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United States v. Koelzer

February 26, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARK A. KOELZER; PAULA KOELZER D/B/A PAULA J. KOELZER; AND STATE OF NORTH DAKOTA, D/B/A OFFICE OF STATE TAX COMMISSIONER, DEFENDANT.



The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT

The above-entitled matter came before the Court at Bismarck, North Dakota, on February 23, 2009, upon application of Drew H. Wrigley, United States Attorney for the District of North Dakota, and Kent Rockstad, Assistant United States Attorney, attorneys for the United States, for entry of default judgment as to the defendants, Mark A. Koelzer, Paula Koelzer, a/k/a Paula J. Koelzer, and State of North Dakota, d/b/a Office of State Tax Commissioner. Evidence was presented for and on behalf of the United States in support of its application, and no one appeared for, or on behalf of the defendants.

The above-entitled action was commenced by the plaintiff acting under the direction of the Attorney General of the United States of America, and was brought under the provisions of Title 28, United States Code, Section 1345, against the above-named defendants. The action was regularly and duly commenced by the filing of a complaint in the office of the Clerk of Court. The defendants, Mark A. Koelzer, Paula Koelzer, a/k/a Paula J. Koelzer (Paula Koelzer), and State of North Dakota, d/b/a Office of State Tax Commissioner, have been duly and regularly served with the complaint pursuant to the Federal Rules of Civil Procedure, and the time for answering has expired as to the defendants. The defendants have failed to appear or answer in these proceedings, and are in default.

Now, upon the evidence adduced by the United States and upon due consideration of all matters pertaining to the record, the Court makes the following:

FINDINGS OF FACT

FIRST CAUSE OF ACTION

1.

On or about October 2, 1984, Curtis H. Johnson and Nannette M. Johnson, for value received, made, executed, and delivered to the United States their Promissory Note in writing, in which they promised to pay the United States the sum of $41,000.00 plus interest on the unpaid balance at the rate of 11 7/8 percent per annum.

2.

To secure the balance due and owing on the Promissory Note, Curtis H. Johnson and Nannette M. Johnson made, executed, and delivered to the United States, a real estate mortgage on or about October 2, 1984, in which they granted, bargained, sold, and conveyed by mortgage to the United States, the following-described real estate situated in the County of McLean, State of North Dakota:

Lot 2, Block 2, Bicentennial Addition to the City of Garrison, North Dakota.

This mortgage was recorded in the office of the County Recorder of McLean County, North Dakota, on October 2, 1984, in Book B-105 of Mortgages, Page 455, as Document No. 297699.

3.

On or about January 21, 1993, Mark A. Koelzer and Paula Koelzer, a/k/a Paula J. Koelzer (Paula Koelzer), signed an Assumption Agreement, assuming the Promissory Note, and real estate mortgage described above. Pursuant to the terms of the agreement, Mark A. Koelzer and Paula Koelzer assumed liability for, and agreed to pay to the United States, the principal sum of $38,683.42 plus interest on the unpaid balance at the rate of 7.75 percent per annum.

4.

The defendants, Mark A. Koelzer and Paula Koelzer, have defaulted in the payment of the assumption agreement, secured by the mortgage listed above, in that they have failed to make timely payments of principal and interest.

5.

There is now due and owing on the indebtedness evidenced, principal in the sum of $31,453.29, and for protective advances made for payment of appraisal, fees, late charges, and escrow which include taxes and insurance, principal in the sum of $7,747.09, and interest to February 10, 2009, of $3,201.05, with interest accruing thereafter until the date of judgment at the daily rate of $8.2165, together with costs and disbursements of this action in the amount of $374.00, making a total of $42,775.43, plus prejudgment interest, ...


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