Hansen v. Black
| Decision Date | 13 March 2015 |
| Docket Number | Case No. 2:13-cv-736-RJS-PMW |
| Parties | TAMRA I. HANSEN, Plaintiff, v. DARLA BLACK, ERIC SMITH, and UNITED STATES OF AMERICA, Defendants. |
| Court | U.S. District Court — District of Utah |
REPORT AND RECOMMENDATION
District Judge Robert J. Shelby referred this case to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).1 Before the court is Defendant United States of America's ("Defendant") motion for summary judgment.2 The court has carefully reviewed the written materials submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court has concluded that oral argument is not necessary and will determine the motion on the basis of the written materials. See DUCivR 7-1(f).
At the outset, the court notes that Plaintiff Tamra "Dolly" Hansen ("Plaintiff") is proceeding pro se in this case. Consequently, the court will construe her pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
Plaintiff's operative amended complaint contains a single cause of action, wrongful levy against a third party - 26 U.S.C. § 7426.3 Plaintiff alleges that in the process of levying on Plaintiff's husband's property to satisfy part of significant unpaid federal income taxes, Defendant wrongfully took a Mercedes SLK 300 (the "Mercedes") that belonged to her.
Plaintiff is the wife of L. DeLynn Hansen. Between 2004 and 2013, the Internal Revenue Service ("IRS") recorded Notices of Federal Tax Lien ("NFTLs") against Mr. Hansen in Utah County for unpaid taxes going back to 1998. The total value of liens against Mr. Hansen recorded between 2004 and 2013 exceeded $350,000. Plaintiff has been aware of the federal tax liens against her husband since at least 2005.4
In March 2011, Mr. Hansen used cash to purchase a Mercedes SLK 300. In deposition testimony, discovery responses, and declarations, Plaintiff and Mr. Hansen stated that Mr. Hansen purchased the car as a Valentine's Day gift for Plaintiff. See, e.g., Docket no. 43-1, ¶¶ 1, 8 (T. Hansen Decl.) ( ) (errors in original); Docket no. 43-1, ¶ 4 (D. Hansen Decl.) ( )(errors in original); Docket no. 38-5 at 12 (T. Hansen Dep. Tr.) ("[The people at the dealership] knew [Mr. Hansen] was buying it as a gift to me."); id. at 22 (); Docket no. 38-6, p. 16 (D. Hansen Dep. Tr.) ( ); id. at 19 (). Plaintiff also submitted an affidavit from the car salesman stating that the Mercedes was a Valentine's Day gift to Plaintiff. Docket no. 43-11 (Aff. of Jesse Green) ("Mr. DeLynn Hansen came in and purchased 2011 SLK 300 from us for his wife Dolly for Valentines [sic] day.").
Plaintiff expressly denies purchasing or paying for the Mercedes. See docket no. 38-7 at 6 ( ); docket no. 43 at 10 (). At her deposition, Plaintiff could not recall specifically discussing the tax liens with the dealership at the time the Mercedes was purchased, but did recall discussing her husband's "tax problem" with the dealership: "I mean, we talked taxes, and he admitted he had a tax problem to them . . . ."5
Although Plaintiff contends it was due to an error by the dealership, the Mercedes was registered and titled in Mr. Hansen's name for two years.
The IRS began the process of levying Mr. Hansen's assets in 2012. In association with these levies, notices were mailed to the Hansens' residence in 2012 notifying Mr. Hansen that all of his property and rights to property were subject to levy. Shortly thereafter, Mr. Hansentransferred title and registration of the Mercedes to Plaintiff.
On May 16, 2013 the IRS executed a Writ of Entry at the Hansen residence and seized Mr. Hansen's property, including the Mercedes.
On August 5, 2013, Plaintiff filed the underlying action; on April 10, 2014, Plaintiff filed the operative amended complaint. On April 24, 2014, Defendant filed the current motion for summary judgment on the basis that Plaintiff cannot establish one or more elements of her wrongful levy cause of action. Defendant also moves for summary judgment based on the affirmative defense of fraudulent transfer.
In opposing the current motion, "Plaintiff admits she paid no cash for the purchase of the vehicle, but [] submits that she is a 'purchaser' under 26 U.S.C. § 6323 . . . ."6 Plaintiff asserts that she was a "purchaser" of the Mercedes because she and Mr. Hansen had been having marital problems:
The taxpayer and Plaintiff had been experiencing marital difficulties at the time of the vehicle purchase, difficulties that continued through the date title was transferred into Plaintiffs name and through today. Plaintiff had threatened divorce prior to the taxpayer's purchase of the vehicle. (Plaintiff Decl.) The taxpayer's purchase of the vehicle for his wife, or the transfer of title to her name later, or both, constituted a valid, non-fraudulent exchange for value, with Plaintiffs claims against her husband losing value to the extent of the value she received from the conveyance of the vehicle to her.7
Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate "if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991); Nelson v. Geringer, 295 F.3d 1082, 1086 (10th Cir. 2002).
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Viktus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that there are genuine issues for trial. Viktus, 11 F.3d at 1539; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). An issue of material fact is genuine where a reasonable jury could return a verdict for the party opposing summary judgment. Seymour v. Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir. 1997). To constitute a genuine factual dispute, there must be more than a scintilla of evidence that is significantly probative in establishing the fact. Viktus, 11 F.3d at 1539.
In applying the summary judgment standard, the court construes the factual record and reasonable inferences in the light most favorable to the party opposing summary judgment. Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996); Blue Circle Cement, Inc. v. Bd. of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir. 1994); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).
On a motion for summary judgment, the Tenth Circuit has stated that "[w]e will disregarda contrary affidavit . . . when it constitutes an attempt to create a sham fact issue." Burns v. Bd. of Cnty. Comm'rs of Jackson Cnty., 330 F.3d 1275, 1282 (10th Cir. 2003). Factors for the Court to consider in determining whether an affidavit creates a sham fact issue include "whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." Id.
For the district court to disregard an affidavit from consideration, the Court must "first determine whether the conflicting affidavit is simply an attempt to create a sham fact issue." Id. In doing so, courts can look at the timing in executing the affidavit. The filing of an affidavit on the same day as a memorandum in opposition to a motion for summary judgment places the moving party at a disadvantage, and deprives that party of any chance to pursue discovery on the subjects covered in the affidavit.
Defendant contends that Plaintiff cannot establish one or more elements of her wrongful levy cause of action, and thus Defendant is entitled to summary judgment.
26 U.S.C. § 7426 states:
If a levy has been made on property or property has been sold pursuant to a levy, and any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action . . . .
26 C.F.R. § 301.7426-1(a) provides that a wrongful levy cause of action requires: "(A) That such person has an interest in, or lien on, such...
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