Opinion
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, San Francisco, California, Attorneys for United States of America.
KAREN W. YIU, California Attorney General's Office, Attorney for State of CA, Franchise Tax Board, and Employment Development Department.
BOB HAROCHE, Beyers Costin, Santa Rosa, California, Attorney for Lois Rust, James, Beyers, Nancy Case, Beyers Costin, (Successor to Beyers, Costin & Case),
PETER CHURCHILL, Novato, CA, Attorney for Kimberley Beary.
TARA MUREN, CIR Law Office, LLP, San Diego, CA, Attorney for Unifund CCR Partners,
MICHAEL WALSH, General Counsel, Equable Assent Financial, LLC, Buffalo Grove, IL.
AMENDED STIPULATION and [ PROPOSED ] ORDER
PHYLLIS J. HAMILTON, Judge.
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 Equable Assent Financial, LLC, 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 an interest in the Subject Property by virtue of the Deed of Trust recorded in the Official Records of Sonoma County, California on March 2, 1992, Instrument No. 92-022702.
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 and her attorneys Beyers Costin et al, claim 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. Equable Assent Financial, LLC, owner of the Judgment Lien of Columbia Credit Services, Inc., claims an interest in the Subject Property by virtue of Columbia Credit Services, Inc.'s 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.
A.P. # XXX-XXX-XX.
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, including those listed in Exhibit A hereto as liens number 4, 5, 15, 17, 18, 21, 22, 24, 25, 27-40, inclusive, and those Lis Pendens listed therein as item number 41, 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 disburse the net proceeds to:
The Clerk of the United States District Court shall maintain the net proceeds in an interest-bearing account pending receipt of further order(s) 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, including those listed in Exhibit A hereto as liens number 6, 7, 8, 10, 11, 12 and 14, 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 disburse the net proceeds to:
The Clerk of the United States District Court shall maintain the net proceeds in an interest-bearing account pending receipt of further order(s) 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 against the Subject Property, including those listed in Exhibit A hereto as liens number 9, 13, 44 and 45, 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 the Tax Liens attached to the Subject Property; and Escrow Agent shall disburse the net proceeds to:
The Clerk of the United States District Court shall maintain the net proceeds in an interest-bearing account pending receipt of further order(s) of the District Court.
D. Lois Rust, and her attorneys Beyers Costin, et al. 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, including those listed in Exhibit A hereto as lien numbers 16, 19, 20 and 23, 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 disburse the net proceeds to:
The Clerk of the United States District Court shall maintain the net proceeds in an interest-bearing account pending receipt of further order(s) of the District Court.
E. Equable Assent Financial, LLC, owner of the Judgment Lien of Columbia Credit Services, Inc., 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 Columbia's Judgment Lien filed against the Subject Property, including that listed in Exhibit A hereto as lien number 42, provided that the said 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 disburse the net proceeds to:
The Clerk of the United States District Court shall maintain the net proceeds in an interest-bearing account pending receipt of further order(s) 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 Liens filed against the Subject Property, including that listed in Exhibit A hereto as lien number 43, provided that the Unifund 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 disburse the net proceeds to:
The Clerk of the United States District Court shall maintain the net proceeds in an interest-bearing account pending receipt of further order(s) of the District Court.
G. The parties hereby authorize Escrow Agent to pay from the sales proceeds received in the Escrow, Bank of America, successor to Security Pacific Bank, it's successor or assignee, by virtue of that Deed of Trust recorded in the Official Records of Sonoma County, California on March 2, 1992, as instrument XX-XXXXXX, and also identified in Exhibit A as Item 2. The costs, listed and described in the Escrow Agent's Statement of Settlement Costs, which will be subject to approval by counsel for the United States and counsel for the State of California, Employment Development Department and Franchise Tax Board.
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.
IT IS SO ORDERED.