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).
receiver's 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 private sale.
Id. (emphasis added).
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.
September 21, 2017, this court held that “the
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.” (ECF No. 449) (emphasis added). 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, except that it
must be “three disinterested persons to appraise such
property.” See 28 U.S.C. § 2001(b). The
court held that “the valuations submitted by the
receiver can constitute appraisals for the purpose
of satisfying the statutory requirements.” (ECF No.
449) (emphasis added). However, the court was unable to
determine whether these three proposed individuals met the
requirements of 28 U.S.C. § 2001(b) without in
camera review of the valuations and the credentials of
this court ordered the receiver to “file with this
court within seven (7) days a proposed order as referenced in
its filings. (See ECF No. 437 at 22). The proposed
order must explicitly appoint the three proposed appraisers
by name, among the other required findings of fact,
conclusions of law, and orders therein.” (ECF No. 449).
Further, the court ordered the receiver to, “within
seven (7) days, submit to the court for in camera
review copies of: the appraisal performed by Tammy L. Howard
and Matthew J. Lubway, the appraisal performed by W. Snow,
and the written opinion of Greg Clemens as to the value of
the property.” Id.
receiver submitted for this court's in camera
review the three valuations of the real property as
requested. Upon review of these documents, this court finds
that the receiver has not provided this court with
“three disinterested persons
to appraise” the property.
The first two submissions are appraisals that clearly comply
with the requirements of 28 U.S.C. § 2001(b).
the third submission fails to comply with statutory
requirements on multiple levels. It is a broker price opinion
or comparative market analysis of the broker, Greg Clemens,
who is selling the real property at issue here, not an
appraisal conducted by a disinterested person, as required by
Clemens is not a “disinterested person, ” as is
required by 28 U.S.C. § 2001(b) because he is the broker
hired to sell this property. (ECF No. 437 at 9). Also, this
court cannot construe this valuation as an appraisal for the
purposes of 28 U.S.C. § 2001(b) because the face of Mr.
Clemens's written valuation explicitly disclaims any
reliance on it as an “appraisal.” The top of the
first page of this document reads:
This is a broker price opinion or comparative market analysis
and should not be considered an appraisal. In making any
decision that relies upon my work, you should know that I
have not followed the guidelines for development of
an appraisal or analysis contained in the Uniform Standards
of Professional Appraisal Practice of the Appraisal
the court is bound by 28 U.S.C. § 2001(b) to deny the
motion to approve the sale of real property. The court is
unable to appoint Greg Clemens as a “disinterested
person to appraise” the property. Thus, the receiver
has failed to comply with the statute's requirement of
obtaining three ...