Opinion
No. CV-N-02-0237 DAE-LRL
June 17, 2003
ORDER GRANTING GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT ON COUNT II OF THE COMPLAINT
Pursuant to Nevada Local Rule 78-2, the court finds this matter suitable for disposition without a hearing. After reviewing the motion and the supporting memoranda, the court GRANTS the Government's Motion for Summary Judgment on Count II of the Complaint ("Motion").
BACKGROUND
On May 13, 2002, the Government filed this motion in furtherance of its case to foreclose federal tax liens encumbering a parcel of real property and to reduce tax assessments to judgment. The underlying action persists because Defendant Mary Abbott ("Defendant") has failed to remit payment of tax assessments deemed due to the United States following proceedings initiated by the Department of Treasury and resolved by stipulation between the parties in the Tax Court. The Government submits that Defendant has failed to pay the deficiencies and that the amount owed as of August 19, 1996, is $52,772.00, plus interest and other statutorily provided amounts.
In addition to the deficiency amounts assessed against Defendant, the Government has also foreclosed on Defendant's residence. The property at issue was transferred to her in full in 1977 and on March 28, 1997, a Notice of Federal Tax Liens was recorded with the County Recorder of Douglas County, Nevada.
Defendant Abbott did not file an opposition. Also, Defendants Howard McKibben and Maryann McKibben tiled a notice of non-objection to this motion.
On March 28, 2003, this court convened in Reno, Nevada for the purpose of resolving this and the related motions. In light of the bankruptcy petition filed by Defendant Abbott the preceding day, the proceedings were stayed. On May 6, 2003, the Bankruptcy Court lifted the automatic stay and Defendant Abbott voluntarily withdrew her petition. Following attempts to settle the matter, the court held a status conference on May 13, 2003. At the close of the conference, the court allotted Defendant Abbott a period of three weeks to secure funding. The deadline of June 3, 2003, has passed and the court now deems it necessary to issue the following order.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be entered when:
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c)). The moving party has the initial burden of demonstrating for the court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (citing Adickes v. S.H. Kress Co., 398 U.S. 144 (1970)). The moving party, however, need not produce evidence negating the existence of an element for which the opposing party will bear the burden of proof at trial. See id. at 323.
Once the movant has met its burden, the opposing party has the affirmative burden of coming forward with specific facts evidencing a need for trial. See Fed.R.Civ.P. 56(e). The opposing party cannot stand on its pleadings, nor simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987); Fed.R.Civ.P. 56(e). Moreover, there is no genuine issue of fact "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Coro., 475 U.S. 574, 586-87 (1986) (citation omitted).
A material fact is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A genuine issue is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. See id. Evidence submitted by the nonmovant, in opposition to a motion for summary judgment, "is to be believed, and all justifiable inferences are to be drawn in fits] favor."Id. at 255.
In ruling on a motion for summary judgment, the court must bear in mind the actual quantum and quality of proof necessary to support liability under the applicable law. See id. at 254. The court must assess the adequacy of the nonmovant's response and must determine whether the showing the nonmovant asserts it will make at trial would be sufficient to carry its burden of proof. See Celotex, 477 U.S. at 322.
Although highly fact-based cases are not generally suitable for summary judgment, the nonmoving party must demonstrate that sufficient evidence of a factual dispute exists to require a jury or judge to resolve the parties' differing versions of the truth at trial. In ruling on such a motion, this court may not make credibility determinations or weigh conflicting evidence. See Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990)
DISCUSSION
In a prior motion, the Government asked this court to to grant summary judgment to reduce the deficiency assessments against Defendant to judgment. The court granted this related motion. See Order Granting Government's Motion for Partial Summary Judgment, filed June 5, 2003. In light of Defendant's failure to pay these debts, the Government seeks foreclosure of the federal tax liens against Defendant's property pursuant to 26 U.S.C. § 6321-22. Because the lien attaches to all property owned at the time of assessment, the Government must demonstrate that Defendant owned the property at the time the tax deficiencies were assessed against her. It appears from the deed attached as Exhibit A to the Government's Motion that Defendant was indeed the owner and in possession of the land at the time of the assessment.
This court finds that foreclosure of Defendant's property is proper under the provisions of the Internal Revenue Code. See United States by and through IRS v. McDermott, 507 U.S. 447, 448 (1993). Defendant's property is therefore ordered to be sold in a foreclosure proceeding and the monies received shall be applied towards satisfaction of Defendant's outstanding debt to the Government.
Specifically, the court grants the Government's request such that this court orders foreclosure of the federal tax liens upon the real property described in paragraph 11 of the Complaint. The court will appoint a Commissioner to sell the property at a judicial sale, the proceeds of which will finance in first priority the costs of the sale. After such costs have been paid, the remainder of the proceeds shall be distributed to Defendant's creditors, including the United States, in order of priority.
CONCLUSION
For the reasons stated above, the court GRANTS the Government's Motion for Summary Judgment as to Count II.
IT IS SO ORDERED.