USA v. Dawursk, et al

Filing 130

ORDER of Foreclosure and Decree of Sale of the Residence Re: 129 Motion for Order (see Order for details). Signed by Judge Richard P. Matsch on 7/8/2009.(rpmcd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 1:O3-cv-908-RPM UNITED STATES OF AMERICA, Plaintiff, VS. RONALD R. DA WURSK; MARIANNE WILSON, as trusteeof DOLPHIN TRUST; MARIANNE WILSON, as trusteeof JADE TRUST; and JUDITH A. DA WURSK, a/k/a JUDITH ENGLUND, Defendants. ORDER OF FORECLOSUREAND DECREE OF SALE OF THE RESffiENCE Pursuantto 28 V.S.C. 2001 and 2002 and 26 V.S.C. 7402 and 7403, the Court entersthis Order of Foreclosureand Decreeof Sale. IT IS HEREBY ORDERED THAT: The United States' federal tax liens againstRonald R. Dawursk, arising out of the Internal RevenueService assessment Form 1040federal income tax liabilities againsthim for of the 1994,1995,1996,1997, and 1998tax years,and the United States'judgment lien against Ronald R. Dawursk, arising out of the United States'claim to reducethesesameassessments to judgment in the above-captionedcivil action are foreclosed. 2. An Internal RevenueServiceProperty Appraisal and Liquidation Specialist("IRS Specialist"), is authorizedand directed under 28 U.S.C. 2001 and 2002 to offer for public sale \: v and to sell the parcel of real property, including all improvements,buildings, and fixtures on the real property, describedas follows (hereinafterthe "Property"): Real property located in El PasoCounty, Colorado and bearingthe following legal description: Lot 17, BROADMOOR OAKS SUBDIVISION FILING NO.3, in the City of Colorado Springs,EI PasoCounty, Colorado, accordingto the plat thereof recordedin Plat Book C-4 at Page 107. The Property hasthe following streetaddress:95 Ellsworth Street,Colorado Springs,Colorado 80906. An IRS Specialist shall make the arrangements any sale as set forth in this Order. for 3. An IRS Specialist is authorizedto have free access the Property and to take all to actionsnecessary preservethe Property, including, but not limited to, retaining a locksmith or to other personto changeor install locks or other security deviceson any part of the Property,until the deedto the Property is delivered to the ultimate purchaser. 4. The terms and conditions of the saleare as follows: a. the sale of the Property shall be free and clear of the interestsof Ronald R. Dawursk, Judith Dawursk, Marianne Wilson, as trusteeof Dolphin Trust, and Marianne Wilson, as trusteeof JadeTrust. b. the sale shall be subjectto building lines, if established,all laws, ordinances, and governmentalregulations (including building and zoning ordinances)affecting the Property, and easements restrictions of record, if any; and C. the sale shall be held at 95 Ellsworth Street,Colorado Springs,Colorado 80906,or at a place designatedby the IRS Specialistin the county where the property is located; -2- d. the date and time for saleare to be announced the IRS Specialist; by e. notice of the sale shall be publishedonce a week for at leastfour consecutive weeksbefore the sale in the Colorado Spring Gazette,which is a newspaperregularly issuedand of generalcirculation in El PasoCounty, and, at the discretion of the IRS Specialist,by any other notice deemedappropriate. The notice shall contain a description of the Property and shall contain the tenns and conditions of sale in this order of sale; f. The minimum bid will be $290,000.00. Subjectto the next sentence, the if minimum bid is not met or exceeded, IRS Specialistshall, without further permissionof this the Court, and under the terms and conditions in this order of sale,hold a new public sale. If after the first attempt at a public salethe partiescannot agreeto a lesserminimum bid amount,the partiesshall move the Court, and the Court retainsjurisdiction, to determinethe terms of the secondattemptat a public sale; g. the successfulbidder(s) shall be required to deposit at the time of the same with the IRS Specialista minimum often percentof the bid, with the deposit to be madeby certified or cashier'scheck payableto the United StatesDistrict Court for the District of Colorado. The recipient of the funds, on the next business day after receipt of the deposit, shall depositthe samewith the United StatesDistrict Court for the District of Colorado with regardto the above-captioned case. Before being permitted to bid at the sale,bidders shall display to the IRS Specialistproof that they are able to comply with this requirement. No bids will be received from any person(s) who have not presentedproof that, if they are the successfulbidders(s),they can make the -3- deposit required by this order of sale; h. the balanceof the purchaseprice for the Property is to be paid to the IRS Specialistwithin 20 days after the datethe bid is accepted,by a certified or cashier'scheck payableto the United StatesDistrict Court for the District of Colorado. The recipient of the funds, on the next businessday after receipt of the balanceof the purchaseprice, shall deposit the samewith the United StatesDistrict Court for the District of Colorado with regardto the above-captioned case. If the bidder fails to fulfill this requirement,the deposit shall be forfeited and shall be applied to cover the expenses the sale, including commissionsdue under 28 of V.S.c. 1921 with any amount remaining to be distributed equally betweenthe United States (c), for application to the income tax liabilities of Ronald R. Dawursk at issueherein, and Judith Dawursk. The realty shall be again offered for saleunder the terms and conditions of this order of sale.; i. the sale of the Property shall be subject to conflfffiation by this Court. The IRS Specialistshall file a report of salewith the Court, togetherwith a proposedorder of confirmation of saleand proposeddeed,within 20 days from the date of receipt of the balanceof the purchaseprice; on confirmation of the sale,the IRS Specialistshall executeand deliver a deed of judicial saleconveying the Property to the purchaser; k. on confirmation of the sale,all interestsin, liens against,or claims to, the Property that are held or assertedby all partiesto this action are dischargedand extinguished; 1. on confirmation of the sale,the recorderof deedsin El PasoCounty, Colorado -4- shall causetransfer of the Property to be reflected upon that county's register of title; and m. the sale is orderedpursuantto 28 U.S.C. 2001, and is madewithout right of redemption 5. Until the Property is sold, Ronald R. Dawursk shall take all reasonablestepsnecessary to preservethe Property (including all buildings, improvements,fIXturesand appurtenances on the property) in its current condition including, without limitation, maintaining a fire and casualtyinsurancepolicy on the Property. He shall neither commit waste againstthe property nor causeor permit anyoneelse to do so. He shall neither do anything that tendsto reducethe value or marketability of the Property nor causeor permit anyoneelse to do so. He shall not record any instruments,publish any notice, or take any other action (such as running newspaper advertisements posting signs) that may directly or indirectly tend to adverselyaffect the value or of the Property or that may tend to deter or discouragepotential bidders from participating in the public auction, nor shall he causeor permit anyoneelseto do so. 6. Until the Property is sold. Judith A. Dawursk shall not commit waste againstthe property nor causeor permit anyoneelseto do so with her knowledge. She shall neither do anything that tends to reducethe value or marketability of the Property nor causeor permit anyoneelseto do so with her knowledge. She shall not record any instruments,publish any notice, or take any other action (such as running newspaper advertisements posting signs)that or may directly or indirectly tend to adverselyaffect the value of the Property or that may tend to deter or discouragepotential bidders from participating in the public auction, nor shall shecause or pennit anyoneelse to do so with her knowledge. Judith A. Dawursk's obligations underthis -5- paragraphdo not extend to any unilateral actions of Ronald R. Dawursk. This paragraphcreates prohibitions that Judith A. Dawursk not commit any act adverseto the property, its value or its sale. It doesnot, nor is it intendedto, createany additional affirmative duty for her to maintain, finance or preservethe property beyondthoseduties shecurrently holds as a co-owner of the property, except in the event Judith Dawursk hasknowledgeof any individual engagingin any actsviolating the languagecontainedin the fIrst three sentences this paragraphsix, Judith of Oawursk hasa duty to notify law enforecmentand Mr. Ernest Sell of the Internal Revenue Service. 7. All personsoccupying the Property shall leave and vacatethe Property permanently within 30 days of the date of this Order, eachtaking with them his or her personalproperty (but leaving all improvements,buildings, fixtures, and appurtenances the property). If any person to fails or refusesto leaveand vacatethe Property by the time specified in this Order, the United StatesMarshal's Office, alone, is authorizedto take whatever action it deemsappropriateto removesuchpersonfrom the premises,even though the saleof such property is being conducted by an IRS Specialist. If any personfails or refusesto removehis or her personalproperty from the Property by the time specified herein,the personalproperty remaining on the Property thereafteris deemedforfeited and abandoned, the IRS Specialist is authorizedto remove it and and to disposeof it in any manner it deemsappropriate,including sale, in which casethe proceedsof the sale are to be applied first to the expenses saleand the balanceto be paid into of the Court for further distribution. The proceedsarising from saleare to be paid to the Clerk of this Court and applied as far -6- as they shall be sufficient to the following items, in the order specified: a. To the IRS for the costsof the sale,not to exceed$5,000.00; b. To all taxes unpaid and matured that are owed (to county, borough or school district) for real property taxes on the Property and any other unpaid local taxes; and c. Any remaining funds to be split equally betweenthe two following parties: (1) United Statesto partially satisfy the outstandingfederal incometaxes of Ronald R. Dawursk for the tax years 1994, 1995, 1996, 1997,and 1998,plus all interestand penaltiesdue and owing thereon, and (2) Judith Dawursk in full satisfactionof her interestin the Property. DATED this ~ay of '::r~ , 2009. BY THE COURT H~ORABLE RICHARD P. MA TSCH United StatesDistrict Judge - 7- CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that serviceof the foregoingORDER OF FORECLOSURE AND DECREEOF SALE OF THE RESIDENCEhasbeenmadethis 8thday of July, 2009,by mailing a copy of thosedocuments first-classmail, postage by prepaid,addressed to: RonaldR. Dawursk 95 Ellsworth Street ColoradoSprings,CO 80906 RonaldRichard,Dawursk 95 Ellsworth Street ColoradoSprings,CO 80906 RonaldDawursk MarrianneWilson Trusteeof JadeTrust Trusteeof Dolphin Trust 1721N. Wahsatch Avenue ColoradoSprings,CO 80906 MarianneWilson 937 EastCostilla Street ColoradoSprings,CO 80903-3772 Judith A. Oawursk c/o GregoryJ. Hock 480 North Tejon StreetSt. 408 ColoradoSprings,CO 80903 GregoryJ. Hock 830N. Tejon St., #408 ColoradoSprings,CO 80903 GREGORC. LANGHAM, Clerk Y

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