United States of America v. Holsinger et al

Filing 19

ORDER OF SALE; granting 18 Motion. Signed by Judge George C. Smith on 11/7/18. (sh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

Case No. 2:18-cv-00132

LORA LOYSZCZYK, individually and in her
capacity as Administrator of the Estate of

Judge George C. Smith
Mag. Judge Chelsey M. Vascura

Robert L. Holsinger, Deceased; and

TREASURER OF JEFFERSON COUNTY;
Defendants.

ORDER OF SALE

The Court entered a final judgment in this action onSeptember 11,2018 [Docket No.

16], in favor of the Plaintiff United States of America and against the Defendant Lora
Loyszczyk, individually and in her capacity as Administrator of the Estate of Robert L.

Holsinger, Deceased, for unpaid federal tax liabilities. The judgment also ordered that the

federal tax liens associated with those liabilities be enforced with ajudicial sale ofthe land,
along with all improvements, buildings, and appurtenances thereon, now known asand

numbered 14903 State Route 152, Toronto, Ohio 43964 (the "Property"), and more fully
described as follows:

Situated in the Township ofKnox, County ofJefferson and the State of Ohio; Known as

and being part ofthe Northeast quarter ofSection 20, Township 8of Range 2, also Being
part ofa 5.8285 acre tract ofRobert E. and Robert Christopher Jones as recorded in
Volume 137, Page 954, Tract No. 1ofOfficial records and part ofa 29.465 acre tract of
Robert E. and Christopher Jones as recorded in Volume 137, Page 954, tract No. 2 of
Official Record, said tract being more particularly described as follows:

Beingat a 3/8" iron pin, with cap, set at the Northeast comer of said Jones 5.8285 acre
tract and the Southeast comer of a 2.4055 acre tract of F. Allen as recorded in Volume

67, Page 610, of Official record and THE TRUE PLACE OF BEGINNING:
Thence with the East line of said quarter section, South 0 degrees 37 minutes 38 seconds
East 486.00 feet to a 3/8" iron pin, with cap, set; thence North 81 degrees 58 minutes 27
seconds West 631.47 feet to a 3/8 inch iron pin with cap set; thence North 27 degrees 14
minutes 25 seconds East 89.20 feet to a 3/8" iron pin, with cap, set; thence South 82
degrees 10 minutes 26 seconds East 661.25 feet to a 3/8" iron pin, with cap set; thence
North 60 degrees 21 minutes 41 seconds East 127.39 feet to a 3/8 iron pin, with cap. set;
thence North 6 degrees 17 minutes 52 seconds West 164.69 feet to a 3/8" iron pin. with
cap set; thence North 89 degrees 31 minutes 37 seconds West 59.16 feet to a 3/8 inch iron
pin with cap, set thence North 7 degrees 25 minutes 07 seconds West 400.85 feet to a
3/8" iron pin, with cap, set on the North side of State Route 152 on the South side of a

2.924 acre tract of S.&M. Falls as recorded in Volume 185, Page 472 of Official Record:
thence with said road and said Fall tract. South 52 degrees 00 minutes 00 seconds East
71.23 feet to a 3/8" iron pin with cap, set at the Northwest comer of said Allen tract;

thence with the West line of said Allen tract. South 7 degrees 25 minutes 07 seconds East
300.11 feet to a l/i" iron pin, with cap, set: thence with the South line of said Allen tract.

South 89 degrees 31 minutes 37 seconds east 38.67 feet to a 3/8" iron pin, with cap, set;
thence with the South line ofsaid Allen tract. North 83 degrees 45 minutes 53 seconds
East 405.56 feet to an iron pinand the TRUE PLACE OF BEGINNING, the herein
described tract, containing 5.078 acres, more or less, 4.084 acresout of said 5.8285 acres

and 0.994 acres out ofsaid 39.465 acre tract, subject to all legal highways, easements or
restrictions of record.

The basis ofbearing was the east line ofsaid quarter section and the bearing ofsouth 0
deg., 37 min., 38 sec. east was taken from a survey by James Poder on August 4, 1979.
Description for said tract on survey by Bonar Surveying, Registered Surveyor No. 7134
9-28-1986.

Being the property conveyed to Robert Lee Holsinger by deed ofClifford E. Hanle Sr..

dated July 25, 2006, and recorded with the Jefferson County Recorder's Office at Volume 763.
Page 564.

The Court now ORDERS that the Property shall be sold under 26 U.S.C. §§ 7402(a) and
7403(c) in order tocollect the unpaid federal tax liabilities, as follows:

1.

The Intemal Revenue Service ("IRS") Property Appraisal and Liquidation

Specialists ( PALS") is authorized to offer for public sale and to sell the Property.
2.

The terms and conditions of the sale are as follows:

a.

The sale of the Property shall be by public auction to the highest bidder,

free and clear of all rights, titles, claims, liens, and interests of all parties to this action, including
the Plaintiff United States and the Defendants Lora Loyszczyk, individually and in her capacity

as Administratorof the Estate of Robert L. Holsinger, Deceased, and Treasurer of Jefferson

County, and any successors in interestor transferees of those parties.
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, restrictions, and reservations of record, ifany.
c.

The saleshall be held either at the courthouse of thecounty or city in

which the Property is located or onthe Property's premises.
d.

The PALS shall announce the dateand time for sale. The IRS, PALS, and

their representatives shall be permitted to enter the Property with prospective buyers in order to
allow prospective buyers to inspect the interior and exterior ofthe Property at such times as the
IRS or PALS shall determine are reasonable and convenient.

e.

Notice of the sale shall be published once a week forat least four

consecutive weeks before the sale in at least one newspaper regularly issued and of general
circulation in Jefferson County, and, at the discretion ofthe PALS, by any other notice or
advertisement that the PALS deems appropriate. The notice ofthe sale shall contain a

description ofthe Property and shall contain the material terms and conditions ofsale set forth in
this order of sale.

f.

The 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.

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 checkdrawn payable to the Clerk

of the United States District Court for the Southern District of Ohio, a deposit in an amount

between five (5) and twenty (20) percent ofthe minimum bid as specified by the PALS in the

published notice ofsale. 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, ifthey are the successful bidders(s), they
can make the deposit required by this order ofsale. The United States may bid as a creditor
against itsjudgment without any tender of cashor check.

i.

The successful bidder(s) shall pay the balance ofthe purchase price for the

Property within sixty (60) days following the date ofthe sale. The cash or money order, certified
check, orcashier's check drawn payable to the Clerk ofthe United States District Court for the

Southern District ofOhio shall be given to PALS who will deposit the funds with the Clerk of

this Court. Ifthe 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 ofthe 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 Property shall be again offered for sale under the terms and

conditions ofthis order ofsale or, in the alternative, sold to the second highest bidder. The

successful bidder(s) at the newsale or second highest bidder, as the case may be, shall receive
the Property free and clear of all rights, titles, claims, liens, and interests of the defaulting
bidder(s).

j.

The Clerk of the 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 Property shall be subject to confirmation by this Court. On

confirmation of thesale, ownership and possession of the Property shall transfer to thesuccessful

bidder(s), and all interests in, liens against, and titles and claims to, the Property that are held or
asserted by the parties to thisaction aredischarged and extinguished. When thisCourt confirms
thesale, the Recording Official of Jefferson County, Ohio, shall cause the transfer of the

Property to be reflected upon that county's register of title.
1.

After the confirmation of the sale, the IRS shall execute and deliver a deed

under the authority of this Court conveying the Property, effective as ofthe date ofthe

confirmation ofthe sale, to the successful bidder(s). The successful bidder(s) shall pay, in

addition to the amount ofthe bid, any documentary stamps and registry fees as provided by law.
m.

All rights to rents ofor from the Property arising after the final Judgment

in this action and before the confirmation ofthe sale of the Property shall constitute proceeds of
the 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 Property. On confirmation of

the sale ofthe Property, all rights to product, offspring, rents, and profits ofor from the Property
arising thereafter shall transfer to the successful bidder(s) and all risks oflosses associated with
the Property shall transfer to the successful bidder(s).

3.

Up until the date that this Court confirms the sale of the Property, Lora

Loyszczyk, individually and in her capacity as Administrator of the Estate of Robert L.

Holsinger, Deceased, shall take all reasonable steps necessary to preserve the Property (including
all buildings, improvements, fixtures and appurtenanceson the Property) in its current condition
including, without limitation, maintaininga fire and casualty insurance policy on the Property

and Lora Loyszczyk, individually and in her capacity as Administrator of the Estate of Robert L.

Holsinger, Deceased, and all occupants of the Property shall neither commit waste against the
Property nor cause or permit anyone else to do so. All of the defendants in this case shall neither

do anything that tends to reduce the value or marketability of the Property nor cause or permit
anyone elseto do so. Such defendants shall not record any instruments, publish any notice, or

take any other action (such as running newspaper advertisements, posting signs, ormaking

internet postings) that may directly or indirectly tend to adversely affect the value ofthe Property
or that may tend to deter ordiscourage potential bidders from participating in the public auction,
nor shall they cause orpermit anyone else to do so. Violation ofthis paragraph shall be deemed
a contempt of court and punishable as such.

4.

All persons occupying the Property shall vacate the Property permanently within

30 days ofthe date ofthis order ofsale, each taking with them his or her personal property (but

leaving all improvements, buildings, fixtures, and appurtenances to the Property). Ifany person
fails or refuses to vacate the Property by the date specified in this order ofsale, the PALS is
authorized to coordinate with the United States Marshals Service to take all actions that are
reasonably necessary to have those persons ejected orexcluded. The United States Marshals

Service is authorized and directed to take any and all necessary actions, including but not limited
to the use ofreasonable force, to enter and remain on the premises, which includes, but is not

limited to, the land, buildings, vehicles, and any other structures located thereon, for the purpose
of executing this order of sale. The United States Marshals Service is further authorized and
directed to arrest and/or evict from the premises any and all persons who obstruct, attempt to
obstruct, or interfere, in any way, with the execution of this order of sale. Any personal property

remaining on the Property 30 days after the date of this order of sale is deemed forfeited and

abandoned, and the PALS is 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 shall bepaid 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 United States

District Court for the Southern District ofOhio and the Clerk ofthe Court isdirected to accept
cash and checks and deposit such items into the Court's registry for distribution pursuant to
further order of this Court. This order of sale shall also serve as a Writ of Assistance or Writ of

Possession, as appropriate, and no further order from the Court shall be required for these
purposes.

5.

No later than two business days after vacating the Property pursuant to the

deadline set forth in paragraph 4, above, Lora Loyszczyk, individually and in her capacity as
Administrator ofthe Estate ofRobert L. Holsinger, Deceased, shall notify counsel for the United

States ofa forwarding address where she can be reached. Notification shall be made by
contacting the U.S. Department ofJustice Tax Division's paralegal at [phone].

6.

Up until the date that this Court confirms the sale ofthe Property, the IRS, PALS,

and their representatives are authorized to have free and full access to the Property in order to
take any and 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.

7.

After the Courtconfirms the sale of the Property, the sale proceeds deposited with

the Clerkof this Courtshould be applied to the following items, in the order specified below:
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;

b.

Second to Jefferson County, or otherlocal taxing authority, for real

property taxes and other local assessments due and owingwhich are entitled to priority under 26
U.S.C. § 6323(b)(6);

c.

Third, the remaining proceeds shall be distributed to the Plaintiff United

States of America for application to the liability then outstanding inconnection with the unpaid

federal tax liabilities ofRobert L. Holsinger, deceased, for the tax periods 2002-2005, including
all accrued statutory penalties, additions, and interest, until fully paid;
d.

Any further remaining sale proceeds shall be paid to Lora Loyszczyk, as

Administrator of the Estate of Robert L. Holsinger, Deceased.

IT IS SO ORDERED.

Dated:

-j j

0 /AwwMt.
UNITifeD ShTATES DiSTRICT JUDGE

Presented by:
RICHARD E. ZUCKERMAN

Principal Deputy Assistant Attorney General
Tax Division, U.S. Department of Justice

/s/Philip L. Bednar
PHILIP LEONARD BEDNAR

Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 55

Washington, D.C. 20044
202-307-6415 (v)
202-514-5238 (f)

[e-mail]
WA State Bar No. 41304

Counsel for Plaintiff United States of America