Opinion
Case No. CIV-S-01-2300-DFL-GGH.
October 22, 2004
McGREGOR W. SCOTT, United States Attorney.
NORMA J. SCHROCK, Trial Attorney, Tax Division, U.S. Department of Justice, Washington DC, Attorneys for the United States of America.
[PROPOSED] ORDER OF FORECLOSURE
UPON consideration of the United States' motion and this Court's orders dated February 10, 2004, and April 9, 2004, in this case, it is hereby:
ORDERED that the United States tax liens in the amount of $679,354.92, plus interest and additions allowable by law, attach to the following parcels of real property in Siskiyou County:
Property #1: All that real property situate in the County of Siskiyou, Sate of California, described as follows:
Parcel One, as shown on the Parcel Map for William Kandra and Walter Davis located in portion of Sections 28, 29, 32, and 33, Township 46 North, Range 1 West, M.D.M., filed January 21, 1976 in Parcel Map Book 3, page 119, Siskiyou County Records.
Property #2: All that real property situate in the County of Siskiyou State of California, described as follows:
PARCEL I: The Southwest quarter, the North half of the Southeast quarter, the Southwest quarter of the Southeast quarter and the West half of the Southeast quarter of the Southeast quarter of Section 16; the North half of Section 21, all in Township 46 North, Range 1 West, Mount Diablo Meridian.
SAVING AND EXCEPTING THEREFROM:
1. County Roads.
2. All that portion of the Northeast quarter of the Southwest quarter and the Northwest quarter of the Southeast quarter, lying North of the existing County Road, and Northeast quarter of the Southeast quarter, a 1 in Section 16, Township 46 North, Range 1 West, Mount Diablo Meridian.
3. That portion of land commencing at the corner common to Sections 20, 21, 16 and 17 in Township 46 North, Range 1 West, M.D.M., thence Easterly 200' to a point; thence Southerly 200' to a point; thence Westerly 200' to a point; thence Northerly 200' to the point of beginning.
PARCEL II: Beginning at the Southeast corner of Section 17, Township 46 North, Range 1 West, Mount Diablo Meridian, thence North 1320 feet, more or less, to the Northeast corner of the Southeast quarter of the Southeast quarter of said Section 17; thence West along said section quarter line to the East boundary of Macdoel Townsite; thence Southerly along said boundary to the North line of LaPaz Street; thence West to the East line of Mt. Adams Street; thence Southerly along the East line of Mt.Adams Street and a prolongation thereof to the Southwest corner of the Southeast quarter of the Southeast quarter of said Section 17; thence East 1340 feet, more or less, to the point of beginning, and including all of Blocks 3S2E, 4S2E, 3S3E, 4S3E, 3S4E and 4S4E according to the plat of the Town of Macdoel, filed January 26, 1909 in Town Map Book 1, page 20.
Subject to existing County rights of way.
PARCEL III: The East half of the Northeast quarter of Section 20, Township 46 North, Range 1 West, M.D.M.
PARCEL IV: That portion of land commencing at the corner common to Sections 20, 21, 16 and 17, in Township 46 North, Range 1 West, M.D.M., thence Easterly 200' to a point; thence Southerly 200' to a point; thence Westerly 200' to a point; thence Northerly 200' to the point of beginning.
PARCEL V: All that portion of Blocks 2S2E, 2S3E, and 2S4E according to the Official Maps of the Town of Macdoel lying within the Southeast quarter of the Southeast quarter of Section 17, Township 46 North, Range 1 West, Mount Diablo Meridian.
Property #3 All that real property situate in the County of Siskiyou, State of California, described an follows:
PARCEL I: The Southeast quarter of Section 21, Township 46 North, Range 1 West, M.D.M. excepting therefrom the West half of the West half of the Southeast quarter.
EXCEPTING THEREFROM a portion of the Southeast quarter of Section 21, a portion of the South half of Section 22, a portion of the South half of Section 23, and a portion of the Northeast quarter of Section 26, all within Township 46 North, Range 1 West. M.D.B. M. more particularly described as follows: A strip of land 80 feet in width (measured at right angles) lying equally 40 feet on each side of the following described centerline.
Beginning at a point in Red Rock Road, County Road No. 8003, from which the Northeast corner of Section 21, Township 46 North, Range 1 West, M.D.B M. bears North 36° 31' 54" West 3349.21 feet; thence South 89° 34' 57" East 32 feet more or less to a point on the Grantor's west property line, said point being the TRUE POINT OF BEGINNING; thence continuing South 89° 34' 57" East 1046.39 feet; thence along a tangent curve to the right, having a radius of 5000 feet and a central angle of 00° 20' 28", an arc distance of 3.59 feet; thence South 89° 32' 29" East 1746.86 feet; thence along a tangent curve to the left, having a radius of 5000 feet and a central angle of 00° 01' 56", an arc distance or 2.81 feet; thence South 89° 34' 25" East 1058.73 feet; thence along a tangent curve to the left, having a radius of 5000 feet and a central angle of 00° 20' 29", an arc distance of 29.79 feet; thence South 89° 54' 54" East 641.65 feet; thence along a tangent curve to the left having a radius of 5000 feet and a central angle of 00° 25' 23", an arc distance of 36.92 feet; thence North 89° 39' 43" East 587.34 feet; thence along a tangent curve to the right, having a radius of 5000 feet and a central angle of 1° 39' 13", an arc distance of 144.43 feet; thence South 88° 40' 59" East 348.36 feet; thence along a tangent curve to the right, having a radius of 1500 feet and a central angle of 27° 10' 53", an arc distance of 711.61 feet; thence South 61° 30' 06" East 1944.45 feet; thence along a tangent curve to the right, having a radius of 5000 feet and a central angle of 00° 17' 56", an arc distance of 26.08 feet; thence South 61° 12' 10" East 1440.23 feet; thence along a tangent curve to the left having a radius of 5000 feet and a central angle of 00° 22' 41", an arc distance of 32.99 feet; thence South 61° 34' 51" East 499.96 feet; thence along a tangent curve to the right, having a radius of 5000 feet and a central angle of 00° 12' 10" an arc distance of 17.70 feet; thence South 61° 22' 41" East 1767.05 feet; thence along a tangent curve to the right, having a radius of 5000 feet and a central angle of 4° 59' 12", an arc distance of 435.17 feet; thence South 56° 23' 29" East 96.89 feet; thence along a tangent curve to the right, having a radius of 2500 feet end a central angle of 12° 16' 37", an arc distance of 535.63 feet; thence South 44° 06' 56" East 520.75 feet; thence along a tangent curve to the left, having a radius of 5000 feet and a central angle of 00° 22' 44", an arc distance of 33.06 feet to the point of Termination, said point being on the East line of Section 26, Township 46 North, Range 1 West, M.D.B. M.
The side lines to be prolonged or shortened so as to begin at the West property line and end at the East property line of the above said description.
PARCEL II: The South half of the Southwest quarter of Section 22, Township 46 North, Range 1 West, M.D.M.
PARCEL III: The West half of Section 27, Township 46 North, Range 1 West, M.D.M.
ORDERED that the aforementioned liens are foreclosed. The Internal Revenue Service is authorized and directed under 28 U.S.C. Sections 2001 and 2002 to offer for public sale the real property described above, either separately or together. This judgment and order shall act as a special writ of execution and no further orders or process from the Court shall be required. The terms and conditions of sale shall be as follows:
1. The Internal Revenue Service is authorized to have free access to the real property and to take all actions necessary to preserve the real property, including without limitation, retaining a locksmith or other person to change or install locks or other security devices on any part of the real property, until the deed of the real property is delivered to the ultimate purchaser.
2. The sale shall be free and clear of the interests of J. Leonard Padilla and Alejandro Reid Padilla, and all other parties named in this case.
3. The sale shall be subject to all laws, ordinances, and governmental regulations (including building and zoning ordinances), affecting the premises, and easements and restrictions of record, if any.
4. The public sale of the real property shall be held either at the courthouse of the county in which the realty is located, or on the premises.
5. The date and time for sale are to be announced by the Internal Revenue Service.
6. Notice of the sale shall be published once a week for at least four (4) consecutive weeks before the sale in at least one newspaper regularly issued and of general circulation in Siskiyou County, where the realty is situated, and at the discretion of the Internal Revenue Service, by any other notice that it deems appropriate. The notice shall contain a description of the real property and shall contain the essential terms and conditions of sale in this Order of Judicial Sale.
7. A reasonable minimum bid shall be determined by the United States. If the minimum bid is not met or exceeded, the Internal Revenue Service 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.
8. The successful bidder shall be required to deposit at the time of sale with the Internal Revenue Service a minimum of ten (10) percent of his or her bid, with the deposit to be made by cashiers or certified check made payable to "United States Treasury". Before being permitted to bid at the sale, bidders shall display to the Internal Revenue Service 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.
9. The balance of the purchase price for the real property is to be paid to the Internal Revenue Service by a certified or cashier's check payable to the "United States Treasury." within sixty (60) days after the date the bid is accepted. If the bidder fails to fulfill this requirement, the deposit shall be forfeited and shall be applied to cover the expenses of the sale, with any amount remaining to be applied to the outstanding tax liability, and the real property shall be again offered for sale under the terms and conditions of this order. The United States may bid as a creditor against its judgment without tender of cash.
10. The sale of the real property shall be subject to confirmation by this Court as required by Local Rule A-570. Absent a written objection filed within three days of the sale, or the purchaser's default, the sale shall stand confirmed without any action by the Court. On confirmation of the sale of the real property, and receipt of payment in full, the Internal Revenue Service shall execute and deliver a Certificate of Sale and Deed conveying the subject property to the purchaser. On confirmation of the sale, all interests in, liens against, or claims to, the real property that are held or asserted by the plaintiff or the defendants in this action are discharged and extinguished.
11. The sale is ordered pursuant to 28 U.S.C. § 2001, and is made without right of redemption. Possession of the property sold shall be yielded to the purchaser upon the production of a copy of the Certificate of Sale and deed. If there is a refusal to so yield, a Writ of Assistance may, without further notice, be issued by the Clerk of this Court to compel delivery of the real property to the purchaser.
12. Until the sale date, J. Leonard Padilla and Alejandro Reid Padilla shall take all reasonable steps necessary to preserve the real property (including all buildings, improvements, and fixtures) in its current condition including, without limitation, maintaining fire and casualty insurance policies on the property. They shall not commit waste against the real property, nor shall they cause or permit anyone else to do so. They shall not do anything that tends to reduce the value or marketability of the real property, nor shall they cause or permit anyone else to do so. The taxpayer and the defendants shall not record any instruments, publish any notice, or take any other action (such as running newspaper advertisements) that may directly or indirectly tend to adversely affect the value of the subject property or that may tend to dete or discourage potential bidders from participating in the public auction.
13. J. Leonard Padilla, Alejandro Reid Padilla, and any other persons occupying the subject property shall leave the property permanently within 30 days of the date of the Judgment and Order, unless the United States agrees otherwise in writing. Each shall take with them their personal property, but leave all improvements, buildings, fixtures, and appurtenances. If any person occupying the property fails or refuses to leave and vacate the property by the time specified in this order, the U.S. Marshal and his deputies and/or the Internal Revenue Service 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 property by the time specified herein, the personal property remaining on the subject property is deemed forfeited and abandoned. The Internal Revenue Service is authorized to remove and dispose of such personal property in whatever manner the Internal Revenue Service sees fit, including sale with the proceeds applied first to the expenses of sale and the remainder to the tax liabilities giving rise to the lien upon which foreclosure is hereby ordered.
14. After the sale is confirmed by this Court, the Internal Revenue Service shall distribute the amount paid by the purchaser as follows:
a. First, the Internal Revenue Service shall retain an amount sufficient to cover the expenses of the sale, including an amount sufficient to cover the expenses of any steps taken to secure or maintain the real property pending sale and confirmation by the Court;
b. Second, to all taxes unpaid and matured that are owed for real property taxes on the real property;
c. Third, one-half of the remaining proceeds to Alejandro Reid Padilla, unless he has an outstanding federal tax liability, in which case his share of the proceeds may be applied to his federal tax liability, with any remainder to be paid to him.
d. Fourth, one-half of the remainder, (or the amount of J. Leonard's Padilla's state tax liabilities, whichever is smaller), to the Franchise Tax Board to be applied towards J. Leonard Padilla's state tax liability.
e. Finally, the remainder to the United States of America to be applied towards J. Leonard Padilla's federal income tax liabilities for the 1986, 1987, and 1988 tax years.
15. Any balance remaining after the above payments shall be held by the Clerk pending further order of the Court.
IT IS SO ORDERED.