United States of America v. Nederveld

Filing 10

ORDER granting 9 Motion for an Order of Sale. FURTHER ORDERED that the Clerk of Court shall immediately send a copy of this Order to all counsel of record; to Defendant Herbert C. Nederveld at 528 Arbour Way, Suwanee, Georg ia 30024; to Roger Sweeney, Property Appraisal and Liquidation Specialist, Internal Revenue Service, 410 Amherst Street Suite 350, Nashua, NH 03063; and to the United States Marshal. Signed by District Judge Martin Reidinger on 8/12/2010. (pdf)

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IN THE UNITED STATES DISTRICT COURT FOR THE W E S TE R N DISTRICT OF NORTH CAROLINA B R Y S O N CITY DIVISION C IV IL CASE NO. 2:10-cv-00014 U N IT E D STATES OF AMERICA, ) ) P l a i n t if f , ) ) ) vs . ) ) ) H E R B E R T C. NEDERVELD, ) ) D e fen d a n t. ) ___________________________ ) O R D E R OF SALE TH IS MATTER is now before the Court upon the United States' Motion fo r an Order of Sale. [Doc. 9]. On July 8, 2010, the Court entered a default judgment against Herbert C . Nederveld in the above-entitled action. [Doc. 8]. The Court found that the U n ite d States "has valid tax liens resulting" from Nederveld's "unpaid tax lia b ilitie s ." The Court further found that the United States' tax liens "attach to N e d e rve ld 's interest in the real property located at 441 Ruby Knoll Lane, F ra n k lin , North Carolina 28743 as that property is more particularly described in the Complaint in this matter." Finally, this Court decreed that "the tax liens o f the United States are hereby foreclosed on Nederveld's interest" in the real p ro p e rty at issue in this litigation. T h e Government now moves for an Order of Sale. [Doc. 9]. Upon c a re fu l review of the Motion and the entire record, the Court will grant the G o ve rn m e n t's Motion. Accordingly, IT IS, THEREFORE, ORDERED that the United States' M o tio n for an Order of Sale [Doc. 9] is GRANTED. IT IS FURTHER ORDERED that: 1. A s found by this Court in its July 8, 2010 Default Judgment, H e rb e r t C. Nederveld is indebted to the United States in the a m o u n t of $516,416.26, as of June 30, 2010, on account of his u n p a id income tax, penalties, and interest for the 2001 tax year a n d unpaid employment and unemployment taxes for certain p e rio d s in 2001 through 2003. Federal tax liens for those lia b ilitie s have arisen in favor of the United States and attached to th e real property located at 441 Ruby Knoll Lane, Franklin, North C a ro lin a 28743 as that property is more particularly described as: B E IN G all the lands, easements, privileges and a p p u rte n a n c e s as described in and conveyed by the d e e d from Bennye Lou Pease and husband, W illia m D . Pease and Patricia P. Ross and husband, Jack R o s s to Gregg L. Fox and wife, Cora S. Fox, dated F e b ru a ry 5, 1981, recorded in the Office of the R e g is te r of Deeds for Macon County, North Carolina, 2 in Book Q-13, Page 103, and being more particularly d e s c rib e d therein as follows: "B e in g all the land and right of way, subject to the re s tric tio n s and encumbrances described in and c o n ve ye d by the deed from Addis H. Jacobs, and wife J u lia C. Jacobs to Mrs. Bennye Lou Pease and Mrs. P a tr ic ia Ross, dated August 26, 1972, and recorded in Deed Book J-9, page 225 of the Macon County R e g is try, and being more particularly described th e re in as follows: "`B E G IN N IN G at a point in the center line of a 20-foot a c c e s s road, the same being situated North 4 d e g re e s 30 minutes West 20 feet from an iron pipe on th e South margin thereof, and said beginning point a ls o being situated the following courses and d is ta n c e s from a point in the center line of State Road N o . 1343 at point where there was formerly situated a stone corner of Section 23, to wit: North 40 degrees 0 0 minutes West 370 feet; South 37 degrees 22 m in u te s West 66 feet; South 51 degrees 48 minutes W e s t 94 feet; South 57 degrees 53 minutes West 100 fe e t; North 84 degrees 30 minutes West 60 feet; S o u th 87 degrees 45 minutes West 38 feet; North 4 d e g re e s 30 minutes West 148 feet to said point of b e g in n in g ; said point beginning also being the c o m m o n Northernmost corner of Lots 13 and 14; runs th e n c e with the common boundary between said Lots 1 3 and 14; South 4 degrees 30 minutes East 148 feet to a point, the common Southernmost corner between s a id Lots 13 and 14; thence North 87 degrees 45 m in u te s East 38 feet to a point, South 84 degrees 30 m in u te s East 60 feet, North 57 degrees 53 minutes E a s t 50 feet to a point, the common Southernmost c o rn e r between Lots 14 and 15; thence with the d ivid in g line between said Lots, North 31 degrees 30 m in u te s West passing an iron witness pipe 132 feet, 3 W h o le distance 150 feet to a point a in the center line o f said 20-foot access road; runs thence with the c e n te r line the same South 63 degrees 42 minutes W e s t 55 feet to a point; thence with a Westerly d ire c tio n 20 feet to the BEGINNING and being Lot No. 1 4 of the Ruby Knoll Property owned by Addis h. J a c o b s as shown by unrecorded plat thereof made by J .J . Swan, Surveyor, in 1963; and being a part of the F o rth Tract of land described in the deed from Ada D a lto n , et al, to Addis H. Jacobs and wife, Julia C. J a c o b s , dated from Ada Dalton, et al, to Addis H. J a c o b s and wife, Julia C. Jacobs, dated October 9, 1 9 5 9 , and recorded in the office of Register of Deeds fo r Macon County, North Carolina in Deed Book L-6, p a g e 514. "`T h e land hereby conveyed is conveyed and a c c e p te d subject to the right of way of existing utilities o r necessary additions thereto, and the right of way of th e 20-foot access road the center line of which forms th e Northernmost boundary of the land hereby c o n v e ye d . "`P a rtie s of the first part further convey unto parties of th e second part, their heirs and assigns, the right to u s e in common with parties of the first part, their heirs a n d assigns, the existing 20-foot access road leading fro m the Southerly direction to its point of intersection with N.C. State Road 1343. "`T h e land hereby conveyed is the same land which is d e s c rib e d as Lot # 11 on the revised Ruby Knoll plat, a s shown by an unrecorded brochure prepared by R o b e rt W. Dinnes for Cowee Valley Lapidary, Inc." P a r c e l no. 11-01074 ("Subject Property"). 4 2. A s also found in this Court's July 8, 2010 Default Judgment, the fe d e ra l tax liens are hereby foreclosed against the Subject P ro p e r ty described at paragraph 1 above, and that the Subject P ro p e rty in its entirety is ordered sold. 3. T h a t the Internal Revenue Service (the "IRS") Property Appraisal a n d Liquidation Specialists ("PALS"), is hereby authorized under 2 8 U.S.C. 2001 and 2002 to offer for sale at public auction and to sell the Subject Property described in paragraph 1 above, with a n y improvements, buildings, fixtures and appurtenances, th e re u n to pertaining, which are included in the definition of the " S u b je c t Property." 4. T h e Subject Property shall be sold free of all liens to the highest a n d best bidder for cash, at public auction, at either the premises th e m s e lve s or at the Macon County Courthouse, in accordance with the provisions of 28 U.S.C. 2001, the times thereof to be a n n o u n c e d by the PALS. 5. P A L S is directed to publish a notice of sale, describing the p ro p e rty to be sold, once a week for four (4) consecutive weeks im m e d ia te ly prior to sale, in a newspaper of general circulation in 5 M a c o n County, North Carolina, and by any other notice that the IR S in its discretion may deem appropriate. The sale shall be m a d e to the highest bidder for cash. 6. T h a t any rights, title, liens, claims or interests in the Subject P r o p e r ty of the United States and Herbert C. Nederveld are d is c h a rg e d upon sale of the property and confirmation of the sale, a s described in paragraphs 3, above, and 15 and 16, below. 7. T h e sale of the Subject Property shall be subject to building lines, if established, all laws, ordinances, and government regulations (in c lu d in g building and zoning ordinances) affecting the Subject P ro p e rty, and easements and restrictions, if any. 8. T h e minimum bid for the Subject Property will be set by PALS. If th e minimum bid is not met or exceeded, PALS may, without fu rth e r permission of this Court, and under the terms and c o n d itio n s of this Order of Foreclosure and Sale, hold a new p u b lic sale and reduce the minimum bid. 9. T h a t the successful bidder(s) shall be required to deposit with P A L S a minimum of twenty percent of the deposit of his or her bid b y certified check, made payable to the United States District 6 C o u rt, or cash deposit at the time of sale. Before being permitted to bid at the sale, bidders shall display to PALS proof that they are a b le to comply with this requirement. No bids will be received fr o m any person(s) who have not presented proof that, if they are th e successful bidder(s), they can make the deposit required by th is order of sale. 10. T h a t the balance of the purchase price for the respective Subject P ro p e rty shall be tendered to PALS by the successful bidder with in 30 days following the date of sale in the form of a certified c h e c k payable to the United States District Court for the Western D is tric t of North Carolina. The clerk of court shall deposit such fu n d s into the registry for the Court. In the event that the p u rc h a s e r fails to fulfill this requirement, the deposit shall be fo rfe ite d and applied to the expenses of sale, with the remaining a m o u n t to be given to the United States, and the Subject Property s h a ll be re-offered for sale or be offered to the second highest b id d e r in accordance with the provisions of paragraph 3, above. T h e United States may bid as a credit against its judgment without te n d e r of cash. 7 11. P e n d in g the sale of the Subject Property, the representatives of P A L S are authorized to have free access to the property's p re m is e s and to take any and all actions necessary to preserve th e premises, including, but not limited to, retaining a locksmith or o th e r person to change or install locks or other security devices o n any part of the property, until the deed to the property is d e l iv e r e d to the ultimate purchaser of the property. PALS shall ta k e all actions appropriate to conserve and preserve the Subject P ro p e rty until the deed for the real property is delivered to the s u c c e s s fu l purchaser. 12. U n til the Subject Property is sold, the named defendant, and any o th e r tenants or other persons occupying the real property, shall n e ith e r commit waste against the property nor cause or permit a n yo n e else to do so. They shall neither do anything that tends to reduce the value or marketability of the Subject Property nor c a u s e or permit anyone else to do so. They shall not record any in s tru m e n ts , publish any notice, or take any other action (such as ru n n in g newspaper advertisements or posting signs) that may d ire c tly or indirectly tend to adversely affect the value of the 8 S u b je c t Property or that may tend to deter or discourage potential b id d e rs from participating in the public auction, nor shall they c a u s e or permit anyone else to do so. 13. A ll persons occupying the Subject Property shall leave and vacate th e property permanently within 30 days of the date this order is file d or the date on which a copy of it is delivered to the D e fe n d a n ts , whichever is later, taking with them their personal p ro p e rty (but leaving all improvements, buildings, fixtures, and a p p u rte n a n c e s to the Subject Property). Further, all persons o c c u p yin g the Subject Property shall turn over the keys to the S u b je c t Property, suitably labeled, within 30 days of the date this o rd e r is filed or the date on which a copy of it is delivered to the D e fe n d a n ts , whichever is later. If any person occupying the S u b je c t Property fails or refuses to leave and vacate the Subject P ro p e rty by the time specified in this order, the IRS is authorized to coordinate with the United States Marshal and his deputies to ta k e all actions that are reasonably necessary to bring about the e je c tm e n t of those persons. This Order shall serve as a Writ of A s s is ta n c e or Writ of Possession, as appropriate, and no further 9 o rd e r from this Court shall be required for this purpose. 14. If any person fails or refuses to remove his or her personal p ro p e rty from the Subject Property by the time specified herein, th e personal property remaining on the Subject Property th e re a fte r is deemed forfeited and abandoned; and, the IRS is a u th o riz e d to remove the personal property and dispose of it in a n y manner they see fit, including sale, in which case the p ro c e e d s of the sale are to be applied first to the expenses of sale with the balance being distributed as described in paragraph 18 b e lo w . 15. T h a t the sale of the Subject Property shall be subject to c o n fir m a tio n by this Court, and upon confirmation PALS shall e xe c u te and deliver its deed, conveying the respective Subject P ro p e rty to the successful purchaser. 16. T h a t, when the sale is confirmed by this Court, the Register of D e e d s of Macon County, North Carolina shall cause transfer of th e respective Subject Property to be reflected upon that county's re g is te r of title. 10 17. A successful third-party bidder at the sale shall pay, in addition to the amount of the bid, any documentary stamps and Clerk's re g is try fees as provided by law and be responsible for any c u rre n t year real estate taxes (or any other fees) that become due a fte r the sale. 18. A fte r the sale is confirmed by this Court, the proceeds shall be d is trib u te d as follows: a. F irs t, to PALS to cover the expenses of the sale, including a n y expenses incurred to secure or maintain the Subject P ro p e rty pending sale and confirmation by the Court. If the G o ve rn m e n t is the successful bidder, and therefore has not te n d e re d cash, the Government shall tender to PALS the e xp e n s e s of the sale; b. S e c o n d , to the Macon County Tax Collector for any property ta xe s unpaid and matured owing; c. T h ird , to the United States Department of Treasury, through th e United States Department of Justice, for the unpaid fe d e ra l tax liabilities of Herbert C. Nederveld; and d. F o u rth , any remaining funds to Herbert C. Nederveld. 11 19. T h e Court retains jurisdiction over this cause for the purpose of e n te rin g all further orders as may be appropriate, including with o u t limitation, deficiency and contempt of court judgments. IT IS FURTHER ORDERED that the Clerk of Court shall immediately s e n d a copy of this Order to all counsel of record; to Defendant Herbert C. N e d e rve ld at 528 Arbour Way, Suwanee, Georgia 30024; to Roger Sweeney, P ro p e rty Appraisal and Liquidation Specialist, Internal Revenue Service, 410 A m h e rs t Street Suite 350, Nashua, NH 03063; and to the United States M a r s h a l. IT IS SO ORDERED. Signed: August 12, 2010 12