United States of America et al v. Kelton, et al

Filing 17

ORDER: Granting Motion to Dismiss 16 . AmericanWest Bank is dismissed from this proceeding inasmuch as it is a named defendant in the United States' Complaint without prejudice. See formal Order. Signed on 4/15/2015 by Chief Judge Ann L. Aiken. (rh)

CAROLINE D. CIRAOLO
Acting Assistant Attorney General
YAEL BORTNICK
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box683
Washington, D.C. 20044
202-514-6632 (v)
202-307-0054 (f)
Y ael.Bortnick@usdoj .gov

Of Counsel:
S. AMANDA MARSHALL
United States Attorney
Attorneys for the United States ofAmerica
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
MEDFORD DIVISION

UNITED STATES OF AMERICA,
Case No. 1:15-cv-197
Plaintiff,

STIPULATION OF PRIORITY AND
TO DISMISSAL

v.
STEVEN D. KELTON; GLENDA L.
KELTON; STEVEN D. KELTON AS
TRUSTEE OF PACIFIC REGION 4 FAMILY
TRUST; JACKSON COUNTY, OREGON;
OREGON DEPARTMENT OF REVENUE; and
AMERICANWEST BANK,
Defendants.

IT IS HEREBY STIPULATED AND AGREED by the United States of America "United
States" and American West Bank that:

Stipulation of Priority and to Dismissal
(Case No. 1:15-cv-197)

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1.

The United States filed this action to foreclose federal tax liens on the real property

commonly known as 4645 Rising Glen Drive, Central Point, Oregon 97502 (the "Subject
Property") as identified in the United States' Complaint. See Dkt. # 1 at ~ 11.
2.

The United States filed notices of federal tax lien in Jackson County pursuant to 26

U.S.C. § 6323(a) to make its tax liens against any and all real property owned by Steven D.
Kelton and Glenda L. Kelton, including the Subject Propetiy, effective against persons entitled to
such notice. See Dkt. # 1 at~~ 39-45.
3.

American West Bank was named as a defendant solely to fulfill the requirements of26

U.S.C. § 7403(c) that "[a]ll persons having liens upon or claiming any interest in the property
involved in such action [to enforce a tax lien] shall be made parties thereto." See Dkt. # 1 at~ 10.
4.

On or about December 7, 1999, a deed oftrust, document number 99-60104, was

recorded in Jackson County, Oregon encumbering the Subject Propetiy. The loan secured by the
deed of trust was obtained by defendants Steven D. Kelton and Glenda L. Kelton from Bank of
Southern Oregon in the principal amount of $93,000.00. Defendant AmericanWest Bank
currently holds the beneficial interest under the loan secured by the aforementioned deed of trust.
On or about September 11, 2000, a deed of trust, document number 00-37095, was recorded in
Jackson County, Oregon encumbering the Subject Property. The loan secured by the deed of
trust was obtained by defendants Steven D. Kelton and Glenda L. Kelton from PremierWest
Bank in the principal amount of $25,000.00. Defendant American West Bank currently holds the
beneficial interest under the loan secured by the aforementioned deed of trust.
5.

Pursuant to 26 U.S.C. § 6323, The United States recognizes the superior interests of

American West Bank secured by the deeds of trust listed in~ 4. The United States will include in
any proposed order of sale a provision that the net proceeds of sale for each parcel, defined as the
Stipulation of Priority and to Dismissal
(Case No. 1:15-cv-197)

2

proceeds resulting from the sale of the property less distribution to the United States for the costs
of sale and payment of outstanding Jackson County taxes, will be applied to satisfy in full the
amounts due and owing to AmericanWest Bank prior to application of the funds to fully or
partially satisfy the United States' interest secured by federal tax liens. The United States will
provide a draft of any proposed order of sale to American West Bank for comment prior to filing
such proposed order with the Court. The United States shall not propose any sale unless the
proceeds therefrom are adequate to satisfy AmericanWest Bank's interests in full.
6.

American West Bank does not oppose the United States' request for an Order of the Court

foreclosing the federal tax liens upon the Subject Property identified in the United States'
Complaint.
7.

If the United States does not prevail in this action, or if this action is resolved prior to the

foreclosure and sale ofthe Subject Property, this Stipulation shall not affect American West
Bank's claims, or release any claim or interest in may have in the Subject Property. Nothing
herein shall in any manner preclude or impair American West Bank's ability to initiate
appropriate suit, action, or proceeding to enforce their security interests in the real property.
American West Bank will provide counsel for the United States notice of any such suit, action, or
proceeding it initiates. Nothing herein shall in any manner preclude or impair the United States'
right to object to any such separate suit, action, or proceeding brought by American West Bank to
enforce their security interests in the real property. The United States maintains that this action is
the appropriate action for seeking relief with respect to the real property described in paragraph
11 ofthe Complaint. Dkt. # 1.
8.

In light of the foregoing, and the fact that there is no further reason for American West

Bank to participate in this litigation with respect to the United States' claims in the Complaint,
Stipulation of Priority and to Dismissal
(Case No. 1:15-cv-197)

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American West Bank should be dismissed from this proceeding inasmuch as it is a named
defendant in the United States' Complaint without prejudice.
CAROLINE D. CIRAOLO
Acting Assistant Attomey General

Dated: April 15, 2015

Is/ Yael Bortnick
YAEL BORTNICK
Trial Attomey, Tax Division
U.S. Department of Justice
P.O. Box 683
Washington, D.C. 20044
202-514-6632 (v)
Y ael.Bortnick@usdoj .gov
Of Counsel:
S. AMANDA MARSHALL
United States Attomey
Attorneysfor the United States

Dated:
JOSEPH E. KELLERMAN
Homecker Cowling LLP
717 Murphy Rd.
Medford, OR 97504
541-779-8900 (v)
[e-mail]

IT IS SO ORDERED.

Dated

this[~ay o ¥ 2015.

Stipulation of Priority and to Dismissal
(Case No. 1: 15-cv-197)

HON. OWEN M. PANNER
United States District Judge.

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