Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kain

United States District Court, N.D. Indiana, Fort Wayne Division

October 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NORMAN E. KAIN, et al., Defendants.

          REPORT AND RECOMMENDATION

          Susan Collins United States Magistrate Judge

         This matter has come before the Court upon Plaintiff United States' Motion for Appointment of Receiver and Order of Sale. (DE 51). After the United States filed the instant motion, Defendant Norman E. Kain responded by filing a notice (DE 52), and returning to the Court a copy of the United States' motion and the attached exhibits that had been mailed to him (DE 53). On October 2, 2017, District Judge Phillip Simon designated the undersigned Magistrate Judge to issue a report and recommendation on the United States' motion pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b). (DE 54).

         Norman E. Kain's filings in response the United States' motion lack merit. It is difficult to discern Norman E. Kain's meaning in the “Notice and Demand for Set Off of Case, ” but he appears to deny the Court's authority to enter a judgment levying his property, and to demand that a private bond “set off” the judgment against him pursuant to U.C.C. §§ 501-11. (DE 52). Similarly, by returning and refusing to accept the copy of the United States' motion that he received, Norman E. Kain, again, appears to refute the legitimacy of the judgment against him. (DE 53). However, as the Court has admonished Norman E. Kain several times, the Court properly exercises jurisdiction over him and he must accept the Court's judgment. (E.g., DE 48; DE 43). Further, U.C.C. §§ 501-11 is not relevant to this matter because the United States brings its motion under 26 U.S.C. §§ 7402(a) and 7403(d). In fact, District Judge Simon has cautioned Norman E. Kain several times not to file these types of nonsensical notices. (E.g., DE 48; DE 43; DE 36).

         Accordingly, the undersigned Magistrate Judge recommends the United States' motion be GRANTED and that the following form of Order be entered:

         I. APPOINTMENT OF A RECEIVER AND EVICTION

         1. Jody Holloway of Coldwell Banker Holloway, located at 1103 South Main Street, Bluffton, Indiana, is appointed as Receiver, without bond, for the purposes of assisting in the enforcement of the federal tax liens against a certain parcel of real property located in Bluffton, Indiana, pursuant to 26 U.S.C. §§ 7402(a) and 7403(d), and is directed to take custody and arrange for the sale of such real property parcel located at 632 South Main Street, Bluffton, Indiana (the “Real Property”), the legal description of which is as follows:

Part of the Southeast quarter of Section Four (4), in Township Twenty-six (26) north, range Twelve (12) east, bounded and described as follows, to-wit: Commencing at a point where the South line of the alley running East and West along the South line of Townley & Silver's South Addition intersects the West line of Main Street in the city of Bluffton, and running thence South along the West line of Main street in said city 97 feet to a stone post, thence West to the East line of Johnson Street, in the city of Bluffton, thence North along the East line of Johnson street 92 feet to the south line of the Alley above described, thence East long the south line of said Alley 295 feet to the place of beginning.

         The Receiver is authorized and directed to arrange for the sale of the Real Property free and clear of any rights, titles, claims, liens, or interests of any of the parties to this action, with no right of redemption, and with the proceeds of the sale to be distributed to the United States towards the tax debts of Norman E. Kain described in this Court's Opinion and Order (DE 36), and the Amended Clerk's Entry of Judgment (DE 38), after the payment of the costs of the sale and any outstanding real estate taxes due and owing, as well as taking into account the liens of the State of Indiana, as more fully set forth in the Stipulated Order Regarding Lien Priority and Agreed Final Judgment (DE 49).

         2. The Receiver shall have the authority to arrange for the sale of the Real Property, subject to confirmation by this Court, in any manner approved by the United States. The Receiver shall also be vested with the authority to enter in his own name any and all documents necessary to effectuate the sale of the Real Property including, but not limited to, land sales contracts, rental agreements, escrow agreements, closing agreements, deeds, and residential property sales listings. The terms of any purchase agreement shall include the balance of the purchase price paid in cash, cashier's check, or certified check at closing, and may include an earnest money deposit, in an amount to be approved by the United States, forfeitable upon the purchaser's failure to perform, unless the United States has approved a contingency that allows for the refunding of an earnest money deposit and that contingency comes to pass. The closing for any parcel shall not occur until after the sale for such parcel has been confirmed and authorized by further order of this Court. At closing, the purchaser or purchasers shall receive a quitclaim or receiver's deed to the Real Property, without any warranties, executed by the Receiver under the authority of this Court.

         3. The Receiver shall have all of the rights and powers necessary to fulfill the Receiver's obligations under this Order, specifically including, but not necessarily limited to the power to, enter onto the Real Property, to retain the services of a locksmith in order to gain access into and to secure the Real Property, to advertise the sale of the Real Property, to take any action reasonably necessary to protect and preserve the value of the Real Property prior to sale, and to put the Real Property into saleable condition, including making expenditures of funds that are first approved by the United States for reasonable and necessary maintenance and improvements, including, but not limited to, the purchase of property and liability insurance, with the Receiver's expenses (other than advertising expenses and other expenses customarily borne by a real estate agent working for a customary sales commission) to be reimbursed with priority over all claims.

         4. The Receiver shall be authorized to collect rent on the Real Property pending a sale of the Real property, and may apply the rent to property taxes that become due and owing, and to his reasonable and necessary expenditures (that were first approved in writing by the United States) to protect and preserve the Real Property's value. The Receiver shall hold any remaining rent in escrow and treat such amounts as sale proceeds.

         5. The Receiver is required to submit progress reports to the Court every ninety days from the date of this Order until there is a final confirmation of sale.

         6. The Receiver shall be compensated from the proceeds of the sale of the Real Property as follows: (a) in an amount equal to six (6) percent of the gross sale proceeds, (b) reimbursed for his reasonable and necessary expenditures to protect and preserve the value of the Real Property that was first approved by the United States; and, (c) for his Receiver's fee of $125.00 per court appearance. Any commission payable to a buyer's real estate agent shall be payable from the Receiver's six-percent compensation (unless modified by further Court order).

         7. All persons occupying the Real Property are hereby ordered to leave and vacate the Property permanently within sixty (60) days of the date of this Order, at 12:00 o'clock noon of such day, each taking with them his or her personal property (but leaving all improvements, buildings, fixtures, and appurtenances to the Real Property). If any person fails or refuses to leave and vacate the Real Property by the time specified in this Order, the United States Marshal's Service is authorized to take whatever action it deems appropriate to remove such person from the premises. Specifically, the United States Marshal (or his/her designee) is authorized and directed to take all actions necessary to enter the Real Property at any time of the day or night and evict and eject all unauthorized persons located there, including Norman E. Kain and Sally A. Kain, and any occupants. To accomplish this and to otherwise enforce this Order, the United States Marshal shall be authorized to enter the Real Property and any and all structures and vehicles located thereon, and to use force as necessary to accomplish this mission. The United States Marshal is further authorized, if necessary, to physically remove all unauthorized persons and as set forth below, unauthorized personal property from the Real Property. When the United States Marshal concludes that all unauthorized persons have vacated, or been evicted from the Real Property, he or she shall relinquish possession and custody of the Real Property to the Receiver, or her designee, and secure the property by changing the locks on all access doors to the Real Property. Should Norman E. Kain or Sally A. Kain, or any other unauthorized persons attempt to re-enter the Real Property during the time this Order is in effect, said persons may and shall be ejected by the United States Marshal without further order of the Court, and said person shall be found in contempt of this Order of the Court, which may subject that person to fine, incarceration, or both.

         8. If any person fails or refuses to remove his or her personal property from the Real Property by the time specified herein, including after any unauthorized person is required to be physically removed by the United States Marshal, the personal property remaining on the Real Property thereafter is deemed forfeited and abandoned, and the United States Marshal's Service or the Receiver is authorized to remove it and to dispose of it in any manner it or he deems appropriate, including sale, in which case the proceeds of the sale are to be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.