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United States of America v. Ebert G. Beeman

July 22, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EBERT G. BEEMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,

MEMORANDUM OPINION AND ORDER

This case was commenced on September 22, 2010 when the United States filed its complaint seeking, among other things, to reduce to judgment various assessments made against Defendant Ebert G. Beeman ("Ebert") for unpaid federal income taxes and statutory additions relative to tax years 1994, 1996, 1997, and 2002 through 2006. Apart from the foregoing relief, the complaint seeks to: (a) foreclose on the corresponding federal tax liens which the United States holds against certain real properties (referred to herein as the "Four Real Properties")*fn1 allegedly owned by Ebert, (b) sell the properties, and (c) distribute the proceeds in accordance with the rights of the parties, with amounts attributable to Ebert‟s interests to be paid to the United States in satisfaction of his unpaid federal tax liabilities. Finally, the Government seeks to (i) obtain a determination that certain entities controlled by Ebert are his nominees or alter egos and/or (ii) obtain a declaration that certain transfers relating to these properties were fraudulent transfers or sham transactions.*fn2

Aside from Ebert, the named Defendants in this action include Ebert‟s parents, Howard and Lillian Beeman, and two limited liability companies organized under the laws of New Mexico and wholly owned by Ebert -- to wit, Fifth Third Financial, LLC ("Fifth Third") and Autumn Frost, LLC ("Autumn Frost"). These parties were named as Defendants because it was thought by the Government that some or all of these Defendants might attempt to assert an interest in the Four Real Properties. In fact, each of the Four Real Properties is titled in the name of Defendant Fifth Third; however, the United States asserts that it is entitled to foreclose upon the properties because Fifth Third is merely Beeman‟s nominee.

Following the commencement of this action, summonses were issued and, along with the complaint, were served on all Defendants. Defendant Lillian Beeman was initially served on October 14, 2010, when she was personally given a copy of the complaint and summons at a bowling alley located in Waterford. (See Doc. No. [5].) Lillian Beeman subsequently filed an "answer" [15] in which she acknowledged residing at 777 Old State Road (one of the Four Real Properties at issue) but seemingly disclaimed any ownership interest in Ebert‟s properties. Lillian Beeman further indicated that, although she resides at 777 Old State Road, she receives her mail at 781 Old State Road (not one of the Four Real Properties at issue here).

According to the Government‟s proof of service, Howard Beeman was served, and Lillian Beeman was re-served, on November 5, 2010, when copies of the complaint and summonses for both Defendants were given to Lillian Beeman at 781 Old State Road. (See Doc. Nos. [17] and [19].) Howard Beeman failed to enter an appearance, file a pleading, or otherwise defend the action. Defendants Fifth Third and Autumn Frost similarly failed to properly enter an appearance, plead, or otherwise defend the action. Accordingly, defaults were entered against these Defendants on December 3, 2010 [21] pursuant to Fed. R. Civ. P. 55(a).*fn3

On June 30, 2011, this Court entered a Memorandum Opinion and Order [39] which disposed of various motions and, among other things, granted summary judgment in favor of the United States with respect to Count I of the complaint. In accordance with this ruling, a separate Order of Judgment [40] was entered that same date ordering, adjudging, and decreeing "that Defendant Ebert G. Beeman is indebted to the United States for unpaid income taxes for the taxable years 1994, 1996, 1997, and 2002 through 2006 in the amount of $2,124,396.80, as of November 15, 2010 with interest accruing after that date according to law until paid." (See Doc. No. [40].)

On July 6, 2011, this Court entered an order [43] certifying the June 30 Order of Judgment as a final, appealable judgment in accordance with Fed. R. Civ. P. 54(b).

A.

Still pending before the Court, however, is the United States‟ second motion for summary judgment [29] relative to Counts II through VI of the complaint. Count II of the Government‟s complaint seeks an order adjudging and decreeing: (i) that the United States has valid and subsisting federal tax liens on all of Ebert‟s property and rights to property, including his interest in the Four Real Properties; (ii) that any putative interests in the Four Real Properties on the part of Fifth Third, Autumn Frost, Howard Beeman, or Lillian Beeman are void; and (iii) that the federal tax lien attaching to Ebert‟s interest in the Four Real Properties be foreclosed upon and the proceeds applied toward Ebert‟s tax liabilities for the years in question. Count III seeks an order adjudging and decreeing that Fifth Third is the nominee or alter ego of Ebert Beeman. Counts IV and V seeks orders setting aside, respectively, Ebert‟s putative transfer of his interest in the Four Real Properties to Fifth Third and his transfer of a mortgage interest in the properties located at 12744 and 12752 Route 19 to Autumn Frost on the ground that these transfers were fraudulent. Count VI seeks an order adjudging and decreeing that the various transfers between Ebert and the other named Defendants are sham transactions and that Ebert is the true and sole owner of the Four Real Properties. In actuality, a grant of summary judgment in favor of the United States relative to Counts II and III of the complaint would render the remaining counts moot, as Counts IV through VI merely present alternative legal theories in support of the Government‟s case.

The Defendants were directed to respond to this second motion for summary judgment on or before March 17, 2011; however, no responsive documents have been filed to date by Defendants Howard Beeman, Lillian Beeman, Fifth Third, or Autumn Frost. Ebert Beeman also did not file any documents responding directly to the Government‟s second motion for summary judgment, although he did file a motion [32] and supporting briefs ([36] and [38]) directed at the Government‟s initial motion for summary judgment relative to Count I.

In my June 30, 2011 Memorandum Opinion and Order, I evaluated the merits of the United States‟ second motion for summary judgment in light of the record as it then stood. (See Mem. Op. dated 6/30/11 [39] at pp. 23-29.) I found that the evidence of record did not give rise to any genuinely disputed issue of material fact relative to the Government‟s request for summary judgment on Counts II and III of the complaint. Nonetheless, this Court indicated that it would defer entering judgment for a period of twenty (20) days, during which time Defendants Fifth Third and Autumn Frost would have to secure legal counsel if they wished to defendant the instant litigation. I also directed that Defendants Fifth Third, Autumn Frost, and Howard Beeman show cause, on or before the expiration of the twenty (20) days, why the Government‟s motion for summary judgment relative to Counts II and III should not be granted. I specifically indicated that failure by any of these Defendants to show cause as directed would be construed by the Court as an indication that said Defendant has no intention of defending this litigation.

Thereafter, on July 18, 2011, the Court received a letter [46] from an individual purporting to be Defendant Howard Beeman and stating as follows:

Ebert Beeman has never paid me for the property on Old State Road. As far as I‟m concerned it is still mine! He has paid the taxes and built things on this property, but he has never paid me the money he agreed to pay. I just learned about the action the United States government is attempting to take concerning my property on Old State Road through an article I read in the Erie Times News on 7/9/2011. I bought this property in the 1940‟s and Ebert Beeman never gave me a dime for it and now the government wants to steal it from me. It is not Ebert‟s property, it is mine. I have always paid my taxes and I want the government to leave my property alone.

Thank you for your time and protecting my property rights[.] (See Letter Response filed 7/18/2011 [46] at p. 1.) The ...


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