BOARD OF TRUSTEES OF THE KEN LUSBY CLERKS & LUMBER HANDLERS PENSION FUND, Plaintiff,
PIEDMONT LUMBER & MILL COMPANY; WILLIAM C. MYER, JR., an individual; WENDY M. OLIVER, an individual; WENDY M. OLIVER, as Trustee to the Oliver Family Trust; and DOES 1-20, Defendants.
Case No. 3:13-cv-03898-HSG.
United States District Court, N.D. California.
October 16, 2015.
Clarissa A. Kang, Sean T. Strauss, TRUCKER ⧫ HUSS A Professional Corporation, San Francisco, California, Attorneys for Plaintiff BOARD OF TRUSTEES OF THE KEN LUSBY CLERKS & LUMBER HANDLERS PENSION FUND.
Richard N. Hill, Aleksandr Katsnelson, LITTLER MENDELSON, P.C., San Francisco, California, Attorneys for Defendant WENDY M. OLIVER, an individual; and WENDY M. OLIVER, as Trustee to the Oliver Family Trust.
STIPULATION AND ORDER TO STAY EXECUTION OF JUDGMENT WITHOUT BOND
HAYWOOD S. GILLIAM, Jr., District Judge.
This Stipulation and [Proposed] Order to Stay Execution of Judgment Without Bond (“Stipulation”) is hereby entered by and between Plaintiff BOARD OF TRUSTEES OF THE KEN LUSBY CLERKS & LUMBER HANDLERS PENSION FUND (“Pension Fund”) and Defendant WENDY M. OLIVER, individually and as Trustee to the Oliver Family Trust (“Oliver”), through their respective counsel, based on the following:
A. On September 16, 2015, the United States District Court for the Northern District of California (“Court”) entered judgment in favor of Plaintiff Pension Fund against Defendants Oliver and William C. Myer, Jr. for $3,507,388.56, subject to such additional amount as the Court may allow as costs and attorneys’ fees to Plaintiff Pension Fund in the above captioned case (the “Judgment”).
B. On September 17, 2015, Defendant William C. Myer, Jr. filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of California, Sacramento Division, commencing bankruptcy case No. 15-27322 MSM, which is currently pending as of the date of this Stipulation.
C. On September 22, 2015, Oliver filed a Motion to Stay Execution of Judgment Without Bond (“Motion”) supported by Wendy M. Oliver’s declaration under penalty of perjury executed on September 19, 2015, setting forth certain facts regarding Oliver’s assets and property (“Oliver Declaration”).
D. Oliver filed a notice of appeal to the Ninth Circuit Court of Appeals on October 13, 2015 (“Appeal”).
Based on the foregoing, the Pension Fund and Oliver hereby stipulate that the Court may enter the following Order to resolve the Motion.
1. Subject to the provisions hereof, enforcement of the Judgment shall be stayed without bond pending the earlier of decision on or dismissal of the Appeal. This Order will expire upon the issuance of the Ninth Circuit’s mandate after a decision on the Appeal or dismissal of the Appeal.
2. Oliver shall be entitled to receive, retain and disburse all sums received from her ex-husband’s pension, social security and income received from the sale of artwork (provided sales do not exceed $2,500 per year) and the Desert Circle Apartments, as referenced in Paragraph 4 of the Oliver Declaration (“Unencumbered Revenue”). Oliver may use the Unencumbered Revenue as she deems necessary during the period covered by this Stipulation.
3. Oliver shall be entitled to advance to her attorneys, in addition to any pre-paid retainers the sum of $60,000 from her “investment accounts valued at approximately $500,000” described in paragraph 4(b) below to be credited against attorneys’ fees and costs incurred in connection with the prosecution of the Appeal and bankruptcy/workout services as necessary. Absent written consent of the Pension Fund, any additional fees and cost must be paid from the “retirement accounts” described in paragraph 4(a) below or from a source other than assets subject to the liens described herein
4. Except as set forth above, the Pension Fund shall be deemed to have a judgment lien upon, and Oliver shall be prohibited and enjoined from making any payments or withdrawals from, making any transfers with respect to, hypothecating, encumbering or granting any lien, security interest or other interest in any and all of the following, the first three of which are referenced in Paragraph 3 of the Oliver Declaration: (a) the retirement accounts and annuities totaling approximately $303,000; (b) the other investment accounts valued at approximately $500,000 (less any advances for attorney’s fees described in paragraph 3); (c) the Oliver Family Trust Wells Fargo preferred checking account (account number ending 6368) in the approximate amount of $75,923.54 (“Frozen Account”). To the extent necessary and upon written consent of the Pension Fund, Oliver shall be able to use these funds from the Frozen Account to pay any unexpected expenses but only after all funds in the Unencumbered Accounts (defined below) are exhausted. The Pension Fund will not withhold consent unreasonably; or (d) any other investment, retirement account or benefit, annuity, deposit or checking account, except for the following accounts (“Unencumbered Accounts”):
a. Oliver’s Wells Fargo personal checking (account number ending 1163) with an approximate balance of $5,339;
b. Oliver’s Wells Fargo travel account (account number ending 8397) with an approximate balance of $1,000;
c. Oliver Family Trust Wells Fargo savings account (account number ending 8328) with an approximate balance of $18,145; and
d. Oliver Family Trust Wells Fargo checking account (account number ending 4110) with an approximate balance of $100
The Unencumbered Accounts may be used for receipt and disbursement of funds referenced in Paragraph 2 hereof.
5. Oliver shall forthwith provide to the Pension Fund the institution or custodian names, addresses, and relevant account numbers for each of the annuities or accounts described (except for the Unencumbered Accounts) in Paragraph 4 so that the Pension Fund may deliver a copy of this Order to each such institution. Service or delivery of this Order to such institution or custodian shall be deemed to perfect the judgment lien in favor of the Pension Fund created by this Order.
6. Oliver shall be prohibited and enjoined from making any transfers of, hypothecating, encumbering or granting any lien, security interest or other interest in any and all real property in which she or the Oliver Family Trust has an interest, including the real property referenced in Paragraph 3 of the Oliver Declaration.
7. The judgment lien created in Paragraph 4 and the injunction and prohibition in Paragraphs 4 and 6 shall remain in effect pending further order of this Court. Any actions taken in violation or derogation of the provisions of Paragraphs 4, 5 or 6 may be brought to the attention of the Court ex parte with telephonic and email notice to counsel for Oliver, and may be grounds for lifting this stay of Judgment or for other appropriate relief.
8. Upon application to the Clerk of the Court, the Pension Fund shall be issued Abstracts of Judgment in the above amount, and amended Abstracts of Judgment in the event that the amount of the Judgment is increased, naming Wendy M. Oliver, an Individual, and Wendy M. Oliver as Trustee to the Oliver Family Trust as judgment debtors. The Abstracts of Judgment shall be issued without reference to William C. Myer, Jr. as a defendant so long has his bankruptcy case remains pending. In the event that the bankruptcy case is dismissed or the bankruptcy court grants relief from stay, the Pension Fund may be issued amended Abstracts of Judgment naming William C. Myer, Jr. as an additional defendant.
9. Plaintiff Pension Fund may record the above Abstracts of Judgment in applicable counties, including without limitation Contra Costa and Lake Counties.
10. Plaintiff Pension Fund may apply for, be issued, and serve upon Oliver an Order to Appear for Examination pursuant to Section 708.110 of the California Code of Civil Procedure. The date of the examination shall recite “Stayed by Court Order” and shall be subject to reissuance if the stay of Judgment ordered herein expires or is lifted.
11. The Court shall retain jurisdiction to modify or amend this Order.
IT IS SO STIPULATED.
I attest that I have obtained Littler Mendelson’s concurrence in the filing of this document.
IT IS SO ORDERED.
Save trees – read court opinions online on Google Scholar.