Free Order - District Court of California - California

Case 3:08-cv-00891-MEJ

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney THOMAS MOORE (ASBN 4305-O78T) Assistant United States Attorney Chief, Tax Division DAVID L. DENIER (California State Bar No. 95024) Assistant United States Attorney 9th Floor Federal Building 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6888 Fax: (415) 436-6748 Attorneys for the United States of America

8 UNITED STATES DISTRICT COURT FOR THE 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 15 16 17 18 19 20 21 The parties to the above-entitled action jointly submit this Case Management Statement. 22 DESCRIPTION OF CASE 23 1. 24 This is an action to reduce to judgment certain tax assessments made against defendants 25 Jesus and Olga Marquez, Ramon and Juanita Marquez, Taqueria Los Primos, and Taqueria Los 26 Primos No. 2; and to foreclose certain federal tax liens against the real property located at 791 27 South Johnston Street, Half Moon Bay, California 94019. 28 ///
Joint CM S & Proposed Order No. C-08-0891-CW 1

v. JESUS MARQUEZ, OLGA MARQUEZ, RAMON MARQUEZ, JUANITA MARQUEZ, TAQUERIA LOS PRIMOS, TAQUERIA LOS PRIMOS NO. 2, LUIS GALINDO, MARTHA GALINDO, BANK OF AMERICA, N.A., STATE OF CALIFORNIA FRANCHISE TAX BOARD, STATE OF CALIFORNIA EMPLOYMENT DEVELOPMENT DEPARTMENT, STATE OF CALIFORNIA BOARD OF EQUALIZATION, STATE OF CALIFORNIA DEPARTMENT OF LABOR, SAN MATEO COUNTY TAX COLLECTOR, Defendants.

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No. C-08-0891-MEJ JOINT CASE MANAGEMENT STATEMENT

DATE: AUGUST 28, 2008 TIME: 10:00 A.M.

A brief description of the events underlying the action:

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Jesus and Ramon Marquez are brothers and partners in Taqueria Los Primos, 85 North B Street, San Mateo, California 94401, and Taqueria Los Primos No. 2, 376 N. Ellsworth Avenue, San Mateo , California 94401. Both partnerships have outstanding employment tax liabilities. Also, both partnerships continue to accrue FICA and withholding tax liabilities(Form 941) and federal unemployment tax liabilities (Form 940). They are also delinquent in filing some of their Employer's Quarterly Federal Tax Returns (Form 941), Employer's Annual Federal Unemployment Tax Returns (Forms 940), and U.S. Return of Partnership Income (Form 1065). Jesus and Olga Marquez and Ramon and Juanita Marquez have outstanding federal income tax liabilities. Both couples file their federal income tax returns jointly. Notices of Federal Tax Liens have been filed for the tax periods as set forth in the complaint. Additionally, Defendants Employment Development Department, Franchise Tax Board, and State Board of Equalization have recorded tax liens against the subject real property. The real property that is the subject of the foreclosure action , 791 South Johnston Street, Half Moon Bay, California 94019, is the residence of Jesus and Olga Marquez as well as the residence of Ramon and Juanita Marquez. Jesus and Olga hold a forty-five percent interest in the residence as joint tenants with each other. Ramon and Juanita Marquez hold a forty-five percent interest in the residence as joint tenants with each other. The remaining ten percent is allegedly held by Luis and Martha Galindo as joint tenants with each other. The couples' 45%, 45% and 10% interests are held as tenants in common. The Galindos do not reside at the foreclosure property, nor do they owe any federal taxes. 2. The principal factual issues which the parties dispute:

Defendants Jesus and Olga Marquez, Ramon and Juanita Marquez, Taqueria Los Primos, and Taqueria Los Primos No. 2 do not contest the tax liabilities. They are attempting to obtain a home equity line of credit secured by the real property to pay off the tax debts. They filed loan applications with Wells Fargo and Bank of America who are still evaluating them. At the suggestion of Bank of America, a second loan application was submitted because the Bank felt that Ramon and Juanita Marquez applying as primary borrowers may have a better chance at loan approval. Additionally, the Marquezes intend to file loan applications with other lenders
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including Indymac, Wachovia and First Horizon. Because the Marquezes do not speak fluent English, their counsel has referred them to a mortgage broker who is proficient in Spanish. This broker is willing to assist the Marquezes and believes that there is sufficient equity in the home to obtain a loan. If the Marquezes are unable to secure a loan, they would then wish to try to sell the home themselves because they are likely to receive more from a private sale than a foreclosure. The creditors are willing to allow them a reasonable time to sell the property. The only real issue is the priority of lien holders with respect to the property. It is anticipated that the lien holders will be able to agree to their respective priorities. The Galindos have been served but have not answered. The parties are informed that the Galindos were on title solely to assist the Marquez couples in obtaining financing and do not claim an interest in the property. The government will attempt to secure a disclaimer from the Galindos. If it is unable to do so, it will take their default. 3. None. 4. The other factual issues [e.g. service of process, personal jurisdiction, subject The principal legal issue[s] which the parties dispute:

matter jurisdiction or venue] which remain unresolved for the reason stated below and how the parties propose to resolve those issues: None. 5. The parties which have not been served and the reasons:

Bank of America. N.A. Bank of America is the holder of the first deed of trust on the foreclosure property. All parties agree that Bank of America had priority over all lien holders except San Mateo County for any unpaid real property taxes. Service was attempted by notice and acknowledgment but failed. Similarly, service was attempted by notice and acknowledgment on California State Department of Labor but failed. 6. The additional parties which the below-specified parties intend to join and the

intended time frame for such joinder? Bank of America. N.A. and California State Department of Labor.
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1 2 3 4 5 6 7 ___ 8 9 10 _X_ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ___ ___

7.

The following parties consent to assignment of this case to a United States

Magistrate Judge for [court or jury] trial: The parties consent to assignment to a magistrate judge for trial. ALTERNATIVE DISPUTE RESOLUTION 8. [Please indicate the appropriate response(s).] The case was automatically assigned to Nonbinding Arbitration at filing and will be ready or the hearing by (date) _______________. The parties have filed a Stipulation and Proposed Order Selecting an ADR process (specify process): ______________. The parties filed a Notice of Need ro ADR Phone Conference and the hone conference was held on or is scheduled for ______________. The parties have not filed a Stipulation and Proposed Order Selecting an ADR process and the ADR process that the parties jointly request [or a party separately requests] is None .

The parties believe that they can reach a settlement. If they encounter some difficulties, the parties would request a settlement conference with a Magistrate Judge. 9. None. DISCLOSURES 10. The parties certify that they have made the following disclosures [list disclosures Please indicate any other information regarding ADR process or deadline:

of persons, documents, damage computation and insurance agreements]: The government will provide documentation of its assessments, copies of notices of federal tax liens, calculations of balances due, and any other pertinent information in its possession that is requested by the defendants. Defendants Employment Development Department, Franchise Tax Board, and State Board of Equalization agree to provide documentation supporting their respective claims, including copies of notices of state tax liens, certificates of delinquencies, and other pertinent information within its possession, upon request by other parties. DISCOVERY 11. The parties agree to the following discovery plan [Describe the plan e.g., any

limitation on the number, duration or subject matter for various kinds of discovery; discovery
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from experts; deadlines for completing discovery]: At this time, the parties anticipate that all discovery can be handled informally. TRIAL SCHEDULE 12. The parties request a trial date as follows:

None at this time. 13. The parties expect that the trial will last for the following number of days:

Not applicable at this time. RELATED CASES None.

JOSEPH P. RUSSONIELLO United States Attorney Dated: August 26, 2008 /s/ David L. Denier DAVID L. DENIER Assistant United States Attorney Tax Division Attorneys for United States of America

Dated: August 26, 2008

/s/Cindy L. Ho CINDY L. HO Attorney for Defendants Jesus Marquez, Olga Marquez, Ramon Marquez, Juanita Marquez, Luis Galindo, Martha Galindo, Taqueria Los Primos and Taqueria Los Primos No. 2 MICHAEL MURPHY County Counsel

Dated: August 26, 2008

/s/ Eugene Whitlock EUGENE WHITLOCK Deputy County Counsel Attorney for County of San Mateo Tax Collector

Joint CM S & Proposed Order No. C-08-0891-CW

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1 2 3 4 5 6 7 8 Dated: August 26, 2008

EDMUND G. BROWN JR. Attorney General of the State of California

/s/ Karen W. Yiu KAREN W. YIU Deputy Attorney General Attorneys for Defendants Franchise Tax Board, Employment Development Department, and State Board of Equalization

CASE MANAGEMENT ORDER 9 The Case Management Statement and Proposed Order is hereby adopted by the Count as 10 the Case Management Order for the case and the parties are ordered to comply with this order. In 11 addition the Court orders: 12 13 14 15 16 17 18 19 20 21 Dated: August 27, 2008 22 23 24 25 26 27 28
Joint CM S & Proposed Order No. C-08-0891-CW

The Court hereby sets a status conference in this matter for October 30, 2008, in Courtroom B., 450 Golden Gate Avenue, San Francisco, California. By October 23, 2008, the parties shall file a joint status report outlining any further developments in the case. The case management conference originally set for August 28, 2008 is hereby vacated.

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