Bakery and Confectionery Union & Industry International Pension Fund et al v. Wilson et al

Filing 44

STIPULATION AND ORDER RESTRAINING AND ENJOINING DEFENDANTS FROM SELLING OR ENCUMBERING PROMISSORY NOTE (approving 43 ). Signed by Judge Jeremy Fogel on 8/31/2009. (jflc2, COURT STAFF) (Filed on 9/1/2009)

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Katherine McDonough (California Bar No. 241426 ) Kraw and Kraw 605 Ellis Street, Suite 200 Mountain View, California 94043 Telephone: [phone] Facsimile: 650-314-7899 [e-mail]

**E-Filed 9/1/2009**

Counsel for Plaintiff/Judgment Creditor: Bakery and Confectionery Union and Industry International Pension Fund Board of Trustees, Bakery and Confectionery Union and Industry International Pension Fund IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BAKERY AND CONFECTIONERY UNION AND INDUSTRY INTERNATIONAL PENSION FUND, et al. Plaintiffs/Judgment Creditor, vs. WILLIAM ALEXANDER WILSON, III, et al. Defendants/Judgment Debtors.
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Case No.: C09-00256-JF ---------------STIPULATION AND PROPOSED ORDER RESTRAINING AND ENJOINING DEFENDANTS FROM SELLING OR ENCUMBERING PROMISSORY NOTE

Plaintiffs and Judgment Creditors Bakery and Confectionery Union and Industry International Pension Fund ("Pension Fund") and the Defendants and Judgment Debtors William Alexander Wilson, III, Kenneth M. Wilson and their respective living trusts have agreed to entry of an order prohibiting, enjoining and restraining the Judgment Debtors from encumbering, selling, assigning, or in any way disposing of their primary asset, a promissory note executed by Santa Barbara Equities, a general partnership, on July 30, 2008 (Title No. 08-98203909-MC) and a deed of trust on their former property at 1285 Homestead Road, Santa Clara California, 95050. In support of an entry of an order, the parties state as follows: Restraining Order Case No.: C09-00256-JF 1

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On May 13, 2009 this Court ordered judgment in favor of the Plaintiffs in the amount of $338,850, plus reasonable attorney's fees, costs, liquidated damages in the amount of $13,266, and interest in the amount of $9.476.00. An application for attorney fees and costs is still pending before the Court. That judgment remains unsatisfied, but the parties are currently negotiating the payment of the judgment. The judgment debtors herein, Kenneth Wilson, William Alexander Wilson, III, ("Kenneth" and "William") and their respective living trusts owned the building from which Wilson's Jewel Bakery, Inc. did business. In July 2008, Kenneth and William sold that building to Santa Barbara Equities, a general partnership. In exchange for the sale of their building, the judgment debtors received from the buyer a promissory note for $ 2.4 million payable over 15 years with monthly payments of $11,000 for the first ten years and monthly payments of $16,000 for years eleven through fifteen. The promissory note is secured by a deed of trust against the building at 1285 Homestead Road, Santa Clara, California 95050. In order that the Pension Fund's rights as a judgment creditor be protected, the parties have agreed that the judgment debtors will not transfer, sell, encumber or assign the promissory note, or the deed of trust on the 1285 Homestead Road property, unless the Pension Fund agrees in writing or the judgment debtors receive prior authorization from this Court or a bankruptcy court. A district court has authority to enforce its money judgment in accordance with the procedures of the state in which it sits. Fed. R. Civ. P. 69. Under California law, all property of the judgment debtor is subject to enforcement of a money judgment, including an instrument, such as a promissory note, and any rights to payment thereunder. California Code of Civil Procedure 695.010; 700.110. WHEREFORE, the Parties respectfully request entry of an order restraining and enjoining the judgment debtors' interest in the promissory note and deed of trust described herein.

Restraining Order Case No.: C09-00256-JF 2

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Dated: August 28, 2009

KRAW & KRAW /s/ Katherine McDonough Katherine McDonough Counsel for the Plaintiffs/ Judgment Creditors

Dated: August 28, 2009

BINDER & MALTER /s/ Heinz Binder Heinz Binder Counsel for the Defendants/ Judgment Debtors ORDER THEREON

Based on the agreement of the parties and good cause appearing IT IS ORDERED that Defendants and Judgment Debtors, William A. Wilson, III, Kenneth M. Wilson, William A. Wilson, III, Living Trust, Kenneth M. Wilson and Fernanda Wilson Living Trust, are hereby prohibited, restrained, and enjoined from transferring any interest in their rights to the promissory note executed by Santa Barbara Equities on July 30, 2008 (Title No. 08-98203909-MC) (Attached hereto as Exhibit A), and the deed of trust on the property at 1285 Homestead Road Santa Clara, California, 95050, by sale, pledge, mortgage, lien, assignment, grant of security interest, or otherwise encumbering or disposing of the promissory note or deed of trust unless authorized by this Court or a bankruptcy court or agreed to in writing by the Judgment Creditor, Bakery and Confectionery Union and Industry International Pension Fund. This Stipulation and Order does not, in any way, restrain the Defendants from spending or disposing of payments as they are received, nor does it create a lien on the promissory note or the payments thereunder.

Restraining Order Case No.: C09-00256-JF 3

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FAILURE TO COMPLY WITH THIS ORDER MAY SUBJECT YOU TO BEING HELD IN CONTEMPT OF COURT 8/31/2009 Date: _____________________ Honorable Judge Jeremy Fogel

Restraining Order Case No.: C09-00256-JF 4

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ECF ATTESTATION

I, Katherine McDonough, am the ECF user whose ID and Password are being used to file this stipulation and proposed order. In compliance with General Order 45 X.B. I hereby attest that Heinz Binder, counsel for the Defendants, has concurred in this filing.

/s/ Katherine McDonough

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