United States v. Fleming

          ORDER: (1) GRANTING DEFAULT JUDGMENT AGAINST DEFENDANT GLADDING; AND (2) DETERMINING PRIORITY OF INTERESTS AMONG THE PARTIES

          RAYMOND P. MOORE United States District Judge

         This matter is before the Court on the United States' “Supplemental Motion for Default Judgment against Defendant Lee Gladding” (the “Supplemental Motion”) (ECF No. 108) and United States' Request for Entry of Order of Sale (the “Request for Order”) (ECF No. 109) (collectively, “Second Motions”). The Second Motions were filed after the Court denied, without prejudice, the United States' initial motions concerning the same subject matter (collectively, the “First Motions”) (ECF Nos. 104, 105).^[1] No response or objection has been filed to the First or Second Motions. Upon consideration of the Second Motions, the court file, and the applicable rules and case law, and being otherwise fully advised, the Second Motions are GRANTED as stated herein.

         I. BACKGROUND

         The factual and procedural background which gives rise to the Second Motions is set forth in the Court's previous Order dated September 13, 2017 (the “First Order”) (ECF No. 103), so it will not be repeated here. In summary, as relevant here, in the First Order, the Court granted the United States summary judgment as against Defendants Fleming and Van Eden Corporation as to certain matters related to 2314 Van Eden Road, Idaho Springs, Colorado 80452^[2] (the “Subject Property”)^[3]; directed the United States to submit a proposed order of sale accounting for all priorities and stipulations as to the remaining Defendants with any existing interest in the Subject Property; and denied without prejudice the United States' request for default judgment as against Defendant Gladding for failure to direct the Court as to any appropriate relief it seeks through the entry of judgment. In response to the First Order, the United States filed the First Motions and, when those were denied without prejudice, then filed the Second Motions, the latter of which are at issue and ripe for determination.

         II. ANALYSIS

         A. Default Judgment Against Defendant Gladding

         As stated, the Court denied the United States' request for a default judgment against Defendant Gladding as it failed to advise the Court of the remedy sought. As alleged in the Amended Complaint, and supported by the evidence, Defendant Gladding may claim an interest in the Subject Property based on a promissory note and deed of trust given by Defendant Fleming on the Subject Property. (ECF No. 87-2, ¶12; No. 87-3, Exhibit 11.) The record shows that Defendant Gladding had an opportunity to respond to the complaint and present evidence in support of his interest, but did not do so. (E.g., ECF No. 87-2, ¶¶42, 43.) As such, in the Supplemental Motion, the United States requests the Court to enter default judgment against Defendant Gladding and to enter an order that any interest Defendant Gladding may have in the Subject Property is discharged. On this record, the Court finds sufficient evidence to support the relief requested. Accordingly, the Court finds that any interest Defendant Gladding has in the Subject Property is discharged and default judgment should enter accordingly.

         B. Priority of Liens and Order of Sale

         Priority of Liens. In order to effectuate the Court's First Order concerning the United States' tax liens on the Subject Property, the United States seeks an Order of Sale for the Subject Property. Before the Court can do so, it must first address the interests of the other parties in this case and/or their relative priorities in light of the record at hand.

         As to Defendant Van Eden Corporation, the Court has previously found that such defendant holds legal title to the Subject Property as the nominee of Defendant Patricia Fleming (First Order, page 22).

         As to Defendant Gladding, as stated herein, any interest he has in the Subject Property is discharged.

         As to Defendant Capital One Bank, pursuant to the United States and Capital One Bank's stipulation and this Court's subsequent Order of March 16, 2017, the Court has determined, as to the Subject Property, that (1) Capital One Bank's interest has priority over the United States' federal tax liens; and (2) Clear Creek County's tax liens have priority over Capital One Bank's interest. (ECF Nos. 90, 93.) The Court left some other issues open. However, in light of these parties' stipulation, to which no one has challenged over the course of this case, the Court accepts the additional stipulations (expressed or implied) as made between the parties, i.e., that Capital One Bank's lien is valid and remains in effect, and so finds.

         As to Defendant Colorado Department of Revenue, it has filed a Disclaimer of Interest and the United States has voluntarily dismissed the Department, without prejudice, from this case. (ECF Nos. 57, 71.)

         As to Defendant Clear Creek County, pursuant to the United States and Clear Creek County's stipulation and this Court's subsequent Order of November 25, 2015, the Court has determined that Clear Creek County's tax liens have priority over the United States' federal tax liens, but left some other issues open (ECF Nos. 36, 50). In light of these parties' stipulation, to which no one has challenged over the course of this case, the Court accepts the additional stipulations (expressed ...