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U.S. v. ONE RESIDENTIAL PROPERTY LOCATED AT 456 E.

United States District Court, S.D. California


November 7, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
ONE RESIDENTIAL PROPERTY LOCATED AT 456 E. EL NORTE PARKWAY ESCONDIDO, CALIFORNIA AND ALL IMPROVEMENTS AND APPURTENANCES AFFIXED THERETO, Defendant.

The opinion of the court was delivered by: MARILYN HUFF, District Judge

STIPULATION RECOGNIZING THE INTEREST OF CLAIMANT MIGUEL RIVERA; ORDER THEREON
The United States of America, by and through its attorneys, Carol C. Lam, United States Attorney, and Garry G. Haehnle, Special Assistant U.S. Attorney, and the claimant, Miguel Rivera and Donovan Dunnion, attorney for claimant, stipulate as follows:

  1. That claimant, Miguel Rivera, has a secured interest in the real property commonly known as 456 E. El Norte Parkway, Escondido, California, and All Improvements and Appurtenances Affixed Thereto. The legal description is described as:

That portion of lot 4 of Hillsdale Terrace unit No. 1, in the city of Escondido, County of San Diego, State of California, according to map thereof No. 2607, filed in the office of the county recorder of San Diego County, December 21, 1949, lying southeasterly of a line described as follows: Beginning at the midpoint in the southwesterly line of said lot 4; thence north 69 degrees 41' east parallel with the northwesterly line of said lot, 128.0 feet to the northeasterly line of said lot. San Diego County Assessor's Parcel Number 227-040-32-00.
  2. Miguel Rivera (hereinafter referred to as "Rivera"), is the husband of claimant, Martha Rivera. Rivera and Martha Rivera are named on a Note and Deed of Trust encumbering the Defendant Real Property. The promissory note is dated December 4, 2003, in the principal amount of $107,035.00, and was recorded December 9, 2003, as instrument number 2003-1457600 of the Official Records of San Diego County's Recorder's Office. The loan was made to Miguel Rivera and Martha Rivera. True and correct copies of the Note and Deed of Trust are attached hereto as Exhibit A and incorporated herein by this reference. Title to subject property is vested in Miguel Rivera and Martha E. Rivera, Husband and Wife, as community property.

  3. At the time Rivera acquired the Note and Deed of Trust, he did not know of the conduct giving rise to the forfeiture and had no knowledge as such conduct until served with notice of proceedings.

  4. Rivera's interest in the defendant property is not subject to forfeiture pursuant to Title 21, United States Code, Section 881 (a) (7).

  5. Upon dissolution of this civil forfeiture case, Rivera shall sign recordable documents to release and hold harmless the United States, and any agents, servants 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, including, but not limited to, the Federal Tort Claims Act, 28, U.S.C. §§ 2671-2680, and the Tucker Act, 28 U.S.C. § 1346(b), by Rivera, his agents that currently exist or that may arise as a result of the government's action against and relating to the subject property.

  6. Rivera, his agents, agree to waive any claim to attorney's fees under Title 18 United States Code, Section 2465.

  7. Rivera understands and agrees that by entering into this expedited settlement of his interest in the subject property, he waives any rights to further litigate his interest in the subject property against the United States. If this agreement is approved by the court, then, unless specifically directed by an order of the court, Rivera shall be excused and relieved from further participation in this action.

  8. Rivera understands and agrees that the United States Attorney reserves the right in its discretion to terminate the forfeiture action at any time and release the subject property. In that event, the United States shall promptly notify Rivera of such action. A discretionary termination of forfeiture shall not be the basis for any award of fees under Title 18, United States Code, Section 2465. 9. Any violation, of any terms and conditions of the Stipulated Settlement Agreement shall be construed as a violation of an order of the court. Each party shall bear its own costs and attorneys fees.

  ORDER

  Having reviewed the foregoing Stipulation and good cause appearing,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. The Stipulation is hereby APPROVED;
  2. That claimant, Miguel Rivera, has a secured interest in the real property commonly known as 456 E. El Norte Parkway, Escondido, California, and All Improvements and Appurtenances Affixed Thereto. The legal description is described as:

  That portion of lot 4 of Hillsdale Terrace unit No. 1, in the city of Escondido, County of San Diego, State of California, according to map thereof No. 2607, filed in the office of the county recorder of San Diego County, December 21, 1949, lying southeasterly of a line described as follows: Beginning at the midpoint in the southwesterly line of said lot 4; thence north 69 degrees 41' east parallel with the northwesterly line of said lot, 128.0 feet to the northeasterly line of said lot. San Diego County Assessor's Parcel Number 227-040-32-00. 3. Miguel Rivera (hereinafter referred to as "Rivera"), is the husband of claimant, Martha Rivera. Rivera and Martha Rivera are named on a Note and Deed of Trust encumbering the Defendant Real Property. The promissory note is dated December 4, 2003, in the principal amount of $107,035.00, and was recorded December 9, 2003, as instrument number 2003-1457600 of the Official Records of San Diego County's Recorder's Office. The loan was made to Miguel Rivera and Marta Rivera. True and correct copies of the Note and Deed of Trust are attached hereto as Exhibit A and incorporated herein by this reference.

  4. At the time Rivera acquired the Note and Deed of Trust, he did not know of the conduct giving rise to the forfeiture and had no knowledge as such conduct until served with notice of proceedings.

  5. Rivera's interest in the defendant property is not subject to forfeiture pursuant to Title 21, United States Code, Section 881 (a) (7).

  6. Upon dissolution of this civil forfeiture case, Rivera shall sign recordable documents to release and hold harmless the United States, and any agents, servants 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, including, but not limited to, the Federal Tort Claims Act, 28, U.S.C. §§ 2671-2680, and the Tucker Act, 28 U.S.C. § 1346(b), by Rivera, his agents that currently exist or that may arise as a result of the government's action against and relating to the subject property. 7. Rivera, his agents, agree to waive any claim to attorney's fees under Title 18 United States Code, Section 2465.

  8. Rivera understands and agrees that by entering into this expedited settlement of his interest in the subject property, he waives any rights to further litigate his interest in the subject property against the United States. Rivera shall be excused and relieved from further participation in this action.

  9. Te United States Attorney reserves the right in its discretion to terminate the forfeiture action at any time and release the subject property. The United States shall promptly notify Rivera of such action. A discretionary termination of forfeiture shall not be the basis for any award of fees under Title 18, United States Code, Section 2465.

  10. Any violation of any terms and conditions of the Stipulated Settlement Agreement shall be construed as a violation of an order of the court. Each party shall bear its own costs and attorneys fees.

20051107

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