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United States v. Gunter M. Zielke

March 5, 2012

UNITED STATES
v.
GUNTER M. ZIELKE, ET AL.



The opinion of the court was delivered by: The Honorable Philip S. Gutierrez, United States District Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez Not Present n/a

Deputy Clerk Court Reporter Tape No.

Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present

Proceedings: (In Chambers) Order Denying Defendant's Ex Parte Request for a Temporary Restraining Order

Before the Court is Defendants' ex parte application for an emergency stay. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. Having considered the papers submitted in support of the application, the Court DENIES the application.

Background

On December 14, 2011, the Court adopted Plaintiff the United States of America's Proposed Judgment and Order of Sale. See Dkt. # 163. That Order recognized Defendants Gunter and Prapapun Zielke's outstanding income tax liabilities in the amounts of $27,141.27 and $27,782.29 respectively, set aside the fraudulent or nominee transfer of real property commonly known as 8801 Riderwood Drive, Sunland, California 91040 from the taxpayers to Alpha Beta Gamma Trust, and foreclosed the federal tax lien against the taxpayers' interest in the subject real property. See id. The Order of Sale provides that notice of sale shall be published once a week for at least four weeks prior to the sale in at least one newspaper regularly issued and of general circulation in Los Angeles County, California. See id.

On January 17, 2012, the Court struck several motions filed by the Defendants, including a motion to alter and amend the December 14 Order. Defendants filed a notice of appeal on February 13, 2012, appealing both the December 14 Order and the order striking Defendants motion for reconsideration. See Dkt. 173. Finally, on Monday, March 5, 2012, Defendants filed the present ex parte application for an emergency stay of the foreclosure sale which Defendants contend is scheduled to take place at 11 am tomorrow morning, on Tuesday, March 6. The application is made on the grounds that the lis pendens, "at least if coupled with the judgment lien," adequately secures the United States' judgment, and because Defendants are entitled to a stay as of right upon the posting of a supersedeas bond in accordance with Fed. R. Civ. P. 62(d). See App.

Legal Standard

The law on ex parte applications is well-settled in this circuit. In order to justify ex parte relief, the moving party must establish (1) that its cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures, and (2) that it is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect. See Mission Power Eng'g Co. v. Continental Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995).

Discussion

Defendants' application fails because they have not shown they are without fault in creating the crisis requiring ex parte relief. Defendants clearly were aware of the Court's December 14 Order foreclosing the United States' federal tax lien against their interest in the property; indeed, they filed motions for reconsideration and appealed the Court's determination. Nonetheless, while the Court denied the motion for reconsideration on January 17 and Defendants noticed their appeal on February 13, Defendants never filed a motion pursuant to Rule 62(d) asking the Court to set a supersedeas bond amount. Under the terms of the December 14 Order, the United States was required to publish the sale date once a week for at least four weeks prior to the sale. Defendants do not argue that Plaintiffs failed to provide this notice. They admit that they were aware of the pending sale, see App. 4:23-25, but claim their delay was due to the ...


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