United States v. Neal

255 F.R.D. 638, 103 A.F.T.R.2d (RIA) 643, 2008 U.S. Dist. LEXIS 107768, 2008 WL 5662531
CourtDistrict Court, W.D. Arkansas
DecidedDecember 30, 2008
DocketCiv. No. 07-03061
StatusPublished
Cited by2 cases

This text of 255 F.R.D. 638 (United States v. Neal) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Neal, 255 F.R.D. 638, 103 A.F.T.R.2d (RIA) 643, 2008 U.S. Dist. LEXIS 107768, 2008 WL 5662531 (W.D. Ark. 2008).

Opinion

MEMORANDUM OPINION AND ORDER

ROBERT T. DAWSON, District Judge.

Currently before the Court is the Motion for Summary Judgment filed by the United States on December 9, 2008. (Doc. 34). The United States asks the Court (1) to reduce to judgment the unpaid tax assessments made by the United States against Fred Neal, Jr. and Doris Neal; (2) to determine that federal tax liens against Fred and Doris Neal attach to certain real property located in Boone County, Arkansas; (3) to determine that any transfers of the subject property were fraudulent in nature under Arkansas law or, in the alternative, that said transfers were merely to a nominee or alter ego of Fred and Doris Neal; and (4) to order foreclosure of federal tax liens against the property. Neither Fred nor Doris Neal responded to the United States’s Motion. For the reasons recited herein, _ the United States’s Motion is GRANTED.

On November 14, 2008, Defendant Munck Carter (“MC”) filed a crossclaim against Fred Neal, individually and as Trustee of the Fred Neal, Jr. Revocable Trust; Doris Neal, individually and as Trustee of the Doris Neal Revocable Trust; and John H. Sinclair as Trustee of Deep Water Designs. (Doc. 31). The Cross-Defendants failed to answer this crossclaim. Currently before the Court is MC’s Request for Clerk to Enter Default against Cross-Defendants on Cross-Claim (Doc. 43) and its Motion for Default Judgment against Cross-Defendants on Cross-Claim. (Doc. 44). MC seeks foreclosure of its judgment lien against the real property of Fred and Doris Neal in Boone County, Arkansas. MC concedes that its claim is subordinate to the federal tax liens of the United States. For the reasons recited herein, MC’s Motion is GRANTED.

I. Standard

A. Summary Judgment

In determining whether summary judgment is appropriate, the facts and inferences from the facts are viewed in the light most favorable to the non-moving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nat’l. Bank of Commerce of El Dorado, Arkansas v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). Once the moving party demonstrates that the record does not disclose a genuine dispute on a material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed R. Civ. P. 56(e).

B. Default Judgment

Under Federal Rule of Civil Procedure 12(a)(1)(B), “[a] party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.” Federal Rule of Civil Procedure 55(a) states that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” The power to enter a default judgment also rests with the district court. Fed.R.Civ.P. 55(b)(2). Accordingly, a cross-defendant’s failure to comply with Rule 12(a)(1)(B) results in the entry of default judgment under Rule 55(b).

II. Background

“An allegation — other than one relating to the amount of damages — is admitted if a responsive pleading is required and the allegation is not denied.” Fed.R.Civ.P. 8(b)(6). [641]*641In the “Response to Summons and Complaint,” or Answer, filed by Fred and Doris Neal, each states that “[t]here is no dispute with any of the facts in the instant matter.” (Doc. 2, p. 1 & Doc. 7, p. 1). Accordingly, under Federal Rule of Civil Procedure 8 and for the purposes of summary judgment, the Neals have admitted the allegations in the Complaint (Doe. 1) filed by the United States. Fed.R.Civ.P. 56(c). The following facts are undisputed except where otherwise noted.

1. The Neals reside at 8708 Tar Kiln Road, Harrison, Arkansas 72601.

2. Fred Neal is the agent and trustee of the Fred Neal, Jr. Revocable Trust.

3. Doris Neal is the agent and trustee of the Doris Neal Revocable Trust.

4. John H. Sinclair resides at 12395 Cobb Road, Omaha, Arkansas 72662.

5. Mr. Sinclair is trustee of Deep Water Designs. He was named as a Defendant because Deep Water Designs may claim an interest in the real property at issue in the present case. Mr. Sinclair has stated that he asserts no interest in the property in question. (Doc. 11).

6. The Fred Neal, Jr. Revocable Trust, Doris Neal Revocable Trust, and Deep Water Designs are sham trusts and nominees used by the Neals to shelter and hide assets from creditors.

7. On December 20,1991, the Neals purchased real property located in Boone County, Arkansas.

8. The legal description of this property is as follows:

The West Half of the Northwest Quarter; all that part of the Northeast Quarter of the Northwest Quarter lying West of County Road No. 45; all in Section Four (4), Township Nineteen (19) North, Range Eighteen (18) West, Boone County, Arkansas.
The East Half of Section Five (5); Township Nineteen (19) North, Range (18) West, Boone County, Arkansas.
The South Half of the Southeast Quarter of Section Thirty-two (32), Township Twenty (20) North, Range Eighteen (18) West, Boone County, Arkansas.
The West Half of the Southwest Quarter; all that part of the East Half of the Southwest Quarter lying west of County Road No. 45; all in Section Thirty-three (33), Township Twenty (20) North, Range Eighteen (18) West, Boone County, Arkansas. Also conveyed herewith is an Easement for septic tank drain field in a part of the Southwest Quarter of the Northwest Quarter of Section 33, Township 20 North, Range 18 West, and an Easement of unrestricted view in the Southwest Quarter of the Northwest Quarter of Section 33, Township 20 North, Range 18 West, as both Easements are described in Warranty Deed, dated February 17th, 1981, filed February 18, 1981, recorded in Deed Record 186, page 371.

9. On January 24, 1994, the Neals conveyed this property to themselves as tenants in common. That day, Mr. Neal conveyed his interest in the property to the Fred Neal, Jr. Revocable Trust. Also on January 24, 1994, Ms. Neal conveyed her interest to the Doris Neal Revocable Trust.

10.

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255 F.R.D. 638, 103 A.F.T.R.2d (RIA) 643, 2008 U.S. Dist. LEXIS 107768, 2008 WL 5662531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-neal-arwd-2008.