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U.S. v. RESIDENTIAL PROPERTY AT 1663 ALTA VISTA DRIVE

United States District Court, S.D. California


October 4, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
ONE RESIDENTIAL PROPERTY LOCATED AT 1663 ALTA VISTA DRIVE, VISTA, CALIFORNIA, AND ALL IMPROVEMENTS AND APPURTENANCES AFFIXED THERETO, Defendant.

The opinion of the court was delivered by: IRMA GONZALEZ, District Judge

STIPULATED JUDGMENT OF FORFEITURE; ORDER THEREON

The United States of America, by and through its attorneys, Carol C. Lam, United States Attorney, and Mary C. Lundberg, Assistant U.S. Attorney and claimants Margaret Thompson and Lloyd Castleberry, lienholders of real property located at 1663 Alta Vista Drive, Vista, California, and claimants Joe Garcia and Rosa Garcia, owners of record of the residential property located at 1663 Alta Vista Drive, Vista, California, and Richard M. Barnett, attorney of record for Joe and Rosa Garcia stipulate as follows: 1. Claimants Joe and Rosa Garcia have offered to settle the matter of the possible forfeiture of the above-captioned defendant property, 1663 Alta Vista Drive, Vista, California, which is legally described as follows:

THAT PORTION OF LOT 210 OF ORLEAVO HEIGHTS UNIT NO. 4, IN THE CITY OF VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2125, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 7, 1928, DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID LOT 201; THENCE ALONG THE WESTERLY LINE OF SAID LOT, NORTH 20 DEGREES 00'00", WEST 125.12 FEET; THENCE NORTH 49 DEGREES 30'00" EAST, 84.93 FEET; THENCE NORTH 19 DEGREES 00'00" EAST 94.50 FEET; THENCE NORTH 74 DEGREES 52'20" EAST, 32.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 74 DEGREES 52' 20" EAST, 31.19 FEET; THENCE NORTH 01 DEGREES, 23'10" EAST, 176.54 FEET TO AN ANGLE POINT IN THE NORTHWESTERLY BOUNDARY OF SAID LOT 201; THENCE ALONG SAID NORTHWESTERLY BOUNDARY SOUTH 63 DEGREES 30'00" WEST, 105.00 FEET TO A LINE WHICH BEARS NORTH 23 DEGREES 23'20" WEST FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 23 DEGREES 23'20" EAST, 150.11 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 2: AN EASEMENT AND RIGHT OF WAY FOR INGRESS AND EGRESS FOR ROAD AND PUBLIC UTILITY PURPOSES OVER A STRIP OF LAND OF THE UNIFORM WIDTH OF 20.00 FEET, BEING A PORTION OF LOT 201 OF ORLEAVO HEIGHTS UNIT NO. 4, IN THE CITY OF VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2125, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 7, 1928 THE WESTERLY AND NORTHERLY LINE OF SAID EASEMENT IS DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID LOT 201; THENCE ALONG THE WESTERLY LINE OF SAID LOT NORTH 20 DEGREES 00'00" WEST, 125.12 FEET; THENCE NORTH 49 DEGREES 30'00" EAST, 84.93 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 19 DEGREES 00'00" EAST, 94.50 FEET; THENCE NORTH 74 DEGREES 52' 20" EAST, 63.19 FEET; THENCE SOUTH 75 DEGREES 36'50" EAST, 135.45 FEET TO THE SOUTHEASTERLY BOUNDARY OF SAID LOT 201; THE EASTERLY AND SOUTHERLY BOUNDARY OF SAID EASEMENT TO TERMINATE AT IT EASTERLY AND IN THE BOUNDARY OF SAID LOT 201 AND ITS WESTERLY END IN A LINE WHICH BEARS SOUTH 57 DEGREES 40'00" EAST FROM THE TRUE POINT OF BEGINNING.
PARCEL 3: THE WESTERLY 1.00 FOOT OF THAT PORTION OF LOT 201 OF ORLEAVO HEIGHTS, UNIT NO. 4, IN THE CITY OF VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO 2125, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; AUGUST 7, 1928, WHICH LIES EASTERLY AND NORTHERLY OF A LINE, DESCRIBED AS FOLLOWS:
BEGINNING AT AN ANGLE POINT IN THE NORTHERLY LINE OF SAID LOT 201, FROM WHICH THE MOST NORTHERLY CORNER OF SAID LOT BEARS NORTH 84 DEGREES 00'00" EAST 111.00 FEET; THENCE SOUTH 01 DEGREES 23'10" WEST, 176.54 FEET; THENCE SOUTH 75 DEGREES 36'50" EAST 135.45 FEET TO THE SOUTHEASTERLY BOUNDARY OF SAID LOT.
  2. The United States Department of Justice has agreed to settle this matter on the following terms and conditions:

  A. The parties agree that the United States Marshals Service (hereinafter "USMS")will market and sell the defendant property as soon as is practicable. The defendant property will be listed with a licensed real estate broker selected by the USMS.

  B. The offering price for the property shall be determined by the USMS and will be consistent with a recent appraisal or updated appraisal by a California-licensed certified real estate appraiser in conformance with professional standards. Claimant's counsel shall be advised of the proposed offering price and provided a copy of the appraisal. If claimants disagree with the value of the defendant property as determined by the appraiser retained by the USMS or with the proposed offering price, they shall have the right, at their own expense, to have the property reappraised by a California-licensed certified real estate appraiser of their own choosing. However, in order to exercise this option, claimants must notify Assistant U.S. Attorney Mary Lundberg, in writing, of their intention to have the property reappraised no later then seven days after their attorney receives a copy of the government's appraisal. If the claimants decide to have the property reappraised, that appraisal must be completed and submitted to the government no later then 30 days after their attorney receives a copy of the governments appraisal. Claimants agree that they waive their right to object to the offering price set by the USMS if they fail to conform to the above stated time frame. If, after a review of claimant's new appraisal, the parties are still unable to agree on an offering price for the defendant property, the Honorable Jan M. Adler shall select an independent California licensed certified real estate appraiser from a list of appraisers which the parties have submitted to him. The selected appraiser will perform a third appraisal of the property. The cost of this third appraisal will be split equally between the United States and claimants Joe and Rosa Garcia. If the parties are still unable to agree on an offering price after review of the third appraisal, Magistrate Judge Adler will determine the offering price for the defendant property based upon the written submissions of the parties and the three appraisals. No hearings will be held on the matter. The parties agree that Magistrate Judge Adler's order setting the offering price will not be appealed.

  C. The sales price shall be a cash price.

  D. Claimants will be notified of all reasonable offers to purchase the property. The United States and claimants must agree to any sale when the offer to purchase is less then ninety percent (90%) of the offering price. However, the USMS may, in its sole discretion accept any offer to purchase the defendant property that is ninety percent (90%) or more of the offering price. E. Claimants shall promptly execute any and all documents the United States deems necessary to facilitate the sale of the property and the transfer of title.

  F. The net proceeds of the defendant property will include all money realized from the sale except for the following;

  a. real estate commissions, if any;

  b. the amounts due lienholders Margaret Thompson and Lloyd Castleberry pursuant to a deed of trust recorded in San Diego County, No. 89-638493, dated November 27, 1989;

  c. the amounts due the holder of any other valid lien which was recorded at the San Diego County Recorder's Office prior to the time plaintiff's Notice of Lis Pendens was recorded;

  d. real estate property taxes due and owing;

  e. insurance costs, if any;

  f. escrow fees;

  g. document recording fees not paid by the buyer;

  h. title fees;

  i. County transfer taxes;

  j. any and all costs incurred by the USMS incident to this Complaint For Forfeiture and to the seizure, custody, control, and maintenance of the defendant property and the miscellaneous costs of sale not accounted for in subparagraphs a to i above. These costs shall be reimbursed to the USMS from the proceeds of the sale prior to a determination of net proceeds. The USMS shall keep a record of the costs under this subparagraph j.

  k. no lien for attorneys fees will be paid and no attorneys fees and costs submitted to escrow will be paid. G. After payment of all of the above listed liens, costs, and fees, twenty five percent (25%) of the net proceeds from the sale of the property, if any, shall be distributed to claimants Joe and Rosa Garcia through their attorney of record, Richard M. Barnett.

  H. The remaining seventy-five percent (75%) of the net proceeds shall be condemned and forfeited to the United States.

  4. The person or persons who made the arrests, searches, and seizures, the United States, and the prosecutor shall not be liable to suit or judgment on account of such actions in accordance with Title 28, United States Code, Section 2465. Claimants, Margaret Thompson and Lloyd Castleberry and Joe Garcia and Rosa Garcia agree that by entering into this stipulation, they have not "substantially prevailed" within the meaning of 28 U.S.C. § 2465. Except as described above, each party shall bear its own costs and expenses, including attorney fees.

  5. The claimants, their agents, employees, or assigns, hold and save harmless the United States of America, its agents and employees, from any and all claims which might result from the arrest, custody, control, and maintenance of the above-described defendant. 6. The signature pages of this stipulation may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

  ORDER

  Having reviewed the foregoing Stipulation and good cause appearing therefor,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that:
The Stipulated Judgment of Forfeiture is APPROVED.
  1. Claimants Joe and Rosa Garcia and the United States have settled the matter of the possible forfeiture of the defendant property, 1663 Alta Vista Drive, Vista, Ca. Pursuant to the settlement the defendant property will be sold according to the agreed upon terms and conditions and the net proceeds from the sale distributed as stipulated.

  2. The United States Marshals Service ("USMS") shall market and sell the defendant property as soon as is practicable. The defendant property shall be listed with a licensed real estate broker selected by the USMS.

  3. The offering price for the property shall be determined by the USMS and will be consistent with a recent appraisal or updated appraisal by a California-licensed certified real estate appraiser in conformance with professional standards. Claimant's counsel shall be advised of the proposed offering price and provided a copy of the appraisal. If claimants disagree with the value of the defendant property as determined by the appraiser retained by the USMS or with the proposed offering price, they shall have the right, at their own expense, to have the property reappraised by a California-licensed certified real estate appraiser of their own choosing. However, in order to exercise this option, claimants must notify Assistant U.S. Attorney Mary Lundberg, in writing, of their intention to have the property reappraised no later then seven days after their attorney receives a copy of the government's appraisal. If the claimants decide to have the property reappraised, that appraisal must be completed and submitted to the government no later then 30 days after their attorney receives a copy of the governments appraisal. Claimants agree that they waive their right to object to the offering price set by the USMS if they fail to conform to the above stated time frame. If, after a review of claimant's new appraisal, the parties are still unable to agree on an offering price for the defendant property, the Honorable Jan M. Adler shall select an independent California licensed certified real estate appraiser from a list of appraisers which the parties have submitted to him. The selected appraiser will perform a third appraisal of the property. The cost of this third appraisal will be split equally between the United States and claimants Joe and Rosa Garcia. If the parties are still unable to agree on an offering price after review of the third appraisal, Magistrate Judge Adler will determine the offering price for the defendant property based upon the written submissions of the parties and the three appraisals. No hearings will be held on the matter. The parties agree that Magistrate Judge Adler's order setting the offering price will not be appealed.

  4. The sales price shall be a cash price.

  5. Claimants shall be notified of all reasonable offers to purchase the property. The United States and claimants must agree to any sale when the offer to purchase is less then ninety percent (90%) of the offering price. However, the USMS may, in its sole discretion accept any offer to purchase the defendant property that is ninety percent (90%) or more of the offering price.

  6. Claimants shall promptly execute any and all documents the United States deems necessary to facilitate the sale of the property and transfer of title.

  7. The net proceeds of the defendant property shall include all money realized from the sale except for the following;

  a. real estate commissions, if any;

  b. the amounts due lienholders Margaret Thompson and Lloyd Castleberry pursuant to a deed of trust recorded in San Diego County, No. 89-638493, dated November 27, 1989;

  c. the amounts due the holder of any other valid lien which was recorded at the San Diego County Recorder's Office prior to the time plaintiff's Notice of Lis Pendens was recorded;

  d. real estate property taxes due and owing;

  e. insurance costs, if any;

  f. escrow fees;

  g. document recording fees not paid by the buyer;

  h. title fees;

  i. County transfer taxes;

  j. any and all costs incurred by the USMS incident to this Complaint For Forfeiture and to the seizure, custody, control, and maintenance of the defendant property and the miscellaneous costs of sale not accounted for in subparagraphs a to i above. These costs shall be reimbursed to the USMS from the proceeds of the sale prior to a determination of net proceeds. The USMS shall keep a record of the costs under this subparagraph j.

  k. no lien for attorneys fees will be paid and no attorneys fees and costs submitted to escrow will be paid.

  8. After payment of all of the above listed liens, costs, and fees, twenty five percent (25%) of the net proceeds from the sale of the property, if any, shall be distributed to claimants Joe and Rosa Garcia through their attorney of record, Richard M. Barnett. 9. The remaining seventy-five percent (75%) of the net proceeds is hereby condemned and forfeited to the United States.

  10. The person or persons who made the arrests, searches, and seizures, the United States, and the prosecutor shall not be liable to suit or judgment on account of such actions in accordance with Title 28, United States Code, Section 2465. Claimants, Margaret Thompson and Lloyd Castleberry and Joe Garcia and Rosa Garcia agree that by entering into this stipulation, they have not "substantially prevailed" within the meaning of 28 U.S.C. § 2465. Except as described above, each party shall bear its own costs and expenses, including attorney fees.

  11. The claimants, their agents, employees, or assigns, hold and save harmless the United States of America, its agents and employees, from any and all claims which might result from the arrest, custody, control, and maintenance of the above-described defendant.

  12. This case is hereby ordered closed. Let judgment be entered accordingly.

20051004

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