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United States v. Benice

September 15, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JEFFREY BENICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Cormac J. Carney United States District Court Judge

[proposed] JUDGMENT AND ORDER TO FORECLOSE ON REAL PROPERTY

Based upon the stipulation of the United States of America ("United States," "IRS", or "plaintiff") and defendants Jeffrey Benice and Stacey Emerald, and good cause shown therein, IT IS ORDERED:

I. BACKGROUND

1. On February 27, 2009, the United States filed the Complaint to Reduce Federal Tax Assessments to Judgment, Foreclose Federal Tax Liens on Real Property, and Set Aside Stacy Emerald as Nominee or Transferee (the "Complaint").

2. The federal liabilities, and federal liens, at issue in this case are for Jeffrey Benice's 1996 through 1999 income tax years and trust fund recovery penalty for the quarterly period ending December 31, 1996.

3. The real property against which the United States seeks to foreclose its tax liens (referred to herein as "the subject property") is located in the city of Aliso Viejo, California, with APN 632-321-25, and legally described as:

Parcel 1:

Lot 78 of Tract No. 15752, in the City of Aliso Viejo, County of Orange, State of California, as per map recorded in Book 782, Page(s) 45 through 50, inclusive of miscellaneous Maps, in the Office of the County Recorder of said County.

Excepting all therefrom one hundred percent (100%) of all rights to oil, gas and other hydrocarbon and mineral substances lying under or that may be produced from the above-described land, together with one hundred percent (100%) of all rights to the proceeds therefrom and one hundred percent (100%) of all rents, bonuses and profits accruing therefrom, without, however, any rights including rights of entry in or with respect to any portion of the surface or subsurface to a vertical depth of five hundred feet (500') from the surface as the same may from time to time exist, by deeds recorded September 20, 1976 in Book 11908, Pages 527 and 587, inclusive of official records.

Parcel 2:

Non-exclusive easements for access, ingress, egress, use and enjoyment, drainage, encroachment, support, maintenance, repairs and for other purposes, all as described in the declaration of covenants, conditions, restrictions and reservation of easements for Silver Oaks at Westridge ("DECLARATION"), recorded August 2, 1999 as instrument No. 99-0563957 in the Declaration of Covenants, Conditions and Restrictions for Aliso Viejo Community Association ("COMMUNITY DECLARATION"), recorded April 6, 1982 as instrument No. 82-118353 and in the Notice of Annexation and Supplemental Declaration for PHASE 4 of Silver Oaks at Westridge ("Community Annexation"), recorded October 25, 1999 as instrument No. 99-0747139 and in the Notice of Additional Territory and Supplemental Declaration of Covenants, Conditions and Restrictions for Silver Oaks at Westridge (PHASE 4) ("NOTICE"), recorded October 25, 1999 as instrument No. 99-0747140, all of official records of Orange County, California ("OFFICIAL RECORDS").

4. On May 18, 2009, the Court ordered that "Wachovia Mortgage, FSB, FKA World Savings Bank, FSB" was substituted as a party for defendant "World Savings Bank, FSB."

5. At document nos. 6, 7, 11, 12, disclaimers of interest to any right, title or interest in and to the subject real property were filed for defendants Orange County District Attorney Family Support Division, Employment Development Department, Standiford Helm II, Crystal Bergstrom dba Judicial Enforcement Services, and Ron Dering, respectively.

6. On April 8, 2010, based upon the stipulation of the parties and good cause shown therein, the Court filed an order granting plaintiff United States of America leave to file a first amended complaint substituting Wells Fargo Bank for Wachovia Mortgage, FSB, adding Lynda Elliot as a defendant, removing Esquire Deposition Services as a defendant, and removing the 2003, 2004, and 2005 tax years from the case. On April ...


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