Opinion
No. C05-1309MJP.
February 8, 2006
JOHN McKAY, United States Attorney, RICHARD E. COHEN, Assistant United States Attorney, Seattle, Washington.
JOSEPH A.G. SAKAY, WSBA 24667, JERRY N. EVANS, WSBA 31435 Hillis Clark Martin Peterson, P.S., Seattle, Washington, Attorney for HomeStreet Bank.
EXPEDITED SETTLEMENT AGREEMENT
IT IS HEREBY STIPULATED by and between the Plaintiff, United States of America, by and through John McKay, United States Attorney for the Western District of Washington, and Richard E. Cohen, Assistant United States Attorney for said District, and Claimant, HomeStreet Bank, by and through Joseph A.G. Sakay and Jerry N. Evans, its counsel, to compromise and settle claimant's claim with respect to the defendant real property located at 151 East Boundary Road, Lynden, Washington (Exhibit A — hereinafter "the defendant real property") according to the following terms:
1. The parties to this agreement hereby stipulate that to the extent that the defendant real property was used to facilitate the conspiracy to distribute a controlled substance, to wit, marijuana, in violation of Title 21, United States Code, Section 841(a)(1) and 846, as alleged by plaintiff, this occurred without the knowledge or consent of HomeStreet Bank.
2. Plaintiff agrees that upon sale of the defendant real property by the United States Marshals Service pursuant to entry of a Final Judgment of Forfeiture by this court, and after payment of expenses of custody and sale incurred by the United States Marshals Service, which expenses shall not exceed an amount that will result in HomeStreet Bank receiving less than the below-described amounts, the following shall be paid to claimant, HomeStreet Bank from the proceeds of the sale of the defendant real property:
a. All unpaid principal due to HomeStreet Bank in the amount of $43,341.97 as of December 7, 2005, pursuant to the Deed of Trust recorded October 14, 2003, in the official record of Whatcom County, State of Washington, as document #2031003363, and as fully described in the Notice of Claim by HomeStreet Bank on file herein.
b. All unpaid interest in the amount of $827.98 together with interest accruing at a per diem of $7.87 from December 8, 2005, until the date of payment.
c. Reconveyance and recording fees of $85.00, uncollected late charges $32.02, NSF charges $20.00., attorney's fees and costs $7,126.26.
3. The payment to HomeStreet Bank shall be in full settlement and satisfaction of any and all claims by HomeStreet Bank to the defendant real property named in the above-captioned forfeiture action and all claims, except as specified in paragraph 6 below, resulting from the incidents or circumstances giving rise to this forfeiture action.
4. Upon payment, HomeStreet Bank agrees to assign and convey its security interest to the United States of America via recordable documents and to release and hold harmless the United States, and any agents, servant, and employees of the United States (and any involved state or local law enforcement agencies and their agents, servants, or employees), in their individual or official capacities, from any and all claims by HomeStreet Bank and its agents that currently exist or that may arise as a result of the Government's actions against and relating to the defendant real property.
6. As a part of this settlement, upon signing of this agreement and approval of the agreement by the court, HomeStreet Bank agrees not to pursue any other rights it may have under the mortgage instrument, including but not limited to any right to foreclose upon and sell the defendant real property and any right to assess additional interest or penalties.
7. HomeStreet Bank understands and agrees that by entering into this Expedited Settlement of its interest in the defendant real property, it waives any rights to litigate further against the United States its interest in the defendant real property and to petition for remission or mitigation of the forfeiture. If this Agreement is approved by the court, then unless specifically directed by an order of the court, HomeStreet Bank shall be excused and relieved from further participation in this action.
8. HomeStreet Bank understands and agrees that the United States reserves the right to void the expedited settlement agreement if, before payment of the mortgage or lien, the United States Attorney obtains new information indicating that the mortgagee or lienholder is not an "innocent owner" or "bona fide purchaser" pursuant to the applicable forfeiture statutes. In the event the United States obtains any such information, the United States Attorney also reserves the right, in its discretion, to terminate the forfeiture at any time and release the subject property. In either event, the Government shall promptly notify HomeStreet Bank of such action. A discretionary termination of forfeiture shall not be a basis for any award of fees under Title 28, United States Code, Section 2465.
9. HomeStreet Bank agrees to execute further documents, to the extent necessary, to convey clear title to the property to the United States and to implement further the terms of this settlement. Each party agrees to bear its own costs and fees, except as expressly set forth herein.
10. Payment to HomeStreet Bank pursuant to this settlement agreement is contingent upon forfeiture of the defendant property to the United States, the Court's entry of a final judgment of forfeiture, and sale of the defendant property.
ORDER
This Stipulated Expedited Settlement Agreement between the United States of America and HomeStreet Bank is hereby approved.EXHIBIT A
LEGAL DESCRIPTION:THAT PTN OF LOT 2 NOTEBOOM SHORT PLAT REC BOOK 12 SHORT PLATS PG 5 DAF-TR IN GOVT LOT 4 DAF-BEAP ON N LI OF GOVT LOT 4 528 FT W OF NE COR-TH W 120 FT-TH S 290 FT-TH E 120 F-TH N 290 FT TO POB
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