United States of America v. Roberts
Filing
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ORDER granting Plaintiff's 13 Motion for Default Judgment and Decree of Foreclosure. The Court AWARDS the following relief to the United States: Judgment in rem against the property in the amount owing to the United States under the Promissory Note (Note) (ECF no. 1 -1) and Deed of Trust (ECF no. 1 -2), which is $240,133.08 through 7/30/2022, plus $23.79 interest per day thereafter through the date of judgment. Signed by Judge Ricardo S. Martinez. (SB)
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 1 of 9
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Hon. Ricardo S. Martinez
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UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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UNITED STATES OF AMERICA,
Plaintiff,
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v.
CASE NO. 2:20-cv-00077-RSM
Order Granting Default
Judgment and Decree of
Foreclosure
ELDER ROBERTS, JR.,
Defendant.
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This matter came before the Court on the United States’ Rule 55(b) Motion
19 for Default Judgment against Defendant Elder Roberts, Jr. (Mr. Roberts). The
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Court has reviewed the files and records herein, including the United States’
22 Motion, and concludes that the United States has established its foreclosure claim
23 and entitlement to the relief described below.
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Accordingly, the United States’ Rule 55(b) Motion for Default Judgment is
GRANTED. The Court AWARDS the following relief to the United States:
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Judgment in rem against the property described below in the amount
28 owing to the United States under the Promissory Note (Note) [ECF no. 1-1] and
Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 1
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 2 of 9
1 Deed of Trust [ECF no. 1-2], which is $240,133.08 through July 30, 2022, plus
2 $23.79 interest per day thereafter through the date of judgment (the Judgment).
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2.
The Deed of Trust covers the real property (the Property) commonly
5 known as 2915 Martin Road, Bellingham, Washington 98226, and is legally
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That portion of Lot 10 described as the east 132 feet of the
west 396 feet of the northwest quarter of the northwest
quarter or the northwest quarter of Section 20, Township 39
North, Range 4 East, Willamette Meridian, Whatcom County,
Washington, containing 2.00 acres, more or less, together
with an easement for ingress and egress, and utilities over,
under, and across the north 30 feet of the west 264 feet of
the northwest quarter of the northwest quarter of the
northwest quarter of Section 20, as set forth in deed on file
in this office [Bureau of Indian Affairs Land Titles and
Records Office] under document number 111-109.
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15 The Property is further identified as Tract no. 111-3904-Q by the Bureau of Indian
16 Affairs. Complaint ¶¶ 4-5, Exh. C thereto [ECF 1-3] (BIA Title Status Report).
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3.
The Deed of Trust [ECF No. 1-2] is a first and prior lien on the
Property and is hereby foreclosed. The Property is hereby ORDERED to be sold
20 pursuant to the provisions of 28 U.S.C. § 2001 et seq., with the proceeds of the
21 sale applied first to the costs and expenses of making the sale and second, to the
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payment of the in rem Judgment owing to the United States, and any excess
thereafter disbursed to Mr. Roberts as his interests may appear.
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The United States’ recovery shall be limited to the proceeds of the sale
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Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 2
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 3 of 9
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2 interest.
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6.
Mr. Roberts’s interest in the Property is inferior to the United States’
Mr. Roberts, and all persons claiming by, through, or under him, are
5 forever barred and foreclosed from asserting any right, title, or interest in or to the
6 Property, except to the extent that Mr. Roberts has the right of redemption.
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7.
The sale shall be conducted in accordance with the law and practice
of this Court.
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The United States Marshal for the Western District of Washington or
11 his/her representative will be authorized and directed under 28 U.S.C. §§ 2001
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and 2002 to offer for public sale and to sell the Property. The United States
Marshal or his/her representative will be authorized free access to the Real
15 Property and to take all actions necessary to preserve the Real Property, including,
16 but not limited to, retaining a locksmith or other person to change or install locks
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or other security devices on any part of the Real Property, until the deed to the
Real Property is delivered to the purchaser at the foreclosure sale.
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The United States or any party to the suit may become a purchaser at
21 the sale and the United States Marshal shall execute a Marshal’s Certificate of
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Purchase to the Property in favor of the purchaser, and the purchaser will be let
into possession of the premises upon production of the Marshal’s Certificate of
25 Purchase. In the event the United States, including its agency, the Department of
26 Housing and Urban Development (HUD), is a successful bidder on the Property, it
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Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 3
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 4 of 9
1 shall have the right to apply its Judgment credits in lieu of cash thereon, and the
2 United States Marshal is authorized to accept such an arrangement.
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10.
After the 30-day automatic stay of proceedings to enforce a judgment,
5 the United States may present a motion for order of sale. See Fed. R. Civ. P. 62(a).
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That the terms of the Order of Sale shall be as follows:
a. The sale of the Property shall be free and clear of the interest of Mr.
Roberts, except to the extent that he has a right of redemption under
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Washington Revised Code chapter 6.23 or excess funds under
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Washington Revised Code chapter 6.21. The redemption period shall be
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12 months.
b. The sale shall be subject to 12 U.S.C. § 1715z-13a(h)(2), which
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allows sale of the Property only to “an eligible tribal member, the
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[Nooksack] [T]ribe, or the [Nooksack Housing Authority].” The sale shall
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also be subject to building lines, if established; all laws, ordinances, and
governmental regulations (including building and zoning ordinances)
affecting the Property; and easements and restrictions of record, if any.
c. The sale shall be held at the courthouse of the county in which the
Property is located, on the Property’s premises, or at any other place in
accordance with the provisions of 28 U.S.C. §§ 2001 and 2002 and shall
be announced in the Notice of Sale.
d. The date and time for the sale shall be announced by the United
States Marshal, or his/her representative, in the Notice of Sale.
Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 4
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 5 of 9
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e. The Notice of 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 Whatcom County, and, at the
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discretion of the Marshal or his/her representative, by any other notice
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deemed appropriate. The notice shall contain a description of the
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Property; the time, date, and location of the sale as determined by the
United States Marshal or his/her representative; the minimum bid as
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determined by the United States; and the terms and conditions of sale
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listed in subparagraphs (g)-(l) below.
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f. The minimum bid for the Property shall be set by the United States.
If the minimum bid is not met or exceeded, the Marshal or his/her
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representative, with concurrence of the United States, may without
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further permission of this Court, and under the terms and conditions in
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this order of sale, hold a new public sale, if necessary, and reduce the
minimum bid as set by the United States, or sell to the highest bidder.
g. The sale of the Property shall be subject to confirmation by this
Court. The Marshal shall file a report of sale with the Court, together
with a proposed order of confirmation of sale and proposed deed, within
thirty (30) days from the date of receipt of the balance of the purchase
price.
h. On confirmation of the sale, the Marshal shall execute and deliver a
deed of judicial sale conveying the Property to the purchaser.
Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 5
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 6 of 9
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i. On confirmation of the sale, all interests in, liens against, or claims
to, the Property and appurtenances that are held or asserted by all
parties to this action are discharged and extinguished, except to the
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extent that Mr. Roberts has a right of redemption under Washington
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Revised Code chapter 6.23.
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j. On confirmation of the sale, the recorder of deeds, the Bureau of
Indian Affairs (BIA), U.S. Department of the Interior, shall cause transfer
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of the Property and appurtenances to be reflected upon the BIA’s register
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of title.
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k. Any party to this suit may become a purchaser at such sale. The
United States may bid as a credit against its Judgment without tender of
cash.
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l. The sale shall be “as is” without warranty of any kind.
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Until the Property is sold, Mr. Roberts shall take all reasonable steps
necessary to preserve the Property (including all buildings, improvements, fixtures
20 and appurtenances on the Property) in its current condition including, without
21 limitations, maintaining a fire and casualty insurance policy. He shall neither
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commit waste against the Property nor cause nor permit anyone else to do so. He
shall neither do anything that tends to reduce the value or marketability of the
25 Property nor cause nor permit anyone else to do so. He shall not record any
26 instruments, publish any notice, or take any other action (such as running
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newspaper advertisements or posting signs) that may directly or indirectly tend to
Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 6
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 7 of 9
1 adversely affect the value of the Property or that may tend to deter or discourage
2 potential bidders from participating in the public auction, nor cause or permit
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anyone else to do so.
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All persons occupying the Property shall leave and vacate the Property
6 permanently within thirty (30) days of the date of this Order, each taking his or
7 her personal property (but leaving all improvements, buildings, fixtures, and
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appurtenances to the Property). If any person fails or refuses to leave and vacate
10 the Property by the time specified in this Order, the United States Marshal’s Office
11 is authorized to take whatever action it deems appropriate to remove such person
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from the premises. Specifically, the United States Marshal (or his/her designee) is
authorized and directed to take all actions necessary to enter the Property at any
15 time of the day or night and evict and eject all unauthorized persons located there,
16 including Mr. Roberts, or any other occupants. To accomplish this and to
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otherwise enforce this Order, the United States Marshal (or his/her designee) is
authorized to enter the Property and any and all structures and vehicles located
20 thereon, and to use force as necessary. When the United States Marshal
21 concludes that all unauthorized persons have vacated, or been evicted from the
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Property, he/she shall relinquish possession and custody of the Property to the
United States, or more specifically to HUD, or its designee. No person shall be
25 permitted to return to the Property and/or remain thereon without the express
26 written authorization by the United States Marshal, HUD, or the United States
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Department of Justice, or their respective representatives and/or designees.
Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 7
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 8 of 9
1 Unauthorized persons who re-enter the Property during the time this Order is in
2 effect may be ejected by the United States Marshal without further order of the
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Court.
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If any person fails or refuses to remove his or her personal property
6 from the Property by the time specified herein, the personal property remaining on
7 the Property thereafter is deemed forfeited and abandoned, and the United States
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Marshal’s Office is authorized to remove it and to dispose of it in any manner it
10 deems appropriate, including sale, in which case the proceeds of the sale are to be
11 applied first to the expenses of sale and the balance to be paid into the Court for
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further distribution.
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The proceeds from the sale shall be paid to the Clerk of this Court and
15 applied as far as they shall be sufficient to the following items, in the order
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a. To the United States for the costs of the sale, including the costs
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and commissions of the United States Marshal and any professional
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auctioneer if retained and the costs of preserving, advertising, selling, and
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conveying the property incurred by the Government.
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b. To the United States to be applied to the Judgment plus all interest
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and costs due and owing thereon.
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//
Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 8
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 9 of 9
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c. Any balance remaining after the above payments shall be held by
the Clerk until further order of the Court.
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DATED this 15th day of September, 2022.
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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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14 Presented by:
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s/Kyle A. Forsyth
16 Kyle A. Forsyth, WSBA # 34609
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Assistant United States Attorney
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Order Granting Default Judgment
and Decree of Foreclosure
Case No. 2:20-cv-00077-RSM - 9
UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
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