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the Settlement Agreement and the documents executed by the
parties thereto.” Under California law, “An escrow involves the
deposit of documents and/or money with a third party to be
delivered on the occurrence of some condition.” Summit Fin.
Holdings, Ltd. v. Contl. Lawyers Title Co., 41 P.3d 548, 551
(Cal. 2002) (quoting 3 Miller & Starr, Cal. Real Estate, sec.
6:1, pp. 2-3 (rev. 2000)).
In short, all of the documents signed in 1993, and upon
which petitioners predicate their alleged 1993 fait accompli, are
actually documents essential to a closing of title when all
conditions precedent thereto had been satisfied, and the escrow
could be closed.
On December 28, 1993, Bruce Stuart (Mr. Stuart), one of the
Partnership’s attorneys, wrote Ms. Darlene Longoria of the Title
Company as follows:
Dear Ms. Longoria:
This letter is to advise you that with the consent
of David Crist as attorney for the Aid Association for
Lutherans, we request that the recordation of the Deed
in the above-referenced escrow occur on or after
January 3, 1994 so that the closing will occur in tax
year 1994. Should you have any questions, please feel
free to contact me.
In a letter dated September 1, 1994, to William Holt from
Mr. Stuart, the latter recapitulated the Fitch Property
transaction as follows:
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