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Mundell Land and Livestock Company, Inc. v. Kenefick

United States District Court, E.D. California

October 14, 2014

MUNDELL LAND AND LIVESTOCK COMPANY, INC., Plaintiff,
v.
GEORGE GEOFFREY KENEFICK; UNITED STATES OF AMERICA; ASSET ACCEPTANCE, LLC; STATE OF CALIFORNIA FRANCHISE TAX BOARD, Defendants.

FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

This matter was before the court for hearing on plaintiff's motion for default judgment against defendants George Kenefick, Asset Acceptance, LLC, and State of California Franchise Tax Board.[1] ECF No. 20. Attorney James Freeman appeared on behalf of plaintiff; no appearances were made by any defendants. For the reasons stated below, the court finds that plaintiff is entitled to default judgment against George Kenefick, Asset Acceptance, LLC, and State of California Franchise Tax Board.

I. Background

Through the instant action plaintiff seeks to quiet title to real property located in Sacramento County. ECF No. 1 ¶ 1. The subject property is described as follows:

The south one-half of the northwest quarter of Section 15, Township 5 North, Range 7 East, M.D.M., described as follows:
Beginning at a point from which a 2-1/2" brass disk, being the common corner for Sections 9, 10, 16, and 15 T.5N, R.7E., also being the intersection of Borden and Alabama Roads; bears North 0 degrees 47 minutes 59 sections East 1345.66 feet; thence from said point of beginning South 0 degrees 47 minutes 59 seconds West 1345.67 feet along the West line of Section 15, also being the centerline of Alabama Road to the West quarter corner of said Section 15; thence North 89 degrees 29 minutes 53 seconds East 2645.28 feet to the center of Section 15; thence North 0 degrees 42 minutes 23 seconds East 1337.53 feet; thence South 89 degrees 40 minutes 20 seconds West 2642.93 feet to the point of beginning, and also described in that certain lot line adjustment recorded April 23, 1996, in Book 960423 Page 1132, Official Records.
APN: XXX-XXXX-XXX

Id. ¶ 3.

The property was previously owned by George Kenefick. Id. ¶ 4. International Credit Recovery, Inc. dba ICR ("ICR") obtained a judgment against Mr. Kenefick, and recorded an Abstract of Judgment on November 6, 2008, in the Sacramento County Official Records. Id. On March 28, 2011, ICR assigned its judgment to plaintiff. Id. ¶ 5. Plaintiff subsequently caused a writ of execution to be issued and levied upon the property. Id. On November 9, 2011, the Sacramento County Sheriff conducted an execution sale, and plaintiff was the highest bidder. Id. ¶ 6. The Sheriff executed and delivered a Sheriff's deed to the subject property to plaintiff. Id. The Sherriff's deed was recorded on November 15, 2011. Id. ¶ 7. Plaintiff now claims that it is the sole owner of the fee simple title of the subject property. Id.

Plaintiff seeks to quiet title against George Kenefick; State of California Franchise Tax Board, which has two liens against the subject property that were recorded on January 29, 2007 and November 22, 2011; the United States of America, which has a tax lien that was recorded on June 2, 2010; and Asset Acceptance, LLC, which has an Abstract of Judgment that was recorded on September 1, 2010. Id.

Plaintiff served the United States and State of California Franchise Tax Board by personal service on March 11, 2014. ECF No. 5, 6, 7. Plaintiff served defendant Asset Acceptance, LLC, by personal service on March 20, 2014. ECF No. 9. Defendant Kenefick completed a waiver of service of summons, which was filed on April 1, 2014. ECF No. 10.

On June 3, 2014, the United States filed an answer and counterclaim. ECF No. 12. The counterclaim seeks to foreclose a federal tax lien attached to the subject property. Id. at 3-7. The United States contends that it was never provided notice of the execution sale pursuant to 26 U.S.C. § 7425.

On June 9, 2014, plaintiff requested entry of default for George Kenefick, State of California Franchise Tax Board, and Asset Acceptance, LLC. ECF No. 13. The Clerk entered those defendants' default on June 10, 2014. ECF No. 14. On July 15, 2014, plaintiff filed the instant motion for default judgment, and noticed the motion for hearing on August 20, 2014.[2] The United States of America, although it has appeared in this action, failed to file an opposition or statement of non-opposition to ...


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