USA v. Demers et al
ORDER of Sale. So Ordered by Magistrate Judge Landya B. McCafferty.(kad)
Case 1:12-cv-00092-LM Document 14-1 Filed 02/06/13 Page 1 of 8
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
UNITED STATES OF AMERICA,
DANIEL J. DEMERS, also known as
DAN J. DEMERS, TOWN OF
BARRINGTON, STATE OF NEW
HAMPSHIRE, and CANDACE M. BOYD,
Case No. 1:12-cv-92
Magistrate Judge Landya B. McCafferty
ORDER OF SALE
This matter having come before the Court upon the Assented to Motion for Order of Sale
by Plaintiff United States of America, and the Court being fully apprised of the matter, and
pursuant to 26 U.S.C. §§ 7402(a) and 7403(b), the Court grants the United States’ motion and
orders the following:
1. The Internal Revenue Service (“IRS”) Property Appraisal and Liquidation Specialists
(“PALS”) is authorized to offer for public sale and to sell the property commonly known as 12
Hansonville Road, Lot 5, Barrington, New Hampshire (“Subject Property”), and more fully
A certain tract or parcel of land, together with the buildings
and improvements now or hereafter located thereon, situate on the
southerly side of Hansonville Road, Barrington, Strafford County,
State of New Hampshire, and shown as Lot #5 on a Plan entitled
“Subdivision of Masse Land for Patten Corporation” drawn by Henry
and Berlind Associates, Inc., dated January 3, 1987, and recorded at
the Strafford County Registry of Deeds as Plan No. 30A-60. Said
Lot #5 is more particularly bounded and described as follows:
Beginning at a pin set on the southerly sideline of said
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Hansonville road, at the common corner of Lots #4 and #5, as shown
on said Plan; thence running along Lot #4 South 53° 19' 53" East a
distance of 680.11 feet to a pin set on the boundary of Lot #3 at the
common corner of Lots #4 and #5; thence turning and running along
Lot #3 North 52° 08' 52" East a distance of 250.00 feet to a pin set on
the bounty of Lot #6 at the common corner of Lots #3 and #5; thence
turning and running along said Lot #6 North 41° 35' 34" West a
distance of 775.32 feet to a pin set on the southerly sideline of said
Road at the common corner of Lots #5 and #6; thence turning and
running along the southerly sideline of said Road the following three
courses and distances: generally southwesterly along a curve to the
left having a radius of 1399.39 feet a distance of 22.02 feet; thence
running South 38° 02' 08" West a distance of 191.83 feet; thence
running generally southwesterly along a curve to the left having a
radius of 785.51 feet a distance of 186.14 feet to the point of
beginning. Said Lot #5 contains 5.403 acres, more or less, according
to said Plan.
The second course given in the description herein corrects an
apparent scrivener’s error recited on the Plan as North 52° 08' 52"
West to the correct course of North 52° 08' 52" East.
MEANING AND INTENDING hereby to describe and
convey a portion of the premises conveyed to Patten Corporation
Northeast by Charles N. Masse and Virginia Anne Point by warranty
deed dated February 13, 1987 and recorded at the Strafford County
Registry of Deeds at Book 1291, Page 639.
Subject to the following covenants and restrictions, as shown
on said Plan, which are hereby deemed to run with the land:
a. No further subdivision of lots.
b. For single family residences only.
c. No mobile homes permitted.
2. The terms and conditions of the sale are as follows:
a. The sale of the Subject Property shall be free and clear of all rights,
titles, claims, liens, and interests of all parties to this action, including the plaintiff
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United States and the defendants Daniel J. Demers, also known as Dan J. Demers,
Town of Barrington, State of New Hampshire, and Candace M. Boyd.
b. The sale shall be subject to building lines, if established, all laws,
ordinances, and governmental regulations (including building and zoning
ordinances) affecting the Subject Property, and easements, restrictions, and
reservations of record, if any.
c. The sale shall be held either at the courthouse of the county or city in
which the Subject Property is located or on the Subject Property’s premises.
d. The PALS shall announce the date and time for sale.
e. 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 Strafford County, New Hampshire, and, at the discretion
of the PALS, by any other notice that the PALS deems appropriate. The notice
shall contain a description of the Subject Property and shall contain the terms and
conditions of sale set forth in this order of sale.
f. The Subject Property shall be offered for sale “as is,” with all faults and
without any warranties either express or implied, and the sale shall be made
without any right of redemption.
g. The PALS shall set and may adjust the minimum bid. If the minimum
bid is not met or exceeded, the PALS may, without further permission of this
Court, and under the terms and conditions in this order of sale, hold a new public
sale, if necessary, and adjust the minimum bid.
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h. At the time of the sale, the successful bidder(s) shall deposit with the
PALS, by cash or by money order, certified check, or cashier’s check drawn
payable to the Clerk of the United States District Court for the District of New
Hampshire, a deposit in an amount between five (5) and twenty (20) percent of
the minimum bid as specified by the PALS in the published Notice of Sale.
Before being permitted to bid at the sale, potential bidders shall display to the
PALS proof that they are 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 bidders(s), they can make the deposit required by this order of sale.
The United States may bid as a creditor against its judgment without any tender of
cash or check.
i. The successful bidder(s) shall pay the balance of the purchase price for
the Subject Property within sixty (60) days following the date of the sale. The
cash or money order, certified check, or cashier’s check drawn payable to the
United States District Court for the District of New Hampshire 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 sale shall be treated as null and void, and the
deposit shall be forfeited as damages and applied to cover the expenses of the
sale, with any amount remaining to be applied to the judgment for the federal tax
liabilities entered in this case. The Clerk shall distribute the deposit as directed
by the PALS by check drawn payable to the “United States Treasury.” The
Subject Property shall be again offered for sale under the terms and conditions of
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this order of sale or, in the alternative, sold to the second highest bidder. The
successful bidder(s) at the new sale or second highest bidder, as the case may be,
shall receive the Subject Property free and clear of all rights, titles, claims, liens,
and interests of the defaulting bidder(s).
j. The Clerk of the District Court is directed to accept the deposits and
proceeds of the sale and deposit them into the Court’s registry for distribution as
provided for herein or pursuant to further Order of this Court.
k. The sale of the Subject Property shall be subject to confirmation by this
Court. On confirmation of the sale, ownership and possession of the Subject
Property shall transfer to the successful bidder(s), and all interests in, liens
against, and titles and claims to, the Subject Property that are held or asserted by
the parties to this action are discharged and extinguished. When this Court
confirms the sale, the Recording Official of Strafford County, New Hampshire
shall cause the transfer of the Subject Property to be reflected upon that county’s
register of title.
l. After the confirmation of the sale, the IRS shall execute and deliver a
deed under the authority of this Court conveying the Subject Property, effective
as of the date of the confirmation of the sale, to the successful bidder(s). The
successful bidder(s) shall pay, in addition to the amount of the bid, any
documentary stamps and registry fees as provided by law.
m. All rights to rents of or from the Subject Property arising after the final
judgment in this action and before the confirmation of the sale of the Subject
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Property shall constitute proceeds of the Subject Property and such rents shall be
turned over to, and paid to, the PALS for deposit and distribution in the same
manner as the proceeds of the sale of the Subject Property. On confirmation of
the sale of the Subject Property, all rights to product, offspring, rents, and profits
of or from the Subject Property arising thereafter shall transfer to the successful
bidder(s) and all risks of losses associated with the Subject Property shall transfer
to the successful bidder(s).
3. Until the sale of the Subject Property is confirmed, Daniel J. Demers, also known as
Dan J. Demers, shall take all reasonable steps necessary to preserve the Subject Property
(including all buildings, improvements, fixtures and appurtenances on the Subject Property) in
its current condition, and Daniel J. Demers and all occupants of the Subject Property shall
neither commit waste against the Subject Property nor cause or permit anyone else to do so. The
defendants shall neither do anything that tends to reduce the value or marketability of the Subject
Property nor cause or permit anyone else to do so. The defendants 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 Subject 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.
4. All persons occupying the Subject Property shall vacate the Subject Property
permanently within 30 days of the date of this order of sale, each taking with them his or her
personal property (but leaving all improvements, buildings, fixtures, and appurtenances to the
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Subject Property). If any person fails or refuses to vacate the Subject Property by the date
specified in this order of sale, 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 on the Subject Property 30 days after the date of this order 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
costs and expenses of sale and the balance to be paid into the Court for further distribution.
Money orders and checks for the purchase of the personal property shall be drawn payable to the
Clerk of the Clerk for the District of New Hampshire and the Clerk of the Court is directed to
accept cash and checks and deposit such items into the Court’s registry for distribution pursuant
to further order of this Court.
5. Until the confirmation of the sale of the Subject Property, the IRS, PALS, and their
representatives are authorized to have free and full access to the Subject Property in order to take
any and all actions necessary to preserve the Subject 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 Subject Property.
6. After the Court confirms the sale of the Subject Property, the sale proceeds deposited
with the Clerk of this Court should be applied to the following items, in the order specified
a. First, to the United States Treasury for the costs and expenses of the
sale, including any costs and expenses incurred to secure or maintain the property
pending sale and confirmation by the Court;
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b. Second, to the Town of Barrington or other local taxing authority for
real property taxes and other local assessments due and owing;
c. Third, to the United States of America for application to the liability
then outstanding in connection unpaid federal tax liabilities of Daniel J. Demers,
including all accrued statutory penalties, additions, and interest, until fully paid;
d. Any further remaining sale proceeds shall be distributed to Daniel J.
IT IS SO ORDERED:
Landya B. McCafferty
U.S. Magistrate Judge
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