UNITED STATES OF AMERICA v. DUBARRY et al

Filing 97

FORECLOSURE JUDGMENT AND ORDER OF SALE. The United States has a valid and subsisting tax lien against dft Deonne DuBarry in the sum of $584,549.27, as of April 18, 2011, plus interest and any statutory additions thereon, and t he tax lien against Deonne DuBarry can be foreclosed and the real property described in paragraph 2, can be sold in its entirety pursuant to 26 U.S.C. § 7403 and 28 U.S.C. § 2001. The Court shall retain jurisdiction over this cause for purposes of entering all further orders as may be appropriate, including, without limitation, deficiency and contempt of court judgments. Signed by District Judge M CASEY RODGERS on June 20, 2011. (kvg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No.: 3:09cv505/MCR/MD

DEONNE DUBARRY; DANIEL E.
BECNEL, III; BANK OF AMERICA,
N.A.; SESSIONS FISHMAN NATHAN
& ISRAEL LLP; FRED BERTAINI; and
LARAINE BERTAINI,
Defendants.
_______________________________/
FORECLOSURE JUDGMENT AND ORDER OF SALE
On June 10, 2011, the court entered an order adopting the magistrate judge’s
Report and Recommendation (doc. 93). The plaintiff has filed a motion requesting that the
court amend or correct its order (doc. 95). Specifically, the plaintiff requests that the court
correct a clerical mistake to reflect the proper address of the property to be sold in
foreclosure.1 The plaintiff also requests that the court modify its order to include directions
regarding the sale of the property, as set forth in the magistrate judge’s Report and
Recommendation (doc. 91). Because of the error in the adopting order, the court hereby
vacates it (doc. 93) and enters the following order and judgment:
1.

The United States has a valid and subsisting tax lien against defendant

Deonne DuBarry in the sum of $584,549.27, as of April 18, 2011, plus interest and any
statutory additions thereon, and the tax lien against Deonne DuBarry can be foreclosed

1
In the adopting order, the m agistrate judge incorrectly identified the property as being located in
Broward County when it, in fact, is located in Okaloosa County.

Case No: 3:09cv505/MCR/MD

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and the real property described in paragraph 2, below, can be sold in its entirety pursuant
to 26 U.S.C. § 7403 and 28 U.S.C. § 2001.
2.

The federal tax lien encumbers the real property that is located in Okaloosa

County, Florida and bears the street address of 4610 Paradise Isles, Destin, Florida 32541
(hereinafter, “the Subject Property”), more particularly described as:
Lot 101, Destiny, a planned unit development, according to the
plat thereof as recorded in Plat Book 14, at pages 60-63, of the
Public Records of Okaloosa County, Florida.
3.

The Property Appraisal and Liquidation Specialists (“PALS”) of the Internal

Revenue Service (“IRS”) are hereby authorized under 28 U.S.C. §§ 2001 and 2002 to offer
for sale at public auction the real property described in paragraph 2 above, with any
improvements, buildings, and appurtenances thereunto pertaining.

The sale of the

property shall be free and clear of the interests of Bank of America, N.A., the United States
of America, Fred and Laraine Bertani, Daniel E. Becnel, III, and Deonne DuBarry.
4.

The public auction referred to in paragraph 3, above, shall be held either on

the premises themselves or at another location in Okaloosa County in accordance with the
provisions of 28 U.S.C. § 2001, the time thereof to be announced by the IRS, after the
respective property is advertised once a week for four consecutive weeks preceding the
date fixed for its sale in a daily newspaper of general circulation in Okaloosa County, and
by any other notice that the IRS in its discretion may deem appropriate.
5.

Any rights, title, liens, claims, or interests in the Subject property described

in paragraph 2 above of parties to this action and any of their successors, heirs, or assigns
shall be discharged upon sale of the property and confirmation of the sale, as described
in paragraph 3 above and paragraph 13 below.
6.

The minimum bid for the property will be set by PALS. If the minimum bid

is not met or exceeded, PALS may, without further permission of this Court and under the
terms and conditions of this Foreclosure Judgment, hold a new public sale and reduce the
minimum bid or, alternatively, sell to the highest bidder.

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7.

The successful bidder(s) shall be required to deposit with the IRS a minimum

of twenty (20) percent of the deposit of his or her bid by certified or cashier’s check made
payable to the “United States District Court for the Northern District of Florida.” Before
being permitted to bid at the sale, bidders shall display to the IRS proof that they are able
to comply with this requirement. No bids will be received from any person(s) who have not
presented proof that, if they are the successful bidder(s), they can make the deposit
required by this order of sale.
8.

The balance of the purchase price for the Subject property shall be tendered

to PALS by the successful bidder within thirty (30) days following the date of sale in the
form of a certified or cashier’s check payable to the “United States District Court for the
Northern District of Florida.” In the event the successful bidder defaults on any deposit
requirement or in payment of the balance of the purchase price, the deposit made by the
successful bidder shall be forfeited and applied as part of the proceeds of sale, including
but not limited to covering any expenses of sale, and the real property shall be re-offered
for sale in the same manner as provided herein for the initial sale or, alternatively, sold to
the second highest bidder.
9.

Pending the sale of the Subject Property, PALS is authorized to have free

access to the premises and to take any and all actions necessary to preserve the premises
until the deed to the property is delivered to the ultimate purchaser of the property.
10.

The sale is made pursuant to 28 U.S.C. § 2001 and is made without right of

redemption.
11.

Until the Subject Property is sold, defendant Deonne DuBarry shall take all

reasonable steps necessary to preserve the property (including all buildings,
improvements, fixtures, and appurtenances to the property) in its current condition,
including, without limitation, maintaining fire and casualty insurance policies on the property
and providing proof of such when requested by PALS. DuBarry shall neither commit waste
against the Subject Property nor cause or permit anyone else to do so. DuBarry shall
neither do anything that tends to reduce the value or marketability of the Subject Property

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nor cause or permit anyone else to do so. DuBarry shall not record any instruments,
publish any notice, or take any other action (such as running newspaper advertisements
or posting signs) that may directly or indirectly tend to adversely affect the value of the
Subject Property or that may tend to deter or discourage potential bidders from
participating in the public auction, nor shall she cause or permit anyone else to do so.
12.

All persons occupying the Subject Property shall leave and vacate the

property permanently within thirty (30) days of entry of this order or the date on which a
copy of the order is mailed to the defendant Deonne DuBarry, whichever is later, taking
with them their personal property (but leaving all improvements, buildings, fixtures, and
appurtenances to the property). Further, all persons occupying the Subject Property shall
turn over the keys to the property to PALS and provide proof of current insurance within
thirty (30) days of the date this order is entered or the date on which a copy of it is mailed
to defendant Deonne DuBarry, whichever is later. If any person occupying the Subject
Property fails or refuses to leave and vacate the property by the time specified in this order,
PALS is authorized to coordinate with the United States Marshal Service to take all actions
that are reasonably necessary to bring about the ejectment of those persons. If any
person fails or refuses to remove his or her personal property from the Subject Property
by the time specified herein, the personal property remaining on the property thereafter is
deemed forfeited and abandoned and the IRS is authorized to remove the personal
property and dispose of it in any manner it sees fit, including sale, in which case the
proceeds of the sale are to be applied first to the expenses of sale with the balance being
distributed as described in paragraph 16 below.
13.

The sale of the property shall be subject to confirmation by this Court, and

upon confirmation, PALS shall execute and deliver its deed, conveying the Subject
Property to the successful purchaser.
14.

When the sale is confirmed by this Court, the Register of Deeds of Okaloosa

County, Florida, shall cause transfer of the Subject Property to be reflected upon that
county’s register of title.

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15.

A successful third-party bidder at the sale shall pay, in addition to the amount

of the bid, any documentary stamps and Clerk’s registry fees as provided by law.
16.

After confirmation of the sale of the Subject property, this Court shall enter

an appropriate order of distribution directing the Clerk of the Court to distribute the balance
of the sale proceeds in the manner set forth below:
(a)

First, to PALS to cover expenses of the sale, including any expenses
incurred to secure or maintain the Subject Property pending sale and
confirmation of the sale by the Court;

(b)

Second, to Okaloosa County, Florida, for any matured and unpaid
real property taxes for the Subject Property;

(c)

Third, to Bank of America, N.A. pursuant to the mortgage recorded on
September 24, 2004, in the public records of Okaloosa County,
Florida, in Book 2563, Page 4656;

(d)

Fourth, to the United States to be applied to the payment of the
unpaid federal income tax liabilities of Deonne DuBarry for the tax
year 1994 pursuant to the Notice of Federal Tax Lien recorded on
January 19, 2005, in the public records of Okaloosa County, Florida,
in Book 2588, Page 3779 and the refiled Notice of Federal Tax Lien
recorded on June 30, 2009, in the public records of Okaloosa County,
Florida, in Book 2895, Page 33;

(e)

Fifth, to Fred and Laraine Bertani pursuant to the mortgage recorded
on May 24, 2006, in the public records of Okaloosa County, Florida,
in Book 2710, Page 1880; and

(f)

Any funds remaining thereafter shall be distributed to Deonne
DuBarry.

17.

Upon sale of the Subject Property, the respective liens and claims of the

parties to this action shall attach to the sales proceeds to the same extent and in the same
order of priority as such liens and claims attached to the property and as is set forth in

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paragraph 16 above.
18.

The Court shall retain jurisdiction over this cause for purposes of entering all

further orders as may be appropriate, including, without limitation, deficiency and contempt
of court judgments.
ORDERED and ADJUDGED this 20th day of June, 2011.

s/

M. Casey Rodgers

M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

Case No.: 3:09cv505/MCR/MD