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United States v. Ni

May 11, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
BI XIA NI, AND RUI YANG LIN, DEFENDANTS.
NATIONAL CITY MORTGAGE CO., PETITIONER.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

STIPULATION FOR FINAL ORDER OF FORFEITURE AND ORDER THEREON

IT IS HEREBY STIPULATED by and between plaintiff United States of America and petitioner National City Mortgage Co., dba Accubanc Mortgage, its successors and/or assigns ("National City Mortgage"), to compromise and settle their interests in the following property (hereafter the "Property"), and to consent to the entry of a Final Order of Forfeiture as to the following asset pursuant to 18 U.S.C. § 982(a)(6), 8 U.S.C. § 1324(b), and 28 U.S.C. § 2461(c):

Real property located at 3905 Glacier Court, Vallejo, California, APN: 081-851-390, and more fully described as: Real property in the City of Vallejo, County of Solano, State of California, described as follows: Lot 12, as shown on the Map of Northgate Neighborhood "C", Unit No. 6, filed May 16, 2001, Map Book 71, Page 89, Solano County Records.

This stipulation for Final Order of Forfeiture is entered into between the parties pursuant to the following terms:

1. On October 23, 2008, Bi Xia Ni entered into a plea agreement in which she pled guilty to Counts One and Two of the Superseding Information, which charge Unlawful Employment of Aliens in violation of 8 U.S.C. § 1324a(a)(1)(A)(i) and Misprision of a Felony Offense in violation of 18 U.S.C. § 4. On October 23, 2008, Rui Yang Lin entered into a plea agreement in which he pled guilty to Counts One and Two of the Superseding Information, which charge Unlawful Employment of Aliens in violation of 8 U.S.C. § 1324a(a)(1)(A)(i) and Misprision of a Felony Offense in violation of 18 U.S.C. § 4. The Court entered a Preliminary Order of Forfeiture on December 2, 2008. Pursuant to 18 U.S.C. § 982(b)(1) and 28 U.S.C. § 2461(c), incorporating 21 U.S.C. § 853(n), the United States gave direct notice to National City Mortgage, and posted notice of the forfeiture on an official government internet site www.forfeiture.gov for at least 30 consecutive days, beginning on December 22, 2008, and ending on January 20, 2009. National City Mortgage filed a Petition for Ancillary Hearing on February 5, 2009, claiming a lien holder interest in the Property. No other persons or entities have come forward and the time for maintaining a claim has expired.

2. The parties hereby stipulate that National City Mortgage is a lien holder on the Property. National City Mortgage has a legal right, title, or interest in the Property, and such right, title, or interest requires the Court to amend the Preliminary Order of Forfeiture pursuant to Fed. R. Crim. P. 32.2(c)(2) to account for the Petitioner's interest because such interest was vested in the Petitioner rather than the Defendants at the time of the commission of the acts which give rise to the forfeiture of the Property. See 18 U.S.C. § 982(b)(1) (incorporating 21 U.S.C. § 853(n)). The parties further stipulate, however, that Bi Xia Ni has an ownership interest in the Property and the Preliminary Order of Forfeiture remains valid to the extent it orders the forfeiture of her interest.

3. The parties agree that the sale of the Property shall be handled by the U.S. Department of Homeland Security, Customs and Border Protection in a commercially reasonable manner. The U.S. Department of Homeland Security, Customs and Border Protection shall have sole authority to select the means of sale, including sale by internet or through a licensed real estate broker, and shall have sole authority over the marketing and sale of the Property. Bi Xia Ni and Rui Yang Lin shall vacate the Property within 30 days of entry of this Final Order of Forfeiture. Until they vacate the Property, Bi Xia Ni and Rui Yang Lin shall maintain the Property in good condition and repair, and provide the U.S. Department of Homeland Security, Customs and Border Protection or its agents with reasonable access to the Property to facilitate its appraisal, marketing and sale.

Bi Xia Ni and Rui Yang Lin further shall remove all personal possessions, and the personal possessions of any former occupant, including all vehicles, furniture, and trash. Any and all of Bi Xia Ni and Rui Yang Lin's personal possessions, and the personal possessions of any former occupant, not removed will be disposed of by the United States without further notice.

4. The United States agrees that upon entry of a Final Order of Forfeiture and sale of the Property pursuant to the Final Order of Forfeiture, the United States will not contest payment to National City Mortgage from the proceeds of the sale, after payment of outstanding real property taxes assessed against the Property and expenses reasonably incurred by the U.S. Department of Homeland Security, Customs and Border Protection in connection with its custody and sale of the Property, the following:

a. All unpaid principal due to the petitioner National City Mortgage under the Deed of Trust recorded in the Solano County, California, Official Records as instrument number 2002-00075476, dated June 12, 2002, and recorded June 14, 2002. Said Deed of Trust secured a Promissory Note in the original amount of $355,700.00 dated June 11, 2002. As of December 24, 2008, the principal balance due and owing on the Note was $168,980.98. Accrued interest due on the Note through December 24, 2008, was $2,354.23. Interest will continue to accrue under the Note at an adjustable rate, which as of December 24, 2008, was 6.25% per annum or $28.42 per diem.

b. All unpaid interest at the contractual base rate (not the default rate) under the above Note, secured by the Deed of Trust, until the date of payment.

c. To National City Mortgage: reasonable attorney's fees not to exceed $3,000.00; all costs and expenses for servicing the subject loan and preservation of the Property to the extent recoverable under the above Note, secured by the Deed of Trust; and any property insurance and property taxes paid by National City Mortgage shall be reimbursed, until the date of payment.

d. A total fee of not more than $200 to process a beneficiary demand statement and to record a reconveyance of the Deed of Trust.

e. The exact amount to be paid to National City Mortgage shall be determined at the time of payment, but shall not be less ...


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