Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

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1 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO UNITED STATES OF AMERICA, v. Plaintiff, PHILIP L. HART; JON LAFFERTY, Trustee of SARAH ELIZABETH HART TRUST; TIM E. ORTEGA, Trustee of WHITE PEAK VENTURES; NORTHERN ROCKIES CORPORATION; PIONEER TITLE COMPANY OF KOOTENAI COUNTY, INC.; THE IDAHO STATE TAX COMMISSION; and KOOTENAI COUNTY, IDAHO, Civil No. 2:11-cv EJL ORDER OF SALE OF REAL PROPERTY LOCATED AT 4430 E. SARAH LOOP, ATHOL, IDAHO Defendants. The United States has filed an Unopposed Motion for of the Real Property located at 4430 E. Sarah Loop, Athol, Idaho ( the Property ). For good cause shown, and because the Motion is not opposed, the Motion is GRANTED. Final judgment having been entered as to all defendants in the case, and pursuant to the parties settlement agreement, the Court enters this. Judgment has been entered in favor of the United States and against defendant Philip L. Hart in the sum of $586, as of December 31, The parties have agreed that the United States has a tax lien against the Property in the same amount. Furthermore, the Court has adjudged that Hart is the true and beneficial owner of the Property, and that subsequent transfers Page 1

2 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 2 of 9 of the Property to Tim E. Ortega, Trustee of White Peak Ventures, and Jon Lafferty, Trustee of Sarah Elizabeth Hart Trust, are set aside. Finally, the Court has adjudged that the United States tax liens upon the Property are foreclosed. The Property is legally described as follows: Lot 10, Block 5-20, Shamrock Ranch Phase V, according to the plat recorded in Book G of Plats, Pages 301, 301A, 301B and 301C, records of Kootenai County, Idaho. (Bitterroot Ranch BIT ) The Property shall be sold pursuant to the parties settlement agreement and 28 U.S.C and 2002, and according to the terms set out below. It is hereby ORDERED: (1) An officer of the Internal Revenue Service Property Appraisal and Liquidation Specialists ( IRS PALS ) is authorized and directed under 28 U.S.C and 2002 to offer the Property for public sale and to sell the Property. However, if an IRS PALS is not available to sell the Property within six months of the date that this Order is entered, the United States may appoint the United States Marshal for the District of Idaho ( Marshal ) to conduct the sale. If the United States appoints the Marshal to conduct the sale, all references to an IRS PALS in this Order shall be read to apply to the Marshal. (2) Beginning upon the Date to Vacate, the IRS PALS is authorized to have free access to the Property and to take all actions necessary to preserve the 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 Property, until the deed to the Property is delivered to its ultimate purchaser. (3) The terms and conditions of the sale are as follows: a. The sale of the Property shall be free and clear of the interests of plaintiff, the United States; defendant Philip L. Hart; defendant Jon Lafferty, Trustee of Sarah Page 2

3 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 3 of 9 Elizabeth Hart Trust; defendant Tim E. Ortega, Trustee of White Peak Ventures; defendant Northern Rockies Corporation; defendant Pioneer Title Company Of Kootenai County, Inc.; defendant Idaho State Tax Commission; and defendant Kootenai County, Idaho; b. The sale shall be subject to building lines, if established, all laws, ordinances, and governmental regulations (including building and zoning ordinances) affecting the Property, and easements and restrictions of record, if any; c. The sale shall be held at the courthouse of the county or city in which the Property is located; on the premises of the Property; or at any other place in accordance with the provisions of 28 U.S.C & 2002, and the place of the sale shall be determined in the discretion of the IRS PALS; d. The date and time for the sale are to be announced by the IRS PALS; e. One or more notice of the sale shall be published once a week for at least four consecutive weeks before the sale in at least one newspaper regularly issued and of general circulation in Kootenai County, Idaho, and, at the discretion of the IRS PALS, by any other notice deemed appropriate. The Court finds that The Spokesman-Review is a newspaper regularly issued and of general circulation in the County. The notice(s) shall contain a description of the Property and shall also contain the terms and conditions of sale in this order of sale; f. The Marshal or the IRS PALS (whichever is conducting the sale), shall set a minimum bid price for the Property. If the minimum bid price is not met or exceeded, the IRS PALS may, without further permission of this Court, and under the terms and conditions in this Order, hold a new public sale, if necessary, and reduce the minimum Page 3

4 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 4 of 9 bid or sell the Property to the highest bidder at the sale where the minimum bid was not met; g. The successful bidder(s) shall be required to deposit with the IRS PALS, at the time of the sale, a minimum of ten percent (10%) of the bid, with the deposit to be made by certified or cashier s check payable to the United States District Court for the District of Idaho. Before being permitted to bid at the sale, bidders shall display to the IRS PALS proof that they are able to comply with this requirement. No bids will be received from any person(s) who have not presented proof that, if they are the successful bidder(s), they can make the deposit required by this order of sale; h. The balance of the purchase price is to be paid to the IRS PALS within 21 days after the date the bid is accepted, by a certified or cashier s check payable to the United States District Court for the District of Idaho. If the bidder fails to pay the balance of the purchase price within the required time, the deposit shall be forfeited, and the funds so forfeited shall be paid to the United States for application to defendant Philip L Hart s tax liabilities. In event of such a forfeit, the property or properties for which the deposit was forfeited shall be again offered for sale under the terms and conditions of this Order; i. Hart may bid at the sale on the same terms as other bidders, with the following exception: If Hart is the highest bidder, in addition to the requirements of paragraph 3(h) above, at the same time that the balance of the purchase price is to be paid, Hart must pay to the IRS PALS an amount equal to any outstanding local property taxes upon the Property. j. The sale of the Property shall be subject to confirmation by this Court. The United States or the IRS PALS shall file a report of sale with the Court, together with a Page 4

5 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 5 of 9 proposed order of confirmation of sale, within 21 days from the date of receipt of the balance of the purchase price; k. On confirmation of the sale, the IRS PALS shall execute and deliver a deed of judicial sale conveying the property to the purchaser; l. On confirmation of the sale, all interests in, liens against, or claims to, the Property that are held or asserted by all parties to this action are discharged and extinguished; m. On confirmation of the sale, the Kootenai County Clerk s Office shall cause transfer of the Property to be reflected upon the appropriate register of title; and n. The sale is ordered pursuant to 28 U.S.C and the parties settlement agreement. (4) Defendant Philip L. Hart shall provide a copy of this Order to any other person who resides at the Property at any time until the Property is sold. (5) This Order shall constitute a special writ of execution with respect to Hart and no further order or process from the Court shall be required. (6) The term the Date to Vacate means the date that is 7 days after the sale, if Hart is not the highest bidder at the sale. If Hart is the highest bidder, the Date to Vacate shall not occur. (7) The IRS PALS may hold an open house at the Property on any date within two weeks before the date of the sale. (8) Upon the Date to Vacate, this shall terminate any right of possession to the Property held by defendant Philip L. Hart. The termination of Hart s possessory rights takes effect upon the Date to Vacate. Hart is hereby ordered to vacate the Property no later than the Page 5

6 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 6 of 9 Date to Vacate. Upon vacating the Property, Hart shall take with him his personal property (including a temporary shed), but leave in place all improvements, buildings, fixtures, and appurtenances to the Property. The terms of this paragraph shall also apply to any other person who resides at the Property who receives notice of this Order. (9) Until the Property is sold, defendant Philip L. Hart and all other occupants of the Property shall take all reasonable steps necessary to preserve the Property (including all buildings, improvements, fixtures and appurtenances on the Property) in its current condition, including, without limitation, maintaining a fire and casualty insurance policy on the Property. Hart and all other occupants of the Property shall neither commit waste against the Property nor cause nor permit anyone else to do so. Hart and all other occupants of the Property shall neither do anything that tends to reduce the value or marketability of the Property nor cause or permit anyone else to do so. Hart and all other occupants of the Property 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 Property or that may tend to deter or discourage potential bidders from participating in the public auction, nor shall they cause or permit anyone else to do so. (10) If any person with notice of this Order continues to occupy the Property after the Date to Vacate, he or she shall be considered to be a trespasser. In that event, the Marshal is authorized to take any action he or she deems appropriate to remove and evict that person. (11) If Hart fails to remove any personal property from the Property by the Date to Vacate, this paragraph shall apply. Page 6

7 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 7 of 9 a. Hart may request permission from the Marshal or the PALS to return to the Property for the sole purpose of removing the occupant s personal property. This permission shall not be unreasonably withheld. b. Hart shall not return to the Property without being accompanied by the Marshal or the PALS unless the Marshal or the PALS specifically gives permission for him to return unaccompanied. c. If any of Hart s personal property, not including improvements, buildings, fixtures, and appurtenances, remains on the Property 7 days after the Date to Vacate, the personal property shall be deemed abandoned because it has remained on land to which Hart has no possessory right for 7 days without being removed. The Marshal or the PALS may dispose of any such abandoned property by any means deemed appropriate, including destruction, charitable donation, or sale. d. If any abandoned personal property is sold, the proceeds of the sale shall be applied first to the costs of the sale. Any remaining balance shall be paid into the registry of the Court for further distribution. e. If any abandoned personal property is left upon the Property at the time the sale is confirmed, ownership of that personal property shall also pass to the buyer of the Property. f. If the Marshal believes that any item of personal property left on the Property after the Date to Vacate is potentially dangerous (for instance, firearms, other weapons, or incendiaries), the Marshal may, in his or her discretion, secure the item rather than leaving it on the Property. The item may be secured in any reasonable manner, expressly including removing the item to the Marshal s office or other facility. Any such item shall Page 7

8 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 8 of 9 be returned to the owner if: (1) the owner makes a proof of ownership satisfactory to the Marshal; (2) the owner pays any reasonable costs of securing the item the Marshal may have incurred; and (3) the item can be returned to the owner in a manner that is safe and legal under the circumstances. If no person claims ownership of an item secured by the Marshal within 30 days, the Marshal may dispose of the item in any manner he or she sees fit. g. If the personal property includes live animals, the Marshal or the IRS PALS shall take humane steps as may be reasonable for the animals to be removed from the Property. Any additional costs incurred in removing the animals shall be reimbursable as a cost of sale. (12) After confirmation of the sale as provided for herein, the Clerk of Court shall distribute the proceeds of the sale as follows, as far as the proceeds permit: FIRST, to the Marshal or the PALS officer (whichever shall have conducted the sale as arranged by the United States) for the costs of the sale; SECOND, to Kootenai County in full payment of any unpaid local ad valorem taxes on the Property; THIRD, to the United States in full payment of its tax liens. If any funds remain following the payments set forth in this paragraph (7), the funds shall be held by the Clerk of Court until further Order of this Court. Page 8

9 Case 2:11-cv EJL Document 139 Filed 03/25/15 Page 9 of 9 IT IS SO ORDERED. DATED: March 25, 2015 Edward J. Lodge United States District Judge Page 9