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U.S. v. RESIDENTIAL PROPERTY 2246 PEACHTREE

United States District Court, S.D. California


December 5, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
ONE RESIDENTIAL PROPERTY LOCATED AT 2246 PEACHTREE CIRCLE, CHULA VISTA, CA 91915, AND ALL IMPROVEMENTS AND APPURTENANCES AFFIXED THERETO, AND. ONE RESIDENTIAL PROPERTY LOCATED AT 979 PALM VALLEY CIRCLE #C, CHULA VISTA, CA 91915, AND ALL IMPROVEMENTS AND APPURTENANCES AFFIXED THERETO, Defendants.

The opinion of the court was delivered by: ROGER BENITEZ, District Judge

STIPULATED JUDGMENT OF FORFEITURE; ORDER THEREON

The United States of America, by and through its counsel, Carol C. Lam, United States Attorney, and Mary C. Lundberg, Assistant United States Attorney, and Maribel Morales-Figueroa, claimant to the above defendant properties (claimant), and her attorney of record, Richard M. Barnett, stipulate as follows: 1. The claimant and the government have agreed to settle the matter of the possible forfeiture of the subject defendant properties as follows:

2. In satisfaction of the government's forfeiture claim:
  A. The Residential Property Located at 979 Palm Valley Circle, Chula Vista, CA 91915, and all improvements and Appurtenances Affixed Thereto ("Palm Valley property"), will be condemned and forfeited in full to the United States of America. This residential property is legally described as:

  ASSESSOR PARCEL NO. 595-321-29-23, A CONDOMINIUM COMPRISED OF: PARCEL 1:

AN UNDIVIDED 1/31ST INTEREST IN AND TO LOT 4 OF CHULA VISTA TRACT NO. 90-8, FAIRWAY VILLAS, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12728, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, ON OCTOBER 19, 1990.
EXCEPTING THEREFROM ALL UNITS SHOWN ON THE CONDOMINIUM PLAN RECORDED ON DECEMBER 05, 1991 AS FILE NO. 1991-0627097 OF OFFICIAL RECORDS OF SAID COUNTY (THE "CONDOMINIUM PLAN").
PARCEL 2:
UNIT NO. 97, AS SHOWN AND DESCRIBED IN THE CONDOMINIUM PLAN.
PARCEL 3:
THE EXCLUSIVE RIGHT TO USE THE EXCLUSIVE USE COMMON AREA IDENTIFIED IN THE CONDOMINIUM PLAN AND/OR THE DECLARATION AS APPURTENANT TO THE CONDOMINIUM CONVEYED HEREBY.
Parcel 4: An easement for access purposes with the right of ingress and egress over and along that portion of Lot 6 of map No. 12545 in said city, county and state, filed I the office of the county recorder of San Diego County, January 26, 1990 more particularly described as the "access easement" on exhibit B attached to the declaration. Parcel 5: Easements and rights as set forth in the section entitles "owners easements and encroachments", "community facilities easement" and "enforcement" of the declaration of covenants, conditions and restrictions of Eastlake II community association recorded on February 21, 1990 s file No. 90-094670 of official records, and any amendments thereto (the "master declaration").
  B. In addition to the forfeiture of the Palm Valley Property, Claimant shall also forfeit $50,000.00 to the United States. The $50,000.00 must be paid no later than one year from the date this Stipulated Judgment of Forfeiture is approved by the district court. The $50,000.00 must be paid in the form of a cashiers check made payable to United States Customs and Border Protection, and delivered to the attention of Assistant U.S. Attorney Kathleen Clark, at the United States Attorney's Office, 880 Front Street, San Diego, California 92101. The parties anticipate that claimant will obtain the $50,000.00 to be forfeited by refinancing the other defendant property in this case, Residential Property located at 2246 Peachtree Circle, Chula Vista, CA 91915, and all improvements and appurtenances affixed thereto ("Peachtree property").

  C. This case will remain open and the Peachtree property will remain within this court's jurisdiction until the $50,000.00 is paid to the United States. The Lis Pendens presently recorded against the Peachtree property shall remain in full force and effect until claimant's obligations under the terms of this stipulated judgment of forfeiture have been completed, except that, upon request, the United States will submit a Withdrawal of Lis Pendens to the escrow holder for the refinancing of the Peachtree property with instructions that it may be recorded at the close of escrow contingent upon $50,000.00 of the proceeds of the refinancing being remitted to the United States directly from escrow. When the $50,000.00 has been paid in full the government will notify the court and this case will be closed.

  3. If Claimant Maribel Morales-Figueroa does not pay $50,000.00 to the government no later than one year of the date the Order is filed, claimant and plaintiff agree that, upon request by the United States, this court will enter a judgment of forfeiture against the Peachtree property and Peachtree property will be marketed and sold by the United States as follows:

  A. The United States Customs and Border Protection will market and sell the Peachtree property, by and through their contracted property manager in a commercially reasonably manner.

  B. The offering price for the Peachtree property shall be determined by the United States Customs and Border Protection and will be consistent with a recent appraisal or updated appraisal by a California licensed certified real estate appraiser. Claimant's counsel shall be advised of the offering price and provided a copy of the appraisal. If the claimant disagrees with the value of the Peachtree property as determined by the appraiser retained by United States Customs and Border Protection or with the proposed offering price, she shall have the right, at her own expense, to have the property reappraised by a California — licensed certified real estate appraiser of her own choosing. However, in order to exercise this option, claimant must notify Assistant U.S. Attorney Kathleen Clark, in writing of her intention to have the property reappraised no later then seven days from the date her attorney receives a copy of the government's appraisal. If the claimant decides to have the property reappraised, that appraisal must be completed and submitted to AUSA Kathleen Clark no later then 30 days after her attorney receives a copy of the government's appraisal. Claimant hereby waives her right to object to the offering price if she fails to conform to the above stated time-frame. If, after a review of claimant's appraisal, the parties are still unable to agree on an offering price, the Honorable Ruben B. Brooks, United States Magistrate Judge will determine the offering price based upon the written submissions of the parties and the two appraisals. No hearings will be held on the matter. The parties agree that Magistrate Judge Brooks' order setting the offering price will not be appealed. Claimant will be notified of all reasonable offers to purchase the defendant property.

  B. Plaintiff and claimant must agree to a sale when the offer to purchase is less than ninety percent (90%) of the offering price. However, the United States Customs and Border Protection, may, in its sole discretion, accept any offer to purchase the defendant property that is ninety percent (90%) or more of the offering price.

  C. The purchase price of the defendant property will be a cash price.

  D. The net proceeds from the sale of the defendant property will include all money realized from the sale of the defendant property, except for the following:

a. Real estate commissions, if any;
b. The amounts due to lienholder Washington Mutual Bank, FA pursuant to a deed of trust lien evidenced by documents recorded at the San Diego County Recorder's Office.
c. 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 which are due and owing;
e. Insurance costs, if any;
f. Any and all costs incurred by the United States Customs and Border Protection, incident to this Complaint for Forfeiture and to the sale of the defendant property;
g. Escrow fees;
h. Document recording fees not paid by the buyer;
i. Title fees;
j. County transfer taxes.
  4. The net proceeds of the sale of the Peachtree property shall be distributed as follows:

  A. The United States shall receive from the net proceeds of the sale of property $50,000.00 which will be condemned and forfeited to the United States of America.

  B. Claimant Maribel Morales-Figueroa shall receive the amount of net proceeds exceeding $50,000.00, through her attorney of record, Richard M. Barnett. 5. 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. Claimant Maribel Morales-Figueroa agrees that by entering into this stipulation, she has not "substantially prevailed" within the meaning of 28 U.S.C. § 2465. Each party shall bear its own costs and expenses, including attorney fees.

  6. The claimant, her agents, employees, or assigns, shall hold and save harmless the United States of America, its agents and employees, from any and all claims which might result from the seizure of the above-described defendant properties.

  ORDER

  Having reviewed the foregoing Stipulation and good cause appearing therefor,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that:
  1. The Stipulation is hereby APPROVED; 2. The Residential Property Located at 979 Palm Valley Circle, Chula Vista, CA 91915, and all improvements and Appurtenances Affixed Thereto ("Palm Valley property"), IS HEREBY CONDEMNED AND FORFEITED TO THE UNITED STATES OF AMERICA. The forfeited Palm Valley property is legally described as:

  ASSESSOR PARCEL NO. 595-321-29-23, A CONDOMINIUM COMPRISED OF: PARCEL 1:

AN UNDIVIDED 1/31ST INTEREST IN AND TO LOT 4 OF CHULA VISTA TRACT NO. 90-8, FAIRWAY VILLAS, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12728, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, ON OCTOBER 19, 1990.
EXCEPTING THEREFROM ALL UNITS SHOWN ON THE CONDOMINIUM PLAN RECORDED ON DECEMBER 05, 1991 AS FILE NO. 1991-0627097 OF OFFICIAL RECORDS OF SAID COUNTY (THE "CONDOMINIUM PLAN").
PARCEL 2:
UNIT NO. 97, AS SHOWN AND DESCRIBED IN THE CONDOMINIUM PLAN.
PARCEL 3:
THE EXCLUSIVE RIGHT TO USE THE EXCLUSIVE USE COMMON AREA IDENTIFIED IN THE CONDOMINIUM PLAN AND/OR THE DECLARATION AS APPURTENANT TO THE CONDOMINIUM CONVEYED HEREBY.
Parcel 4: An easement for access purposes with the right of ingress and egress over and along that portion of Lot 6 of map No. 12545 in said city, county and state, filed I the office of the county recorder of San Diego County, January 26, 1990 more particularly described as the "access easement" on exhibit B attached to the declaration.
  Parcel 5: Easements and rights as set forth in the section entitles "owners easements and encroachments", "community facilities easement" and "enforcement" of the declaration of covenants, conditions and restrictions of Eastlake II community association recorded on February 21, 1990 s file No. 90-094670 of official records, and any amendments thereto (the "master declaration"). 3. In addition to the forfeiture of the Palm Valley Property, Claimant shall forfeit $50,000.00 to the United States. The $50,000.00 shall be paid no later than one year from the date this Stipulated Judgment of Forfeiture is approved by the district court. The $50,000.00 will be paid in the form of a cashiers check made payable to United States Customs and Border Protection, and delivered to the attention of Assistant U.S. Attorney Kathleen Clark, at the United States Attorney's Office, 5th Floor, 880 Front Street, San Diego, California 92101.

  4. The Lis Pendens presently recorded against the Peachtree property shall remain in full force and effect until claimant's obligations under the terms of this stipulated judgment of forfeiture have been completed, except that, upon request, the United States will submit a Withdrawal of Lis Pendens to the escrow holder for the refinancing of the Peachtree property with instructions that it may be recorded at the close of escrow contingent upon $50,000.00 of the proceeds of the refinancing being remitted to the United States directly from escrow. When the $50,000.00 has been paid in full the government will notify the court and this case will be closed.

  5. If Claimant Maribel Morales-Figueroa does not pay $50,000.00 to the government no later than one year of the date the Order is filed, claimant and plaintiff agree that, upon request by the United States, this court will enter a judgment of forfeiture against the Peachtree property and the Peachtree property will be marketed and sold by the United States as follows: A. The United States Customs and Border Protection shall market and sell the Peachtree property, by and through their contracted property manager in a commercially reasonably manner.

  B. The offering price for the Peachtree property shall be determined by the United States Customs and Border Protection and will be consistent with a recent appraisal or updated appraisal by a California licensed certified real estate appraiser. Claimant's counsel shall be advised of the offering price and provided a copy of the appraisal. If the claimant disagrees with the value of the Peachtree property as determined by the appraiser retained by United States Customs and Border Protection or with the proposed offering price, she shall have the right, at her own expense, to have the property reappraised by a California — licensed certified real estate appraiser of her own choosing. However, in order to exercise this option, claimant must notify Assistant U.S. Attorney Kathleen Clark, in writing of her intention to have the property reappraised no later then seven days from the date her attorney receives a copy of the government's appraisal. If the claimant decides to have the property reappraised, that appraisal must be completed and submitted to AUSA Kathleen Clark no later then 30 days after her attorney receives a copy of the government's appraisal. Claimant hereby waives her right to object to the offering price if she fails to conform to the above stated time-frame. If, after a review of claimant's appraisal, the parties are still unable to agree on an offering price, the Honorable Ruben B. Brooks, United States Magistrate Judge will determine the offering price based upon the written submissions of the parties and the two appraisals. No hearings will be held on the matter. The parties agree that Magistrate Judge Brooks' order setting the offering price will not be appealed. Claimant will be notified of all reasonable offers to purchase the defendant property.

  B. Plaintiff and claimant must agree to a sale when the offer to purchase is less than ninety percent (90%) of the offering price. However, the United States Customs and Border Protection, may, in its sole discretion, accept any offer to purchase the defendant property that is ninety percent (90%) or more of the offering price.

  C. The purchase price of the Peachtree property will be a cash price.

  D. The net proceeds from the sale of the Peachtree property will include all money realized from the sale of the Peachtree property, except for the following:

a. Real estate commissions, if any;
b. The amounts due to lienholder Washington Mutual Bank, FA pursuant to a deed of trust lien evidenced by documents recorded at the San Diego County Recorder's Office.
c. 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 which are due and owing; e. Insurance costs, if any;
f. Any and all costs incurred by the United States Customs and Border Protection, incident to this Complaint for Forfeiture and to the sale of the defendant property;
g. Escrow fees;
h. Document recording fees not paid by the buyer;
i. Title fees;
j. County transfer taxes.
  6. The net proceeds of the sale of the Peachtree property shall be distributed as follows:

  A. The United States shall receive from the net proceeds of the sale of property $50,000.00, which will be condemned and forfeited to the United States of America.

  B. Claimant Maribel Morales-Figueroa shall receive the amount of net proceeds exceeding $50,000.00, through her attorney of record, Richard M. Barnett.

  7. 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. Claimant Maribel Morales-Figueroa agrees that by entering into this stipulation, she has not "substantially prevailed" within the meaning of 28 U.S.C. § 2465. Each party shall bear its own costs and expenses, including attorney fees.

  8. The claimant, her agents, employees, or assigns, shall hold and save harmless the United States of America, its agents and employees, from any and all claims which might result from the seizure of the above-described defendant properties.

  9. This case shall remain open and the Peachtree property will remain within this court's jurisdiction until the $50,000 is paid to the United States.

20051205

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