USA v. Brown et al
Filing
58
ORDER granting 57 Assented to MOTION for Entry of Order Concerning Default Judgment Entry, Final Judgment Entry, and Order of Lien Enforcement and Sale. So Ordered by Judge George Z. Singal.(ko)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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ELAINE A. BROWN, et al.,
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Defendants.
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_________________________________________ )
Civil No. 11-567
Judge John H. Rich III
ORDER ON UNITED STATES’ MOTION FOR DEFAULT JUDGMENT ENTRY,
FINAL JUDGMENT ENTRY, AND ORDER OF LIEN ENFORCEMENT AND SALE
Before the Court is the UNITED STATES' MOTION FOR DEFAULT JUDGMENT
ENTRY, FINAL JUDGMENT ENTRY, AND ORDER OF LIEN ENFORCEMENT AND
SALE. The Clerk of the Court entered the default of defendants A T T Trust, Appletree Trust,
Diane Marie Kelly individually and as trustee of ATT Trust, Norma Denise Menard individually
and as trustee of the Rock Solid Trust, Simonds Properties, Inc., and The Rock Solid Trust, on
March 22, 2012. On April 25, 2012, the Clerk of the Court entered the default of defendants
Elaine A. Brown, individually and as Trustee of the Center of Town Road Realty Trust, and as
Trustee of the Edward and Elaine Brown Living Trust; Edward L. Brown, individually and as
Trustee of the Center of Town Road Realty Trust, and as Trustee of the Edward and Elaine
Brown Living Trust; Thomas Eugene Ouverson, individually and as Trustee of the TQS Trust;
Edward and Elaine Brown Living Trust; Center of Town Road Realty Trust; TQS Trust; David
Hatch Bernier; Michael Laraway; Robert Hall; Diane Marie Kelly, individually and as Trustee of
ATT Trust, and as Trustee of the Appletree Trust; Appletree Trust; and ATT Trust. The Clerk of
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the Court entered the default of defendant George Bernier on August 8, 2012. The Court being
fully advised as to the premises, and for good cause shown, it is hereby,
ORDERED, ADJUDGED, AND DECREED that judgment by default is entered
against the following defendants: George Bernier, A T T Trust, Appletree Trust, Diane Marie
Kelly individually and as trustee of ATT Trust, Norma Denise Menard individually and as
trustee of the Rock Solid Trust, Simonds Properties, Inc., The Rock Solid Trust, Elaine A.
Brown, individually and as Trustee of the Center of Town Road Realty Trust, and as Trustee of
the Edward and Elaine Brown Living Trust; Edward L. Brown, individually and as Trustee of the
Center of Town Road Realty Trust, and as Trustee of the Edward and Elaine Brown Living
Trust; Thomas Eugene Ouverson, individually and as Trustee of the TQS Trust; Edward and
Elaine Brown Living Trust; Center of Town Road Realty Trust; TQS Trust; David Hatch
Bernier; Michael Laraway; Robert Hall; Diane Marie Kelly, individually and as Trustee of ATT
Trust, and as Trustee of the Appletree Trust; Appletree Trust; and ATT Trust.
ORDERED, ADJUDGED, AND DECREED that the United States has valid and
subsisting federal tax liens on all property and rights to property of defendants Elaine A. Brown
and Edward L. Brown, including their interest in the properties located at places commonly
known as 401 Center of Town Road, Plainfield, New Hampshire, hereinafter “Property A,” and
27 Glen Road, West Lebanon, New Hampshire, hereinafter “Property B.”
Property A is legally described as follows:
A certain tract or parcel of land together with the buildings and improvements
now or hereafter located thereon situate in Plainfield, Sullivan County, New
Hampshire, as shown on a plan entitled “Location Survey, Goodwin Lot, Being
Land of Land-East Corporation”, drawn by Land East Corp./Atkinson-Davis
Corp., dated April 2, 1980, and recorded at the Sullivan County Registry of
Deeds at Plan File #2, Pocket #5, Folder #4, Plan No. 42. Said tract is more
particularly bounded and described as follows:
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Beginning at an iron pin set at the intersection of two stone walls at the common
corner of the tract herein conveyed, and land now or formerly of Cecil Davis,
and land now or formerly of Atkinson-Davis Corp.; thence running North 06̊
East a distance of 913 feet along said Atkinson-Davis Corp. land to an iron pin
set at the end of said stone wall near a wire fence on the boundary of said
Atkinson-Davis Corp. land; thence turning and running still along said
Atkinson-Davis Corp. land and along said wire fence the following five courses
and distances: North 12̊ East a distance of 162.2 feet to an iron pin set; thence
North 06̊ East a distance of 100 feet to an iron pin set; thence North 08̊ East a
distance of 100 feet to an iron pin set; thence North 11̊ East a distance of 100
feet to an iron pin set; thence North 09̊ East a distance of 100 feet to an iron pin
set at the end of said wire fence at the common corner of the premises herein
conveyed and said Atkinson-Davis Corp. land; thence turning and running along
said Atkinson-Davis Corp. land the following seventeen courses and distances:
South 54̊ 30" East a distance of 134 feet to an iron pin set; thence South 62̊ East
a distance of 100 feet to an iron pin set; thence South 67̊ East a distance of 200
feet to an iron pin set; thence South 64̊ East a distance of 400 feet to an iron pin
set; thence South 57̊ East a distance of 200 feet to an iron pin set; thence South
61̊ East a distance of 100 feet to an iron pin set; thence South 65̊ East a distance
of 200 feet to an iron pin set; thence South 68̊ East a distance of 500 feet to an
iron pin set; thence South 67̊ East a distance of 100 feet to an iron pin set; thence
South 65̊ East a distance of 100 feet to an iron pin set; thence South 73̊ East a
distance of 100 feet to an iron pin set; thence South 69̊ East a distance of 100
feet to an iron pin set; thence South 75̊ East a distance of 100 feet to an iron pin
set; thence South 68̊ East a distance of 140 feet to an iron pin set; thence South
72̊ East a distance of 300 feet to an iron pin set; thence South 84̊ East a distance
of 100 feet to an iron pin set; thence South 72̊ East a distance of 400 feet to an
iron pin set at the end of a wire fence at the common corner of said AtkinsonDavis Corp. land and land now or formerly of Davis & Symonds Lumber Co.;
thence turning and running along said Davis & Symonds Lumber Co. land and
partially along said wire fence the following sixteen courses and distances:
South 39̊ West a distance of 154 feet to an iron pin set; thence South 10̊ West a
distance of 100 feet to an iron pin set; thence South 14̊ 30" West a distance of
100 feet to an iron pin set; thence South 38̊ West a distance of 318 feet to an iron
pin set; thence South 30̊ West a distance of 100 feet to an iron pin set; thence
South 32̊ West a distance of 100 feet to an iron pin set; thence South 10̊ West a
distance of 100 feet to an iron pin set; thence South 36̊ West a distance of 100
feet to an iron pin set; thence South 59̊ West a distance of 100 feet to an iron pin
set; thence South 74̊ West a distance of 79 feet to an iron pin set; thence South
63̊ West a distance of 100 feet to an iron pin set; thence South 69̊ West a
distance of 100 feet to an iron pin set; thence South 89̊ West a distance of 85
feet to an iron pin set; thence South 69̊ West a distance of 80 feet to an iron pin
set; thence South 60̊ West a distance of 100 feet to an iron pin set; thence South
46̊ West a distance of 200 feet to an iron pin set at a corner of wire fences at the
common corner of said Davis & Symonds Lumber Co. land and land now or
formerly of Davis, as shown on said Plan; thence turning and running along said
Davis land and partially along said wire fence the following six courses and
distances; North 48̊ West a distance of 91 feet to an iron pin set; thence North 40̊
West a distance of 100 feet to an iron pin set; thence North 04̊ West a distance
of 65 feet to an iron pin set; thence North 82̊ West a distance of 134.5 feet to an
iron pin set; thence North 58̊ West a distance of 100 feet to an iron pin set;
thence North 04̊ West a distance of 97.5 feet to an iron pin set at the end of said
wire fence near the end of a stone wall on the boundary of said Davis land;
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thence turning and running along said stone wall and still along said Davis land
the following five courses and distances; North 61̊ West a distance of 470 feet to
an iron pin set; thence North 67̊ West a distance of 100 feet to an iron pin set;
thence North 80̊ West a distance of 100 feet to an iron pin set; thence North 84̊
30" West a distance of 100 feet to an iron pin set; thence South 28̊ West a
distance of 87 feet to an iron pin set; thence turning and running still along said
Davis land and still along said stone wall and then along a wire fence North 74̊
West a distance of 113 feet to an iron pin set in said wire fence on the boundary
of said Davis land; thence turning and running still along said Davis land and
along said wire fence the following five courses and distances: North 69̊ West a
distance of 100 feet to an iron pin set; thence North 66̊ West a distance of 100
feet to an iron pin set; thence North 63̊ West a distance of 100 feet to an iron pin
set; thence North 70̊ West a distance of 100 feet to an iron pin set; thence North
64̊ West a distance of 100 feet to an iron pin set at the end of said wire fence
near the end of a stone wall on the boundary of said Davis land; thence turning
and running along said stone wall and still along said Davis land the following
two courses and distances: North 16̊ 30" West a distance of 144 feet to an iron
pin set in said stone wall; North 66̊ West a distance of 300 feet to the point of
beginning. Said parcel contains 103 acres, more or less, according to said Plan,
which is hereby incorporated herein by reference.
ALSO CONVEYING HEREIN, with QUITCLAIM covenants, all right, title
and interest in and to a certain easement over land in Plainfield, Sullivan
County, New Hampshire, presently or formerly owned by Cecil Davis on the
northerly side of the highway known as the Hill Road leading from Plainfield to
Meriden, which is also known as Farnum Road. Said easement may be more
particularly bounded and described as follows:
An easement and right-of-way for the passage of men vehicles over a strip of
land 25 feet in width from a break in the stone wall, which forms a part of the
southerly boundary near the southwest corner of land which the grantor herein is
conveying to the grantees hereinabove described, and crossing the so-called
southwest mowing on the said Davis property to the northerly right-of-way line
of said Hill Road.
SUBJECT TO Current Use Taxation by the Town of Plainfield, recorded at the
Sullivan County Registry of Deeds on July 17, 1981 at Book 685, Page 161.
Property B is legally described as follows:
A certain tract of land, together with the buildings and improvements thereon,
located on the northerly side of Glen Road in West Lebanon, in the City of
Lebanon, New Hampshire, as shown on a Plan entitled “Annexation Plan,
Former Merrihew Parcel to Former Welch Parcel, Bayne Stevenson, Glen Road,
West Lebanon, N.H., Scale 1" = 20', Date Sept. 11, 1985, Last revised
November 6, 1990, Proj. No. 100985, K.A. LeClair Assoc., Inc., Hanover,
N.H.” which Plan is recorded in the Grafton County Registry of Deeds as Plan
No. 6606. The single tract conveyed herein is show as consisting of two areas,
the first containing approximately 34,200 square feet or 0.78 acre; and the
second containing approximately 8,230 or 0.19 acre. Said tract is shown on said
Plan as bounded and described as follows:
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Beginning at an iron rod existing at a point where the northerly sideline of Glen
Road intersects with the common boundary of the premises herein conveyed and
property now or formerly of Netta J. Gilson; Thence North 58̊ 43' West along
the northerly sideline of Glen Road a distance of 16.0 feet to an iron pipe
existing along said northerly sideline of Glen Road; Thence North 63̊ 34' 30"
West along the northerly sideline of Glen Road a distance of 125.8 feet to a
stone bound existing along said northerly sideline of Glen Road;
Thence North 68̊ 50' West along the northerly sideline of Glen Road a distance
of 33.0 feet to an iron rod set along said northerly sideline of Glen Road;
Thence westerly along the northerly sideline of Glen Road a distance of 222
feet, more or less, to an iron rod set at a point where the northerly sideline of
Glen Road intersects with the common boundary of the premises herein
conveyed and property now or formerly of Block Plant, Inc.; Thence North 05̊
12' East along the common boundary of the premises herein conveyed and
property now or formerly of Block Plant, Inc. a distance of 57.4 feet to an
existing iron rod; Thence North 10̊ 34' West along the common boundary of the
premises herein conveyed and property now or formerly of Block Plant, Inc. a
distance of 46.4 feet to an existing granite bound; Thence North 79̊ 04' East
along the common boundary of the premises herein conveyed and property now
or formerly of Block Plant, Inc. a distance of 153.9 feet to an existing granite
bound; Thence South 65̊ 23' East along the common boundary of the premises
herein conveyed and property now or formerly of Block Plant, Inc. a distance of
123.4 feet to an existing granite bound; Thence South 05̊ 31' West along the
common boundary of the premises herein conveyed and property now or
formerly of Block Plant, Inc. a distance of 48.0 feet to a set iron rod; Thence
continuing South 05̊ 31' West along the common boundary of the premises
herein conveyed and property now or formerly of Block Plant, Inc. a distance of
20.0 feet to an existing iron pipe; Thence South 55̊ 23'30" East along the
common boundary of the premises herein conveyed and property now or
formerly of Block Plant, Inc. a distance of 93.6 feet to a set iron rod; Thence
continuing South 55̊ 23'30" East along the common boundary of the premises
herein conveyed and property now or formerly of Block Plant, Inc. a distance of
98.6 feet to an existing iron pipe; Thence South 58̊ 18' West along the common
boundary of the premises herein conveyed and property now or formerly of
Netta J. Gilson a distance of 43.8 feet to the point of beginning. Containing
42,430 square feet, more or less, or 0.97 acre, more or less.
Vehicular and pedestrian travel easement. The premises herein conveyed are
subject to a perpetual easement for vehicular and pedestrian travel conveyed by
Easement Deed from Bayne Stevenson d/b/a The BaySon Company to Arthur
Whitcomb, Inc. and Block Plant, Inc. dated November 22, 1985, and recorded in
the Grafton County Registry of Deeds at Book 1575, Pages 341-342, and by
Deed of Easement from Timothy B. Merrihew and Nancy A. Merrihew to
Arthur Whitcomb, Inc. dated September 28, 1981 and recorded in the Grafton
County Registry of Deeds at Book 1434, Pages 30-31. Reference is made to
said Easement Deed from Bayne Stevenson d/b/a The BaySon Company to
Arthur Whitcomb, Inc. and Block Plant, Inc., and said Deed of Easement from
Timothy B. Merrihew and Nancy H. Merrihew to Arthur Whitcomb, Inc. for a
metes and bounds description of the boundaries of each respective easement.
The area of easement conveyed by Easement Deed of Bayne Stevenson d/b/a
The BaySon Company and Arthur Whitcomb, Inc. and Block Plant, Inc. is
shown on the above described Plan as a shaded, triangular area situated adjacent
to and westerly of the easement area conveyed by Deed of Easement from
Timothy B. Merrihew and Nancy A. Merrihew to Arthur Whitcomb, Inc. With
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respect to the latter easement granted by Timothy B. Merrihew and Nancy A.
Merrihew to Arthur Whitcomb, Inc. by Deed of Easement dated September 28,
1981, Arthur Whitcomb, Inc., its successors and assigns convenanted with the
grantor, his heirs, successors, administrators and assigns, that the easement
described therein shall not be used for truck traffic (excluding pickups and
vehicles of similar type, characteristic and description) between the hours of
7:00 p.m. and 7:00 a.m.
The above described vehicular and pedestrian easements are to be used in
common by the owner of the premises herein conveyed, its successors and
assigns, and the owners of the adjoining property of Arthur Whitcomb, Inc.
and/or Block Plant, Inc., their successors and assigns.
Subject to the effect, if any, of a utility right of way described as being located
“off the easterly end of the aforementioned premises of the Grafton County
Electric Company, now called the Granite State Electric Company” which right
of way is described in a warranty deed from Timothy B. Merrihew and Nancy
Merrihew to Bayne Stevenson d/b/a The BaySon Company dated October 28,
1983 and recorded in the Grafton County Registry of Deeds at Book 1488, Page
724.
Both Property A and Property B are hereinafter referred to as the “Properties” when
aggregated.
ORDERED, ADJUDGED, AND DECREED that the federal tax liens for the liabilities
of defendants Elaine A. Brown and Edward L. Brown shall be enforced upon the Properties, and
that said Properties be sold in a judicial sale, according to law, free and clear of any right, title,
lien, claim or interest of any of the defendants herein, and that the proceeds of the sale be
distributed to such parties in such order as set forth below. The Properties shall be sold ‘as is’
condition.
ORDERED FURTHER, that the United States' tax lien for the liability that is the
subject of this judgment may be enforced and the United States Marshal for this District shall, at
a date and time to be determined by the U.S. Marshal, sell, free and clear of all right, title and
interest of all parties to this action, their heirs, successors and assigns, the Properties, at public
auction at the United States District Court, District of New Hampshire, 55 Pleasant Street, Room
110 Concord, New Hampshire 03301.
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ORDERED FURTHER, that the terms and conditions of the sale shall be as follows:
Property A and Property B will be offered for sale on the same day and hour. The sales will be
made at the United States District Court, District of New Hampshire, 55 Pleasant Street, Room
110 Concord, New Hampshire 03301, though Property A and Property B will be offered for sale
separately. Property A will be offered at a minimum bid price of $250,000. Property B will be
offered at a minimum bid price of $507,500. Each of the respective Properties will be sold to the
party making the highest bid. At the time of the sale, the highest bidder for each of the
respective Properties shall deposit with the U.S. Marshal, by certified or cashier's check, not less
than the sum of $50,000 except that if the United States is the highest bidder, no such deposit
shall be required. Before being permitted to bid at the sale of the Properties, bidders shall
display to the U.S. Marshal, or his representative, a cashiers check or certified check to
demonstrate that the bidder is able to comply with this requirement. No bids will be received
from any person who has not presented proof that, if that person is the successful bidder, that
person can make the deposit required by this judgment and order of lien enforcement and sale.
Within 7 days after the sale, the purchaser (unless such purchaser is the United States) shall pay
to the U.S Marshal the balance of the amount of his bid by certified or cashier's check. Upon
receipt of such payment, the Marshal shall notify counsel for the United States, who shall file a
motion for confirmation of the sale. Provided that the Court enters an order confirming the sale,
the U.S. Marshal shall deliver to the purchaser a deed to the Property. The deed shall be issued
in the name of the bidder or his designee. If the purchaser shall fail to make such payment, the
purchaser’s deposit shall be forfeited and retained as part of the proceeds of sale and the U.S.
Marshal shall proceed with another sale as set forth herein.1
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From any such forfeited deposit, the United States Marshal shall deduct his expenses and then shall add the
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ORDERED FURTHER, that the U.S. Marshal shall deduct his expenses in selling
Property A, and remit the remainder to the Clerk of the Court for the United States District Court
the District of New Hampshire. The clerk shall distribute the proceeds of sale of Property A as
follows: First, to satisfy any remaining costs of the sale, including advertising and other
expenses; second, to satisfy any outstanding real property taxes within the meaning of 26 U.S.C.
Section 6323(b)(6); third, to satisfy the claims of the United States; to the extent that any sale
proceeds remain after the satisfaction of the judgment of the United States, such proceeds shall
be paid to the Court because all other defendants have disclaimed or have been defaulted.
ORDERED FURTHER, that the U.S. Marshal shall deduct his expenses in selling
Property B, and remit the remainder to the Clerk of the Court for the United States District Court
the District of New Hampshire. The clerk shall distribute the proceeds of sale of Property B as
follows: First, to satisfy any remaining costs of the sale, including advertising and other
expenses; second, to satisfy any outstanding real property taxes within the meaning of 26 U.S.C.
Section 6323(b)(6); third, to satisfy the claims of the United States; to the extent that any sale
proceeds remain after the satisfaction of the judgment of the United States, such proceeds shall
be paid to the Court because all other defendants have disclaimed or have been defaulted.
ORDERED FURTHER that additional terms and conditions of the sale of the Properties
are as follows:
1. The U.S. Marshal shall cause notice of the sale to be published once a week for at least
four weeks prior to the sale in at least one newspaper of general circulation in this judicial
remainder of the forfeited deposit to the proceeds of any subsequent sale of Property A or Property B to be
distributed with the proceeds of the subsequent sale in accordance with this Judgment and Order.
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district, in which notice there shall be set forth the date, time and place of the sale, the address of
the Properties and the terms and conditions of the sale in accordance with 28 U.S.C. §§2001 and
2002.
2. The U.S. Marshal for the District of New Hampshire, or such representative as he may
appoint or employ, is authorized and directed under 28 U.S.C. §§2001 and 2002 to offer for
public sale and to sell the respective Properties described above.
3. The U.S. Marshal, the Internal Revenue Service, Counsel for the United States, and/or
any representatives thereof are authorized to have free access to the realty and to take all actions
necessary to preserve the realty, 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 realty, until the deed
to the realty is delivered to the ultimate purchaser. Nothing in this Order shall limit the abilities
of local or New Hampshire State Police forces, or those law enforcement officials of the United
States, to patrol or secure the Properties.
4. The defaulted defendants or anyone else on or otherwise occupying the Properties shall
vacate the Properties, taking with him/them his/their personal property within 7 days from the
date this order is entered (but leaving all improvements, buildings, fixtures (including all kitchen
and laundry appliances), and appurtenances to the real property). If any person occupying the
Properties fails or refuses to leave and vacate the realty by the time specified herein, the U.S.
Marshal and his deputies and the IRS are authorized and directed to take all actions that are
reasonably necessary, including, if necessary, the use of reasonable force, to bring about the
ejectment of those persons. If any person fails or refuses to remove his or her personal property
from the Properties by the time specified herein, the property remaining in or on the Properties
thereafter is deemed forfeited and abandoned, and the Marshal and his deputies are authorized to
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remove it and dispose of it in any manner the Marshal sees fit, including sale, in which case the
proceeds of the sale shall be applied under the same guidelines as described herein for the
proceeds of the sale of the respective Property from which the personal property was seized.
After entry of this Order, the U.S. Marshal shall enter the Property and post upon said Properties
in an open and visible manner, a copy of this Order at the time thereof, making the Court’s Order
open and notorious. The U.S. Marshal for the District of New Hampshire, or such representative
as he may appoint or employ, is authorized to post any other signs he may deem necessary, on
the gate or other conspicuous location on or near the Properties. The United States, and its
agents, are authorized to destroy any third-party personal medical records found on the property
to protect the privacy of individuals named therein.
The U.S. Marshal is authorized and directed to take any and all necessary actions,
including but not limited to the use of reasonable force, to enter and remain on the premises,
which includes, but is not limited to, the land, the buildings, vehicles and any structures located
thereon, for the purpose of executing this Order. The U.S. Marshal is further authorized and
directed to arrest and/or evict from the premises any and all persons who obstruct, attempt to
obstruct, or interfere or attempt to interfere, in any way with the execution of this Order.
5. The sale shall be subject to building lines if established, all laws, ordinances, and
governmental regulations (including building and zoning ordinances), affecting the premises, and
easements and restrictions of record, if any.
6. If a bid for the Properties is not received and confirmed in an amount equal to or in
excess of the minimum bid price, the Marshal shall advertise a second sale of the Properties and
carry out another public sale, without further order of the Court. If a second sale is unsuccessful,
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the U.S. Marshal shall inform Counsel for the United States, who shall return for further order of
the Court.
7. Until the Properties are sold, the defaulted defendants shall not commit waste against
the Properties, nor shall they cause or permit anyone else to do so. The defaulted defendants
shall not record any instruments, publish any notice, or take any action (such as running
newspaper advertisements) that may directly or indirectly tend to adversely affect the value of
the Properties or that may tend to deter or discourage potential bidders from participating in the
public sale of the Properties.
8. When the sale of the respective Properties is confirmed by this Court, the recorders’
offices serving the areas in which the subject Properties are located shall permit transfer of the
realty to be reflected on those counties’ registries of deeds and/or title.
IT IS SO ORDERED:
June 5, 2013
Dated: _________________
/s/George Z. Singal
_____________________________
United States District Judge
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