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United States of America v. Deonne Dubarry; Daniel E. Becnel

June 20, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DEONNE DUBARRY; DANIEL E. BECNEL, III; BANK OF AMERICA, N.A.; SESSIONS FISHMAN NATHAN & ISRAEL LLP; FRED BERTAINI; AND LARAINE BERTAINI, DEFENDANTS.



The opinion of the court was delivered by: M. Casey Rodgers United States District Judge

FORECLOSURE JUDGMENT AND ORDER OF SALE

On June 10, 2011, the court entered an order adopting the magistrate judge's Report and Recommendation (doc. 93). The plaintiff has filed a motion requesting that the court amend or correct its order (doc. 95). Specifically, the plaintiff requests that the court correct a clerical mistake to reflect the proper address of the property to be sold in foreclosure.*fn1 The plaintiff also requests that the court modify its order to include directions regarding the sale of the property, as set forth in the magistrate judge's Report and Recommendation (doc. 91). Because of the error in the adopting order, the court hereby vacates it (doc. 93) and enters the following order and judgment:

1. The United States has a valid and subsisting tax lien against defendant Deonne DuBarry in the sum of $584,549.27, as of April 18, 2011, plus interest and any statutory additions thereon, and the tax lien against Deonne DuBarry can be foreclosed and the real property described in paragraph 2, below, can be sold in its entirety pursuant to 26 U.S.C. § 7403 and 28 U.S.C. § 2001.

2. The federal tax lien encumbers the real property that is located in Okaloosa County, Florida and bears the street address of 4610 Paradise Isles, Destin, Florida 32541 (hereinafter, "the Subject Property"), more particularly described as:

Lot 101, Destiny, a planned unit development, according to the plat thereof as recorded in Plat Book 14, at pages 60-63, of the Public Records of Okaloosa County, Florida.

3. The Property Appraisal and Liquidation Specialists ("PALS") of the Internal Revenue Service ("IRS") are hereby authorized under 28 U.S.C. §§ 2001 and 2002 to offer for sale at public auction the real property described in paragraph 2 above, with any improvements, buildings, and appurtenances thereunto pertaining. The sale of the property shall be free and clear of the interests of Bank of America, N.A., the United States of America, Fred and Laraine Bertani, Daniel E. Becnel, III, and Deonne DuBarry.

4. The public auction referred to in paragraph 3, above, shall be held either on the premises themselves or at another location in Okaloosa County in accordance with the provisions of 28 U.S.C. § 2001, the time thereof to be announced by the IRS, after the respective property is advertised once a week for four consecutive weeks preceding the date fixed for its sale in a daily newspaper of general circulation in Okaloosa County, and by any other notice that the IRS in its discretion may deem appropriate.

5. Any rights, title, liens, claims, or interests in the Subject property described in paragraph 2 above of parties to this action and any of their successors, heirs, or assigns shall be discharged upon sale of the property and confirmation of the sale, as described in paragraph 3 above and paragraph 13 below.

6. The minimum bid for the property will be set by PALS. If the minimum bid is not met or exceeded, PALS may, without further permission of this Court and under the terms and conditions of this Foreclosure Judgment, hold a new public sale and reduce the minimum bid or, alternatively, sell to the highest bidder.

7. The successful bidder(s) shall be required to deposit with the IRS a minimum of twenty (20) percent of the deposit of his or her bid by certified or cashier's check made payable to the "United States District Court for the Northern District of Florida." Before being permitted to bid at the sale, bidders shall display to the IRS 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.

8. The balance of the purchase price for the Subject property shall be tendered to PALS by the successful bidder within thirty (30) days following the date of sale in the form of a certified or cashier's check payable to the "United States District Court for the Northern District of Florida." In the event the successful bidder defaults on any deposit requirement or in payment of the balance of the purchase price, the deposit made by the successful bidder shall be forfeited and applied as part of the proceeds of sale, including but not limited to covering any expenses of sale, and the real property shall be re-offered for sale in the same manner as provided herein for the initial sale or, alternatively, sold to the second highest bidder.

9. Pending the sale of the Subject Property, PALS is authorized to have free access to the premises and to take any and all actions necessary to preserve the premises until the deed to the property is delivered to the ultimate purchaser of the property.

10. The sale is made pursuant to 28 U.S.C. § 2001 and is made without right of redemption.

11. Until the Subject Property is sold, defendant Deonne DuBarry shall take all reasonable steps necessary to preserve the property (including all buildings, improvements, fixtures, and appurtenances to the property) in its current condition, including, without limitation, maintaining fire and casualty insurance policies on the property and providing proof of such when requested by PALS. DuBarry shall neither commit waste against the Subject Property nor cause or permit anyone else to do so. DuBarry shall neither do anything that tends to reduce the value or marketability of the Subject Property nor cause or permit anyone else to do so. DuBarry 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 ...


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