United States of America v. Beary et al

Filing 169

STIPULATION AND ORDER re 168 Stipulation filed by United States of America. Signed by Judge Phyllis J. Hamilton on 8/19/09. (nah, COURT STAFF) (Filed on 8/19/2009)

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JOSEPH RUSSONIELLO (CSBN 44332) United States Attorney THOMAS MOORE (ASBN 4305-O78T) Assistant United States Attorney Chief, Tax Division
CYNTHIA STIER (DCBN 423256) Assistant United States Attorney 9th Floor Federal Building 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: [phone] Attorneys for United States of America IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERICA, Plaintiff, v. LOUIS G. BEARY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. 06-5838 PJH STIPULATION and [PROPOSED] ORDER

This Stipulation and Order Allowing Sale of Real Property Free and Clear of Liens is to be made effective as of August 24, 2009, between Plaintiff, United States of America, and Defendants, Kimberley A. Beary a/k/a Kimberley Ann Beary, both individually and as Trustee U.D.T. (Under Declaration of Trust); State of California, Franchise Tax Board; State of California, Employment Development Department; Bank of America N.A.; and Lois Rust, and creditors Unifund CCR Partners and Columbia Credit Services, as follows: 1. Plaintiff, United States of America, on behalf of its agency the Internal

Revenue Service, claims an interest in the subject real property described more fully below (hereinafter, "Subject Property") by virtue of its Notices of Federal Tax Lien recorded in the Official Records of Sonoma County. 2. Bank of America is a national banking association organized and existing under

the laws of the United States of America and doing business in the State of California, and claims

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an interest in the Subject Property by virtue of its Deed of Trust recorded in the Official Records of Sonoma County, California on February 10, 1992. 3. State of California, Franchise Tax Board claims an interest in the Subject Property

by virtue of its Tax Liens recorded in the Official Records of Sonoma County. 4. State of California, Employment Development Department claims an interest in

the Subject Property by virtue of its Tax Liens recorded in the Official Records of Sonoma County. 5. Asta Funding Palisades Collection successor in interest to Providian National

Bank, holder and assignee of the judgment awarded to Providian Bank, has disclaimed any interest in the Subject Property by virtue of its disclaimer filed January 8, 2007, in this action. 6. Citibank South Dakota N.A. has disclaimed any interest in the Subject Property by

virtue of its disclaimer filed January 30, 2007, in this action. 7. Lois Rust claims an interest in the Subject Property by virtue of its judgment

liens recorded in the Official Records of Sonoma County. 8. Unifund CCF Partners c/o CIR Law Offices, LLP claims an interest in the

Subject Property by virtue of its judgment lien recorded in the Official Records of Sonoma County. 9. Columbia Credit Services, Inc. claims an interest in the

Subject Property by virtue of its judgment lien recorded in the Official Records of Sonoma County. 10. The Subject Property is commonly known as 8781 Petaluma Hill Road,

Penngrove, California, and is more particularly described as follow:
AN UNINCORPORATED AREA IN THE COUNTY OF SONOMA, STATE OF CALIFORNIA: Beginning at a 8-inch by 8-inch post which marks the Southeast corner of a lot conveyed by C.F. Maass to Sophie C. Stenmetz, as recorded in Book 296 of Deeds, page 239, Sonoma County Records, which point of beginning is also the Northeast corner of the lot hereby conveyed, all being with Township 5 North, Range 7 West, County of Sonoma, State of California, run 200.00 feet South along the West boundary line of county Road to a wooden stake; thence continuing along said line of county Road, to a second wooden stake, 200.00 feet; thence 647.9 feet, North 89° 42' West, to a wooden stake at a board fence; thence 200.0 feet north 0 degrees 10' West, along board fence to a wooden stake; thence continuing North 0° 10' West 200.0 feet on said line to a stake at intersection of board fence and a wire fence; thence 649.3 feet, south 89° 42' East along wire fence, to a point of beginning on the County Road line.
US v. Louis Beary, et. al., Case No. C06-5838 PJH Stipulation and [proposed] Order

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A.P. # 047-091-06.

IT IS HEREBY STIPULATED and AGREED, subject to the Court's approval, by and between Plaintiff, United States of America, and Defendants, Kimberley A. Beary a/k/a Kimberley Ann Beary, both individually and as Trustee U.D.T. (Under Declaration of Trust); State of California, Franchise Tax Board; State of California, Employment Development Department; Bank of America N.A.; and Lois Rust, and creditors Unifund CCR Partners and Columbia Credit Services, that: A. The Internal Revenue Service shall discharge the Subject Property from

its Notices of Federal Tax Lien to the extent required to allow Kimberley Beary to convey title to the Subject Property to Buyer, pursuant to the Contract and through the Escrow, free and clear of all Notices of Federal Tax Lien filed against the Subject Property, provided that the Notices of Federal Tax Lien shall attach to the Net Proceeds of the sale of the Subject Property which remain in Escrow Agent's possession after payment of the amounts described in paragraph G below ("Net Proceeds") to the same extent, validity and priority as the Notices of Federal Tax Lien attached to the Subject Property; and Escrow Agent shall maintain the Net Proceeds in an interest-bearing account to be held in trust pending receipt of further order of the District Court. B. State of California, Employment Development Department shall release its Tax

Liens to the extent required to allow Kimberley Beary to convey title to the Subject Property to Buyer, pursuant to the Contract and through the Escrow, free and clear of all Employment Development Department Tax Liens filed against the Subject Property, provided that the Employment Development Department's Tax Liens shall attach to the Net Proceeds of the sale of the Subject Property which remain in Escrow Agent's possession after payment of the amounts described in paragraph G below ("Net Proceeds") to the same extent, validity and priority as Tax Liens attached to the Subject Property; and Escrow Agent shall maintain the Net Proceeds in an interest-bearing account to be held in trust pending receipt of further order of the District Court. C. State of California, Franchise Tax Board shall release its Tax Liens to the extent

required to allow Kimberley Beary to convey title to the Subject Property to Buyer, pursuant to the Contract and through the Escrow, free and clear of all Franchise Tax Board Tax Liens filed
US v. Louis Beary, et. al., Case No. C06-5838 PJH Stipulation and [proposed] Order

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against the Subject Property, provided that the Franchise Tax Board's Tax Liens shall attach to the Net Proceeds of the sale of the Subject Property which remain in Escrow Agent's possession after payment of the amounts described in paragraph G below ("Net Proceeds") to the same extent, validity and priority as Tax Liens attached to the Subject Property; and Escrow Agent shall maintain the Net Proceeds in an interest-bearing account to be held in trust pending receipt of further order of the District Court. D. Lois Rust shall release its Judgment Liens to the extent required to allow

Kimberley Beary to convey title to the Subject Property to Buyer, pursuant to the Contract and through the Escrow, free and clear of all Lois Rust's Judgment Liens filed against the Subject Property, provided that the Lois Rust Judgment Liens shall attach to the Net Proceeds of the sale of the Subject Property which remain in Escrow Agent's possession after payment of the amounts described in paragraph G below ("Net Proceeds") to the same extent, validity and priority as the judgment liens attached to the Subject Property; and Escrow Agent shall maintain the Net Proceeds in an interest-bearing account to be held in trust pending receipt of further order of the District Court. E. Columbia Credit Services, Inc. ("Columbia" hereafter) shall release its Judgment

Lien to the extent required to allow Kimberley Beary to convey title to the Subject Property to Buyer, pursuant to the Contract and through the Escrow, free and clear of all Columbia's Judgment Lien filed against the Subject Property, provided that the Columbia Judgment Lien shall attach to the Net Proceeds of the sale of the Subject Property which remain in Escrow Agent's possession after payment of the amounts described in paragraph G below ("Net Proceeds") to the same extent, validity and priority as the judgment liens attached to the Subject Property; and Escrow Agent shall maintain the Net Proceeds in an interest-bearing account to be held in trust pending receipt of further order of the District Court. F. Unifund CCF Partners c/o CIR Law Offices, LLP ("Unifund" hereafter), shall

release its Judgment Lien to the extent required to allow Kimberley Beary to convey title to the Subject Property to Buyer, pursuant to the Contract and through the Escrow, free and clear of all Unifund's Judgment Lien filed against the Subject Property, provided that the Unifund Judgment
US v. Louis Beary, et. al., Case No. C06-5838 PJH Stipulation and [proposed] Order

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Lien shall attach to the Net Proceeds of the sale of the Subject Property which remain in Escrow Agent's possession after payment of the amounts described in paragraph G below ("Net Proceeds") to the same extent, validity and priority as the judgment liens attached to the Subject Property; and Escrow Agent shall maintain the Net Proceeds in an interest-bearing account to be held in trust pending receipt of further order of the District Court. G. The parties hereby authorize Escrow Agent to pay from the sales proceeds received in the Escrow, Bank of America, its successor or assignee, by virtue of its Deed of Trust recorded in the Official Records of Sonoma County, California on February 10, 1992, also identified in the Preliminary Title Report of First American Title Company dated June 17, 2009, Item 5. The costs, listed and described in the Escrow Agent's Statement of Settlement Costs, will be subject to approval by counsel for the United States and for the State of California, Employment Development Department and Franchise Tax Board, and will be addressed by further order of the Court. H. In the event the Escrow is cancelled or terminated for any reason, other than the

failure of a party or parties to perform their obligation(s) as stated herein, this Stipulation and the Order of the Court thereon shall be void, null and of no effect. I. This Stipulation and Order is intended to be, and shall be accepted by the escrow

agent, as escrow instructions. J. By signing below, each of the undersigned persons represents that he or she is

authorized to execute this Stipulation on behalf of the entity identified below and that he or she fully understands its contents. Respectfully submitted, JOSEPH RUSSONIELLO United States Attorney Dated: August 13, 2009 : /s/ Cynthia Stier CYNTHIA STIER Assistant U.S. Attorney Attorneys for the United States of America

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US v. Louis Beary, et. al., Case No. C06-5838 PJH Stipulation and [proposed] Order

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Dated: August 4, 2009

:

/s/ KAREN W. YIU California Attorney General's Office Attorney for State of CA Franchise Tax Board and Employment Development Department

Dated: : August 4, 2009 :

/s/ RICHARD CHARLES O'HARE Beyers Costin 200 Fourth Street, Suite 400 P.O. Box 878 Santa Rosa, California 95402 Attorney for Lois Rust : /s/ PETER CHURCHILL 1682 Novato Blvd. Suite 350 Novato, CA 94947 Attorney for Kimberley Beary /s/ CIR Law Office, LLP 8665 Gibss Drive, Ste. 150 San Diego, CA 92123 Attorney for Unifund CCR Partners

Dated: : August 4, 2009

Dated: : August 12, 2009 : 13 14 15 16 Dated: : August 5, 2009 : 17 18 19 20 21 22 23 24 25 26 27 28
US v. Louis Beary, et. al., Case No. C06-5838 PJH Stipulation and [proposed] O rd e r

/s/ Hilco Receivables 5 Revere Drive, Suite 206 Northbrook, IL 60062 Attorney for Columbia Credit Services

SO ORDERED:

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____________________________________ THE HONORABLE PHYLLIS n HAMILTON o J. UNITED STATESlis J. Hamilt JUDGE DISTRICT hyl Judge P

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