United States of America v. Nederveld
ORDER granting 9 Motion for an Order of Sale. FURTHER ORDERED that the Clerk of Court shall immediately send a copy of this Order to all counsel of record; to Defendant Herbert C. Nederveld at 528 Arbour Way, Suwanee, Georg ia 30024; to Roger Sweeney, Property Appraisal and Liquidation Specialist, Internal Revenue Service, 410 Amherst Street Suite 350, Nashua, NH 03063; and to the United States Marshal. Signed by District Judge Martin Reidinger on 8/12/2010. (pdf)
IN THE UNITED STATES DISTRICT COURT FOR THE W E S TE R N DISTRICT OF NORTH CAROLINA B R Y S O N CITY DIVISION C IV IL CASE NO. 2:10-cv-00014
U N IT E D STATES OF AMERICA, ) ) P l a i n t if f , ) ) ) vs . ) ) ) H E R B E R T C. NEDERVELD, ) ) D e fen d a n t. ) ___________________________ )
O R D E R OF SALE
TH IS MATTER is now before the Court upon the United States' Motion fo r an Order of Sale. [Doc. 9]. On July 8, 2010, the Court entered a default judgment against Herbert C . Nederveld in the above-entitled action. [Doc. 8]. The Court found that the U n ite d States "has valid tax liens resulting" from Nederveld's "unpaid tax lia b ilitie s ." The Court further found that the United States' tax liens "attach to N e d e rve ld 's interest in the real property located at 441 Ruby Knoll Lane, F ra n k lin , North Carolina 28743 as that property is more particularly described in the Complaint in this matter." Finally, this Court decreed that "the tax liens o f the United States are hereby foreclosed on Nederveld's interest" in the real p ro p e rty at issue in this litigation.
T h e Government now moves for an Order of Sale. [Doc. 9]. Upon c a re fu l review of the Motion and the entire record, the Court will grant the G o ve rn m e n t's Motion. Accordingly, IT IS, THEREFORE, ORDERED that the United States' M o tio n for an Order of Sale [Doc. 9] is GRANTED. IT IS FURTHER ORDERED that: 1. A s found by this Court in its July 8, 2010 Default Judgment, H e rb e r t C. Nederveld is indebted to the United States in the a m o u n t of $516,416.26, as of June 30, 2010, on account of his u n p a id income tax, penalties, and interest for the 2001 tax year a n d unpaid employment and unemployment taxes for certain p e rio d s in 2001 through 2003. Federal tax liens for those
lia b ilitie s have arisen in favor of the United States and attached to th e real property located at 441 Ruby Knoll Lane, Franklin, North C a ro lin a 28743 as that property is more particularly described as: B E IN G all the lands, easements, privileges and a p p u rte n a n c e s as described in and conveyed by the d e e d from Bennye Lou Pease and husband, W illia m D . Pease and Patricia P. Ross and husband, Jack R o s s to Gregg L. Fox and wife, Cora S. Fox, dated F e b ru a ry 5, 1981, recorded in the Office of the R e g is te r of Deeds for Macon County, North Carolina,
in Book Q-13, Page 103, and being more particularly d e s c rib e d therein as follows: "B e in g all the land and right of way, subject to the re s tric tio n s and encumbrances described in and c o n ve ye d by the deed from Addis H. Jacobs, and wife J u lia C. Jacobs to Mrs. Bennye Lou Pease and Mrs. P a tr ic ia Ross, dated August 26, 1972, and recorded in Deed Book J-9, page 225 of the Macon County R e g is try, and being more particularly described th e re in as follows: "`B E G IN N IN G at a point in the center line of a 20-foot a c c e s s road, the same being situated North 4 d e g re e s 30 minutes West 20 feet from an iron pipe on th e South margin thereof, and said beginning point a ls o being situated the following courses and d is ta n c e s from a point in the center line of State Road N o . 1343 at point where there was formerly situated a stone corner of Section 23, to wit: North 40 degrees 0 0 minutes West 370 feet; South 37 degrees 22 m in u te s West 66 feet; South 51 degrees 48 minutes W e s t 94 feet; South 57 degrees 53 minutes West 100 fe e t; North 84 degrees 30 minutes West 60 feet; S o u th 87 degrees 45 minutes West 38 feet; North 4 d e g re e s 30 minutes West 148 feet to said point of b e g in n in g ; said point beginning also being the c o m m o n Northernmost corner of Lots 13 and 14; runs th e n c e with the common boundary between said Lots 1 3 and 14; South 4 degrees 30 minutes East 148 feet to a point, the common Southernmost corner between s a id Lots 13 and 14; thence North 87 degrees 45 m in u te s East 38 feet to a point, South 84 degrees 30 m in u te s East 60 feet, North 57 degrees 53 minutes E a s t 50 feet to a point, the common Southernmost c o rn e r between Lots 14 and 15; thence with the d ivid in g line between said Lots, North 31 degrees 30 m in u te s West passing an iron witness pipe 132 feet,
W h o le distance 150 feet to a point a in the center line o f said 20-foot access road; runs thence with the c e n te r line the same South 63 degrees 42 minutes W e s t 55 feet to a point; thence with a Westerly d ire c tio n 20 feet to the BEGINNING and being Lot No. 1 4 of the Ruby Knoll Property owned by Addis h. J a c o b s as shown by unrecorded plat thereof made by J .J . Swan, Surveyor, in 1963; and being a part of the F o rth Tract of land described in the deed from Ada D a lto n , et al, to Addis H. Jacobs and wife, Julia C. J a c o b s , dated from Ada Dalton, et al, to Addis H. J a c o b s and wife, Julia C. Jacobs, dated October 9, 1 9 5 9 , and recorded in the office of Register of Deeds fo r Macon County, North Carolina in Deed Book L-6, p a g e 514. "`T h e land hereby conveyed is conveyed and a c c e p te d subject to the right of way of existing utilities o r necessary additions thereto, and the right of way of th e 20-foot access road the center line of which forms th e Northernmost boundary of the land hereby c o n v e ye d . "`P a rtie s of the first part further convey unto parties of th e second part, their heirs and assigns, the right to u s e in common with parties of the first part, their heirs a n d assigns, the existing 20-foot access road leading fro m the Southerly direction to its point of intersection with N.C. State Road 1343. "`T h e land hereby conveyed is the same land which is d e s c rib e d as Lot # 11 on the revised Ruby Knoll plat, a s shown by an unrecorded brochure prepared by R o b e rt W. Dinnes for Cowee Valley Lapidary, Inc." P a r c e l no. 11-01074 ("Subject Property").
A s also found in this Court's July 8, 2010 Default Judgment, the fe d e ra l tax liens are hereby foreclosed against the Subject P ro p e r ty described at paragraph 1 above, and that the Subject P ro p e rty in its entirety is ordered sold.
T h a t the Internal Revenue Service (the "IRS") Property Appraisal a n d Liquidation Specialists ("PALS"), is hereby authorized under 2 8 U.S.C. §§ 2001 and 2002 to offer for sale at public auction and to sell the Subject Property described in paragraph 1 above, with a n y improvements, buildings, fixtures and appurtenances, th e re u n to pertaining, which are included in the definition of the " S u b je c t Property."
T h e Subject Property shall be sold free of all liens to the highest a n d best bidder for cash, at public auction, at either the premises th e m s e lve s or at the Macon County Courthouse, in accordance with the provisions of 28 U.S.C. § 2001, the times thereof to be a n n o u n c e d by the PALS.
P A L S is directed to publish a notice of sale, describing the p ro p e rty to be sold, once a week for four (4) consecutive weeks im m e d ia te ly prior to sale, in a newspaper of general circulation in
M a c o n County, North Carolina, and by any other notice that the IR S in its discretion may deem appropriate. The sale shall be m a d e to the highest bidder for cash. 6. T h a t any rights, title, liens, claims or interests in the Subject P r o p e r ty of the United States and Herbert C. Nederveld are d is c h a rg e d upon sale of the property and confirmation of the sale, a s described in paragraphs 3, above, and 15 and 16, below. 7. T h e sale of the Subject Property shall be subject to building lines, if established, all laws, ordinances, and government regulations (in c lu d in g building and zoning ordinances) affecting the Subject P ro p e rty, and easements and restrictions, if any. 8. T h e minimum bid for the Subject Property will be set by PALS. If th e minimum bid is not met or exceeded, PALS may, without fu rth e r permission of this Court, and under the terms and c o n d itio n s of this Order of Foreclosure and Sale, hold a new p u b lic sale and reduce the minimum bid. 9. T h a t the successful bidder(s) shall be required to deposit with P A L S a minimum of twenty percent of the deposit of his or her bid b y certified check, made payable to the United States District
C o u rt, or cash deposit at the time of sale. Before being permitted to bid at the sale, bidders shall display to PALS proof that they are a b le to comply with this requirement. No bids will be received fr o m any person(s) who have not presented proof that, if they are th e successful bidder(s), they can make the deposit required by th is order of sale. 10. T h a t the balance of the purchase price for the respective Subject P ro p e rty shall be tendered to PALS by the successful bidder with in 30 days following the date of sale in the form of a certified c h e c k payable to the United States District Court for the Western D is tric t of North Carolina. The clerk of court shall deposit such fu n d s into the registry for the Court. In the event that the
p u rc h a s e r fails to fulfill this requirement, the deposit shall be fo rfe ite d and applied to the expenses of sale, with the remaining a m o u n t to be given to the United States, and the Subject Property s h a ll be re-offered for sale or be offered to the second highest b id d e r in accordance with the provisions of paragraph 3, above. T h e United States may bid as a credit against its judgment without te n d e r of cash.
P e n d in g the sale of the Subject Property, the representatives of P A L S are authorized to have free access to the property's p re m is e s and to take any and all actions necessary to preserve th e premises, including, but not limited to, retaining a locksmith or o th e r person to change or install locks or other security devices o n any part of the property, until the deed to the property is d e l iv e r e d to the ultimate purchaser of the property. PALS shall ta k e all actions appropriate to conserve and preserve the Subject P ro p e rty until the deed for the real property is delivered to the s u c c e s s fu l purchaser.
U n til the Subject Property is sold, the named defendant, and any o th e r tenants or other persons occupying the real property, shall n e ith e r commit waste against the property nor cause or permit a n yo n e else to do so. They shall neither do anything that tends to reduce the value or marketability of the Subject Property nor c a u s e or permit anyone else to do so. They shall not record any in s tru m e n ts , publish any notice, or take any other action (such as ru n n in g newspaper advertisements or posting signs) that may d ire c tly or indirectly tend to adversely affect the value of the
S u b je c t Property or that may tend to deter or discourage potential b id d e rs from participating in the public auction, nor shall they c a u s e or permit anyone else to do so. 13. A ll persons occupying the Subject Property shall leave and vacate th e property permanently within 30 days of the date this order is file d or the date on which a copy of it is delivered to the D e fe n d a n ts , whichever is later, taking with them their personal p ro p e rty (but leaving all improvements, buildings, fixtures, and a p p u rte n a n c e s to the Subject Property). Further, all persons
o c c u p yin g the Subject Property shall turn over the keys to the S u b je c t Property, suitably labeled, within 30 days of the date this o rd e r is filed or the date on which a copy of it is delivered to the D e fe n d a n ts , whichever is later. If any person occupying the
S u b je c t Property fails or refuses to leave and vacate the Subject P ro p e rty by the time specified in this order, the IRS is authorized to coordinate with the United States Marshal and his deputies to ta k e all actions that are reasonably necessary to bring about the e je c tm e n t of those persons. This Order shall serve as a Writ of A s s is ta n c e or Writ of Possession, as appropriate, and no further
o rd e r from this Court shall be required for this purpose. 14. If any person fails or refuses to remove his or her personal p ro p e rty from the Subject Property by the time specified herein, th e personal property remaining on the Subject Property th e re a fte r is deemed forfeited and abandoned; and, the IRS is a u th o riz e d to remove the personal property and dispose of it in a n y manner they see fit, including sale, in which case the p ro c e e d s of the sale are to be applied first to the expenses of sale with the balance being distributed as described in paragraph 18 b e lo w . 15. T h a t the sale of the Subject Property shall be subject to c o n fir m a tio n by this Court, and upon confirmation PALS shall e xe c u te and deliver its deed, conveying the respective Subject P ro p e rty to the successful purchaser. 16. T h a t, when the sale is confirmed by this Court, the Register of D e e d s of Macon County, North Carolina shall cause transfer of th e respective Subject Property to be reflected upon that county's re g is te r of title.
A successful third-party bidder at the sale shall pay, in addition to the amount of the bid, any documentary stamps and Clerk's re g is try fees as provided by law and be responsible for any c u rre n t year real estate taxes (or any other fees) that become due a fte r the sale.
A fte r the sale is confirmed by this Court, the proceeds shall be d is trib u te d as follows: a. F irs t, to PALS to cover the expenses of the sale, including a n y expenses incurred to secure or maintain the Subject P ro p e rty pending sale and confirmation by the Court. If the G o ve rn m e n t is the successful bidder, and therefore has not te n d e re d cash, the Government shall tender to PALS the e xp e n s e s of the sale; b. S e c o n d , to the Macon County Tax Collector for any property ta xe s unpaid and matured owing; c. T h ird , to the United States Department of Treasury, through th e United States Department of Justice, for the unpaid fe d e ra l tax liabilities of Herbert C. Nederveld; and d. F o u rth , any remaining funds to Herbert C. Nederveld.
T h e Court retains jurisdiction over this cause for the purpose of e n te rin g all further orders as may be appropriate, including with o u t limitation, deficiency and contempt of court judgments.
IT IS FURTHER ORDERED that the Clerk of Court shall immediately s e n d a copy of this Order to all counsel of record; to Defendant Herbert C. N e d e rve ld at 528 Arbour Way, Suwanee, Georgia 30024; to Roger Sweeney, P ro p e rty Appraisal and Liquidation Specialist, Internal Revenue Service, 410 A m h e rs t Street Suite 350, Nashua, NH 03063; and to the United States M a r s h a l. IT IS SO ORDERED.
Signed: August 12, 2010
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?