United States of America v. Thompson et al

Filing 130

ORDER OF SALE issued regarding Memorandum and Order 116 and pursuant to Judgment 129 . Original and 3 copies with seal to USM; 1 copy with seal to USA. Ordered by Senior Judge Joseph F. Bataillon. (copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
HARLAN M. THOMPSON; DIANE C.,
)
THOMPSON; MAPLE LEAF FUNDING, A, )
"PURE" TRUST; CAPITOL ONE BANK; and )
DISCOVER BANK,
)
)
Defendants.
)
_______________________________________)

8:13CV180

ORDER OF SALE

On March 24, 2015, this Court issued a Memorandum and Order granting summary
judgment in favor of Plaintiff United States of America. Filing No. 116. In its Order, this Court
found that: (1) defendants Harlan Thompson and Diane Thompson “are the true and beneficial
owners of the Property” at issue in this case; (2) “the United States has valid and subsisting
federal tax liens on the Property” at issue in this case; and ruled that (3) this “Court will enter
judgment foreclosing the federal tax liens on the Property described in this case, and order the
Property to be sold and any person occupying the Property to leave and vacate the Property.”
Filing No. 116 at 8.
Accordingly, IT IS ORDERED that the property at issue in this case, and the land with
the buildings thereon, located in Dixon County, Nebraska, at 399 East 7th Street in Wakefield,
NE (“the Property”), and more particularly described as:
Lot 1, Turney’s Addition located in the South half of the South half of the
Southwest Quarter of Section 33, Township 27 North, Range 5, East of the 6th
P.M, Dixon County, Nebraska.
Together with a perpetual easement providing ingress and egress over the
East 25 feet of Lot 2 of said Turney’s Addition as shown on the Plat and
Dedication thereof

be sold under title 28 United States Code §§ 2001 and 2002 to satisfy or partially satisfy the
federal income tax and federal civil penalty liabilities of defendants Harlan M. Thompson and
Diane C. Thompson for tax years 2002, 2003, 2005, 2006, and 2007 as follows:
1. The Internal Revenue Service Property Appraisal and Liquidation Specialists (PALS), is
authorized to offer for public sale and to sell the Property.
2. The PALS is authorized to immediately take action on this Order of Sale.
3. The terms and conditions of the sale are as follows:
a. the sale of the Property shall be free and clear of any interest of Harlan M.
Thompson, Diane C. Thompson, Maple Leaf Funding, a “Pure” Trust (Maple
Leaf Funding)1, Capitol One Bank, and Discover Bank;
b. the sale shall be subject to building lines, if established, all laws, ordinances, and
governmental regulations (including building and zoning ordinances) affecting the
Property, and easements and restrictions of record, if any;
c. the sale shall be held either at the courthouse of the county or city in which the
Property is located or on the Property’s premises;
d. the PALS shall announce the date and time for the sale;
e. a Notice of Sale for 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 Dixon County, Nebraska, and, at the discretion of the
PALS, by any other notice that the PALS deems appropriate. The Notice of Sale

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Maple Leaf Funding was named as defendant to this case pursuant to 26 U.S.C. § 7403(b)
because this entity may have claimed an interest in the Property. Filing No. 1 ¶ 6. Maple Leaf
Funding failed to appear in this case and the Clerk of Court entered its default on October 21,
2013. Filing No. 21. On March 24, 2015, this Court granted the United States’ motion for default
judgment against Maple Leaf Funding. Filing No. 116.
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shall contain a description of the Property and shall contain the terms and
conditions of sale that are set forth in this Order of Sale;
f. the PALS shall set the minimum bid. If the minimum bid is not met or exceeded,
the PALS may, without further permission of the Court, and under the terms and
conditions of this Order of Sale, hold a new public sale, if necessary, and reduce
the minimum bid;
g. at the time of the sale, the successful bidder(s) shall deposit with the PALS, by
money order or by certified or cashier’s check payable to the Clerk of the United
States District Court for the District of Nebraska, a deposit in an amount between
ten and twenty percent of the minimum bid as specified by PALS in the published
Notice of Sale. Before being permitted to bid at the sale, potential bidders shall
display proof to the PALS that the potential bidder is able to comply with this
requirement. No bids will be accepted 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;
h. the successful bidder(s) shall pay the balance of the purchase price for the
Property within 30 days following the date of the sale by either certified check or
cashier’s check payable to the United States District Court for the District of
Nebraska. This check shall be given to PALS, who will deposit the funds with the
Clerk of this Court. If the bidder fails to fulfill this requirement, the deposit shall
be forfeited and shall be applied to cover the expenses of the sale, with any
amount remaining to be applied to the federal income tax and federal civil penalty
liabilities of Harlan M. Thompson and Diane D. Thompson at issue herein. The

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Clerk shall distribute the deposit as directed by the PALS by check made out to
the “United States Treasury.” The Property shall be again offered for sale under
the terms and conditions of this Order of Sale or, in the alternative, sold to the
second highest bidder;
i. the Clerk of Court is directed to accept the proceeds of the sale and deposit it into
the Court’s registry for distribution pursuant to further Order of this Court;
j. the sale of the Property shall be subject to confirmation by this Court. On
confirmation of the sale, the Internal Revenue Service shall execute and deliver a
quit claim deed conveying the Property to the purchaser. On confirmation of the
sale, all interests in, liens against, or claims to, the Property that are held or
asserted by all parties to this action are discharged and extinguished;
k. when this Court confirms the sale, the Recording Official of Dixon County,
Nebraska, shall cause transfer of the Property to be reflected upon that county’s
register of title. The successful 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; and
l. the sale of the Property is ordered pursuant to 28 U.S.C. § 2001, and is made
without right of redemption.
4. Until the Property is sold, Harlan M. Thompson and Diane C. Thompson shall take all
reasonable steps necessary to preserve the property (including all buildings,
improvements, fixtures and appurtenances on the property) in its current condition
including, without limitation, maintaining a fire and casualty insurance policy on the

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Property. Harlan M. Thompson and Diane C. Thompson shall not commit waste against
the Property and shall not cause or permit anyone else to do so.
5. Harlan M. Thompson and Diane C. Thompson shall also do nothing that tends to reduce
the value or marketability of the Property or cause or permit anyone else to do so.
6. Harlan M. Thompson and Diane C. Thompson shall not record any instruments, publish
any notice, or take any other action (such as running newspaper advertisements, posting
signs, or making internet postings) that may directly or indirectly tend to adversely affect
the value of the Property or that may tend to deter or discourage potential bidders from
participating in the public auction, nor shall they cause or permit anyone else to do so.
7. Thirty days before the property is offered for public sale, and upon 14 days’ advance
notice by the IRS (at least 44 days before the date the property is offered for public sale),
Harlan M. Thompson and Diane C. Thompson shall vacate the Property permanently, so
that it may be publicly sold by the IRS. Harlan M. Thompson and Diane C. Thompson
shall take their personal property but leave all improvements, buildings, fixtures, and
appurtenances to the Property.
8. If any person fails or refuses to vacate the Property thirty days before the property is
offered for public sale, and upon 14 days’ advance notice by the IRS, the PALS are
authorized to coordinate with the United States Marshal to take all actions that are
reasonably necessary to have those persons ejected. Any personal property remaining in
or on the Property as of the date of sale is deemed forfeited and abandoned, and the
PALS are authorized to dispose of it in any manner they see fit, including sale, in which
case the proceeds of the sale are to be applied first to the expenses of sale and the balance
to be paid into the Court for further distribution. Checks for the purchase of the personal

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property shall be made out to the Clerk of Court for the United States District Court for
the District of Nebraska, and the Clerk is directed to accept these checks and deposit
them into the Court’s registry for distribution pursuant to further Order of this Court.
9. In the 30-day period before the Property is offered for public sale, and until the deed to
the Property is delivered to the successful bidder by the IRS, the PALS is authorized to
have free access to the Property and to take all actions necessary to preserve the Property,
including, but not limited to, retaining a locksmith or other person to change or install
locks or other security devices on any part of the Property.
10. After the Court confirms the sale, the sale proceeds deposited with the Clerk of this
Court will be applied to the following items, in the order specified:
a. First, to the PALS for the expenses of the sale, including any expenses incurred to
secure or maintain the property pending sale and confirmation by the Court;
b. Second, the remaining funds after payment made under section (a) above shall be
paid to the United States of America to satisfy or partially satisfy Harlan M.
Thompson’s and Diane C. Thompson’s joint federal income tax liabilities for tax
years 2002, 2003, and 2006, notice of which was filed with the Dixon County
Register of Deeds on April 21, 2008;
c. Third, pursuant to the stipulation between the United States and defendant Capitol
One Bank, Filing No. 17, which was adopted by the Court, Filing No. 19, the
remaining funds after payment made under sections (a) and (b) above shall be
paid to Capitol One Bank to satisfy Capitol One Bank’s judgment lien for the
judgment it received against the Thompsons in Wayne County, Nebraska, on or
about December 5, 2007, notice of which was filed in Dixon County, Nebraska,

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on or about October 24, 2008. The funds shall only be paid to Capitol One Bank if
the following requirements are met:
i. within 7 days of the entry of this Order of Sale, counsel for the United
States is required to mail and e-mail a copy of this Order of Sale to Mark
C. Quandahl, attorney for Capitol One Bank, and shall bring paragraph
10(c) of this Order of Sale to Mr. Quandahl’s attention. Counsel shall file
a certificate of service related to this Order of Sale; and
ii. within 21 days of being served with this Order of Sale in the manner
specified in paragraph i. above, if Capitol One Bank’s judgment lien is not
dormant or expired, then Capitol One Bank shall file with the Court an
affidavit or declaration signed under penalty of perjury attesting to both
the ongoing validity and outstanding balance of its judgment lien;
If these requirements are not met, and Capitol One Bank fails to either attest to the
ongoing validity of its judgment lien or to provide the current outstanding balance
for its judgment lien in the manner and by the deadline set forth above, then
Capitol One Bank shall not be paid any funds from the sale and shall forfeit its
interest in both the Property and in any proceeds of the sale of the Property;
d. Fourth, the remaining funds after payment made under sections (a), (b), and (c)
above shall be paid to the United States of America to satisfy or partially satisfy
Harlan M. Thompson’s federal income tax liability for tax year 2005, Diane C.
Thompson’s federal income tax liability for tax year 2007, Harlan M.
Thompson’s frivolous-return penalty liabilities for tax years 2005, 2006, and

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2007, and Diane C. Thompson’s frivolous-return penalty liabilities for tax years
2005 and 2007; and
e. Fifth, any further remaining sale proceeds shall be held in the Court’s registry
pending further order from the Court.

Dated this 8th day of June, 2015

BY THE COURT:

s/Joseph F. Bataillon
Joseph F. Bataillon
Senior United States District Judge

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