United States of America v. Willis et al

Filing 32

Opinion and Order. Plaintiff's Motion for Summary Judgment (Related doc #31 ) is granted. Judgment is entered against Defendant James R. Willis as outlined herein. Judge Christopher A. Boyko on 5/20/2014. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
vs.
JAMES R. WILLIS, et al.,
Defendants.

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CASE NO. 1:13CV1127
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #31) of Plaintiff,
United States of America, for Summary Judgment. For the following reasons, the Motion is
granted.
I. FACTUAL BACKGROUND
By warranty deed dated June 6, 1972, recorded at Book 13106, Page 219 with the
Cuyahoga County Recorder’s Office, James R. Willis and Juanita Willis acquired the real
property located at 3016 E. Belvoir Oval, Shaker Heights, Ohio 44122 (the “Belvoir
Property”) which is more specifically described as:

And known as being Sub Lot No. 8 in The Belvoir Realty
Company’s Subdivision of part of Original Warrensville Township
Lot No. 36, as shown by the recorded plat in Volume 144 of Maps,
Page 12, of Cuyahoga County Records, and being 100 feet front on
the Northwesterly side of East Belvoir Oval, and extending back
200 feet on the Northeasterly line, 220.54 feet on the
Southwesterly broken line, and being 20.97 feet wide in the rear, as
appears by said plat, be the same more or less, but subject to all
legal highways.
By quit claim deed dated December 29, 1997, recorded at Volume 97-13564, with the
Cuyahoga County Recorder’s Office, Juanita Willis acquired her husband’s interest in the
Belvoir Property for minimal consideration. (ECF DKT #31-2).
On February 12, 2004, James Willis filed a divorce action in the Domestic Relations
Division of Cuyahoga County Common Pleas Court (Case No. DR04-297259). The
Domestic Relations Court entered Judgment on December 16, 2004, providing for the
division of marital property and decreeing that James Willis was awarded Juanita Willis’
interest in the Belvoir Property. (ECF DKT #31-3). The conveyance to James Willis was
never recorded; but his ex-wife has disclaimed any interest in the Belvoir Property or
proceeds from any sale. (ECF DKT #13).
Beginning in August of 1998, a delegate of the Secretary of the Treasury gave notice
of assessments to, and made demand for payment of the assessments upon James Willis, for
his federal income taxes (Form 1040), federal employment taxes (Form 941), federal
unemployment taxes (Form 940), and a civil penalty for failure to file a correct information
return pursuant to 26 U.S.C. § 6721. (IRS Declaration, ECF DKT #31-4). Despite notice and
demand, James Willis has failed, refused, or neglected to pay the tax assessments in full; and
he remains indebted to the United States in the total amount of $238,901.93 as of March 12,

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2014, including interest and statutory accruals. The Secretary of the Treasury filed notices of
federal tax liens in Cuyahoga County for the unpaid federal income tax liabilities. (ECF DKT
#31-4 & #31-5).
On March 11, 2009, the United States instituted a civil action in the United States
District Court for the Northern District of Ohio (United States v. James R. Willis, Case No.
1:09CV542) seeking a money judgment for all assessments, excluding the 2008, 2009 and
2011 income taxes. On February 15, 2011, the parties entered into an Agreed Judgment for
the amount of $179,171.49, plus statutory additions from December 31, 2010, including
interest pursuant to 26 U.S.C. §§ 6601, 6621 and 6622 and 28 U.S.C. § 1961(c). (ECF DKT
#31-6).
On April 2, 2012, the United States filed an Abstract of Judgment in the Cuyahoga
County Recorder’s Office, creating a judgment lien in the amount of the judgment, costs and
interest against all real property of the judgment debtor, James R. Willis, in the County. (ECF
DKT #31-7).
On May 20, 2013, the United States filed the within Complaint, seeking a judgment
enforcing its federal tax and judgment liens against the Belvoir Property.
The United States and the Cuyahoga County Treasurer have stipulated that, if any real
property taxes are due at the time the Belvoir Property is sold, the County taxes will be given
priority over the Government’s tax and judgment liens. The County further stipulated that it
has no objection to the sale of the Belvoir Property. (ECF DKT #15).
The Ohio Department of Taxation also does not object to the sale of the Belvoir
Property; and the federal tax liens take priority over the state tax liens, except for the federal

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tax liabilities for the period ending December 31, 2011, which were assessed on November
12, 2012. (ECF DKT #30).
The United States filed its Motion for Summary Judgment (ECF DKT #31) on March
12, 2014. No opposition has been filed.
II. LAW AND ANALYSIS
Motion for Summary Judgment - Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See
Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no genuine issue
of material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing Dairy,
Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994); and the court must view the facts and all
inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its
burden, the nonmoving party may not rest on its pleadings, but must come forward with some
significant probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy,
39 F.3d at 1347. This Court does not have the responsibility to search the record sua sponte
for genuine issues of material fact. Betkerur v. Aultman Hosp. Ass’n., 78 F.3d 1079, 1087
(6th Cir. 1996); Guarino v. Brookfield Township Trs., 980 F.2d 399, 404-06 (6th Cir. 1992).
The burden falls upon the nonmoving party to “designate specific facts or evidence in
dispute,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving
party fails to make the necessary showing on an element upon which it has the burden of
proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether

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summary judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d
386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
Unopposed Motions
Local Rule 7.1(g) authorizes the Court to “rule on unopposed motions without hearing
at any time after the time for filing an opposition has expired.” Pursuant to Local Rule 7.1(d),
“each party opposing a motion must serve and file a memorandum in opposition within thirty
(30) days after service of any dispositive motion.” The district court’s power to grant
dispositive motions because they are unopposed is firmly settled. Demsey v. R.J. Reynolds
Tobacco Co., 2005 WL 1917934, *2 (N.D.Ohio 2005); Peacock v. Bayview Loan Serv., 2005
U.S. Dist. LEXIS 10276, *9-10 (N.D.Ohio 2005) (both citing to Cacevic v. City of Hazel
Park, 226 F.3d 483, 492 (6th Cir.2000)). A party’s continuing “failure to respond” may be
deemed a “confession” to the motion’s merit. Cacevic, id. Any further review by this Court
would be an inefficient use of the Court’s limited resources. Thomas v. Arn, 728 F.2d 813
(6th Cir.1984), aff’d, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human
Services, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
Tax Liens, Judgment Liens and Enforcement
When a taxpayer refuses or neglects to pay a tax after payment is demanded, a lien is
created in favor of the United States upon all property, real or personal, belonging to such
taxpayer. 26 U.S.C. § 6321. Tax liens arose in favor of the United States upon the date of
each assessment against Mr. Willis, beginning on August 24, 1998.

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A judgment in a civil action shall create a lien on all real property of a judgment
debtor upon properly filing a certified copy of the abstract of the judgment. 28 U.S.C. §
3201(a). The United States filed a certified Abstract of Judgment on April 2, 2012 in the
Cuyahoga County Recorder’s Office. The Court is authorized by the Federal Debt Collection
Procedures Act, 28 U.S.C. § 3201(f), to order the United States to sell any real property
subject to the judgment lien.
26 U.S.C. § 7403(a) entitles the United States to file a civil action in a district court to
enforce its federal tax liens. The district court shall determine the merits of all claims to and
liens upon the debtor’s property and may decree a sale of such property. 26 U.S.C. § 7403(c).
Furthermore, in post-judgment proceedings, the United States is entitled to recover a
surcharge of ten percent of the amount of the debt in connection with the recovery of the debt,
to cover the cost of processing and handling the litigation and enforcement of its claim. 28
U.S.C. § 3011. Mr. Willis has not made voluntary payments toward the stipulated judgment
(ECF DKT #31-6 & #31-7); and the United States has been compelled to file this enforcement
action.
III. CONCLUSION
In sum, there are no genuine, material facts in dispute. The United States has
submitted affidavit/declaration evidence and public record evidence which has not been
controverted. As a matter of law, the United States has established it position as a lienholder
and its right to enforce its tax and judgment liens against Mr. Willis’s property. Moreover,
the Court considers Mr. Willis’s failure to file an Opposition Brief to be a “confession” to the
Summary Judgment Motion’s merit.

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Therefore, the Court grants the Motion (ECF DKT #31) of Plaintiff, United States of
America, and enters judgment against Defendant, James R. Willis, ordering that:
1. The United States has valid tax and judgment liens that it may foreclose against the
real property located at 3016 E. Belvoir Oval, Shaker Heights, Ohio 44122.
2. The United States may sell the Belvoir Property in accordance with the General
Foreclosure Order of the United States District Court for the Northern District of Ohio,
Eastern Division, free and clear of all rights, titles, liens, claims, and interests of the parties in
this matter. The proceeds of such sale shall be distributed, after the cost of sale, according to
law and the stipulations entered in this case.
3. The United States is entitled to a ten percent surcharge on the Agreed Judgment of
$179,171.49, plus interest and costs from December 31, 2010, pursuant to Section 3011 of the
Federal Debt Collection Procedure Act.
4. The United States is authorized to take any necessary actions to effectuate the
conveyance of the interest of Juanita E. Wooten (formerly Willis) in the Belvoir Property to
James R. Willis, as specified in the Divorce Judgment, which may include recording
instruments with the County Auditor and Recorder.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: May 20, 2014

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