United States District Court, D. Nevada
before the court is SEC v. Fujinaga et al, case no.
2:13-cv-01658. Receiver Robb Evans & Associates LLC's
(“receiver”) filed a motion requesting the court
to authorize the sale of certain real and personal property,
as described below. (ECF No. 437). Relief defendant June
Fujinaga filed a response (ECF No. 445), to which the
receiver replied, (ECF No. 447).
receivers motion requests this court to issue an order (1)
authorizing, approving, and confirming sale of real property
located at 9009 Greensboro Lane (“the real
property”) and sale and overbid procedures and for
related relief; (2) authorizing sale of personal property
located therein (“the personal property”); and
(3) granting relief from Local Rule 66-5 pertaining to notice
of creditors. (ECF No. 437).
receiver further requests an order authorizing and confirming
the sale of the real property on an “as is” basis
by private sale either (a) to Nanced LLC or their assignee at
a purchase price of $2, 000, 000.00 pursuant to the offer and
acceptance agreement and earnest money receipt, or (b) to
such higher qualified overbidder who hereafter submits the
highest qualified overbid at a subsequent overbid session to
be conducted under the terms and conditions more fully set
forth herein and approved by the court, which sale the
receiver requests be approved and confirmed without further
notice, hearing or order. (ECF No. 437). The overbid
procedures are detailed fully in the receiver's motion.
U.S.C. § 2001(b) reads,
After a hearing, of which notice to all interested parties
shall be given by publication or otherwise as the court
directs, the court may order the sale of such realty or
interest or any part thereof at private sale for cash or
other consideration and upon such terms and conditions as the
court approves, if it finds that the best interests of the
estate will be conserved thereby. Before confirmation of any
private sale, the court shall appoint three disinterested
persons to appraise such property or different groups of
three appraisers each to appraise properties of different
classes or situated in different localities. No private sale
shall be confirmed at a price less than two-thirds of the
appraised value. Before confirmation of any private sale, the
terms thereof shall be published in such newspaper or
newspapers of general circulation as the court directs at
least ten days before confirmation. The private sale shall
not be confirmed if a bona fide offer is made, under
conditions prescribed by the court, which guarantees at least
a 10 per centum increase over the price offered in the
U.S.C. § 2004 reads, “[a]ny personalty sold under
any order or decree of any court of the United States shall
be sold in accordance with section 2001 of this title, unless
the court orders otherwise.” Id.
objects to the receiver's motion with five arguments.
(ECF No. 445). First, the real and personal property are not
subject to sale because they were obtained prior to alleged
wrongdoing. Second, the receiver must offset the judgment
against the defendant by the value of her property that has
already been sold, which by defendant's calculations
totals more than the judgment. Third, the receiver cannot
sell the real or personal property because the receiver
obtained only two appraisals of the real property and one
appraisal of the personal property. Fourth, the receiver
cannot sell defendant's property that has been exempted
through defendant's amended claim of exemption (ECF No.
407). Fifth, if the receiver is authorized to sell the real
and personal property, the receiver must distribute the
proceeds traceable to her separate property to defendant.
objections to the receiver's motion are without merit.
This court has already held that the real and personal
property at issue is subject to sale so that the receiver may
satisfy the judgment against defendant. (ECF No. 317). And
defendant has not presented competent evidence that the
judgment against defendant was satisfied by prior sales of
property connected to this litigation. Thus, defendant's
first and second arguments are non-starters.
fourth and fifth arguments are similarly deficient. The
receiver may not distribute proceeds to the defendant at this
time, as any such distribution would be premature.
(See ECF No. 317 at 3) (holding that the SEC will
propose a distribution plan, which is subject to the
court's approval for the funds and assets collected
pursuant to the Final Judgment in this case). Further,
defendant's exemption argument fails, as defendant has
not properly exempted any personal property that is the
subject of the receiver's motion. Defendant's
exclusive reliance on the bankruptcy code to support its
position is misplaced. Accordingly, the court will now
consider defendant's challenges based on the statutes
governing the receiver's sale of the real and personal
receiver's proposed appraisals presumptively satisfy the
statutory requirement of three appraisals prior to the
proposed sale of the real property. 28 U.S.C. § 2001.
The receiver obtained two valuations from accredited
appraisers and one valuation from a real estate broker. The
relevant statute does not specify who must conduct
appraisals. See 28 U.S.C. § 2001(b) (“. .
. three disinterested persons to appraise such property . .
.”). The court holds that the valuations submitted by
the receiver can constitute appraisals for the purpose of
satisfying the statutory requirements. In the present case,
it is in the best interest of the estate to ratify the use of
these three valuations if they are based on the reliable
methods that the receiver describes in his motion. The estate
will thus not be required to spend additional funds to
appraise a home that three professionals have already valued
and that has a bona fide offer for purchase and will be
listed at a public auction before the purchase becomes final.
See Id. (“. . . the court may order the sale
of such realty or interest . . . upon such terms or
conditions as the court approves, if it finds that the best
interests of the estate will be conserved thereby.”).
receiver's motion also asks the court to include a
factual finding that the proposed sale of the property for
$2, 000, 000.00 would satisfy the requirement of 28 U.S.C.
§ 2001(b) that the sale be for at least 2/3 of the
appraised value of the home. The court cannot make a factual
finding without reviewing the appraisals. Therefore, the
receiver will submit the appraisals for in camera
review, at which time the court will decide whether to
appoint these proposed “three disinterested persons to
appraise” the real property for the purposes of 28
U.S.C. § 2001(b), and whether to approve the sale of the
the proposed sale of the personal property, the receiver has
satisfied the statutory requirements of 28 U.S.C.
§§ 2001 and 2004. The receiver obtained an
appraisal as to the value of the personal property. Further,
the receiver claims that the purchaser of the real property
may purchase the personal property, and if it does not then
the receiver has obtained bids from two reputable auctioneers
who will handle the sale of the personal property. The court
holds that the receiver's proposed disposition is in the
best interests of the estate, and will approve it according
to 28 U.S.C. §§ 2001 and 2004.
receiver next requests an order deeming notice of this motion
to be sufficient under Local Civil Rule 66-5. (ECF No. 437).
Local Rule 66-5 provides that unless the court otherwise
orders, the receiver shall give all interested parties and
creditors at least fourteen (14) days' notice of the time
and place of hearings on applications for fees of the
receiver. LR 66-5(d). The court has not scheduled a hearing
on the instant motion, and finds that it is unnecessary to do
so. Further, to ...