UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
January 27, 2012
YREKA WESTERN RAILROAD COMPANY,
EDWARD A. TAVARES, ROSEMARY T. TAVARES, PLM LENDER SERVICES, INC.,
The opinion of the court was delivered by: Hon. District Judge, William B. Shubb
AMENDED STIPULATION AND ORDER CONFIRMING SETTLEMENT AND STAY OF FURTHER PROCEEDINGS
Date: November 9, 2011 Time: 1:30 p.m.
Courtroom.: 5, 14th Floor
Complaint Filed: July 18, 2011
The parties have reached a settlement of this matter which is hereby confirmed by the Court as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that above entitled matter shall be settled pursuant to the stipulation of the parties and the Order of this Court on the following terms:
1. Plaintiff, Yreka Western Railroad Company agrees to pay Defendants, Edward A. Tavares and Rosemary T. Tavares the sum of Two Hundred Twenty Seven Thousand Five Hundred and no/100 Dollars ($227,500) in full satisfaction of all claims in the Action, including that certain Promissory Note dated April 11, 2007 ("Note"), in the principal sum of $175,000 and secured by a Deed of Trust of the same date, encumbering the Plaintiff's real and personal property recorded on April 12, 2007, as Document No. 07-00046905 and Defendants agree to accept said sum in full satisfaction of said claims and said Note, inclusive or all interest, foreclosure fees and costs and attorney's fees provided the terms of this Settlement are timely met.
2. The payment of the $227,500 will be paid as follows: (a) Plaintiff will pay to Defendants by a check from Michael Cogan's Client Trust Account the sum of $25,000 to be delivered to Defendants' counsel's office; (b) the $25,000 cash bond posted by Plaintiff in support of the Temporary Restraining Order issued by this Court has been released to Defendants, and (c) the balance of $177,500 will be paid by April 16, 2012. The payment in sub-section (a) above shall be paid within five (5) days of the issuance of the Amended Stipulation and Order Confirming Settlement and Stay of Further Proceedings signed by the Honorable William B. Judge Shubb.
3. All proceedings in this case will be stayed until April 16, 2012 to allow the Settlement payments to be complied with by the Plaintiff. During this stay, the Defendants agree that no further foreclosure proceeding (judicial or non-judicial) will be conducted, and the Defendants will not undertake any further action to collect on the debt. The Temporary Restraining Order issued by this Court has been dissolved and the Motion for Preliminary Injunction set for hearing on December 5, 2011 at 2:00 p.m. was dismissed, without prejudice, and the hearing has been taken off Calendar. The Status (Pre-Trial) Conference currently set for hearing on March 5, 2012 at 2:00 p.m. in Courtroom 5 is continued to hearing on May 14, 2012 at 2:00 p.m. in Courtroom 5.
4. The cash bond in the sum of $25,000 posted with the Clerk of the Court has been released to the Defendants.
5. If the full Settlement payment of $227,500 is paid by April 16, 2012, the Plaintiff shall file a request for dismissal with prejudice and this matter will be dismissed with both sides to bear their own attorney's fees and cost. Upon full payment, Defendants will cause the Trustee under the Deed of Trust to record a Deed of Reconveyance of the Deed of Trust in accordance with California law.
6. If the terms of the agreed upon Settlement as set forth herein are not met by either party, the stay will be automatically lifted as of April 17, 2012, and the case shall move forward. The terms of this Settlement shall then be null and void. All sums due and owing under the terms and conditions of the Note shall be then immediately due and owing, except that Defendants shall credit any payments made by Plaintiff under 2(a) and 2(b) above to the principal owing as of the date of payment. Defendants agree not to take any action to collect on the Note or foreclose under the terms of the Deed of Trust or California law for a period of 10 days after April 17, 2012. This 10 day period is to allow Plaintiff time to re-apply for a Temporary Restraining Order. Plaintiff waives any defenses as to the payment of the $50,000, except for credit or off-set to principal. The $50,000 payment is non-refundable.
7. This Order shall be binding on Defendants' successors and assigns.
The parties have stipulated to settle this matter on the terms and conditions stated in the above Order of the Court and have approved the form of the Order.
Dated: January 25, 2012 CVM LAW GROUP, LLP By: /s/ Robert D. Collins _____________ ROBERT D. COLLINS Attorney for Defendants EDWARD A. TAVARES and ROSEMARY T. TAVARES Dated: January 25, 2012 GUALCO LAW By: /s/ Lori J. Gualco, as authorized on 01/25/12 LORI J. GUALCO Attorney for Defendants EDWARD A. TAVARES and ROSEMARY T. TAVARES Dated: January 25, 2012 MICHAEL COGAN By: /s/ Michael Cogan, as authorized on 01/25/12 MICHAEL COGAN Attorney for Plaintiff YREKA WESTERN RAILROAD COMPANY
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that, on January 26, 2012, he caused to be electronically filed the foregoing with the clerk of the Court using the CM/ECF system, which will send a Notice of Electronic Filing to the following:
Michael Cogan Phillip Mark Adleson Attorney at Law Adleson, Hess & Kelly 1388 Court Street, Suite E 577 Salmar Avenue, Second Floor Redding, California 96001 Campbell, California 95008 Plaintiff Defendant PLM Lender Services, Inc.
I hereby certify under penalty of perjury the foregoing is true and correct. Executed at Sacramento, California.
Dated: January 26, 2012 CVM LAW GROUP, LLP
By: /s/ Robert D. Collins
Attorney for Defendants
EDWARD A. TAVARES and ROSEMARY T. TAVARES 8795 Folsom Blvd., Suite 200 Sacramento, California 95826 Telephone: (916) 381-6171
CERTIFICATE OF ELECTRONIC FILING
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