IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 5, 2010
UNITED STATES OF AMERICA, PLAINTIFF,
RAY CLINGENPEEL; SHIRLEY A. LIEN CLINGENPEEL; TUFFY RUFFY TRUST BY DAVID K. JACOBS, TRUSTEE AND/OR BY ANITA MORRISON, TRUSTEE; SUSAN BELL TRUST BY DAVID K. JACOBS, TRUSTEE; AND/OR BY ANITA MORRISON, TRUSTEE; ATEL CAPITAL GROUP; STATE OF CALIFORNIA FRANCHISE TAX BOARD; RESIDENTIAL CREDIT SOLUTIONS; CITIBANK (SOUTH DAKOTA) NA; TASHIMA FAMILY TRUST BY MIKIYE TASHIMA, TRUSTEE; DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER ON STIPULATION OF PRIORITY
Plaintiff United States of America ("United States"), defendant Atel Capital Group ("Atel"), and defendant Residential Credit Solutions ("Residential Credit") (collectively, "the Lienholders"), have submitted a STIPULATION OF LIEN PRIORITY AND REQUEST FOR ORDER that establishes certain lien priorities and seeks an order to excuse the Lienholders from further participation in this case. The parties to the stipulation recite that:
1. The United States filed this action to reduce to judgment federal tax assessments against Ray Clingenpeel and Shirley A. Clingenpeel ("taxpayers") and to foreclose federal tax liens against real property identified in the stipulation, i.e. 5585 North Indianola Drive and 1201 North Blackstone Avenue, which will be referred to herein, collectively, as the "Subject Property."
2. On or about June 28, 1998, the Clingenpeels borrowed $133,000 dollars and secured the repayment of the obligation with a Deed of Trust recorded against 5585 North Indianola Drive (the "Deed of Trust"). The Deed of Trust was recorded with the Fresno County Recorder on June 29, 1998. The current lien holder for the Deed of Trust is defendant Residential Credit Solutions.
3. On or about November 14, 2000, an Abstract of Judgment was recorded with the Fresno County Recorder in favor of Atel Business Credit, Inc. and against Ray Clingenpeel and Shirley Clingenpeel in the nominal amount of $19,833.34 (the "Judgment Lien"). The Judgment Lien attached to both the 5585 North Indianola Drive property and the 1201 North Blackstone Avenue property. Atel Business Credit, Inc. is now defendant Atel Capital Group.
4. On or about April 19, 2001, the United States filed its earliest notice of federal tax lien with the Fresno County Recorder for the tax liabilities at issue.
5. The United States and the Lienholders agree that the Deed of Trust has priority over the federal tax liens and Judgment Lien at issue in the above-captioned action only with respect to the 5585 North Indianola Drive property.
6. The United States and the Lienholders agree that the Judgment Lien has priority over the federal tax liens at issue in the above-captioned action with respect to both parcels of the Subject Property.
7. The United States claims no monetary relief against the Lienholders in this action. In the event that the Court permits the sale of the Subject Property, the Subject Property will be sold free and clear of the Lienholders' liens, with the liens to follow the sale proceeds.
8. After the sale, the parties will agree to an order of distribution, with each lien payment to include principal, interest to the date of distribution, and reasonable attorney's fees pursuant to 26 U.S.C. § 6323(e), in an amount according to proof at that time.
In accordance with the stipulation, and for good cause shown, IT IS ORDERED THAT
1. If the Court orders the sale of 5585 North Indianola Drive, the sale proceeds are to be paid to the Clerk of the Court and applied, as far as they shall be sufficient, to the following items, in the order specified:
A. to Residential Credit for the Deed of Trust;
B. to Atel for the Judgment Lien; then
C. to the United States for the federal tax liens at issue.
2. If the Court orders the sale of 1201 North Blackstone Avenue, the sale proceeds are to be paid to the Clerk of the Court and applied, as far as they shall be sufficient, to the following items, in the order specified:
A. to Atel for the Judgment Lien; then
B. to the United States for the federal tax liens at issue.
3. Unless otherwise ordered by the Court, Residential Credit and Atel are excused from appearing in Court, or otherwise asserting their claims in this case. The Lienholders will be bound by the judgment in this case. The Lienholders will respond to reasonable discovery requests.
IT IS SO ORDERED.
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