United States of America v. Ohlin et al

Filing 45

FINDINGS AND RECOMMENDATIONS recommending GRANTING of 21 MOTION for Summary Judgment filed by United States of America. Objections to F&R due by 12/24/2009. READ FINDINGS AND RECOMMENDATIONS FOR ALL DETAILS. Signed by Magistrate Carolyn S Ostby on 12/7/2009. (Hard-copy mailed to Ronald and Beverly Ohlin.) (POC, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B IL L I N G S DIVISION U N I T E D STATES OF AMERICA, Plaintiff, vs. R O N A L D and BEVERLY OHLIN; S T A T E OF MONTANA, DEPT. O F REVENUE; and PORTFOLIO R E C O V E R Y ASSOCIATES, LLC, Defendants. P la in t iff United States of America initiated this action on F e b ru a r y 12, 2009, to foreclose federal tax liens and judgment liens u p o n certain real property in Yellowstone County, Montana. Cmplt. (C o u r t Doc. 1) at ¶¶ 2, 13-17. The United States also seeks to enforce t h e terms of a settlement agreement reached in a prior case in this C o u rt between the United States and Ronald and Beverly Ohlin (U.S. v. O h lin , CV 02-31-BLG-RFC ("Ohlin I")). Court Doc. 1 at ¶¶ 18-24. The C o u rt has jurisdiction under 26 U.S.C. § 7402(a) and 28 U.S.C. §§ 1340 a n d 1345. D e fe n d a n t State of Montana Department of Revenue previously F I N D I N G S AND R E C O M M E N D A T I O N OF U N I T E D STATES M A G I S T R A T E JUDGE C V -0 9 -1 3 -B L G -R F C -C S O

e n t e re d a stipulation consenting to entry of a Judgment, Decree of F o r e c lo s u r e , and Order of Sale. Court Doc. 12. Also, the undersigned h a s recommended that the district court grant the United States's m o t io n for default judgment against Defendant Portfolio Recovery A s s o c ia te s , LLC. Court Doc. 41. Thus, only Defendants Ronald and B e v e r ly Ohlin ("the Ohlins"), appearing pro se, remain defending this a c tio n . Now pending before the Court is the United States's Motion for S u m m a r y Judgment. Court Doc. 21. I. P R O C E D U R A L BACKGROUND O n May 8, 2009, the United States moved for summary judgment. C o u r t Docs. 21 (motion), 22 (statement of facts), 23 (supporting brief), 2 4 (declaration of Curtis C. Smith), and 25 (declaration of William E. T h o m p s o n , Jr.). O n June 11, 2009, the Court conducted a preliminary pretrial c o n fe r e n ce with counsel for the United States and Plaintiffs Ronald and B e v e r ly Ohlin, who appeared pro se. Court Doc. 36. The Court issued a S c h e d u lin g Order. Court Doc. 37. The Court also issued an Order g r a n t in g the Ohlins' unopposed motion for additional time to respond to t h e United States's summary judgment motion. Court Doc. 38. The
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C o u rt afforded the Ohlins three additional months ­ until September 9, 2 0 0 9 ­ to file their response to the United States's summary judgment m o t io n . Id. O n September 11, 2009, the Ohlins filed a Motion to Delay P e n d in g Completion of Discovery. Court Doc. 39. Over the United S t a te s 's objection (Court Doc. 40), the Court granted the Ohlins' motion, b u t only to the extent the Ohlins requested additional time to retain c o u n s e l. Court Doc. 41. The Court imposed a November 17, 2009, d e a d lin e for the Ohlins's retained counsel, if any, to file a notice of a p p e a r a n c e . The Court also advised the Ohlins that if they were u n s u c c e s s fu l in retaining counsel, "no further extensions will be granted a n d the Court immediately will proceed to address the merits of the U n it e d States' motion for summary judgment." Id. at 7. T h e Ohlins neither timely responded to the United States's s u m m a r y judgment motion nor notified the Court that they had r e t a in e d counsel. Instead, on November 18, 2009, the Ohlins filed a M o tio n for Leave to File Ammended (sic) Answer and Affirmative D e f e n s e . Court Doc. 42. The United States opposed the motion. Court D o c. 43.
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I n an Order filed December 1, 2009, the Court denied the Ohlin's m o t io n and advised that it would proceed to address the merits of the U n it e d States's summary judgment motion. Court Doc. 44. II. B A C K G R O U N D FACTS T h e following background facts are from the United States's S t a te m e n t of Facts filed on May 8, 2009. Court Doc. 22. The Ohlins h a v e not responded to the United States's summary judgment motion a n d have represented that they "do not dispute the figures represented b y the plaintiff's evidential documentation." See Mtn. to Delay (Court D o c . 29) at ¶ 9. Thus, the undisputed background facts are as follows: A. O w n e r s h ip of the Real Property by the Ohlins

1 . On November 17, 2000, a Warranty Deed was recorded with the C le r k and Recorder for Yellowstone County, in which Lois M. Ohlin c o n v e y e d the property commonly referred to as 1856 S. 7 th, Huntley, M o n ta n a ("the real property") to Ronald and Beverly Ohlin, as joint t e n a n t s with right of survivorship. See Smith Decl. at ¶3, Ex. 1. This p r o p e r t y bore the legal description as follows: S o u t h half of the Southeast Quarter of the Northwest Q u a r te r (S½SE¼NW¼) and the East Half of the Southwest Q u a r t e r (E½SW¼) of Section twenty-one (21) and farm unit
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" G " , according to the farm unit plat, which is also known as L o t s eight (8) and thirteen (13) and the Southeast Quarter of t h e Southwest Quarter (SE¼SW¼) of Section sixteen (16) a n d the Northeast Quarter of the Northwest Quarter (N E ¼ N W ¼ ) and the North Half of the Southeast Quarter of t h e Northwest Quarter (N½SE¼NW¼) of Section Twenty-one (2 1 ) all in Township two (2), North of Range Twenty-eight (2 8 ) East, M.P.M. Less: t h a t Tract sold to the State of Montana, by Deed dated F e b r u a r y 18, 1966, and recorded at Book 836, Page 256 at D o c #774523 of Records, Yellowstone County, Montana, on M a r ch 15, 1966, located in the NE¼SW¼¼ and SE¼NW¼ of S e c t io n 21, T2N, R28E, Montana Principal Meridian, Y e llo w s t o n e County, Montana. T r a c t 1, Certificate of Survey 1317; C e rt ific a t e of Survey 1508 S u b je ct to the reservations and exceptions in any p a t e n t, and subject to valid easements, rights-of-way, b u ild in g and use restrictions, taxes and assessments for t h is and subsequent years.

Less: Less:

Id. B. A s s e s s m e n t and Recording of Notices of Federal Tax Liens

2 . A duly authorized delegate of the Secretary of the Treasury, in a c c o r d a n c e with law, made timely income tax assessments jointly a g a in s t defendants Ronald Ohlin and Beverly Ohlin, on the dates, for t h e tax years, and in the amounts as follows:

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Year 1987 1988 1993 1994

T y p e of Tax In co m e In co m e In co m e In co m e

A s s e s s m e n t Dates 0 4 /1 5 /9 1 0 4 /1 5 /9 1 0 7 /0 3 /9 5 ; 08/25/97 2 0 6 /2 6 /9 5 ; 08/25/97 3

A m o u n t s Outstanding 1 $ 2 1 ,7 1 3 .9 8 $ 6,426.71 $ 9,829.29 $ 6,282.74

S e e Smith Decl at ¶4, Ex. 2. 3 . A duly authorized delegate of the Secretary of Treasury, in a c co r d a n c e with law, made timely income tax assessments against R o n a ld Ohlin, individually, on the dates, for the tax years, and in the a m o u n t s as follows: Year 1990 T y p e of Tax In co m e A s s e s s m e n t Dates 0 8 /2 5 /9 7 A m o u n t s Outstanding 4 $ 5 1 ,6 6 7 .2 5

These amounts included statutory interest and accrued penalties as o f January 13, 2002. See Ohlin I Complaint at ¶12, fn1-2. F o r the tax year 1993, the Ohlins were assessed on July 3, 1995 per t h e ir jointly filed tax return. A subsequent examination of the 1993 tax y e a r yielded a subsequent assessment on August 25, 1997. F o r the tax year 1994, the Ohlins were assessed on June 26, 1995 p e r their jointly filed tax return. A subsequent examination of the 1994 t a x year yielded a subsequent assessment on August 25, 1997. T h e s e amounts included statutory interest and accrued penalties as o f January 13, 2002. See Ohlin I Complaint at ¶13, fn3.
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1

1995 1996 1997

In co m e In co m e In co m e

0 8 /2 5 /9 7 0 5 /1 5 /0 0 0 5 /1 5 /0 0

$ 1 0 ,6 6 8 .1 2 $ 4,038.67 $ 3,056.51

S e e Smith Decl at ¶5, Ex. 3. 4 . A duly authorized delegate of the Secretary of Treasury, in a c co r d a n c e with law, made timely income tax assessments against B e v e r ly Ohlin, individually, on the dates, for the tax years, and in the a m o u n t s as follows: Year 1995 1996 1997 T y p e of Tax In co m e In co m e In co m e A s s e s s m e n t Dates 0 8 /2 5 /9 7 0 5 /1 5 /0 0 0 5 /1 5 /0 0 A m o u n t s Outstanding 5 $ 3,247.26 $ 3,543.84 $ 1 2 ,0 9 3 .4 0

S e e Smith Decl at ¶6, Exs. 4. 5 . The Internal Revenue Service filed Notices of Federal Tax Lien w it h the Clerk and Recorder for Yellowstone County, Montana, against d e fe n d a n ts Ronald Ohlin and Beverly Ohlin, for assessments for the tax y e a r s 1987, 1988, 1990, 1993 1994, 1995, 1996, and 1997. See Smith

These amounts included statutory interest and accrued penalties as o f January 13, 2002. See Ohlin I Complaint at ¶14, fn4.
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5

D e cl. at ¶7, Ex. 5. These notices were filed as early as August 28, 1998, fo r the tax years 1987, 1988, 1990, 1993, 1994, and 1995. See id at pgs. 2 -5 . The notices of refiling have also been included. Id at pgs. 8, 9, 17, 1 9 , 20-23.6 C. L a w s u it and Settlement Agreement

6 . On March 6, 2001, the United States filed the complaint in U.S. v . Ohlin, (Case No.1:02-cv-00031-RFC (D. Mont.)) ("Ohlin I") in the U n it e d States District Court, District of Montana, Billings Division, a g a in s t defendants Ronald and Beverly Ohlin to reduce the federal tax a s s e s s m e n t s , described in paragraphs 2-4 to judgment. 7 . On July 14, 2004, Ronald and Beverly Ohlin, through their c o u n s e l, submitted an offer to fully settle Ohlin I. See Smith decl at ¶8, E x . 6. In pertinent part, this letter offers to settle Ohlin I as follows: (a ) Judgment would be entered against Ronald Ohlin in the a m o u n t of $110,000.00 for the assessments made against him jo in t ly for the 1987, 1988, 1993, and 1994 tax years and against

Some of these liens were erroneously released, and refiled with a R e v o c a t io n of Certificate of Release of Federal Tax Lien. See id. at pgs. 121 4 , 24, 25, 27-32.
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6

h im individually for the 1995, 1996, and 1997 tax years (b ) Judgment would be entered against Beverly Ohlin in the a m o u n t of $63,071.60 for the assessments made against her jointly fo r the 1987, 1988, 1993, and 1994 tax years and individually for t h e 1995, 1996, and 1997 tax years. ( c ) Ronald and Beverly Ohlin would sell or mortgage the property lo c a t e d at 1856 S. 7 th, Huntley, Montana (i.e., the "real property") w it h in 18 months from the date of acceptance of the offer, and the O h lin s would pay the proceeds of the sale or mortgage to the United S tates. (d ) If the Ohlins did not sell or mortgage the real property within 1 8 months after the date the offer was accepted, the United States w o u ld be permitted to sell the real property pursuant to an Order of F o r e c lo s u r e and Decree of Sale. Id. 8 . On August 4, 2004, the United States accepted the settlement o f fe r . The settlement provided in relevant part: (a ) Judgment would be entered against Ronald Ohlin in the amount o f $110,000.00, plus interest to begin 6 months from the entry of
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ju d g m e n t , for the income tax assessments made against him jointly fo r the 1987, 1988, 1993, and 1994 tax years and against him in d iv id u a lly for the 1995, 1996, and 1997 tax years; (b ) Judgment would be entered against Beverly Ohlin in the a m o u n t of $63,071.60, plus interest to begin 6 months from the e n t ry of judgment, for the assessments made against her jointly for t h e 1987, 1988, 1993, and 1994 tax years and against her in d iv id u a lly for the 1995, 1996, and 1997 tax years. (c ) The Ohlins would pay the United States the outstanding balance o f the judgment against Ronald Ohlin ($110,000.00) within 18 m o n t h s of acceptance of the offer; (d ) The Ohlins would be permitted to sell or mortgage the real p r o p e r t y to enable them to make the required payment; (e ) If the Ohlins did not make the payment required within 18 m o n t h s of the acceptance of the offer, the United States could sell t h e real property pursuant to a Court-entered Order of Foreclosure a n d Decree of Sale. S e e Smith Decl. at ¶9, Ex. 7. 9 . On August 5, 2004, a Stipulation was filed by counsel for the
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U n it e d States and for Ronald and Beverly Ohlin providing that judgment w o u ld be entered against Ronald Ohlin and Beverly Ohlin in the a m o u n ts of $110,000.00 and $63,071.60 respectively. See Smith Decl. at ¶ 1 0 , Ex. 8. 1 0 . On August 13, 2004, pursuant to the Stipulation of the parties, t h e United States District Court, District of Montana, Billings Division, e n te r e d judgment against Ronald Ohlin and Beverly Ohlin consistent w it h the amounts agreed to in the stipulation and settlement agreement. See Smith Decl. at ¶11, Ex. 9. 1 1 . On September 15, 2004, an Abstract of Judgment of Ohlin I w a s filed with the County Clerk of the State of Montana, County of Y e llo w s t o n e . See Smith Decl. at ¶12, Ex. 10. 1 2 . Defendants Ronald Ohlin and Beverly Ohlin have failed to m a k e any payments to the United States as required by the terms of the s e t t le m e n t agreement reached in Ohlin I. See Declaration of William E. T h o m p s o n at ¶3. D. O t h e r Potential Claims to Real Property

13. The State of Montana, Department of Revenue ("State of M o n ta n a " ) has, or claims to have, an interest in the real property by
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v ir t u e of a Warrant of Distraint, dated May 24, 2004, in the amount of $ 2 0 ,9 7 3 .0 0 , and amended on March 26, 2007, in the amount of $ 2 4 ,8 7 6 .0 3 (Dct. #12, at ¶3). 1 4 . The United States and the State of Montana have entered into a stipulation recognizing the superiority of the United States' claims, as s t a t e d in the complaint, to those of the State of Montana. Id. 1 5 . On October 25, 2007, Portfolio Recovery Associates, LLC (" P o r t fo lio Recovery"), obtained a judgment against Ronald and Beverly O h lin in the amount of $7,146.39 in Montana State Court. See Smith D e cl. at ¶13, Ex. 11. III. S U M M A R Y JUDGMENT STANDARD S u m m a ry judgment is proper "if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no g e n u in e issue as to any material fact and that the movant is entitled to ju d g m e n t as a matter of law." Fed. R. Civ. P. 56(c). Material facts are t h o s e which may affect the outcome of the case. Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is g e n u in e if there is sufficient evidence for a reasonable jury to return a v e r d ic t for the nonmoving party. Id.
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T h e party moving for summary judgment bears the initial burden of id e n t if y i n g those portions of the pleadings, discovery, and affidavits w h ic h demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving p a r ty will have the burden of proof on an issue at trial, it must a f fir m a t iv e ly demonstrate that no reasonable trier of fact could find other t h a n for the moving party. Id. But on an issue for which the opposing p a r t y will have the burden of proof at trial, the moving party need only s h o w "that there is an absence of evidence to support the nonmoving p a r t y 's case." Id. O n c e the moving party meets its initial burden, the opposing party " m a y not rely merely on allegations or denials in its own pleading; rather, it s responses must ­ by affidavits or as otherwise provided in this rule ­ s e t out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 5 6 (e )(2 ). If the nonmoving party fails to make this showing, "the moving p a r t y is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. a t 323.

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IV .

D IS C U S S IO N I n moving for summary judgment, the United States describes the

is s u e s before the Court as follows: 1 . Whether the United States has valid and subsisting liens on the r e a l property; 2 . Whether the federal income tax liens and judgment lien related t o the assessments and judgment at issue may be foreclosed upon; 3 . Whether the United States may foreclose upon the real property p e r the terms of the settlement agreement at issue; and 4 . Whether the United States' liens have priority over the claims of d e fe n d a n ts State of Montana, and Portfolio Recovery. A. V a lid and Subsisting Liens on Real Property

F o r the reasons that follow, the Court concludes that the United S t a t e s has valid and subsisting federal tax liens and a judgment lien on t h e real property. The United States has a lien in its favor on all p r o p e r t y and rights to property when a person liable to pay any tax n e g le c t s or refuses to pay the tax after demand is made. 26 U.S.C. § 6 3 2 1 . The tax lien attaches on the date the lien arises. 26 U.S.C. § 6322. H e r e , the Ohlins own the real property. Background Facts ("BF")
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a t ¶ 1. The tax liens on the real property attached and were perfected on t h e dates of the tax assessments as reflected in the Certificates of A s s e s s m e n t s , Payments and Other Specified Matters (Forms 4340) for t h e tax periods at issue. BF at ¶¶2-4 (see e.g., Smith Decl. at ¶4, Ex. 2, p g . 3 (line reading "Return Filed & Tax Assessed" on Assessment Date " 0 4 -1 5 -1 9 9 1 " ). The federal tax liens became valid as against subsequent p u r c h a s e r s , holders of security interests, mechanics lien creditors and ju d g m e n t lien creditors under 26 U.S.C. § 6323(a) when Notices of F e d e r a l Tax Lien were recorded with the Clerk and Recorder for Y e llo w s t o n e County, Montana. 26 U.S.C. § 6323(a). BF at ¶ 5. Additionally, under 28 U.S.C. §3201, a judgment lien arises on the r e a l property of the judgment debtor upon the filing of a certified copy of t h e abstract of the judgment. Here, a judgment lien arose on the real p r o p e r t y of the Ohlins in Yellowstone County on September 15, 2004, w h e n a certified copy of the abstract of the judgment of Ohlin I was filed w it h the County Clerk of the State of Montana, County of Yellowstone, w h e re the real property is located. BF at ¶11.

B.

E n t it le m e n t to Order of Foreclosure of Federal Tax Liens on
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t h e Real Property and a Decree of Sale F o r the following reasons, the Court concludes that the United S t a te s is entitled to an Order of Foreclosure of the federal tax liens on the r e a l property and also is entitled to a decree of sale. "Once a federal lien a t ta c h e s to taxpayers' property, the government may then foreclose upon t h e property." United States v. Stonehill, 83 F.3d. 1156, 1160 (9 th Cir. 1 9 9 6 ). 26 U.S.C. § 7403 provides authority for the Court to order a ju d ic ia l sale of the subject property to satisfy the unpaid tax liabilities: I n any case where there has been a refusal or neglect to pay a n y tax, or to discharge any liability in respect thereof, w h e t h e r or not levy has been made, the Attorney General or h is delegate, at the request of the Secretary, may direct a civil a c t io n to be filed in a district court of the United States to e n f o r c e the lien of the United States under this title with r e s p e c t to such tax or liability or to subject any property, of w h a t e v e r nature, of the delinquent, or in which he has any r ig h t, title, or interest, to the payment of such tax or liability. 2 6 U.S.C. § 7403(a). A ll parties "having liens upon or claiming any interest in the p ro p e r t y involved in such action" have been named as defendants to this a c t io n as required by subsection (b) of section 7403. Court Doc. 1 at ¶¶ 56 . Thus, the Court may adjudicate claims against the subject property, o r d e r a sale, and distribute the proceeds according to the priority of the
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c la im s : T h e court shall, after the parties have been duly notified of t h e action, proceed to adjudicate all matters involved therein a n d finally determine the merits of all claims to and liens u p o n the property, and, in all cases where a claim or interest o f the United States therein is established, may decree a sale o f such property, by the proper officer of the court, and a d is t r ib u tio n of the proceeds of such sale according to the fin d in g s of the court in respect to the interests of the parties a n d of the United States. 2 6 U.S.C. § 7403(c); see, e.g., United States v. Rodgers, 461 U.S. 677, 680 (1 9 8 3 ) (family home sold under section 7403 to satisfy tax liens arising f r o m husband's tax liability). B e ca u s e it has been determined above that the United States has v a lid and subsisting federal tax liens in the real property, the Court may e n t e r an order of foreclosure and judicial sale pursuant to 26 U.S.C. § 7 4 0 3 , and order disbursement of the proceeds upon application of the c la im a n t s to the Court. C. E n t it le m e n t to Order of Foreclosure and Decree of Sale P u r s u a n t to Terms of Ohlin I Settlement Agreement

T h e Court concludes that the United States is entitled to an Order o f Foreclosure and Decree of Sale under the terms of the settlement a g re e m e n t in Ohlin I. "An agreement is binding if made by an

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u n c o n d it io n a l offer, and accepted unconditionally." Hetherington v. Ford M o t o r Co., 849 P.2d 1039, 1042 (Mont. 1993). Also, "a party to a s e t t le m e n t agreement is bound if he or she has manifested assent to the a g re e m e n t's terms and has not manifested an intent not to be bound by t h a t assent." Lockhead v. Weinstein, 81 P.3d 1284, 1287 (Mont. 2003). Thus, "once the parties strike a settlement agreement, either may enforce it ." Carlson v. State Farm Mut. Auto Ins. Co.,76 F. Supp.2d 1069, 1077 ( D . Mont. 1999). I n the case before the Court, on March 6, 2001, the United States file d its complaint in Ohlin I in this Court against Ronald and Beverly O h lin to reduce the federal tax assessments, described above, to ju d g m e n t. BF at ¶6. In Ohlin I, the Ohlins entered into a binding and e n fo r c e a b le settlement agreement with the United States. The Ohlins, t h ro u g h their attorney, sent the United States a proposed settlement (" o ffe r letter") on July 14, 2004, offering to stipulate to judgment in the a m o u n t s $110,000.00 for Ronald Ohlin and $63,071.60 for Beverly Ohlin. BF at ¶ 7. The offer letter provided for an 18-month period in which the O h lin s could "sell or mortgage" the real property to be applied towards t h e ir tax liability. Id. Should the Ohlins not sell or mortgage the real
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p ro p e r t y "within 18 months after the date the offer is accepted, the U n it e d States [could] sell the real property pursuant to an Order of F o r e c lo s u re and Decree of Sale." Id. T h e United States accepted the offer letter through a letter on A u g u s t 4, 2004 ("acceptance letter"). BF at ¶ 8. Under the parties' a g re e m e n t, "If the Ohlins do not make the payment required by p a r a g ra p h 5 [the payment of Ronald Ohlin's tax liability] within 18 m o n th s of acceptance of the offer, the United States may sell the real p r o p e r t y pursuant to an Order of Foreclosure and Decree of Sale." Id. 18 m o n th s from August 4, 2004, is February 4, 2006. B a s e d on this agreement, the parties signed a stipulation on August 5 , 2004, as to the amount of the judgment. BF at ¶ 9. This stipulation w a s filed with this Court on August 5, 2004. Id. O n August 13, 2004, this Court entered judgment against Ronald O h lin and Beverly Ohlin in the amounts of $110,000.00 and $63,071.60, r e s p e c t iv e ly , plus interest to accrue. BF at ¶ 10. The Ohlins were r e q u ire d to make the required payment within 18 months of the a c c e p ta n c e of the offer (or February 4, 2006). To date, the Ohlins have n o t made any payments on their outstanding tax liability. BF at ¶ 12.
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T h e clearly defined offer and acceptance constitute an enforceable a n d binding settlement agreement. The terms of the settlement a g r e e m e n t call for a foreclosure and judicial sale of the Ohlins' property fo r failure to remit payment. As the Ohlins have not paid, an order of fo r e c lo s u r e and judicial sale of the real property are appropriate. D. P r io r it y of United States's Liens Over Claims of State of M o n t a n a and Portfolio Recovery

A s noted, Defendant State of Montana Department of Revenue p r e v io u s l y entered a stipulation consenting to entry of a Judgment, D e c r e e of Foreclosure, and Order of Sale. Court Doc. 12. Also, the u n d e r s ig n e d has recommended that the district court grant the United S t a t e s 's motion for default judgment against Defendant Portfolio R e c o v e r y Associates, LLC. Court Doc. 41. Thus, this issue is moot. V. C O N C L U S IO N B a s e d on the foregoing, IT IS RECOMMENDED that the United S t a t e s 's Motion for Summary Judgment (Court Doc. 21) be GRANTED a n d that the Court: (1) issue an order of foreclosure and judicial sale on t h e real property under the terms of the settlement agreement in Ohlin I; (2 ) enter an order foreclosing the United States's judgment lien and tax

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lie n s on the real property; and (3) order sale of the real property, with the p r o ce e d s deposited with the Court and disbursed pursuant to an a p p lic a t io n to the Court. I T IS ORDERED that the Clerk shall serve a copy of these Findings a n d Recommendation of United States Magistrate Judge upon the p a r t ie s . The parties are advised that, under to 28 U.S.C. § 636, any o b je c t io n s must be filed with the Clerk of Court and copies served on o p p o s in g counsel within fourteen (14) days after receipt hereof, or o b je c t io n is waived. D A T E D this 7th day of December, 2009. /S / Carolyn S. Ostby U n it e d States Magistrate Judge

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