United States v. Gibas
2:06-cv-00100
D. Utah
Jan 18, 2007
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Docket
Case Information

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DISTRICT OF UTAH

IN THE UNITED STATES DISTRICT COURT JUDICIAL DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JAMES P. GIBAS,

Defendant.

ORDER CONFIRMING SALE

Civil No. 2:06-cv-100-BSJ Judge Bruce S. Jenkins

This matter comes before the Court for a confirmation of the sale of property held in this Receivership Estate, pursuant to 28 U.S.C. § 2001(b), as sought by the Receiver's Motion dated October 30, 2006. The Court previously entered an Order Approving Sale on December 27, 2006, also pursuant to § 2001 (b). Based on the foregoing, and for good cause appearing, the Court now hereby ORDERS, ADJUDGES, and DECREES as follows:

  1. The real property held in this Receivership Estate consists of a house at 2393 East Bear Hills Drive, Draper, Utah, also known as Lot 218, The Cove at Bear Canyon - Phase II, Tax ID No. 28-27-252-010 (the "House"). The House is presently recorded in the name of Noel K. Gibas.
  2. The Court's Order Approving Sale previously approved the terms of sale of the House to Kevin K. McCallum and Cathy M. McCallum (the "Buyers") in accordance with 28 U.S.C. § 2001(b). The Order authorized the Receiver to execute a Receiver's Deed and to place

*2 that Deed in escrow with Equity Title Company. The Order also required the Buyers to place in escrow either the full purchase price or the earnest money and other evidence of ability to complete the purchase. Those items would remain in escrow anticipating this Order Confirming Sale. 3. The Court finds that, based on the Order Appointing Appraisers entered October 2, 2006, the Receiver has engaged three appraisals of the House. The appraisers are Stephen M. Ward of U.S. Appraisers, Robert B. Vincent of Vincent Appraisal Service, and Michael Forsyth of Mountain West Appraisal. Each of the approved appraisers has completed an appraisal on the House. Pursuant to this Court's Order Appointing Appraisers and 28 U.S.C. § 2001(b), the "appraised value" is determined by averaging the values rendered by the three appraisers for the House. The three appraisals of the House were \ 800,000, \ 800 , 000 , and \ 730,000 , t h e a v e r a g e o f w h i c h i s \ 776 , 666.67 . The purchase price for the House, as previously approved in the Court's Order Approving Sale, is greater than 2 / 3 of the appraised value. 4. After the Order Approving Sale, the terms of sale were published as this Court directed in the Intermountain Commercial Record, which is a newspaper of general circulation in Salt Lake County, Utah, and more than ten days has elapsed since that publication. 5. No bona fide offer to purchase either the House or the Land has been made under conditions prescribed by this Court guaranteeing at least a 10 % increase over the terms approved in the Order Approving Sale.

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  1. By this Order, the Court hereby confirms the sale to Kevin K. McCallum and Cathy M. McCallum and finds that all of the conditions prescribed by 28 U.S.C. § 2001 and the Order Approving Sale have been satisfied. The escrow may now close, with instructions to the escrow officer to deliver the Receiver's Deed to the Buyers and to deliver the purchase price to the Receiver, less commissions and closing costs as described below.
  2. By this Order, the Court approves payment of a 6 % total commission to be divided between the Receiver's and the Buyers' real estate brokers as they shall agree, and also approves the payment of typical closing costs including property taxes, title insurance premiums, document fees, recording fees, etc. Such commissions and closing costs are determined to be administrative expenses of this Receivership Estate.
  3. This Order together with the Receiver's Deed shall constitute evidence of title to the House being vested in the Buyers as Grantees, in fee simple absolute, and by this Order the Court divests all rights of ownership held by Noel K. Gibas.
  4. The Court hereby permanently enjoins all parties and claimants to this proceeding and any other persons or entities from interfering with the Buyers' title to and quiet possession of the House.
  5. A certified copy of this Order and the Receiver's Deed shall be recorded in the Office of the Salt Lake County Recorder as evidence of the transfer of title referenced herein.
  6. Thereupon, title shall transfer to Kevin K. McCallum and Cathy M. McCallum free and clear of all liens and encumbrances, including the claims of Countrywide Home Loans and any affiliated entities, Eckman & Mitchell, and any other persons asserting ownership or lienhold

*4 interests. All such ownership or lienhold claims shall be transferred to the proceeds of sale with the same priority, character, rank, and dignity as they bore to the House prior to the sale, if any. 12. This Order Confirming Sale does not affect the remaining issues before the Court including those relating to the determination of claims and the ultimate distribution of the

Receivership Estate.

IT IS SO ORDERED. DATED this 1 ⏞ I day of January, 2007.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which sent notification of such filing to the following: D. Loren Washburn, Esq.

United States Attorney's Office 185 South State, #400 Salt Lake City, UT 84111 Attorneys for the United States of America Gregory V. Stewart, Esq. DEXTER & DEXTER University Office Park 1360 South 740 East Orem, UT 84097-8081 Attorneys for Defendant Armand J. Howell, Esq. Matheson Mortensen Olsen & JEPpson 648 East 100 South Salt Lake City, UT 84102 Attorneys for Countrywide Home Loans Darwin H. Bingham, Esq. William G. Wilson, Esq. Scalley Reading Bates HanSen & Rasmussen 15 West South Temple, Suite 600 P.O. Box 11429

Salt Lake City, UT 84147-0429 Attorneys for Credit Union One

AND

*6 Case 2:06-cv-00100-BSJ Document 72 Filed 01/18/07 Page 6 of 6

I hereby certify that I have mailed by United States Postal Service, the foregoing document to the following non-CM/ECF participants:

Eckman & Mitchell Construction c/o Curtis Padjen 3032 South 1030 West Salt Lake City, UT 84119

MATTHEW C. BARNECK C:IDocuments and Settingsiusdc\Local SettingsiTempiautes6030C8\IQ6263.WPD