Opinion
Civil No. 99-0630-RV-S
September 19, 2000
AMENDED DECREE OF FORECLOSURE AND ORDER OF SALE
This Court, upon Motion of the Plaintiff, United States of America, and default having been entered against the Defendants Louise M. Vito and D-J's Kennel, Inc., hereby ORDERS, ADJUDGES, and DECREES as follows:
1. The defendant, Louise M. Vito, is indebted to the United States for unpaid federal income taxes for the tax years 1988 through 1993 in the total amount of $675,320.99 as of November 1, 1999, plus further interest and statutory additions as allowed by law.
2. The defendant D-J's Kennel, Inc., is the nominee and/or alter ego of defendant Louise M. Vito.
3. That, upon assessment of the tax liabilities set forth in paragraph 1, above, federal tax liens arose against the property and rights to property of the defendant Louise M. Vito, including the real property of the defendant Louise M. Vito located at 9645 Argyle Road, Irvington, Alabama, held in the name of D-J's Kennel, Inc., her nominee or alter ego, and more fully described as follows:
The North Half of the North Half of the Southwest Quarter of the Southwest Quarter of Section 26, Township 6 South, Range 3 West; and being one-fourth of that property conveyed to Louise Beers by the United States Patent No. 245990, as recorded in Deed Book 154 N.S., page 518 of records in the Office of Judge Probate, Mobile County, Alabama.
This property, and all improvements, buildings, fixtures, and appurtenances thereon, and thereto pertaining is hereinafter referred to as the "Real Property."
4. That the federal tax liens described above are valid and being enforced in this action pursuant to 26 U.S.C. § 7403 through foreclosure upon the Real Property
5. That the tax liens of the United States upon the Real Property be foreclosed.
6. That the United States Marshal for the Southern District of Alabama is authorized and directed pursuant to 28 U.S.C. § 2001 and 2002 to offer for public sale and to sell the Real Property to the highest and best bidder for cash, subject to certain other rights as set forth in this Order. No further orders or process from this Court shall be required to effectuate the sale of the Real Property.
7. The Marshal or his or her representative is authorized to have free access to the Real Property and to take all actions necessary to preserve the Real Property, including, but not limited to, 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 to the Real Property is delivered to the ultimate purchaser. That the United States Marshal shall take all actions appropriate to conserve and preserve the Real Property until the deed thereof is delivered to the successful purchaser, including without limitation obtaining insurance coverage on the Real Property.
8. That the sale by public auction shall be held at the Mobile County Courthouse, the Alabama county wherein the Real Property is located, in accordance with the provisions of 28 U.S.C. § 2001 and 2002. That the date and time of the sale thereof shall be announced by the United States Marshal by advertising a Notice of Marshal's Sale in at least one newspaper regularly issued and of general circulation in the county, state, or judicial district of the United States where the Real Property is situation, and by any other notice the United States Marshal or his or her representative may in his or her discretion deem appropriate. The notice shall contain a description of the Real Property and shall contain the terms and conditions of sale. A copy of the Notice of Marshal's Sale shall be mailed to each of the following:
Wendy Vann Trial Attorney, Tax Division U.S. Department of Justice P.O. Box 14198 Washington, D.C. 20044
Florence A. Kessler, Esquire 205 Government Street Mobile, Alabama 36644-1001
Duncan R. Crow, Esquire 150 Government Street, Suite 3001-C Mobile, Alabama 36602
Louise M. Vito P.O. Box 191420 Mobile, Alabama 36619
DJ's Kennels, Inc. c/o Louise M. Vito, Registered Agent and President P.O. Box 191420 Mobile, Alabama 36619
Barry Thompson, Esquire 4317A Midmost Drive Mobile, Alabama 36609
9. That the terms and conditions of the sale are as follows:
a. 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.
b. The sale shall be subject to any unpaid real property taxes affecting the Real Property.
c. A minimum bid of $60,000 is required to purchase the Real Property.
d. The successful bidder shall be required to deposit with the United States Marshal a minimum of ten percent (10%) of the amount of the bid on the date of the sale, either by cashier's check or by cash deposit.
e. The balance of the purchase price shall be paid to the United States Marshal by the successful bidder within ten (10) days following the date of the sale. Payment shall be made by cashier's check payable to the United States Marshal for the Southern District of Alabama. If the bidder fails to fulfill this requirement, the deposit shall be forfeited and applied to the expenses of sale, with any remaining amount to be held as proceeds of sale, and the Real Property shall again be offered for sale under the terms and conditions set forth in this Order.
f. The sale of the Real Property shall be subject to confirmation by this Court, and upon confirmation and receipt of the full purchase price of such sale, the United States Marshall shall execute and deliver a deed conveying the Real Property to the purchaser.
g. The Real Property shall be sold free and clear of all liens and claims of any party to this proceeding.
10. That if the minimum bid set forth above is not met or exceeded, the United States Marshall or his or her representative shall, without further order of this Court, again offer the Real Property for public sale under the terms and conditions of this Order, subject to a reduction of the minimum bid as established by counsel for the United States.
11. That all persons occupying the property located at 9645 Argyle Road, Irvington, Alabama, have been ordered previously to leave and vacate the property permanently within 30 days of the date of July 13, 2000, the date of entry of the initial Order of Foreclosure and Sale of this Real Property, and that such persons shall deliver up the Real Property to the United States Marshal, including all keys thereto, suitably labeled. And that each person occupying the Real Property shall take with them his or her personal property (but leaving all improvements, buildings, fixtures, and appurtenances to the property), including without limitation any livestock. If any such person fails or refuses to leave and vacate the property by the time specified in this Order, the United States Marshal and deputies of the Marshal are authorized and directed to take all actions that are reasonably necessary to eject those persons. If any such person fails or refuses to remove his or her personal property from the Real Property by the time specified herein, the personal property remaining on the property thereafter is deemed forfeited and abandoned, and the Marshal and deputies of the Marshal are authorized to remove it and to dispose of it in any manner they see fit, including sale, in which case the proceeds of the sale are to be applied first to the expenses of sale and the balance to be paid into the Court for further distribution. This Order shall serve as a Writ of Assistance or Writ of Possession, as appropriate, and no further order from this Court shall be required for this purpose.
12. That the individuals occupying the property, and the defendants, Louise M. Vito, and D-J's Kennel, Inc., shall not commit waste against the Real Property, nor shall they cause or permit anyone else to do so. The defendants, Louise M. Vito and D-J's Kennel, Inc., shall not record any instruments, publish any notice, or take any other action (such as running newspaper advertisements or posting signs) 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 auction. No person receiving notice of the entry of this Order shall take any steps to impede the United States Marshal in the execution of his duties, except pursuant to further order of this Court.
13. That after confirmation of the sale of the Real Property, the United States Marshal shall ascertain the expenses of the sale, including without limitation any costs of publication and any expenses of preservation, and shall pay those amounts out of the sale proceeds. The Marshal shall then remit the balance of the sale proceeds to the Clerk of the Court with a statement of the costs and expenses of sale.
14. That upon confirmation of the sale of the Real Property, the liens and claims of the parties to this action shall attach to the proceeds in the order set forth in the Joint Stipulation of Lien Priorities of Plaintiff, United States of America, and Defendants, State of Alabama, Monfort, Inc., and Revenue Commissioner, Mobile County, except that any real property taxes for the Real Property accrued after July 30, 1999, which were not addressed in the joint stipulation, shall be paid as a first priority the same as the ad valorem taxes specified as first priority in the joint stipulation filed in this case.
15. That after confirmation of sale and after the United States Marshal remits the balance of the sale proceeds to the Clerk of Court as set forth above, this Court shall enter an appropriate order directing the Clerk to distribute the balance of the sale proceeds in accordance with such respective priorities.
16. That within thirty (30) days after the Clerk of Court gives notice that such funds have been received from the Marshal, the United States of America and the Revenue Commissioner, Mobile County, shall certify to the Court the amount of its claims.
17. That this Court shall retain jurisdiction over this cause for purposes of making any and all further orders and decrees as may be just and equitable, including without limitation orders confirming the sale, when and if confirmation shall appear proper, and orders of distribution.
IT IS FURTHER ORDERED that the Clerk shall immediately mail a copy of this Order to all parties and counsel of record herein.
Done.