or before April 29, 2017, then the

are
_
^

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statutory requirements of three appraisals and publication notification set forth in 28 U.S.C. § 2001 is

7

waived by all parties.

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9

4.

The Clerk of the Court of the Northern District of California is holding $20,000 in

forfeited funds paid by bidders at auctions of the subject property. Pursuant to Paragraph 8 h of the

10

February 22, 2017 Judgment, which provides that if the sale of the subject property to bidders at auction

11

fails, "the deposit shall be forfeited and shall be applied to cover the expenses of the sale, including

12

commissions due under 28 U.S .C. § 1921(c), with any amount remaining to be applied to the tax

13

liabilities of Douglas Caraway at issue herein," the sum of $5,501.41 for auction related costs shall be

14

paid to the IRS from the $20,000 in forfeited auction deposits, with the balance of $14,498.59 to be

15

deposited into the Registry of the Court and held until further order of this court. If Douglas Caraway is

16

unable to comply with the terms of the private sale as set forth above, the United States shall sell the

17

property at auction on May 17, 2017, as authorized by this Court's Judgment and Decree of Sale entered

18

February 22, 2017 (ECF #224).

19

5.

Unless and until the Subject Property is sold, Douglas Caraway and any current or future

20

tenant of the Subject Property shall keep the subject Property fully insured, shall not commit waste or all

21

any other person to commit waste on the Subject Property. ·

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SO ORDERED this _ _ _ day of _ _ _ _ _ _ _ , 2017.
April
26th
BY THE COURT:

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MAXINE M. CHESNEY
United States District Judge

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Stip For Authorization For Private Sale &
[proposed] Order; C-08-04371-MMC

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