United States of America v. Birdsong et al

Filing 51

DECREE of Foreclosure and Order of Judicial Sale. Signed by Judge Donald W. Molloy on 12/20/2018. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

CV 17-72-M-DWM

UNITED STATES OF AMERICA,
Plaintiff,

DECREE OF FORECLOSURE
AND ORDER OF JUDICIAL SALE

vs.
MALCOLM WAYNE BIRDSONG;
M.W. BIRDSONG; WAYNES'
GROUP; MISSOULA COUNTY; and
ENOCH INVESTMENTS, LLC,
Defendants.

On May 23, 2017, the United States filed this action to reduce federal
income tax assessments against Defendant Malcolm Wayne Birdsong, also known
as M.W. Birdsong, to judgment, to determine that Birdsong is the true owner of
two properties in Lolo, Montana (the "Subject Properties") held by Defendant
Waynes' Group, and to foreclose federal tax liens on the Subject Properties. On
December 4, 2018, the Court granted summary judgment to the United States on
all claims. (Doc. 48.) Judgment was entered on December 19, 2018. (Doc. 50.)
Pursuant to the Court's December 4, 2018 Order, 28 U.S.C. §§ 2001 and 2002, and
26 U.S.C. §§ 7402 and 7403,
IT IS ORDERED that the United States' federal tax liens against the Subject
Properties, arising from the tax assessments at issue in this case, are foreclosed. A
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judicial sale of the Subject Properties shall be conducted as follows:
1.

The Subject Properties are located at 100 and 104 Glacier Drive, Lolo,

MT 59847 and are legally described as:
Subdiv.-LAV LAKE VIEW ADD Lot-001, Block-00A 12N 20W
26 LAKE VIEW-PARCEL A LOT 1 BLK A, SUID #2050301
and
Subdiv.-LAV LAKE VIEW ADD Lot-002 Block-00A 12N 20W 26
LAKE VIEW ADD, LKVW LOT 2 OF LAKE VIEW ADD, LKVW
LOT 2 OF LAKE VIEW ADDITION BLK A 26-12-20, SUID
#1026859.
2.

The Subject Properties shall be sold to the highest bidder at a public

auction free and clear of the interests of the parties to this case and any successors
in interest or transferees of those parties.
3.

The United States may choose either the U.S. Marshal for the District

of Montana or an Internal Revenue Service Property Appraisal and Liquidation
Specialist ("PALS") representative to conduct the sale. This Order shall act as a
special writ of execution and no further process from the Court shall be required.
4.

The U.S. Marshal or PALS representative shall have discretion to sell

the Subject Properties together or separately. The term "sale" in this Order shall be
construed to mean the sale of the Subject Properties, together or separately, as
determined by the U.S. Marshal or PALS representative.
5.

The sale shall be held at the United States District Court for the
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District of Montana, on the Subject Properties' premises, or at any other place in
accordance with the provisions of28 U.S.C. §§ 2001 and 2002, at a date and time
set by the U.S. Marshal or PALS representative.
6.

The sale shall be subject to all laws, ordinances, and governmental

regulations (including building and zoning ordinances) affecting the premises, and
easements and restrictions of record, if any.
7.

Notice of the sale shall be published once a week for at least four

consecutive weeks before the sale in at least one newspaper regularly issued and of
general circulation in Missoula County, Montana, and by any other means the U.S.
Marshal or PALS representative deems appropriate. The notice shall describe the
Subject Properties and contain the material terms and conditions of sale in this
Order. State and local notice requirements do not apply.
8.

The United States shall set a reasonable minimum bid. If the

minimum bid is not met, the U.S. Marshal or PALS representative may sell the
Subject Properties to the highest bidder, or, without further permission of the
Court, reduce the minimum bid and hold a new public sale under this Order's
terms and conditions.
9.

At the sale, the successful bidder shall deposit at least 10 percent of

the bid with the U.S. Marshal or PALS representative. The deposit shall be paid
with a certified or cashier's check payable to the United States District Court for
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the District of Montana. Before being permitted to bid, bidders must display proof
to the U.S. Marshal or PALS representative that they are able to comply with this
requirement. The U.S. Marshal or PALS representative shall deposit the check
into the registry of the Court according to Local Rule 67 .1.
10.

Within 30 days after the bid is accepted, the successful bidder shall

pay the balance of the purchase price to the U.S. Marshal or PALS representative
via a certified or cashier's check payable to the United States District Court for the
District of Montana. If the bidder fails to fulfill this requirement, the deposit shall
be forfeited and disbursed according to Paragraph 19 of this Order. The Subject
Properties shall then be sold to the second-highest bidder or offered for sale again
under this Order's terms and conditions. The United States may bid as a credit
against its judgment without tender of cash.
11.

The sale of the Subject Properties shall not be final until confirmed by

the Court. The U.S. Marshal or PALS representative shall file a report of sale with
the Court within 30 days from the date of receipt of the balance of the purchase
pnce.
12.

Upon confirmation of the sale, the interests of, liens against, or claims

to the Subject Properties held or asserted by the United States and any other parties
to this action or any successors in interest or transferees of those parties shall be
discharged and extinguished. The sale is ordered pursuant to 28 U.S.C. § 2001 and
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is made without a right of redemption.
13.

Upon confirmation of the sale, the U.S. Marshal or PALS

representative shall promptly execute and deliver a deed of judicial sale conveying
the Subject Properties to the purchaser.
14.

Upon confirmation of the sale, the purchaser is responsible for having

the Recorder of Deeds of Missoula County, Montana cause the transfer of the
Subject Properties to be reflected in the Missoula County property records.
15.

Until a deed is delivered to the purchaser, the U.S. Marshal or PALS

representative is authorized to take all reasonably necessary actions to preserve the
Subject Properties, including, without limitation, retaining a locksmith or other
person to change or install locks or other security devices.
16.

Until the sale, Malcom Wayne Birdsong shall take all reasonably

necessary actions to preserve the Subject Properties (including all buildings,
improvements, fixtures, and appurtenances) including, without limitation,
maintaining fire and casualty insurance policies on the Subject Properties. He shall
keep current in paying real property taxes as they are assessed by Missoula
County. He shall not commit waste against the Subject Properties, nor shall he
cause or permit anyone else to do so. He shall not do anything that tends to reduce
the value or marketability of the Subject Properties, nor shall he cause or permit
anyone else to do so. He shall not record any instruments, publish any notice, or
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take any other action that may directly or indirectly tend to adversely affect the
value of the Subject Properties or that may tend to deter or discourage potential
bidders from participating in the public sale, nor shall he cause or permit anyone
else to do so.
17.

All persons occupying the Subject Properties shall leave and vacate

permanently no later than 30 days after the date of this Order, unless the United
States agrees otherwise in writing. Each shall take all personal property, but leave
all improvements, buildings, fixtures, and appurtenances. If any person fails or
refuses to leave and vacate the Subject Properties by the time specified in this
Order, the U.S. Marshal is authorized to take any reasonably necessary action to
remove that person from the premises. If any person fails or refuses to remove his
or her personal property from the Subject Properties by the time specified, the
personal property remaining at the Subject Properties is deemed forfeited and
abandoned. The U.S. Marshal or PALS representative is authorized to remove and
dispose of it in any reasonable manner, including sale, in which case the sale
proceeds shall be disbursed according to Paragraph 19 of this Order.

.

18.

Notwithstanding the terms of the preceding paragraph, if the Subject

Properties remain occupied after the sale is confirmed, a writ of assistance may,
without further notice, be issued by the Clerk of Court pursuant to Federal Rule of
Civil Procedure 70 to compel delivery of possession of the Subject Properties to
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the purchaser.
19.

The Marshal or PALS representative shall deposit the purchase price

into the registry of the Court according to Local Rule 67 .1. Upon appropriate
motion for disbursement or stipulation of the parties, the Court will disburse the
funds in the following order of preference:
a. First, to the U.S. Marshal or PALS representative for costs, fees,
disbursements, and expenses as allowed by law;
b. Second, to ENOCH Investments, LLC, as the assignee of Missoula
County, to satisfy the property tax or special assessment liens upon
the Subject Properties, as provided by 26 U.S.C. § 6323, the
stipulations in this case (Docs. 10, 26), and the Court's December
4, 2018 Order (Doc. 48);
c. Third, to the United States to satisfy the federal tax liabilities of
Malcolm Wayne Birdsong, as provided by the Court's December
4, 2018 Order (Doc. 48);
d. Fourth, to Malcolm Wayne Birdsong.
DATED this ~I-day of December, 2018.

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