United States of America v. Roberts, No. 2:2020cv00077 - Document 16 (W.D. Wash. 2022)
Court Description: 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)
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United States of America v. Roberts Doc. 16 Case 2:20-cv-00077-RSM Document 16 Filed 09/15/22 Page 1 of 9 Hon. Ricardo S. Martinez 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 15 v. CASE NO. 2:20-cv-00077-RSM Order Granting Default Judgment and Decree of Foreclosure ELDER ROBERTS, JR., Defendant. 16 17 18 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 20 21 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. 24 25 26 27 Accordingly, the United States’ Rule 55(b) Motion for Default Judgment is GRANTED. The Court AWARDS the following relief to the United States: 1. 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 Dockets.Justia.com 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). 3 4 2. The Deed of Trust covers the real property (the Property) commonly 5 known as 2915 Martin Road, Bellingham, Washington 98226, and is legally 6 described as: 7 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. 8 9 10 11 12 13 14 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). 17 3. The Deed of Trust [ECF No. 1-2] is a first and prior lien on the 18 19 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 22 payment of the in rem Judgment owing to the United States, and any excess 23 24 25 thereafter disbursed to Mr. Roberts as his interests may appear. 4. The United States’ recovery shall be limited to the proceeds of the sale 26 of the Property. 27 28 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 1 5. 2 interest. 3 4 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. 7 8 9 10 7. The sale shall be conducted in accordance with the law and practice of this Court. 8. 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 12 and 2002 to offer for public sale and to sell the Property. The United States 13 14 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 17 or other security devices on any part of the Real Property, until the deed to the 18 19 20 Real Property is delivered to the purchaser at the foreclosure sale. 9. 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 22 Purchase to the Property in favor of the purchaser, and the purchaser will be let 23 24 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 27 28 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. 3 4 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). 6 7 8 9 11. 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 10 Washington Revised Code chapter 6.23 or excess funds under 11 Washington Revised Code chapter 6.21. The redemption period shall be 12 12 months. 13 14 b. The sale shall be subject to 12 U.S.C. § 1715z-13a(h)(2), which 15 allows sale of the Property only to “an eligible tribal member, the 16 [Nooksack] [T]ribe, or the [Nooksack Housing Authority].” The sale shall 17 also be subject to building lines, if established; all laws, ordinances, and 18 19 20 21 22 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 23 24 25 26 27 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. 28 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 1 2 3 4 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 5 discretion of the Marshal or his/her representative, by any other notice 6 deemed appropriate. The notice shall contain a description of the 7 8 9 Property; the time, date, and location of the sale as determined by the United States Marshal or his/her representative; the minimum bid as 10 determined by the United States; and the terms and conditions of sale 11 listed in subparagraphs (g)-(l) below. 12 f. The minimum bid for the Property shall be set by the United States. 13 14 If the minimum bid is not met or exceeded, the Marshal or his/her 15 representative, with concurrence of the United States, may without 16 further permission of this Court, and under the terms and conditions in 17 this order of sale, hold a new public sale, if necessary, and reduce the 18 19 20 21 22 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 23 24 25 26 27 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. 28 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 i. On confirmation of the sale, all interests in, liens against, or claims 1 2 3 4 to, the Property and appurtenances that are held or asserted by all parties to this action are discharged and extinguished, except to the 5 extent that Mr. Roberts has a right of redemption under Washington 6 Revised Code chapter 6.23. 7 8 9 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 10 of the Property and appurtenances to be reflected upon the BIA’s register 11 of title. 12 k. Any party to this suit may become a purchaser at such sale. The 13 14 15 United States may bid as a credit against its Judgment without tender of cash. 16 17 l. The sale shall be “as is” without warranty of any kind. 12. Until the Property is sold, Mr. Roberts shall take all reasonable steps 18 19 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 22 commit waste against the Property nor cause nor permit anyone else to do so. He 23 24 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 27 newspaper advertisements or posting signs) that may directly or indirectly tend to 28 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 3 4 5 anyone else to do so. 13. 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 8 9 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 12 from the premises. Specifically, the United States Marshal (or his/her designee) is 13 14 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 17 otherwise enforce this Order, the United States Marshal (or his/her designee) is 18 19 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 22 Property, he/she shall relinquish possession and custody of the Property to the 23 24 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 27 Department of Justice, or their respective representatives and/or designees. 28 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 3 4 Court. 14. 5 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 8 9 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 12 further distribution. 13 15. 14 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 16 specified: 17 a. To the United States for the costs of the sale, including the costs 18 and commissions of the United States Marshal and any professional 19 20 auctioneer if retained and the costs of preserving, advertising, selling, and 21 conveying the property incurred by the Government. 22 b. To the United States to be applied to the Judgment plus all interest 23 and costs due and owing thereon. 24 25 // 26 // 27 // 28 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 1 2 c. Any balance remaining after the above payments shall be held by the Clerk until further order of the Court. 3 4 5 DATED this 15th day of September, 2022. 6 7 A 8 9 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 10 11 12 13 14 Presented by: 15 s/Kyle A. Forsyth 16 Kyle A. Forsyth, WSBA # 34609 17 Assistant United States Attorney 18 19 20 21 22 23 24 25 26 27 28 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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