United States of America v. Martinez et al, No. 2:2019cv01986 - Document 78 (D. Nev. 2022)
Court Description: ORDER Granting 75 Motion for Order of Sale of Real Property. Signed by Judge Gloria M. Navarro on 12/30/2022. (Copies have been distributed pursuant to the NEF - JQC)
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United States of America v. Martinez et al Doc. 78 Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 1 of 8 1 DAVID A. HUBBERT Deputy Assistant Attorney General 2 3 4 5 6 E. CARMEN RAMIREZ Trial Attorney, Tax Division U.S. Department of Justice P.O. Box 683 Washington, D.C. 20044 202-616-2885 (v) 202-307-0054 (f) E.Carmen.Ramirez@usdoj.gov western.taxcivil@usdoj.gov 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 9 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES OF AMERICA, 10 11 Plaintiff, 12 v. 13 14 15 16 17 18 19 20 JEFFREY A. MARTINEZ, individually, and as Trustee of the Martinez Family Trust; DOLORES M. MARTINEZ, individually and as Trustee for the Martinez Family Trust; THE MARTINEZ FAMILY TRUST; MARTINEZ & ASSOCIATES, INC. (NV20041370692); MARTINEZ & ASSOCIATES INC. (NV20181033912); SIERRA MORTGAGE CORPORATION; FIDELITY NATIONAL TITLE; CHASE MORTGAGE COMPANY; JP MORGAN CHASE BANK NATIONAL ASSOCIATION; RHODES RANCH ASSOCIATION; and REPUBLIC SILVER STATE INC., DBA, REPUBLIC SERVICES, 21 22 Defendants. 23 Case No.: 2:19-cv-1986-GMN-DJA [PROPOSED] ORDER ALLOWING FORECLOSURE OF LIENS AND FOR SALE OF PROPERTY BY RECEIVER ON THE UNITED STATES’ BEHALF 24 25 1 Dockets.Justia.com Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 2 of 8 Before the Court is the United States’ Motion for Order Allowing Foreclosure of Liens 1 2 and Sale of Property. The Motion is hereby GRANTED, subject to the terms below. Pursuant to 3 26 U.S.C. § 7402 and § 7403, it is hereby ORDERED as follows: 4 1. This Order pertains to the real property (the “Subject Property”) commonly described as 262 Cliff Valley Drive, Las Vegas, Nevada, 89148, and legally described as: 5 6 Parcel 1: Lot 169 in Block 5 of Amended Final Map of Rhodes Ranch Phase 1, as shown by map thereof on file in Book 82 of Plats, Page 48 in the Office of the County Recorder of Clark County, Nevada. 7 8 11 Parcel 2: A non-exclusive easement of use access and enjoyment in and to the “Common Area” as further defined in that Certain Covenants, Conditions and Restrictions for Rhodes Ranch, a Planned Community, recorded August 13, 1997, in Book 970813 as Document No. 01479, of Official Records, Clark County, Nevada. 12 Assessor’s Parcel No.: 176-08-310-113. 9 10 13 2. The Subject Property has putatively been held in the name of the Martinez Family 14 Trust. However, pursuant to the Amended Partial Judgment, the transfer of the Subject Property 15 from the Martinezes to the trust was a fraudulent transfer or conveyance and has been avoided or 16 set aside. (ECF No. 55 at ¶ 9). Alternatively, to the extent the trust holds title to the Subject 17 Property, it is as the Martinezes’ nominee. (Id. at ¶ 8). 18 3. The United States has valid and subsisting federal tax liens on all property and 19 rights to property of Jeffrey A. Martinez and Dolores M. Martinez, including the Subject 20 Property, arising from the assessments described in the United States’ Complaint (ECF No. 1) 21 and Amended Partial Judgment. (ECF No. 55). 22 4. 26 U.S.C. § 7403 entitles the United States to enforce its liens against the Subject 23 Property in order to apply the proceeds towards the tax liabilities at issue in this suit. 24 25 2 Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 3 of 8 1 2 5. The United States’ federal tax liens against the Subject Property are hereby foreclosed. 3 6. IT IS FURTHER ORDERED that Timothy Kimball is APPOINTED, pursuant to 4 26 U.S.C. § 7402(a) and § 7403(d), to act as the receiver to enforce the tax liens at issue in this 5 case according to the terms set out below. 6 7. Mr. Kimball, License #S.57126, of The Kimball Team, Urban Nest, 8475 W. 7 Sunset Las Vegas, NV 89113, (702)-290-8465 (the “Receiver”), is directed to take custody at 8 such time as the United States requests and arrange the sale of the Subject Property, subject to 9 approval by this Court. 10 8. The Receiver is directed to take possession of the Subject Property, including all 11 improvements, buildings, fixtures, materials, contents, and appurtenances thereon, to preserve 12 and protect the value of that property, to put it into saleable condition, and to arrange for the sale 13 of that property, free and clear of any rights, titles, claims, or interests of any of the parties to this 14 action. 15 16 17 9. The Receiver’s sale of the Subject Property shall occur according to the following terms: a. The Receiver shall have the authority to, and is directed to, arrange for the 18 sale of the Subject Property subject to approval by this Court. The initial 19 listing price may be set by the United States in consultation with the 20 Receiver. If lack of buyer interest or buyer feedback indicates that the 21 listing price is too high, the United States, in consultation with the 22 Receiver, may lower the listing price. The United States, in consultation 23 with the Receiver, shall have the exclusive authority to decide what 24 counter-offers, if any, to make in response to an offer. The United States 25 shall have the exclusive authority to decide whether to accept an offer or 3 Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 4 of 8 1 counter-offer for the property, conditioned on Court approval. The terms 2 of any purchase agreement shall include the balance of the purchase price 3 paid in cash or certified check at closing, and shall include an earnest 4 money deposit, in an amount to be approved by the United States, 5 forfeitable upon the purchaser’s failure to perform. The Receiver shall 6 ensure that the deposit is made into the court’s registry, or into escrow 7 with further disbursements to be made by the escrow agent as authorized 8 by the Court through this order and any future order(s). The buyer shall be 9 responsible for all escrow fees. Any forfeited earnest money proceeds 10 shall be distributed first to the Receiver to the extent of expenses incurred 11 by the Receiver in accordance with paragraph 9(b) of this order, with the 12 remainder to be deposited directly into the court’s registry, or into escrow, 13 with the escrow agent responsible for transmitting the funds, including any 14 funds remaining from the initial deposit, to the court’s registry, for further 15 adjudication, except to the extent the United States, in its exclusive 16 discretion, agrees that such monies may be used for maintenance, repairs, 17 and/or improvements. A purchase agreement may include other 18 customary and reasonable terms in the discretion of the United States, in 19 consultation with the Receiver. The closing shall not occur until after 20 the sale has been approved by further order of this Court. At closing, 21 the purchaser or purchasers shall receive a quitclaim deed to the Subject 22 Property, executed by the Receiver that shall be free and clear of the 23 interests or other claims of all parties to this action with the same to attach 24 to the proceeds, with the order of priority to be determined by any 25 stipulations between the claimants (subject to the Court’s approval) and 4 Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 5 of 8 1 such further order concerning the validity and priority of claims as is 2 appropriate. 3 b. The Receiver shall have all of the rights and powers necessary to fulfill his 4 obligations under this Order, specifically including, but not necessarily 5 limited to, the power to enter the Subject Property, to inspect the Subject 6 Property, to advertise the sale of the Subject Property, to show the Subject 7 Property to prospective buyers, to take any action reasonably necessary to 8 protect and preserve the value of the Subject Property prior to sale, and to 9 put the Subject Property into saleable condition, including making 10 expenditure of funds that are first approved by the United States for 11 reasonable and necessary repairs, maintenance, and minor improvements, 12 including, but not limited to, the purchase of property and liability 13 insurance. 14 c. All persons occupying the Subject Property shall leave and vacate 15 permanently, within 45 days from the date of this Order or by February 16 15, 2023, whichever comes later, each taking with them his or her 17 personal property (but leaving all improvements, buildings, fixtures, and 18 appurtenances) when leaving and vacating. 19 d. If, after the later of 45 days from the date the United States directs the 20 Receiver to take custody of the Subject Property (which the United States 21 cannot do until the entry of this Order) or February 15, 2023, any person 22 has failed or refused to vacate the Subject Property, the Receiver is 23 authorized to coordinate with the United States Marshal’s Office, or the 24 Clark County Sheriff’s Office, or the Clark County Constable to take all 25 actions that are reasonably necessary to have those persons ejected. The 5 Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 6 of 8 1 United States Marshals Service and/or the Clark County Sheriff’s Office 2 and/or the Clark County Constable are authorized and directed to take any 3 and all necessary actions, including but not limited to the use of 4 reasonable force, to enter and remain on the premises, which includes, but 5 is not limited to, the land, the buildings, vehicles, and any structures 6 located thereon, for the purpose of executing this Order. The United 7 States Marshals Service and/or the Clark County Sheriff’s Office and/or 8 the Clark County Constable are further authorized and directed to arrest 9 and/or evict from the premises any and all persons who obstruct, attempt 10 to obstruct, or interfere or attempt to interfere, in any way with the 11 execution of this Order. Any personal property remaining on the Subject 12 Property after the later of 45 days from the date of this Order or February 13 15, 2023, is deemed forfeited and abandoned, and the Receiver is 14 authorized to dispose of it in any manner seen fit, including sale, in which 15 case the proceeds of that sale are to be applied first to the costs and 16 expenses of sale and the balance shall be paid into the Court for further 17 distribution. The United States may authorize the Receiver to consult with 18 various experts on the sale of contents inside the property, including art, 19 furnishings, vehicles, and equipment. Nothing in this Order shall be 20 construed to restrict or otherwise interfere with the Internal Revenue 21 Service’s ability to administratively collect against personal property, in 22 accordance with the law. 23 e. The Receiver shall be compensated from the proceeds of the sale of the 24 Subject Property (a) in an amount equal to five-percent (5%) of the gross 25 sale proceeds from which the Receiver must pay any buyer broker 6 Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 7 of 8 1 commission; (b) for his reasonable and necessary expenditures under 2 paragraph 9(b) above (i.e., for repairs, maintenance, minor improvements, 3 and/or insurance) that were first approved by the United States; and (c) 4 with respect to any consultations concerning the sale of personal property 5 that were first approved by the United States under paragraph 9(d), above, 6 the Receiver is authorized to charge $50 per hour for these services, 7 limited to no more than 20 hours per month. The Receiver shall receive 8 payment of the above-described compensation from a distribution from 9 the proceeds of a sale approved by the Court at closing, as the United 10 States’ cost and expenses of sale, and before any net sale proceeds are 11 used to pay any other claims of the parties to this action. 12 f. Net proceeds shall be deposited with the Court unless directed otherwise 13 by the Court. The distribution shall be first to the Receiver and/or the 14 United States and Internal Revenues Service for the costs and expenses of 15 the sale. The distribution of the remaining proceeds should be determined 16 either through stipulation between the remaining parties and approved by 17 the Court, or, if all parties seeking to make a claim cannot reach an 18 agreement, by order of the Court after submission of briefs by the 19 remaining parties setting forth their arguments as to how the remaining 20 proceeds should be distributed. 21 // 22 // 23 // 24 25 7 Case 2:19-cv-01986-GMN-DJA Document 78 Filed 12/30/22 Page 8 of 8 1 10. All the defendants in this case, and all other persons acting in concert with, or on 2 their behalf, are hereby restrained and enjoined from doing anything that tends to interfere with 3 or reduce the value or marketability of the Subject Property, or from interfering with the 4 Receiver, or with the Receiver’s efforts to comply with his obligations under this Order. 5 Violation of this paragraph shall be deemed a contempt of court and punishable as such. ORDER 6 7 Dated this ____ day of December, 2022. IT IS SO ORDERED. 8 30 day of December, 2022 Dated this ____ 9 10 11 IT IS SO ORDERED: ___________________________ Gloria M. Navarro, District Judge UNITED STATES DISTRICT COURT _________________________________ UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8
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