USA v. Hendrickson et al
Filing
52
ORDER of Foreclosure and DECREE of Sale. Signed by Judge Tena Campbell on 2/3/12 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
ORDER OF FORECLOSURE
vs.
AND DECREE OF SALE
DAVID O. HENDRICKSON; LORI R.
HENDRICKSON; LORI R.
HENDRICKSON AND DENZEL G.
WILLIAMS AS TRUSTEES FOR D.L.
FAMILY TRUST; ZIONS FIRST
NATIONAL BANK; WELLS FARGO
BANK,
Case No. 1:09-CV-166-TC
Defendants.
On February 3, 2012, the court granted summary judgment against Defendants. The
judgment imposes federal tax assessments against David O. and Lori R. Hendrickson
(“Hendricksons”) and forecloses federal tax liens against the Hendricksons against the real
property located at 1660 E Wasatch Drive, Ogden, Utah 84403, and legally described as follows:
All of Lot 6, LAKEVIEW RIDGE SUBDIVISION NO. 1, Ogden City, Weber
County, Utah, according to the official plat thereof, on file and of record in the
Weber County Recorder’s Office
(the Property). Based on the judgment, and statutory authority under 28 U.S.C. §§ 2001 and
2002 and 26 U.S.C. §§ 7402 and 7403, the court ORDERS as follows:
1.
The United States Marshal for the District of Utah, his representative, or an
Internal Revenue Service Property Appraisal and Liquidation Specialist (“PALS”), is authorized
and directed under 28 U.S.C. §§ 2001 and 2002 to offer the Property for public sale and to sell
the Property. The United States may choose either the United States Marshal or a PALS to carry
out the sale under this order and shall make the arrangements for any sale as set forth in this
Order.
2.
The Marshal, his representative, or a PALS representative is authorized to have
free access to the Property and to take 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, until the deed to the Property is delivered to the
ultimate purchaser.
3.
The terms and conditions of the sale are as follows:
a.
The sale of the Property shall be free and clear of any interests of the
Hendricksons, D.L. Family Trust, Wells Fargo Bank, and Zions First
National Bank;
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 and restrictions of
record, if any;
c.
The sale shall be held at the courthouse of the county or city 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;
d.
The date and time for sale are to be announced by the United States
Marshal, his representative, or a PALS;
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e.
Notice of the 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 Salt Lake County, and, at the
discretion of the Marshal, his representative, or a PALS, by any other
notice deemed appropriate. The notice shall contain a description of the
Property and shall contain the terms and conditions of sale in this order of
sale;
f.
The minimum bid will be set by the Internal Revenue Service for the
Property. If the minimum bid is not met or exceeded, the Marshal, his
representative, or a 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 reduce the minimum bid or sell to the highest
bidder;
g.
The successful bidder for the Property shall be required to deposit at the
time of the same with the Marshal, his representative, or a PALS a
minimum of ten percent of the bid, with the deposit to be made by
certified or cashier’s check or cash payable to the United States District
Court for the District of Utah. Before being permitted to bid at the sale,
bidders shall display to the Marshal, his representative, or a PALS proof
that they are able to comply with this requirement. No bids will be
received from any person who has not presented proof that, if that person
is the successful bidder, that person can make the deposit required by this
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order of sale;
h.
The balance of the purchase price for the Property is to be paid to the
United States Marshall or a PALS (whichever person is conducting the
sale) within twenty days after the date the bid is accepted, by a certified or
cashier’s check payable to the United States District Court for the District
of Utah. If the bidder fails to fulfill this requirement, the deposit shall be
forfeited and shall be applied to cover the expenses of the sale, including
commissions due under 28 U.S.C. § 1921(c), with any amount remaining
to be applied to the income tax liabilities of the Hendricksons at issue
herein. The Property shall be again offered for sale under the terms and
conditions of this order of sale. The United States may bid as a credit
against its judgment without tender of cash;
i.
The sale of the Property shall be subject to confirmation by this court. The
Marshal or a PALS shall file a report of sale with the court, together with a
proposed order of confirmation of sale and proposed deed, within forty
days from the date of receipt of the balance of the purchase price;
j.
On confirmation of the sale, the Marshal or PALS shall execute and
deliver a deed of judicial sale conveying the Property to the purchaser;
k.
On confirmation of the sale, all interests in, liens against, or claims to, the
Property that are held or asserted by all parties to this action are discharged
and extinguished;
l.
On confirmation of the sale, the recorder of deeds, Weber County, Utah,
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shall cause transfer of the Property to be reflected on that county’s register
of title; and
m.
The sale is ordered pursuant to 28 U.S.C. § 2001, and is made without
right of redemption.
4.
Until the Property is sold, the Hendricksons and their relatives shall take all
reasonable steps necessary to preserve the Property (including all buildings, improvements,
fixtures and appurtenances on the property) in its current condition including, without limitation,
maintaining a fire and casualty insurance policy. They shall neither commit waste against the
Property nor cause or permit anyone else to do so. They shall neither do anything that tends to
reduce the value or marketability of the Property nor cause or permit anyone else to do so. They
shall not record any instruments, publish any notice, or take any other action (such as running
newspaper advertisements or posting signs) that may directly or indirectly tend to adversely
affect the value of the Property or that may tend to deter or discourage potential bidders from
participating in the public auction, nor shall they cause or permit anyone else to do so.
5.
All persons occupying the Property shall leave and vacate the Property
permanently within sixty days of the date of this Order, each taking his or her personal property
(but leaving all improvements, buildings, fixtures, and appurtenances to the Property). If any
person fails or refuses to leave and vacate the Property by the time specified in this Order, the
United States Marshal’s Office, alone, is authorized to take whatever action it deems appropriate
to remove such person from the premises, whether or not the sale of such Property is being
conducted by a PALS. Specifically, the United States Marshal (or his designee) is authorized and
directed to take all actions necessary to enter the Property at any time of the day or night and
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evict and eject all unauthorized persons located there, including the Hendricksons, and any
occupants. To accomplish this and to otherwise enforce this Order, the United States Marshal
shall be authorized to enter the Property and any and all structures and vehicles located thereon,
and to use force as necessary. When the United States Marshal concludes that all unauthorized
persons have vacated, or been evicted from the Property, he shall relinquish possession and
custody of the Property to the Internal Revenue Service, or its designee. No person shall be
permitted to return to the Property or remain thereon without the express written authorization by
the United States Marshal, the Internal Revenue Service, the United States Department of Justice,
or their respective representatives or designees. Unauthorized persons who re-enter the Property
during the time this Order is in effect may be ejected by the United States Marshal without
further order of the court.
6.
If any person fails or refuses to remove his or her personal property from the
Property by the time specified herein, the personal property remaining on the Property thereafter
is deemed forfeited and abandoned, and the United States Marshal’s Office is authorized to
remove it and to dispose of it in any manner it deems appropriate, including sale, in which case
the proceeds of the sale are to be applied first to the expenses of sale and the balance to be paid
into the court for further distribution.
7.
The proceeds arising from sale are to be paid to the clerk of this court and applied
as far as they shall be sufficient to the following items, in the order specified:
a.
To the United States Marshal or the PALS (whichever person conducted
the sale as arranged by the United States) for the costs of the sale;
b.
To all taxes unpaid and matured that are owed (to county, city or school
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district) for real property taxes on the Property and any other unpaid local
taxes; and
c.
To Wells Fargo Bank, pursuant to the stipulation regarding priority filed in
this action (Dkt. No. 18);
d.
To Zions First National Bank, pursuant to the stipulation regarding priority
filed in this action (Dkt. No. 17);
e.
To Lori R. Hendrickson, for her one-half interest in any proceeds
remaining after the above disbursement, less the amount due to the United
States for the unpaid balance of the Hendricksons’ federal income tax
liabilities for the years 1991 and 1993, plus all interest and penalties due
and owing thereon;
f.
To the United States, without reduction for registry fees,1 for the unpaid
balance of the Hendricksons’ federal income tax liabilities for the years
1991 and 1993, plus all interest and penalties due and owing thereon, and
for the unpaid balance of David O. Hendrickson’s federal income tax
liabilities for the years 1995-2000, plus all interest and penalties due and
owing theron; and
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Any registry fees charged against the registry funds shall be included in the funds
disbursed to the United States. “In cases where the United States Government is a party to the
action underlying the registry investment, the funds initially withheld in payment of the [registry]
fee may be restored to the United States upon application filed with the court by . . . government
counsel.” 56 FR 56356-01; see also Housekey Fin. Corp. v. Hofer, No. CTV-F-00-6054REC,
2001 WL 429821 at *1 (E.D. Cal. Mar. 23, 2001) (ordering the Clerk to disburse all registry
funds to the United States “undiminished by any registry fees assessed”).
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g.
Any balance remaining after the above payments shall be held by the Clerk
until further order of the Court.
SO ORDERED this 3rd day of February, 2012.
BY THE COURT:
______________________________
TENA CAMPBELL
United States District Judge
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