Opinion
BENJAMIN B. WAGNER, United States Attorney, MICHAEL M. BECKWITH, KEVIN C. KHASIGIAN, Assistant U.S. Attorneys, Sacramento, CA.
STOEL RIVES LLP, THOMAS A. WOODS, BRYAN L. HAWKINS, Attorneys for petitioner Deutsche Bank.
LANPHERE LAW GROUP, P.C. MICHAEL A. LANPHERE, AARON B. FAIRCHILD, Attorneys for petitioners California Bank & Trust.
STIPULATION FOR FINAL ORDER OF FORFEITURE AND ORDER THEREON REGARDING REAL PROPERTY AT 940 44th STREET, SACRAMENTO, CA
TROY L. NUNLEY, District Judge.
IT IS HEREBY STIPULATED, by and between plaintiff United States of America and petitioners Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2005-WL1, by and through it authorized servicing agent Select Portfolio Servicing, Inc. (hereinafter "Deutsche Bank" or "petitioner") and California Bank & Trust, N.A. (hereinafter "California Bank & Trust" or "petitioner"), to compromise and settle their interest in the real property located at 940 44th Street, Sacramento, California, Sacramento County, APN: XXX-XXXX-XXX-XXXX and more fully described in Exhibit B attached hereto, and to consent to the entry of a Final Order of Forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).
1. On August 1, 2014, this Court entered a Preliminary Order of Forfeiture pursuant to the provisions of 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c) based upon the plea agreement entered into between plaintiff and defendant Deepal Wannakuwatte forfeiting to the United States the property listed in Exhibit A attached hereto.
2. Beginning on November 1, 2014, for at least 30 consecutive days, the United States published notice of the Court's Order of Forfeiture on the official internet government forfeiture site www.forfeiture.gov. Said published notice advised all third parties of their right to petition the Court within sixty (60) days from the first day of publication of the notice for a hearing to adjudicate the validity of their alleged legal interest in the forfeited property. The Declaration of Publication was filed on December 16, 2014.
3. In relation to this real property, the United States of America completed direct written notice by certified mail to:
a) Betsy Wannakuwatte
b) Long Beach Mortgage Company
c) Finance America, LLC
d) Mortgage Electronic Registration Systems, Inc.
e) Chase Home Finance, LLC
f) Select Portfolio Servicing, Inc.
4. On September 18, 2014, California Bank & Trust filed a timely petition alleging an interest in the real property located at 940 44th Street, Sacramento, California, Sacramento County, APN: XXX-XXXX-XXX-XXXX (the "property"), alleging as follows:
a. Petitioner is the holder of a Promissory Note ("the Note") secured by a Deed of Trust on the property. The Note and Deed of Trust were signed by defendant Deepal Wannakuwatte and his wife, Betsy Wannakuwatte, on or around September 1, 2005. The Deed of Trust was recorded on December 2, 2005, in the Sacramento County Recorder's Office as Book 20051202, Page 1361.
b. Defendant Deepal Wannakuwatte obligated himself under the Note in exchange for a loan in the amount of $130, 246.00, with repayment terms at 7.590% interest over a period of 120 months. Defendant thereafter made various payments on the Note such that the balance due thereunder as of May 30, 2014 was $26, 927.88.
5. On February 3, 2015, petitioner Deutsche Bank filed a petition alleging an interest in the property as follows:
a. On or about March 7, 2005, defendant Deepal Wannakuwatte and his wife Betsy Wannakuwatte ("Betsy") executed and delivered to Long Beach Mortgage Company a Promissory Note ("Note") in the principal amount of $618, 000.00. The Note is secured by a Deed of Trust dated March 7, 2005, and recorded on March 17, 2005 in the Sacramento County Recorder's Office as Book 20050317, Page 1809. The Deed of Trust identifies defendant Deepal Wannakuwatte and Betsy, as the "borrower" and Long Beach Mortgage Company as the "lender, " "beneficiary, " and "trustee."
b. On July 14, 2014, the Federal Deposit Insurance Corporation executed a Corporate Assignment of Deed of Trust assigning the Deed of Trust to JPMorgan Chase Bank and it was recorded on July 29, 2014 in the Sacramento County Recorder's Office as Book 20140729, Page 0147. On July 14, 2014, JPMorgan Chase Bank executed a Corporate Assignment of Deed of Trust assigning the Deed of Trust to Deutsche Bank and it was recorded on July 29, 2014 in the Sacramento County Recorder's Office as Book 20140729, Page 0148.
c. The defendant's last payment on the Note was made on June 4, 2014. As of January 29, 2015, the unpaid balance on the Note was $556, 719.96. Fees, costs, and other expenses continue to accrue in connection with this loan.
6. No other parties have filed petitions in this matter regarding this property, and the time in which any person or entity may file a petition has expired.
7. The parties hereby stipulate that Deutsche Bank and California Bank & Trust are lien holders on the property. Deutsche Bank and California Bank & Trust have a legal right, title, or interest in the property, and such right, title, or interest requires the Court to amend the Preliminary Order of Forfeiture pursuant to Fed. R. Crim. P. 32.2(c)(2) to account for their interest, because such interest was vested in them rather than defendant Wannakuwatte at the time of the commission of the acts which give rise to the forfeiture of the property. See 18 U.S.C. § 982(b)(1) and 28 U.S.C. § 2461(c) (incorporating 21 U.S.C. § 853(n)). The parties further stipulate, however, that Deepal Wannakuwatte has an ownership interest in the property and the Preliminary Order of Forfeiture remains valid to the extent it orders the forfeiture of his interest.
8. The parties agree that the sale of the property shall be handled by the U.S. Marshals Service in a commercially reasonable manner. The U.S. Marshals Service shall have sole authority to select the means of sale, including sale by internet or through a licensed real estate broker, and shall have sole authority over the marketing and sale of the property. Any and all personal possessions not removed within thirty days from the entry of this Final Order of Forfeiture will be disposed of by the United States without further notice. The U.S. Marshals Service shall promptly notify each petitioner's undersigned counsel of the following: (1) execution of any purchase agreement for the property; (2) estimated close of escrow date; and (3) notice of when the funds disbursement will be made.
9. The United States agrees that upon entry of this Final Order of Forfeiture and sale of the property pursuant to this Final Order of Forfeiture, the United States will not contest payment to Deutsche Bank and California Bank & Trust from the proceeds of the sale, after payment of outstanding real property taxes assessed against the property and expenses reasonably incurred by the U.S. Marshals Service in connection with its custody and sale of the property, the following:
a. All unpaid principal due to petitioner Deutsche Bank under the Promissory Note ("Note") dated March 7, 2005, in the principal amount of $618, 000.00. The Note is secured by a Deed of Trust recorded in the Sacramento County, California, Official Records as Book 20050317, Page 1809, recorded on March 17, 2005. As of April 26, 2015, the loan balance, including principal, interest, fees, and costs, was $617, 814.50.
b. All unpaid interest at the contractual base rate (not the default rate) under the above Note, secured by the Deed of Trust, until the date of payment.
c. The exact amount to be paid to Deutsche Bank shall be determined at the time of payment, but shall not be less than the amounts set forth above.
d. All unpaid principal due to petitioner California Bank & Trust under the Promissory Note ("the Note") dated September 1, 2005, in the principal amount of $130, 246.00. The Note is secured by a Deed of Trust recorded in the Sacramento County, California, Official Records as Book 20051202, Page 1361, recorded on December 2, 2005. As of May 30, 2014, the balance due and owing on the Note was $26, 927.88.
e. All unpaid interest at the contractual base rate (not the default rate) under the above Note, secured by the Deed of Trust, until the date of payment.
f. Attorney's fees in the amount of $1, 418.00.
g. The exact amount to be paid to California Bank & Trust shall be determined at the time of payment, but shall not be less than the amounts set forth above.
h. To the United States, all net proceeds from the sale of the property after the above disbursements to be forfeited to the United States and disposed of as provided for by law.
10. The payment to petitioners Deutsche Bank and California Bank & Trust shall be in full settlement and satisfaction of all claims and petitions by them to the property, and of all claims arising from and relating to the detention and forfeiture of the property. The payment to petitioners shall not include any penalty payments, including any prepayment penalties.
11. Upon payment, Deutsche Bank and California Bank & Trust agree to assign and convey their respective security or other interests to the United States via recordable documents. All parties to this stipulation hereby release the United States and its servants, agents, and employees and all other public entities, their servants, agents, and employees, from any and all liability arising out of or in any way connected with the forfeiture and sale of the real property located at 940 44th Street, Sacramento, CA. This is a full and final release applying to all unknown and unanticipated injuries, and/or damages arising out of said forfeiture and sale, as well as to those now known or disclosed. The parties to this agreement agree to waive the provisions of California Civil Code § 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
12. Petitioners agree not to pursue against the United States any other rights that they may have under the Promissory Notes and/or Deeds of Trust, including, but not limited to, the right to foreclose upon and sell the property during the pendency of this proceeding or any post-forfeiture proceeding relating to the marketing and sale of the property, and any right to assess additional interest or penalties except as specifically allowed herein.
13. Petitioners understand and agree that by entering into this stipulation of their interest in the property, they waive any right to litigate further their ownership interest in the property and to petition for remission or mitigation of the forfeiture. Thereafter, if this Stipulation for Final Order of Forfeiture is approved by the Court, then unless specifically directed by an order of the Court, petitioners shall be excused and relieved from further participation in this action.
14. Petitioners understand and agree that the United States reserves the right to void the stipulation if, before payment of the Promissory Note or lien, the U.S. Attorney obtains new information indicating that the petitioners are not an "innocent owner" or "bona fide purchaser" pursuant to the applicable forfeiture statutes. The U.S. Attorney also reserves the right, in its discretion, to terminate the forfeiture at any time and release the property. In either event, the United States shall promptly notify petitioners of such action. A discretionary termination of forfeiture shall not be a basis for any award of fees. Additionally, petitioners reserve the right to petition the Court for a modification of this order in the event it determines that the value of the subject property is at an amount which may not be sufficient to satisfy their liens.
15. The parties agree to execute further documents, to the extent reasonably necessary, to convey clear title to the property to the United States and to implement further the terms of this Stipulation.
16. Each party agrees to bear its own costs and attorneys' fees.
17. Payment to the petitioners pursuant to this Stipulation is contingent upon a forfeiture of the property to the United States, the United States' prevailing against any additional third parties alleging claims in an ancillary proceeding, and the Court's entry of this Final Order of Forfeiture.
18. The terms of this Stipulation shall be subject to approval by the United States District Court. Violation of any term or condition herein shall be construed as a violation of an order of the Court.
19. The court shall maintain jurisdiction over this matter to enforce the terms of this stipulation.
ORDER
The Court having received, read, and considered the foregoing Stipulation of the parties, and good cause appearing therefrom, the Stipulated Settlement is hereby ADOPTED and APPROVED, and the Court hereby enters a Final Order of Forfeiture on the terms set forth in the parties' Stipulated Settlement. All right, title, and interest of Betsy Wannakuwatte, Long Beach Mortgage Company, Finance America, LLC, Mortgage Electronic Registration Systems, Inc., and Chase Home Finance, LLC to the property located at 940 44th Street, Sacramento, California, Sacramento County, APN: XXX-XXXX-XXX-XXXX, is hereby extinguished.
Exhibit A
Real Property located at:
1. 14 Fig Leaf Court, Sacramento, CA (Sacramento County), APN: XXX-XXXX-XXX-XXXX;
2. 1933 Richmond Street, Sacramento, CA (Sacramento County), APN: XXX-XXXX-XXX-XXXX;
3. 2120 22nd Avenue, Sacramento, CA (Sacramento County), APN: XXX-XXXX-XXX-XXXX;
4. 31660 County Road 27, Woodland, CA (Yolo County), APN: XXX-XXX-XXX-XXX;
5. 5111 Pleasant Drive, Sacramento, CA (Sacramento County), APN: XXX-XXXX-XXX-XXXX;
6. 5231 Pleasant Drive, Sacramento, CA (Sacramento County), APN: XXX-XXXX-XXX-XXXX;
7. 5131 S. Land Park Drive, Sacramento, CA (Sacramento County), APN: XXX-XXXX-XXX-XXXX;
8. 940 44th Street, Sacramento, CA (Sacramento County), APN: XXX-XXXX-XXX-XXXX;
9. 30562 Old Coast Road, Gold Beach, OR (Curry County), Map No. 36-15-25BB, Tax Lot No. 2000;
10. 62-3955 Kaunaoa Iki Road, #6A, Kamuela, HI (Hawaii County), Tax Map Key: (3) X-X-XXX-XXX;
11. 879 F Street, West Sacramento, CA (Yolo County), APN: XXX-XXX-XXX-XXX;
Vehicles described as:
12. a 2008 Infiniti M45S, VIN: JNKBY01EX8M500746, CA Plate: 6GLR121;
13. a 2003 BMW X5 (Wagon), VIN: 5UXFB93513LN79937, CA Plate: 5ATD906;
Financial Accounts described as:
14. Approximately $150, 000.00 held in a California Bank and Trust certificate of deposit, account number CD XXXXXXXXXX;
15. Approximately $394.49 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of Capital Sports Management, LLC;
16. Approximately $356.49 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of Clover Ranch, LLC;
17. Approximately $625.23 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of DBS Air, LLC;
18. Approximately $4, 466.35 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of Deepal S. and Betsy K. Wannakuwatte;
19. Approximately $84.22 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of Deepal Wannakuwatte & David L. Gordon;
20. Approximately $2, 056.86 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of Jamestown Health & Medical Supply Co, LLC;
21. Approximately $76.02 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of JTS Communities, Inc.;
22. Approximately $304.53 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of SKW Trading & Marketing/Sarah K. Wannakuwatte;
23. Approximately $38.51 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of SKW Trading & Marketing/Sarah K. Wannakuwatte;
24. Approximately $490.00 held in California Bank and Trust account number XX-XXXXXX-XX, held in the name of Wannas Serendipity Charitable Foundation;
25. Approximately $44.23 held in East West Bank account number XX-XXXXXXXXX, held in the name of Deepal S. or Betsy K. Wannakuwatte;
26. Approximately $52.00 held in East West Bank account number XX-XXXXXXXX, held in the name of Denniston DB, LLC;
27. Approximately $68, 348.28 held in East West Bank account number XX-XXXXXXXX, held in the name of International Manufacturing Group, Inc.;
28. Approximately $37, 668.48 held in Farmers and Merchants Bank account number XX-XXXXXX-XX, held in the name of International Manufacturing Group/dba Relyaid/dba Relyaid Tattoo Supply/dba Desco Dental;
29. Approximately $72.09 held in First Hawaiian Bank account number XX-XXXXXX, held in the name of Deepal S. & Betsy K. Wannakuwatte;
30. Approximately $134.45 held in North Valley Bank account number XXXXXXXXXX, held in the name of International Manufacturing Group, Inc.;
31. Approximately $219.71 held in Bank of the West account number XXX-XXX-XXXXXX, held in the name Betsy K. Wannakuwatte;
32. Approximately $3, 280.74 held in Bank of the West account number XXX-XXX-XXXXX, held in the name Deepal S. Wannakuwatte;
33. Approximately $17, 127.29 held in Bank of the West account number XXX-XXXXXX, held in the name Olivehurst Glove Manufacturers LLC;
34. Approximately $27, 212.22 held in American Funds/The Capital Group account number XXXXXXXX, held in the name Deepal Wannakuwatte;
Insurance Policies described as:
35. Cash value of Nationwide life insurance policy number XX-XXXXXXX, held in the name Deepal Wannakuwatte, valued at approximately $25, 258.51;
36. Cash value of Nationwide life insurance policy number N100446510, held in the name Deepal and Betsy Wannakuwatte Irrevocable Trust, valued at approximately $24, 831.08;
37. Cash value of Nationwide life insurance policy number N600006930, held in the name International Manufacturing Group, Inc., valued at approximately $104, 469.67;
Checks and Money Orders described as:
38. Check number 1581 for $10, 500.00 dated March 3, 2014, and made payable to Olivehurst Glove Manufacturing, LLC;
39. Check number 06331158 for $564.56 from the U.S. Treasury dated March 4, 2014, and made payable to Olivehurst Glove Manufacturers, LLC;
40. Check number 018012 for $600.00 dated February 6, 2014, and made payable to Deepal S. and Betsy K. Wannakuwatte;
41. Check number 015041 for $648.65 dated February 6, 2014, and made payable to Deepal S. and Betsy K. Wannakuwatte;
42. Check number XXXXXXXXXX for $1, 300.00 dated April 10, 2014, and made payable to Betsy Wannakuwatte;
43. Personal money order number XXXXXXXXXX for $377.00 dated April 4, 2014, with "Pay to the order of" left blank;
44. Personal money order number XXXXXXXXXX for $755.00 dated April 4, 2014, and made payable to Betsy Wannakuwatte;
Other Assets described as:
45. River Bend Park Apartments, LLC; Entity Number: XXXXXXXXXXXX;
46. 1235 Glenhaven Court, LLC, Entity Number: XXXXXXXXXXXX; and
47. Cash value of any federal or state income tax refunds due in relation to any federal or state tax returns, either corporate or personal, filed by the defendant between 2002 and 2014.
Exhibit B
The land is situated in the State of California, County of Sacramento, City of Sacramento, and described as follows:
Lot 2077, as shown on the "Plat of Wright and Kimbrough Tract No. 24 Annex", recorded in Book 17 of Maps, Map No. 40 records of said County.
APN: XXX-XXXX-XXX-XXXX