Free Reply Brief - District Court of Delaware - Delaware

· Case 1 :99-cv-00787—GI\/IS Document 72 Filed 12/01 /2006 Page 1 of _
IN UNITED STATES DISTRICT COURT FOR THE -
I DISTRICT OF DELAWARE ` I
UNITED STATES OF AMERICA, ) n _ .
_ _ Plaintiff, ) . - ‘ ·
_ · v. ) Civil No. 99-C\/-787 .
ALBERT SCI-IOCK, et al., l ) _ 3
_ - _ Defendants. ) _
. REPLY IN SUPPORT OF THE UNITED STATES' MOTION FOR SUMMARY
. IQ DGMENT - U
-_ I The United States respectfully requests that the Court should grant its motion _ . l
U U for summary judginent and that judgment be entered (1) against Albert and _ _ l
( Woldemar Schock (“Schocks") declaring that Federal tax liens exist in favor of the
‘ U l United States against all property and rights to property of the Schocks, and their ` l n
l interests in 400 South Market Street, Wilmington, DE and 105 Cleveland Avenue, -
Newport, DE (the ”Real Properties”); (2) declaring that the Federal tax liens in favor of U l
the United States are superior to the interests, if any, of all the defendants in the-Real 1
Properties? and (3) foreclosing the Federal tax liens upon the Real Properties and _ (
ordering the sale of the Real Properties. U U
This Court determined in june of 2003 that the Schocks were liable for trust _
_ fund recovery penalties assessed against them. Further, the Court determined in April ( U U
of 2006 that Irma Schock, Alexandra Schock, Phillips & Snyder, Travelers Bank, and _
U ‘ Oewen Federal Bank, F.S.B. had no interest in the properties at issue in this case. The l -

I _ _ Case 1 :99-cv-00787—GI\/IS Document 72 Filed 12/01 /2006 Page 2 of 4
- last issues to be resolved were the three listed above. Accordingly, the United States
moved for summary judgment. _ .
. Defendants oppcse the motion for summary judgrnent On two grounds: (1) this
Court’s prior default judgment was-improper; and (2) laches. . . ‘
_ The grounds on which defendants contend the prior default judgment was I
‘ l improper are difficult to understand. The United States sought a determination of the
defendants' interest in the real properties. Wlhen they failed to respond, the United
j States obtained a default judgment declaring that the non-responding defendants did n _
j S not have an interest in the real properties. ln their present opposition, defendants
argue that obtaining the default judgment was improper because it constituted a
declaratory judgment, which the United States did not seek in its original complaint.
n The United States simply disagrees with the defendants on this issue. The United n
States sought a declaration of the rights of the defendants in the real properties, the
U - defendants failed to respond, so the United States sought and was granted a default
. judgment holding that the non-responding defendants· did not have an interest in the
real properties. In addition, defendants fail to explain why they did not oppose the
U request for default judgment when it was sought in September of 2005. l
The defendants assertion of laches is also misplaced. First, defendants assert
_ - no prejudice as a result of the delays. Second, laches is not a proper claim against the l
i United States. Costello v. United States, 365 U.S. 265, 281 (1961). -

‘ Case 1 :99-cv-00787—GI\/IS Document 72 Filed 12/01/2006 Page 3 of 4
The defendants have not raised any issues of material fact in their opposition to
the motion for summary judgment as required by Fed. R. Civ. P. 56. Thus, the United
‘ States requests that the Court grant its motion for surrunary judginent and order the
foreclosure of the Federal tax liens and they sale of the real property located at 400
. South Market Street, Wilmington, DE and at 105 Cleveland Avenue, Newport, DE. _
n Dated: November 30, 2006. Respectfully submitted,
1- - `COLM F. CONNOLLY _ _ U _
· United Stat Attorney t
‘ By: ( 7/: 7 é \
· PATRICIA HANNIGA I
· Assistant United States Attorney
` Delaware State Bar No. 2145 `
I - 1007 N. Orange Street; Suite 700 j
Wilmington, Delaware 19899—2046 T
BEATRIZ T. *0 IZ ` -
Trial Attorney, Tax Division y
U.S. Department of ]ustice I
P.O. Box 227 - - . `
Benjamin Franklin Station ‘ ‘ ‘
‘ Washington, D.C. 20044 I
- (202) 307-6585 l
. I 3 U

Case 1 :99-cv-00‘787—GI\/IS Document 72 Filed 12/01 /2006 Page 4 of 4
_ IN THE UNITED STATES DISTRICT COURT FOR TI—IE
DISTRICT OF DELAWARE
· UNITED STATES OF AMERICA,
Plaintiff, ) ‘
. ) ‘ -
v. ) Civil N0. 99-CV -787
) . .
- ALBERT SCHOCK, et al., )
Defendants. I )
I _ CERTIFICATE OF SERVICE I ‘
ITIS HEREBY CERTIFIED UNDER PENALTY OF PERIURY that service ofthe
foregoing REPLY IN SUPPORT OF THE UNITED STA'I`ES’ MOTION FOR SUMMARY
]UDGMENT has been made this 30* day of November, 2006, by depositing a copy
thereof in the United States mail, postage prepaid, addressed to:
I I l Henry A. Heiman, Esq;
702 King St., Suite 600
Wilmington, DE 19899
BEATRIZ SAIZ Ig _