Opinion
Civil No. 1:98CV962
March 28, 2002
JUDGMENT AND ORDER OF FORECLOSURE AND SALE OF REAL PROPERTY
Pursuant to the Agreed Judgment dated March 30, 2001, it is hereby
ORDERED, ADJUDGED, AND DECREED that the United States has valid and subsisting Federal tax liens on all property and rights to property of Janet Nemecek and Jack Nemecek, Sr., including their interest in a residence at 21031 Edgecliffe Drive, Euclid, Ohio 44123, which is more fully described as follows:
And being known as being the Southwesterly 25 feet of Sublot No. 402 and the Northeasterly 35 feet of Sublot No. 401 in the S.H. Kleinman Realty Company Utopia Beach Subdivision No. 2 of part of Original Euclid Township Lot No. 4, Tract No. 17, as shown by the recorded plat in Volume 67 of Maps, Page 40 of Cuyahoga County Records, and together forming a parcel of land 60 feet front on the
Northwesterly side of Edgecliff Boulevard and extending back of equal width about 200 feet to Lake Erie as appears by said plat, be the same more or less, but subject to all legal highways.
And known as being the Southwesterly 15 feet from front to rear of the Northeasterly 25 feet from front to rear of Sublot No. 402 in the S.H. Kleinman Realty Company's Utopia Beach Subdivision No. 2, of part of Original Euclid Township Lot No. 4, Tract No. 17, as shown by the recorded plat in Volume 67 of Maps, Page 40 of Cuyahoga County Records, and being 15 feet front on the Northeasterly side of Edgecliff Boulevard, and extending back between parallel lines about 200 feet, to the waters of the edge of Lake Erie, as appears by said plat, be the same more or less, but subject to all legal highways and waterways.
and it is hereby
FURTHER ORDERED, ADJUDGED, AND DECREED that the federal tax liens for the federal tax liabilities of Janet Nemecek and Jack Nemecek, Sr. are foreclosed upon the residence at 21031 Edge Cliffe Drive, Euclids, Ohio 44123, and that said property may be sold in a judicial sale, according to law, free and clear of any right, title, lien, claim or interest of any of the defendants herein, and that the proceeds of any such sale be distributed to such parties in such amounts as set forth below, and it is hereby
FURTHER ORDERED, ADJUDGED, AND DECREED that the United States Marshal for this District, may, at the direction of the Tax Division of the United States Department of Justice, at a date and time to be determined by the Marshal, sell, free and clear of all right, title and interest of all parties to this action, their heirs, successors and assigns, the 21031 Edgecliffe Drive, Euclid, Ohio property, at public auction at the courthouse of the county, parish, or city situated therein in which the greater part of the property is situated, and it is hereby
FURTHER ORDERED, ADJUDGED, AND DECREED that the terms and conditions of the sale shall be as follows:
The above-described real property may be offered at a minimum bid price of $185,500. Said property will be sold to the party making the highest bid, equal to or exceeding $185,500. At the time of the sale, the highest bidder shall deposit with the Marshal, by cash or certified or cashier's check, not less than ten percent of the high bid, except that if the United States is the highest bidder, no such deposit shall be required. Before being permitted to bid at the sale, bidders shall display to the United States Marshal, or his representative, 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 they are the successful bidder, they can make the deposit required by this judgment and order of foreclosure and sale. Within 35 days after the sale, the purchaser (unless such purchaser is the United States) shall pay to the Marshal the balance of the amount of his bid by cash or certified or cashier's check. Upon receipt of such payment, the Marshal shall notify trial counsel for the United States, who shall file a motion for confirmation of the sale. Provided that the Court enters an order confirming the sale, the United States Marshal shall deliver to the purchaser a deed to the property. If the purchaser shall fail to make such payment, his or her deposit shall be forfeited and retained as part of the proceeds of sale and the Marshal shall proceed with another sale as set forth herein, and it is hereby
From any such forfeited deposit, the United States Marshal shall deduct his expenses and then shall add the remainder of the forfeited deposit to the proceeds of any subsequent sale of the subject residence to be distributed with the proceeds of the subsequent sale in accordance with this Judgment and Order.
FURTHER ORDERED, ADJUDGED, AND DECREED that, in the event of a judicial sale of the real property described herein, the Marshal shall distribute the proceeds of the sale as follows: First, to satisfy the costs of the sale, including advertising and other expenses; second, to satisfy any outstanding real property taxes including $1,909.23, plus statutory interest from November 28, 2000 in satisfaction of the claim of the State of Ohio Department of Taxation under lien serial number 2291167-0093; third, to Amy Danko, Jill Humbert, Jack Nemecek, Jr., Judy Fimiani, and Nancy Nemecek, collectively, the sum of $38,000; fourth, to the United States to be applied to the judgment; and it is hereby
FURTHER ORDERED, ADJUDGED, AND DECREED that additional terms and conditions of the sale of the real property described herein are as follows:
1. The Marshal shall cause notice of the sale to be published one a week for at least four weeks prior to the sale in at least one newspaper of general circulation in this judicial district, in which notice there shall be set forth the date, time, and place of the sale, a description of the property and the terms and conditions of the sale in accordance with 28 U.S.C. § § 2001 and 2002.
2. The United States Marshal for the Northern District of Ohio, or such representative as he may appoint or employ, is authorized and directed under 28 U.S.C. § § 2001 and 2002 to offer for public sale and to sell the real property described above. This judgment and order of foreclosure and sale shall act as a special writ of execution and no further orders or process from the Court shall be required.
3. The United States Marshal or his representative is authorized to have free access to the realty and to take all actions necessary to preserve the realty, including without limitation retaining a locksmith or other person to change or install locks or other security devices on any part of the realty, until the deed to the realty is delivered to the ultimate purchaser.
4. The Nemeceks or anyone else occupying the above-described real property with the permission of the Nemeceks shall vacate the property, taking with them their personal property within twenty-one days from the date the Marshal's advertisement of the property first appears in a newspaper pursuant to this judgment and order (but leaving all improvements, buildings, and fixtures, including all kitchen and laundry appliances, and appurtenances to the real property). If any person occupying the real property fails or refuses to leave and vacate the realty by the time specified herein, the U.S. Marshal and his deputies and the IRS are authorized and directed to take all actions that are reasonably necessary to bring about the ejectment of those persons. If any person fails or refuses to remove his or her personal property from the real property by the time specified herein, the property remaining in or on the real property thereafter is deemed forfeited and abandoned, and the Marshal and his deputies are authorized to remove it and dispose of it in any manner the Marshal sees fit, including sale, in which case the proceeds of the sale are to be applied under the same guidelines as described herein for the proceeds of the sale of the real property.
5. The sale shall be subject to building lines if established, all laws, ordinances, and governmental regulations (including building and zoning ordinances), affecting the premises, and easements and restrictions of record, if any.
6. If a bid is not received and confirmed in an amount equal to or in excess of the minimum bid price, the Marshal shall advertise another sale of the real property and carry out another public sale until the property is sold without further order of the Court.
7. Until the property is sold, the Nemeceks and their family shall take all reasonable steps necessary to preserve the real property (including all buildings, improvements, fixtures, and appurtenances on the real property) in its current condition including, without limitation, maintaining fire and casualty insurance policies on the real property. The Nemecek's shall not commit waste against the real property, nor shall they cause or permit anyone else to do so. The Nemecek shall not record any instruments, publish any notice, or take any action (such as running newspaper advertisements) that may directly or indirectly tend to adversely affect the value of the real property or that may tend to deter or discourage potential bidders from participating in the public sale of the real property.
8. When the sale of the real property is confirmed by this Court, the recorder's office serving the area in which the subject property is located shall permit transfer of the realty to be reflected on the county's register of deeds and/or title.