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Michael Love v. United States

November 8, 2011



THIS CAUSE is before the Court upon the Report and Recommendation of United States Magistrate Judge Barry S. Seltzer [DE 42] ("Report") regarding the United States' ("Government's") Motion to Dismiss [DE 34]. Pursuant to 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of the record herein, including the Report, the Amended Complaint [DE 8], the Motion to Dismiss, Plaintiff's Response [DE 39], the Government's Reply [DE 40], and Plaintiff's Objections to the Report [DE 43], and is otherwise fully advised in the premises.


Plaintiff Michael Love filed this action on November 22, 2010. See Complaint [DE 1]. The action arises out of the sale of the real property that was at issue in another case, United States v. Evangelos Lena, et al., No. 05-80669-Zloch (S.D. Fla. filed on July 25, 2005) ("Lena"). In his Report, Judge Seltzer recounts the facts of Lena as follows:

[T]he United States (hereinafter "the Government") brought suit to reduce to judgment the unpaid federal tax liabilities assessed against Evagelos Lena and Joanne Lena and to foreclose its federal tax liens. To satisfy the federal tax liens, the Government also sought the sale of certain real property located at 217 Bilbao Street, West Palm Beach, Florida, and described more fully as follows: "Lot 49, Block "K," LA MANCHA, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 29, Pages 165 through 170, inclusive" (the "subject property"). Amended Complaint at 2 (05-80669, DE 96). The District Court subsequently entered a Final Judgment against the Lenas and ordered the tax liens against their property foreclosed. (05-80669, DE 153).*fn1 Thereafter, the District Court authorized the sale of the subject property at public auction by the IRS's Property and Liquidation Specialists ("PALS") (05-80669, DE 186). The Court directed IRS PALS to publish a notice of the sale (for four consecutive weeks) in a newspaper of general circulation in Palm Beach County. With respect to the terms of the sale, the Court ordered:

At the time of the sale, the successful bidder(s) shall deposit with PALS, by cash or certified or cashier's check payable to the United States District Court for the Southern District of Florida, a minimum of twenty (20) percent of the bid. Before being permitted to bid at the sale, potential bidders shall display to PALS proof that they are able to comply with this requirement. No bids will be accepted 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 amended order of sale.

January 21, 2010 Order at ¶ 12 (05-80669, DE 186). The successful bidder was required to pay the balance of the purchase price to the Clerk of the Court by a certified check within 30 days of the sale. Id. at ¶ 13. On August 4, 2010, PALS sold the subject property for $110,000. And on October 12, 2010, the District Court entered an Order Confirming Sale, directing PALS to convey the subject property to the purchaser at the foreclosure sale and to distribute the proceeds of the sale according to the priorities set forth in the Court's prior Order of Sale. August 4, 2010 Order (05-80669, DE 194). Rep. at 1-3.

In this action, Plaintiff alleges that he bid on the subject property in the amount of $350,000. Am. Compl. at 3. Though he was aware that the terms of the sale required payment by certified check or cash deposit, he attached a promissory note and a "novation" to his bid instead of a certified check or cash. Id.

On August 11, 2010, Plaintiff sent a letter inquiring as to the status of the sale, and on August 27, 2010, a representative from IRS PALS responded that on August 4, 2011, the property had been sold to the highest bidder for $110,000. Id. at 3-4. The IRS PALS' response also "mentioned the return of the letters and forms due to the failure to conform with the terms of the sale which 'included having a check made out to the U.S. District Court of the Southern District of Florida.'" Id. at 3.

The Amended Complaint further alleges that on September 2, 2010, Plaintiff sent a "Conditional Acceptance" to IRS PALS indicating that he was "willing to accept the IRS PALS response" if it provided certain Proofs of Claim within 30 days. Plaintiff stated in his "Conditional Acceptance" that IRS PALS' failure to provide the Proofs of Claim would "constitute IRS PALS full acceptance" of the following:

1) The old obligation being payment of bid by certified check or cash was extinguished from tacit acceptance of new obligation being payment of bid by commercial paper. Furthermore, this tacit acceptance of new obligation with intent to extinguish the old obligation constituted a "Novation."

2) Tacit agreement to receive note as payment constituted payment of bid, and if bidder was the successful bidder, property would be transferred accordingly, and if not, return of bid to bidder in any form of payment including legal tender, regardless if note was paid or not.

3) Since commercial paper was accepted, and then refused, by way of sending original note back to maker there is discharge to the amount of the commercial paper.

Id. at 5-6.

In his "Relief Sought," Plaintiff states, "Based on the above stated facts, as I MICHAEL LOVE, am the true purchaser and should hold true title to said property, I now request this Court to ...

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