Free Stipulation - District Court of Federal Claims - federal

Case 1:01-cv-00669-FMA

Document 100

Filed 07/10/2007

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS BENJAMIN & SHAKI ALLI, AND BSA CORPORATION, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 01-669C (Judge Allegra)

SECOND JOINT STIPULATION OF FACTS Pursuant to the Court's May 29, 2007 order, the parties, plaintiffs, Benjamin and Shaki Alli and BSA Corporation, and defendant, the United States, respectfully submit the following second joint stipulation of facts for use at trial in this matter. These stipulations shall not be cited, quoted, referenced or otherwise used, and are not binding, in any other matter in this or any other forum. 1. Section 4350.1, Chapter 13 of the HUD handbook relates to Transfer of Physical

Assets ("TPA") applications and the TPA review process. 2. HUD never sent plaintiffs anything in writing either approving or denying the sale

of the Collingwood/Kirkwood ("Collingwood") apartments to Cory Fanning. 3. HUD never sent plaintiffs anything in writing that a completed TPA application

had been received. 4. When plaintiff, Ben Alli, initially purchased Collingwood, he submitted a TPA

application to HUD, which was approved. 5. 6. BSA contracted with Marcus & Millichap to assist with the sale of Collingwood. Marcus & Millichap found a potential buyer for Collingwood, Mr. Cory Fanning.

Case 1:01-cv-00669-FMA

Document 100

Filed 07/10/2007

Page 2 of 4

7. housing. 8.

Mr. Fanning was a pastor of a church and had no experience in managing public

Plaintiffs entered into a purchase agreement to sell the Collingwood

apartments to Mr. Fanning without receiving HUD's approval of the sale. 9. The only document that HUD received regarding the potential sale of

Collingwood to Cory Fanning was the executed purchase agreement. 10. Plaintiffs never submitted to HUD the required fee to process a TPA application

for the sale of the Collingwood apartments to Mr. Fanning. 11. Plaintiffs never submitted a complete TPA application for approval of the sale of

the Collingwood apartments to Mr. Fanning. 12. Plaintiffs never submitted a form HUD-922266, the initial TPA application form,

for the sale of the Collingwood apartments to Mr. Fanning. 13. Plaintiffs' listing agent for the Collingwood apartment building, Gary

Hopkins, knew HUD's approval was required, but believed it was Mr. Fanning's responsibility or the responsibility of Mr. Fanning's lender to obtain HUD's approval. 14. Mr. Hopkins took no steps to obtain HUD's approval, and did not know whether

plaintiffs, who were his clients, took any steps to obtain HUD's approval either. 15. Mr. Hopkins was aware that Mr. Fanning was required to submit at least one form

to HUD regarding his previous participation in HUD-related projects, but he did not know whether such a form was ever submitted. 16. The purchase agreement between plaintiffs and Mr. Fanning was silent regarding

the regulatory contract, the HAP contract and HUD in general. 2

Case 1:01-cv-00669-FMA

Document 100

Filed 07/10/2007

Page 3 of 4

17.

On October 6, 1999, BSA and Mr. Fanning entered into an agreement to extend

the purchase closing date to November 30, 1999. 18. requirements. 19. In the agreement, Mr. Fanning agreed to submit the required documents "on a The purpose of the extension was to provide time to comply with HUD 223(f)

timely basis without delay." 20. 21. Stephen Palms visited Collingwood in January 2000. HUD suspended, abated and terminated the HAP contract for the Collingwood

property for the reasons stated in their written notices to plaintiffs. 22. HUD suspended, abated and terminated the HAP contract for the Riverside

property for the reasons stated in their written notices to plaintiffs. 23. HUD suspended, abated and terminated the HAP contract for the Pingree

property for the reasons stated in their written notices to plaintiffs.

Respectfully submitted, s/Eric Stempien ERIC STEMPIEN STEMPIEN & STEMPIEN PLLC 315 North Center Street, Suite 200 Northville, MI 48167 (248) 735-9200 fax: (248) 735-8863 Attorney for Plaintiffs

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/Mark A. Melnick MARK A. MELNICK Assistant Director

3

Case 1:01-cv-00669-FMA

Document 100

Filed 07/10/2007

Page 4 of 4

s/Marla T. Conneely MARLA T. CONNEELY Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel. (202) 307-1011 Fax. (202) 307-0972 July 10, 2007 Attorneys for Defendant

4