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Onions, Etc., Inc. and Duda Farm Fresh Foods, Inc v. Z&S Fresh

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 20, 2011

ONIONS, ETC., INC. AND DUDA FARM FRESH FOODS, INC.,
PLAINTIFFS,
v.
Z&S FRESH, INC. FDBA Z&S DISTRIBUTING CO., INC., MARTIN J. ZANINOVICH, LOREN SCHOENBURG,
AND MARGARET AKA MARGE SCHOENBURG,
DEFENDANTS.

DON J. POOL 166468 THE LAW FIRM OF POWELL & POOL 7522 North Colonial Avenue, Suite 100 Fresno, California 93711 Telephone: (559) 228-8034 Facsimile: (559) 228-6818 dpool@powellandpool.com Attorneys for JOHN VAN CUREN, Court-Appointed Receiver

STIPULATION TO SELL PROPERTY FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES, OR SECURITY INTERESTS; AND ORDER THEREON

The Honorable Oliver W. Wanger

IT IS HEREBY STIPULATED by and between JOHN VAN CUREN, court-appointed Receiver in the above-captioned matter ("VAN CUREN" or "Receiver"),

Intervenor Plaintiff Terence J. Long, Trustee of the PACA Trust created by Court Order 24 dated June 24, 2009 ("PACA Trust"), and Intervenor Plaintiff and Defendant FRESNO-25

MADERA FEDERAL LAND BANK ASSOCIATION, FLCA ("Land Bank") (hereinafter 26 collectively referred to as "the Parties"), and their respective counsel, as follows:

I

RECITALS

1 Land Bank is the beneficiary under that certain deed of trust recorded 4 in the Official Records of Tulare County on December 26, 2008, as instrument no. 2008-5 0086532 (the "Deed of Trust"). The Deed of Trust encumbers that certain real property 6 legally described in exhibit A attached hereto and incorporated herein by this reference (the 7 "Real Property"). The Trustor under the Deed of Trust was ZM Fresh Special T's, Inc., a California corporation ("ZM Fresh"). The Deed of Trust secures a promissory note in the 9 original principal amount of $4,810,000.00 ("the Note").

2 The Note is also secured by that certain Security Agreement in favor 11 of Land Bank dated November 14, 2007, which interest was perfected by the recordation of a 12 UCC-1 Financing Statement with the California Secretary of State on December 23, 2008, as 13 filing no. 087182528667.

3 On June 1, 2009, and continuing thereafter, ZM Fresh defaulted under the Note. 1.4 On May 22, 2009, plaintiffs ONIONS, ETC., INC. and DUDA FARM FRESH FOODS, INC. (hereinafter collectively referred to as "Plaintiffs") filed the above-18 entitled case (the "Action").

1.5 On July 13, 2009, Plaintiffs filed an Amended Complaint and named ZM Fresh as a defendant, and sought, among other things, to impose a constructive trust 21 upon the Real Property.

1.6 On or about November 25, 2009, PACA Trust caused to be recorded in 23 the Official Records of Tulare County, that certain Notice of Pending Action as instrument 24 no. 2009-0077202.

1.7 On February 17, 2010, Land Bank filed its Second Amended Cross- Complaint and First Amended Counter-Complaint (collectively "SACC") in the Action 27 against, among others, ZM Fresh, Aaron Margosian and Carrie Margosian and Martin Zaninovich, sole shareholders of ZM Fresh.

1.8 The SACC seeks to judicially foreclose Land Bank's Deed of Trust, as 2 well as quiet title as to any claims by the PACA Trust Creditors to Land Bank's real and 3 personal property collateral.

1.9 VAN CUREN was appointed receiver herein by Stipulation and Order 5 for Appointment of Receiver for Limited Purpose ("Stipulation & Order") of this Court made 6 and entered on March 14, 2011. 7

1.10 Since his appointment, VAN CUREN entered into a Purchase and Sale Agreement, subject to Court approval, for the sale of the Real and Personal Property 9 identified in exhibit A attached hereto.

1.11 On or about June 24, 2011, VAN CUREN filed his Ex Parte Application Of Receiver For Order Shortening Time For Hearing On Motion For Order (1) Authorizing Receiver To Sell The Property; (2) Approving Agreement With Proposed Buyer; And (3) Approving Overbid Procedures, which was granted by the Court on July 5, 2011 and 14 set for hearing on July 13, 2011.

1.12 Accordingly, on or about July 7, 2011, VAN CUREN filed his Motion For Order (1) Authorizing Receiver To Sell The Property; (2) Approving Agreement With 17 Proposed Buyer; And (3) Approving Overbid Procedures ("Sale Motion").

1.13 On July 13, 2011, the Court, after having been fully advised by 19 counsel at the hearing, and no written opposition having been filed or other objection made, 20 granted the Sale Motion.

1.14 The sale of the Real and Personal Property is presently scheduled to 22 close on or about July 31, 2011, or such other date as the buyer and Receiver agree, or the 23 Court orders. 24

1.15 In order to facilitate the sale of the Real and Personal Property, the 25 parties hereto stipulate and agree as set forth herein.

II

STIPULATION

Based on the foregoing Recitals, and excluding the Parties' Rights and Claims 4 to the proceeds from the sale of the Real and Personal Property,

IT IS STIPULATED AS FOLLOWS:

2.1 The Receiver's sale of the Real and Personal Property, as more 7 particularly described in exhibit A attached hereto, shall be free and clear of any liens, 8 encumbrances, or security interests asserted by or on behalf of FRESNO-MADERA 9 FEDERAL LAND BANK ASSOCIATION, FLCA, including but not limited to, that certain 10 deed of trust recorded in the Official Records of Tulare County on December 26, 2008, as 11 instrument no. 2008-0086532, and that certain UCC-1 Financing Statement recorded with the 12 California Secretary of State on December 23, 2008, as filing no. 087182528667. 13

2.2 The Receiver's sale of the Real and Personal Property, as more 14 particularly described in exhibit A attached hereto, shall be free and clear of any liens, 15 encumbrances, or security interests asserted by or on behalf of PACA Trust and/or Trustee, 16 including but not limited to, any claims asserted in the Action and that certain Notice of 17 Pending Action filed in the Official Records of Tulare County as instrument no. 2009-18 0077202.

SO STIPULATED.

III

ORDER

Based upon the Stipulation of the Parties, and excluding the Parties' Rights and Claims to the proceeds from the sale of the Real and Personal Property,

IT IS HEREBY ORDERED:

3.1 The Receiver's sale of the Real and Personal Property, as more particularly described in exhibit A attached hereto, shall be free and clear of any liens, 8 encumbrances, or security interests asserted by or on behalf of FRESNO-MADERA 9 FEDERAL LAND BANK ASSOCIATION, FLCA, including but not limited to, that certain 10 deed of trust recorded in the Official Records of Tulare County on December 26, 2008, as 11 instrument no. 2008-0086532, and that certain UCC-1 Financing Statement recorded with the California Secretary of State on December 23, 2008, as filing no. 087182528667.

3.2 The Receiver's sale of the Real and Personal Property, as more particularly described in exhibit A attached hereto, shall be free and clear of any liens, 15 encumbrances, or security interests asserted by or on behalf of PACA Trust and/or Trustee, 16 including but not limited to, any claims asserted in the Action and that certain Notice of Pending Action filed in the Official Records of Tulare County as instrument no. 2009-18 0077202.

IT IS SO ORDERED.

THE HONORABLE OLIVER W. WANGER UNITED STATES DISTRICT COURT JUDGE

20110720

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