GENERAL ORDER No. 55 BOND EXONERATION AND THE POSTING AND RETURN OF PROPERTY I. PURPOSE The purpose of this General Order is to ensure that property is correctly posted as security for a bond in a criminal case and is returned in conformance with the law promptly after entry of final judgment. II. GUIDELINES FOR POSTING REAL PROPERTY TO SECURE A PERSON'S RELEASE FROM CUSTODY A. Introduction The following are guidelines for posting real property to support a pretrial release bond in the United States District Court for the Northern District of California. When the court sets a bond to secure a person's pretrial release and orders the bond secured by real property, certain documents will be required to prove the value and ownership of the property and to secure the court's interest. The documents are typically prepared by the defense, presented to the government for approval and then lodged with the court. These guidelines are intended to assist parties to generate accurate and reliable documentation without undue delay, expense or burden. B. Required Documents The court requires accurate information concerning the value of and title to any property posted as security for a bond. For each piece of real property posted, documents must be provided to show (1) that the property has enough equity to support its portion of the bond amount, and (2) that the person(s) posting the property is/are the true and only owner(s). There will be no deviation from the requirements set forth below regarding (1) the Obligation, (2) the Deed of Trust, or (3) the Reconveyance (see B.3, 4 & 5 below.) 1. Valuation Documents Documents that show the current fair market value of property are to be used in this process. Appraisals conducted by licensed appraisers are recognized as the most effective means of capturing the fair market value of property. Other methods, such as property profiles or comparative market analyses, may be considered when particular circumstances diminish valuation concerns or when otherwise appropriate. 2. Title Documents Documents prepared by a title insurance company or a title research company that show (a) the current legal owners, and (b) encumbrances, liens and/or mortgages on the property must be submitted. Such documents usually include a preliminary title report and/or litigation report. Other documents may be considered when warranted by particular circumstances, such as the posting of multiple properties. American LegalNet, Inc. www.FormsWorkFlow.com 3. Obligation This document guarantees that the owner(s) of the property understand(s) that the property is being posted as security for the defendant's release from custody. Defendants and sureties must be advised that if the defendant fails to appear and abide by all other conditions imposed by the court, the property is subject to forfeiture by the United States. The obligation must be signed by each person who holds title to the property. The form is attached hereto as Form CAND GO-55-A. 4. Deed of Trust and Assignment of Rents This document conveys the interest in the property to the court. The document must be signed by all parties who hold title to the property. The document must also conform to the legal requirements of a document conveying interest in real property. Both the "beneficiary" and "trustee" for the property must be "Susan Y. Soong, Clerk of the Court." The deed of trust must have the case name, case number and the amount of the bond on its face. A sample form is attached as Form CAND GO-55-B. The deed of trust must be recorded with the County Recorder in the county where the property lies. The deed of trust should not be recorded until the entire bond package has been approved. 5. Reconveyance A fully prepared reconveyance deed must be lodged with the court at the time the property bond is posted. A sample form is attached as Form CAND GO-55-C. The sample reconveyance document may not satisfy the requirements of states other than California. The preparer of the reconveyance document is responsible for verifying the requirements of any other state in which property lies and providing the proper documents to the Clerk. The Clerk's Office will automatically use the lodged reconveyance document to reconvey the Clerk's interest in the property upon exoneration of the bond. If changed circumstances make this reconveyance document obsolete, the submitting party must submit a new reconveyance document to the Clerk's Office along with clear instructions to use it in place of the one previously submitted. The Clerk's Office will not alter or amend the reconveyance document submitted at the time the bond package is lodged and does not warrant its accuracy or assume liability for the reconveyance document or its recording. The submitting party is solely responsible for its accuracy and recording. C. Review Process A flexible, case-by case approach to the valuation of property may result in the parties agreeing on different combinations of the valuation and title documents outlined below. The documents listed in II.B must be given to the prosecutor assigned to the case for review and approval before being submitted to the court. The parties should make good faith efforts to resolve informally any issues and/or disagreements regarding the sufficiency of documents before bringing such matters before the court. 2 American LegalNet, Inc. www.FormsWorkFlow.com The court will not be involved in the valuation or approval of a bond package unless there is a dispute between the parties and only after good faith efforts have failed to resolve it. D. Lodging the Bond Package with the Court When all the above documents have been prepared and approved by the parties or by the court and the deed of trust has been recorded, the documents must be lodged with the Clerk of the Court. The Clerk's Office will only lodge recorded deeds of trust. A conformed or certified copy from the recording office of the recorded deed of trust will suffice to show proof of recording. The Clerk's Office will issue a receipt in exchange for the lodged documents. III. PROCEDURE FOR THE EXONERATION OF BOND AND RECONVEYANCE OF PROPERTY A. Unless otherwise requested by one of the parties, upon final judgment in any criminal matter in which a bond has been posted, the court on its own motion will either (1) exonerate the bond at the time of sentencing, or (2) order the bond exonerated upon the self-surrender of the defendant to the Bureau of Prisons for s