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McGREGOR W. SCOTT

United States Attorney

KRISTIN S. DOOR SBN 84307

Assistant U.S. Attorney

501 I Street, Suite 10-100

Sacramento, CA 95814

Telephone: (916) 554-2723

Attorney for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

REAL PROPERTY LOCATED AT 2363

FAIRVIEW LANE, PLACER COUNTY,

NEWCASTLE, CALIFORNIA, BEARING

APN: 032-253-036, INCLUDING ALL

APPURTENANCES AND IMPROVEMENTS

THERETO,

REAL PROPERTY LOCATED ON LINCOLN

STREET, PLACER COUNTY,

ROSEVILLE, CALIFORNIA, BEARING

APN: 012-200-010, INCLUDING ALL

APPURTENANCES AND IMPROVEMENTS

THERETO,

Defendants.

2:04-CV-1867 WBS/JFM

STIPULATION FOR EXPEDITED

SETTLEMENT BETWEEN PLAINTIFF

UNITED STATES OF AMERICA AND

AMERICAN RIVER BANK AND ORDER

THEREON

IT IS HEREBY STIPULATED by and between plaintiff United

States of America and claimant American River Bank ("American

River"), through their respective counsel of record, that

American River has a valid pre-existing mortgage lien on the

defendant real property described in this Stipulation, which is

not contested by plaintiff.

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Plaintiff United States of America and claimant American

River further stipulate that:

1. Any violations of 21 U.S.C. § 881 (a)(6) and (7)

involving the defendant property located at 323 through 329

Lincoln Street, Roseville, California, Placer County APN 012-200-

010, occurred without the knowledge and consent of American

River.

2. Plaintiff United States agrees that upon entry of a

final order of forfeiture in favor of the United States,

plaintiff, through the United States Marshals Service or its

agent(s), shall undertake to sell the defendant real property in

a commercially reasonable manner and to sell said property at a

private sale for fair market value (the "Purchase Price"). The

following costs and expenses of sale shall be deducted from the

Purchase Price and paid directly out of escrow in the following

order:

(a) First, the costs incurred by the United States

Marshals Service to the date of close of escrow, including the

cost of posting, service, advertising, and maintenance;

(b) Second, to the Placer County Tax Collector (for

real property taxes) of all real property taxes assessed and

unpaid against the defendant real property prorated to the date

of entry of the final order of forfeiture;

(c) Third, the costs and expenses associated with the

sale of the real property.

(d) Fourth, any county transfer taxes.

(e) Fifth, to American River as follows:

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(i) all unpaid principal due to American River

under the Promissory Note dated May 11, 2004, in the original

principal amount of $250,000.00, a true and correct copy of which

is attached hereto as Exhibit "A" ("Note"), and which is secured

by a Deed of Trust dated May 11, 2004, recorded May 14, 2004, as

instrument number 2004-0061481 of the Official Records of Placer

County, California ("Deed of Trust "), a true and correct copy of

which is attached hereto as Exhibit "B", and by an Assignment Of

Rents dated May 11, 2004, recorded May 14, 2004, as instrument

number 2004-0061482 of the Official Records of Placer County,

California("Assignment of Rents"), a true and correct copy of

which is attached hereto as Exhibit "C". 

(ii) all unpaid interest due as of the date of

the closing of the sale of the defendant real property at the

contractual (not default) adjustable rate under the abovereferenced Note;

(iii) all fees, costs, and advances, including but

not limited to reasonable attorney fees, prepayment fees, taxes

and hazard insurance as provided under the terms of the Note and

Deed of Trust.

3. The payment to American River shall be in full

settlement and satisfaction of any and all claims by American

River to the defendant property and all claims resulting from the

incidents or circumstances giving rise to this lawsuit.

4. Upon payment in full as set forth in ¶ 2(e) (I)-(iii),

above, claimant American River agrees to assign and convey its

security interest to the United States via recordable documents

and to release and hold harmless the United States, and any

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agents, servants, and employees of the United States, (or any

state or local law enforcement agency) acting in their individual

or official capacities, from any and all claims by the American

River and its agents which currently exist or which may arise as

a result of the government’s action against the property.

5. In the event it is determined that the proceeds of a

sale of defendant real property would be insufficient to pay

American River in full as set forth in ¶ 2(e) (I)-(iii), above,

after the disbursements described in ¶ 2 (a)-(d) hereinabove are

made, the plaintiff United States agrees to release its interest

in the defendant real property and consent to the exercise of

American River’s state law rights to foreclose upon its deed of

trust which secures the obligation to American River. Plaintiff

shall not enter into a binding agreement to sell the defendant

real property unless the proceeds of such sale are sufficient to

pay American River in full as set forth in ¶ 2(e) (I)-(iii,

unless American River otherwise consents in writing.

6. Claimant American River agrees not to pursue against

the United States any other rights that it may have under the

mortgage instrument, including, but not limited to, the right to

initiate a foreclosure action without the consent of the United

States Attorney’s Office or this Court.

7. Claimant American River agrees to notify the United

States Attorney at the end of the first payment cycle in which a

payment in not made under the terms specified in the security

instrument and promissory note. Claimant further agrees to join

any government motions for interlocutory or stipulated sale of 

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the defendant property if the proceeds of such sale will be

sufficient to pay American River in full as set forth in ¶ 2(e)

(I)-(iii), and any motions to remove occupants from the property

for nonpayment of mortgage or rent, destruction of property, or

other just cause.

8. Claimant American River understands and agrees that by

entering into this stipulation of its interests in the defendant

real property, it waives any rights to further litigate against

the United States and its interest in the defendant and to

petition for remission or mitigation of the forfeiture. Unless

otherwise provided by this Stipulation or specifically directed

by order of this Court, American River is hereby excused and

relieved from further participation in this action.

9. American River understands and agrees that the United

States reserves the right to void the expedited settlement

agreement if, before payments of the mortgage or lien, the U.S.

Attorney obtains new information indicating that the mortgagee or

lienholder is not an "innocent owner: or "bona fide purchaser"

pursuant to applicable forfeiture statutes. The U.S. Attorney

also reserves the right, in its discretion, to terminate the

forfeiture at any time and release the subject property. In

either event, the United States shall promptly notify the

mortgagee or lienholder of such action. A discretionary

termination of forfeiture shall not be a basis for any award of

fees under 28 U.S.C. § 2465. 

10. The parties agree to execute further documents, to the

extent necessary, to convey clear title to the defendant real

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property to the United States and to further implement the terms

of this stipulation.

11. The terms of this Stipulation are contingent upon

forfeiture of the defendant real property to the United States

and the Court’s entry of a final judgment of forfeiture.

Dated: Aug. 9 , 2005 McGREGOR W. SCOTT

United States Attorney

By /s/ Kristin S. Door 

KRISTIN S. DOOR

 Assistant Unites States 

Attorney

Attorney for Plaintiff

Dated: Sept. 21 , 2005

 

 By /s/ Paul J. Dutra 

PAUL J. DUTRA

Dutra & Oates

Attorneys for Claimant

American River Bank 

(original signature retained by

attorney)

ORDER

SO ORDERED this 29th day of September, 2005

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