COURT ORDERS SALE OF FORECLOSED PROPERTY.
Comer, William L., et ux., et al., U.S. v.
- Case NameUNITED STATES OF AMERICA, Plaintiff, v. WILLIAM L. COMER, MYRA COMER, WILLIAM L. COMER FAMILY EQUITY PURE TRUST, A/K/A WILLIAM COMER FAMILY TRUST, A/K/A WILLIAM L. COMER FAMILY TRUST, AS NOMINEE, TRANSFEREE AND/OR ALTER EGO OF WILLIAM L. & MYRA COMER, SCOTT COMER, ANNE COMER, WAYNE D. SCHULZ, CAROLYN F. SCHULZ, CASS CONNOLLY, DOYLE STEPHENS, THE STATE OF MICHIGAN DEPARTMENT OF TREASURY, AND THE CLARE COUNTY TREASURER, Defendants.
- CourtUnited States District Court for the Eastern District of Michigan
- DocketNo. 2:95CV76358
- JudgeCleland, Robert H.
- Cross-ReferenceUnited States v. William L. Comer, et al., No. 95-CV-76358-DT (July
- Parallel Citation86 A.F.T.R.2d (RIA) 2000-62102000 WL 15249202000 U.S. Dist. LEXIS 14353
- Code Sections
- Subject Area/Tax Topics
- Index Termsliens, enforcement
- Jurisdictions
- LanguageEnglish
- Tax Analysts Document NumberDoc 2000-25042 (9 original pages)
- Tax Analysts Electronic Citation2000 TNT 190-12
Comer, William L., et ux., et al., U.S. v.
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Hon. Robert H. Cleland
JUDGMENT, ORDER OF FORECLOSURE,
AND ORDER FOR A JUDICIAL SALE
This matter having come before the Court following resolution (through stipulation, decision, or trial) of all issues presented in the United States' Second Amended Complaint, and the Court having requested that the government prepare a form of judgment, and the government having prepared this form of JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE, and the government having utilized the procedures of Local Rule 58.1(c) to submit such form to the Court, and the Court having considered any written objections, it is hereby
ORDERED AND ADJUDGED as follows
1. Judgment is entered in favor of the United States and against William L. Comer and Myra Comer personally for the unpaid assessed balances of taxes and related interest and penalties set forth below:
Accrued Balance
Interest Due as of
Period of Type of Date of Assessed and June 27,
Tax Tax Assessment Amount Penalties 2000
__________ _________ __________ __________ __________ ___________
12/31/1982 Form 1040 01/17/1991 $ 1,070.50 $1,413.22 2,483.72
12/31/1983 Form 1040 01/17/1991 $19,897.95 $26,643.59 $46,541.54
plus additional interest pursuant to 26 U.S.C. sections 6601, 6621, and 6622 and 28 U.S.C. section 1961 (c) accruing after June 27, 2000, until paid;
2. Judgment is entered in favor of the United States and against any property of William L. and Myra Comer held by them as of their 1987 bankruptcy, including any property described in this judgment, for the unpaid assessed balances of taxes and related interest and penalties set forth below (the judgment for these amounts is expressly not against the Comers personally, for any personal liability of the Comers for such amounts was discharged in the Comers' 1987 bankruptcy proceeding):
Accrued Balance
Interest Due as of
Period of Type of Date of Assessed and June 27,
Tax Tax Assessment Amount Penalties 2000
__________ _________ __________ __________ __________ ___________
12/31/1976 Form 1040 06/28/1984 $17,299.50 $ 26,080.11 $ 43,379.61
12/31/1977 Form 1040 06/28/1984 $97,114.48 $132,334.44 $229,448.98
12/31/1985 Form 1040 06/02/1986 $ 1,683.50 $ 4,727.34 $6,407.84
plus additional interest pursuant to 26 U.S.C. sections 6601, 6621, and 6622 and 28 U.S.C. section 1961(c) accruing after June 27, 2000, until paid;
3. The land contract vendee's interest in the property described in paragraph 4 below is hold by the William L. Comer Family Equity Pure Trust as an alter-ego/nominee of William L. Comer and Myra Comer, and can be used by satisfy the liabilities of William L. Comer and Myra Comer.
4. William L. Comer and Myra Comer are the actual, sole and equitable owners of a land contract vendee's interest in the following described real property (hereinafter, the "Property"):
property located at 9260 Colonville Road, Clare, Michigan,
48617, more particularly described as follows:
That certain piece or parcel of land, with all the improvements
thereon, situated in the Township of Sheridan, County of Clare,
described as the N 1/2 of N.W. 1/4 and part of the N.W. 1/4 of
N.E. 1/4 lying west of Loomis Road, Section 27, T17N-R3W,
Sheridan Twp. Clare, County, Michigan, Excepting that part of
the N1/2 of N.W. 1/4 lying east of Loomis Road, Also excepting
commencing at the intersection of center line of Loomis Road and
North 1/8th line running east and west, thence west along the
1/8th line 12 rods, thence northerly parallel with said Loomis
Road 16 rods, thence east parallel with 1/8th line 12 rods,
thence southerly along center line of Loomis Road 16 rods to
point of beginning. Section 27, T17N-R3W, Sheridan Twp., Clare
County, Michigan. Excepting all oil, gas and mineral rights.
5. Of the land described in paragraph 4, above, a one-acre portion of it, described below, was acquired in fee simple by the William L. Comer and Myra Comer, acting through the William L. Comer Family Equity Pure Trust, on October 8, 1992, and then conveyed to Scott and Anne Comer on October 9, 1992, at a time when the United States had recorded tax liens, including alter/ego/nominee liens, against the property and rights to property of William L. Comer and Myra Comer. The property, referenced hereafter as the "One-acre Carve-out" is described as follows:
Part of the NE 1/4 of the NW 1/4, Section 27, T17N-R3W,
Sheridan Township, Clare County Michigan, described as:
Commencing East along the North Section line, 268.97 ft; thence
along the Centerline of Tobacco Drive on the following two
courses; S36 degrees 44 minutes 30 seconds W, 364.86 feet;
thence S34 degrees 08 minutes 25 seconds W, 476.24 feet from the
North 1/4 corner of said Section 27; thence continuing S34
degrees 08 minutes 25 seconds west, along said Centerline of
Tobacco Drive, 183.25 feet; thence N 89 degrees 57 minutes 57
seconds W, 286.94 feet; thence N 34 degrees 08 minutes 25
seconds E, 183.25 feet; thence S 89 degrees 57 minutes 57
seconds E, 286.94 feet back to the place of beginning.
Containing 1.0 Acres.
6. Scott and Anne Comer hold their interest in the One-acre Carve-Out subject to the tax liens of the United States.
7. Following the acquisition of the One-acre Carve-out, Scott and Anne Comer arranged for the placement of a modular home on the One-acre Carve-out. Following a trial held on this issue on July 19, 2000, this Court held that the modular home is a fixture that attaches to the One-acre Carve-out.
8. The United States' tax liens for the tax liabilities described in paragraphs 1 and 2 above attach to the Property and those liens are hereby ordered foreclosed. (Since the property described in paragraph 4 (the "Property") includes the One-acre Carve-out, any prior and subsequent references to the Property shall also be deemed to include the One-acre Carve-Out. The Main Parcel shall refer to that part of the Property that is not part of the One- acre Carve-out.)
9. A judicial sale of the Main Parcel shall occur, which sale will be conducted in accordance with the provisions of this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE. A judicial sale of the One-acre Carve-out shall also occur, except that the details of such sale (except as otherwise provided in this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE) shall be the subject of a further order after the interest, if any, of Conseco Finance in the One-acre Carve-out has been adjudicated.
10. The United States Marshal for the Eastern District of Michigan shall offer the Main Parcel for sale at public auction, free and clear of all liens and interests, such public sale to commence at a time and place to be announced by the United States Marshal, after first being advertised at least once a week for four consecutive weeks preceding the date fixed for sale in a daily newspaper of general circulation in Clare County, Michigan, and by such order notice as the United States Marshal deems appropriate. The proceeds of the sale are to be distributed as set forth in paragraph 12, below. The Main Parcel shall be offered for sale subject to confirmation by the Court, and upon such confirmation and receipt of the entire purchase price for such property, the United States Marshal shall deliver to the purchaser of the real property a quit claim deed for the property purchased. No bids (except a bid made by the United States) shall be accepted unless the same be accompanied by a certified check or cash deposit of $10,000 and (except as to the United States) the balance of the purchase price shall be tendered to the United States Marshal by the successful bidder within sixty days following the date of confirmation of the sale, in the form of a certified check or cash. If the successful bidder defaults in this requirement, the deposit made by the successful bidder shall be forfeited and retained by the United States Marshal as part of the proceeds of sale in the same manner as set forth herein. The United States may bid as a credit against its judgment without tender of cash; however, if it is the successful bidder, the United States shall pay to the United States Marshal the expenses of the sale. However, the amount to be paid by the United States shall not exceed the amount of the United States' successful bid.
11. In the event the United States Marshal is unable to sell the Main Parcel in accordance with the terms and conditions set forth in this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE, the United States Marshal shall again offer the Main Parcel for sale at a public auction, to be announced by the United States Marshal, after again being advertised at least once each week for four consecutive weeks preceding the date fixed for such sale in a daily newspaper of general circulation in Clare County, Michigan, and by such other notice as the United States Marshal shall deem appropriate. The notice of sale shall contain the terms and conditions of sale as set forth above.
12. The proceeds from the sale of the Main Parcel shall be distributed first to pay the expenses of the sale, and second in the following order and in the stated amount, together with interest as allowed by law.
First, to Cass Connolly, to satisfy his interest in the Main
Parcel that stems from his services as limited receiver and from
the lien he has on the Main Parcel resulting from his redemption
of the tax deed relating to the taxes for the 1995 tax year and
from his acquisition of the tax certificate for the 1996 tax
year. As of May 25, 2000, the amount Cass Connolly is entitled
to receive that relates to his receiver services is $1,093.00.
As of May 25, 2000, the amount Cass Connolly is entitled to
receive for the 1995 tax deed is $1,308.00 As of May 25, 2000,
the amount Cass Connolly is entitled to receive for the 1996 tax
certificate is $2,164.50. Interest shall not run on any of these
amounts.
Second, to Wayne Schulz, to satisfy his interest in the Main
Parcel that stems from his vendor's interest in the land
contract December 1, 1978. The United States, however, may
satisfy Wayne Schulz's interest in the Main Parcel by obtaining
a replacement check for the check for $25,967.47 that was
tendered to Schulz's counsel in January 1999 and proffering such
check to Schulz's counsel within 14 days of the entry of this
JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE by
the Court. (If the redemption check is tendered, Schulz must
provide contemporaneously an assignment of his position to the
United States). If the redemption check is not re-tendered
within such period, which may be extended by the agreement of
counsel for the government and Schulz, Schulz is entitled to
have his interest satisfied through from the proceeds of the
sale. As of April 1, 1998, the amount that Wayne Schulz is
entitled to receive is $23,787.91, and Schulz is entitled to
interest calculated at 11% per annum since that time.
Third, to the United States of America, which shall apply the
proceeds first (if necessary) to reimburse the IRS's revolving
fund for the redemption check issued to Schulz described above,
second to the liabilities described in paragraph 2 of this
JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE,
until such liabilities are fully satisfied, and third to the
liabilities described in paragraph 1 of this JUDGMENT, ORDER OF
FORECLOSURE, AND ORDER FOR A JUDICIAL SALE, until such
liabilities are fully satisfied.
Any remaining proceeds from the sale of the Main Parcel shall be
distributed to William L. and Myra Comer.
13. A copy of this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE shall be personally served upon any persons living on any of the structures on the Property (including the One-Acre Carve- Out) (or, if such persons cannot be served personally, by mailing a copy of this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE to any persons known to be living on the Property), and any such persons shall remove themselves and their possessions from the Property within 30 days from the date that they are served with this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE.
14. The minimum bid for the Main Parcel shall be set at $170,000.
15. Pending the sale of the Property (including the One-acre Carve-out), the United States Marshal is authorized to take possession of the Property and shall have free access to the Property and take all actions necessary to preserve the Property until the Property is delivered to a successful purchaser.
16. An entity that is not a party to this action, Conseco Finance, formerly Greentree Acceptance, may have a security interest in the modular home that presently is situated on the One-acre Carve- out. This interest may be superior to the United States' interest in the modular home. The United States is filing a motion to file a Supplement to the Second Amended Complaint that names Conseco Finance as a potentially interested party, and will attempt to enter into an agreement with Conseco Finance that controls how its interest in the modular home will be accommodated in conjunction with the sale of the property. If the United States can reach an agreement with Conseco Finance, the United States may proceed with a sale of the One-acre Carve-out under the same conditions that are described for the sale of the Main Parcel in this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE, except that the agreement with Conseco Finance shall control how the proceeds of the sale of the One-acre Carve-out are distributed. Such sale of the One-acre Carve-out may be done without the entry of any further order of the Court, and any references in this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE to the Main Parcel shall be deemed to apply to the One- acre Carve-out. Also, should an agreement with Conseco Finance be reached prior to the sale of the Main Parcel, the United States may, in its sole discretion, sell the Main Parcel and the One-acre Carve- out at the same time, either as separate parcels or as one unified parcel.
17. The United States' tax liens attach to the funds being held by the Clerk of the District Court as a result of the Stipulation Settlement Agreement received by the U.S. District Court Clerk's Office on June 10, 1998 in action with civil no. 97-CV-10406-BC (entitled Carl A. Koehn v. Myra L. Comer et al.). These funds shall be released to the United States, which shall apply the proceeds to the liabilities described in paragraph 2 of this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE, until such liabilities are fully satisfied, and then to the liabilities described in paragraph 1 of this JUDGMENT, ORDER OF FORECLOSURE, AND ORDER FOR A JUDICIAL SALE, until such liabilities are fully satisfied.
IT IS SO ORDERED.
Dated: 31 August 2000 Hon. Robert H. Cleland
United States District Judge
- Case NameUNITED STATES OF AMERICA, Plaintiff, v. WILLIAM L. COMER, MYRA COMER, WILLIAM L. COMER FAMILY EQUITY PURE TRUST, A/K/A WILLIAM COMER FAMILY TRUST, A/K/A WILLIAM L. COMER FAMILY TRUST, AS NOMINEE, TRANSFEREE AND/OR ALTER EGO OF WILLIAM L. & MYRA COMER, SCOTT COMER, ANNE COMER, WAYNE D. SCHULZ, CAROLYN F. SCHULZ, CASS CONNOLLY, DOYLE STEPHENS, THE STATE OF MICHIGAN DEPARTMENT OF TREASURY, AND THE CLARE COUNTY TREASURER, Defendants.
- CourtUnited States District Court for the Eastern District of Michigan
- DocketNo. 2:95CV76358
- JudgeCleland, Robert H.
- Cross-ReferenceUnited States v. William L. Comer, et al., No. 95-CV-76358-DT (July
- Parallel Citation86 A.F.T.R.2d (RIA) 2000-62102000 WL 15249202000 U.S. Dist. LEXIS 14353
- Code Sections
- Subject Area/Tax Topics
- Index Termsliens, enforcement
- Jurisdictions
- LanguageEnglish
- Tax Analysts Document NumberDoc 2000-25042 (9 original pages)
- Tax Analysts Electronic Citation2000 TNT 190-12