it please the court my name is roger prieto and i represent ellen management l l c thirty one lien and leaving a multimillion dollar judgment pending we have many issues in this case in terms of differences of opinion with the judge we believe that the lien was not in fact foreclosure format if you will that makes the i r s lien as if any other i r s lien would be you'd have a lien against property you'd have a first aid a trust be secured at the end of that sale the excess proceed to go to the i r s in this particular case there is excess proceeds for the i r s and the statutory scheme worked appropriately so i think we have to look to and the federal case law is pretty clear it basically says that we need to look to the state law to see what the claims were in the state law side to determine whether or not and the status if you will of what the i r s can attach and whether or not it's in code and not now what there in terms of how does that square with the new britain well you see because i think that federal law determines when the state line becomes a collie and you go through that for factors in britain and then you try to figure it and under one sixteen three one one six subsection five basically what it says is and it's quite relevant it says recording of the declaration constitutes record notice and perfection of the lean no further recognition of any claims of leaving for one if we read on to that however if you go to with one sixteen three one one six now the i r s lien will tell you and they've told us in their briefing that the i r s lien is automatic and it's an automatic lien that applies as soon as assessment applies however this is an exception to the rule the exception says that it only applies in those cases as to security holders and purchasers upon filing of the notice for example in the cl recorder's office the place where you would file a notice that occurs in this case on one five of ten now perfection under state law and we look to the state law at least to establish perfection of the asset and that's that is the case arrest one sixteen three one zero three zero five any assessment level levied against that unit or any fines imposed against that unit's owner from the time of construction penalty assessment or fine becomes the statute ok so one of the issues raised maybe you can just clear this up for starters i believe it was the i r s raised the issue that the actual c c and r s which you're pointing to are not in the record is that  how would you fix the amount and other items if you don't even have those in the record two ways your honor first off the c c and r s themselves are not on the record the  can enforce their liens from that basis the record however does have the assessments that were due at the time of the filing of the lien which were in excess of twenty one hundred dollars on average which would indicate and which is a very simple step it was eight hundred seventy five dollars a quarter so in order to get to twenty one hundred dollars he would have had to have almost a year and a half's worth of assessments which would have taken it back into the early part of two thousand in the lat part of two thousand and eight two thousand and nine when there was a some do additionally to that your honor i do i do think it's kind of an odd situation to tell you the truth that if you have a case like this and you're saying that it's before the ira's filing that you know and have laid out the orders in the amounts and that where we're kind of extrapolating is there somewhere you look in the record and you actually see this and if yes that would be i don't have the exact page on it but i can cite you to what it says it's the for example for twenty nine room of the terra as of one eighteen of ten there was two thousand one hundred fourteen dollars and seventy eight cents of unpaid  had to have been prior it's literally within days within days but we don't actually have the evidence it just seems like an odd strategy when you're fighting about only that you wouldn't have had the specific what we do have your honor is there is a statement in the notice of assessment of delinquent assessment that specifically states for each quarter there after the bill is eight hundred seventy three dollars which would be the value of the doesn't there are no no no what happens is the procedural posture of this is the notice of assessment is a function of the first step of foreclosure it's sort of like telling you that you have an opportunity cure this debt problem here it is it is the official recording that's required by statute the next thing that happens after that if they don't respond if they don't make any payments the procedure is thirty days later you get a notice of default ninety days passes you don't do anything about that you get your  notice of sale the procedural posture of one sixteen operates very very similarly if you will to mechanically basically what happens is it's not in co it it becomes a a statutory lien based upon the or is we know what the property is that worse we're attaching we know what the sum is and the sum does not have to be a sum certain it has to be some calculable and that comes from the nose of susman i'm afraid i'm out of time i apologize favorable to not move it in this quite case the master trust that's not what happened here what we have is we have any notice of tax filing that was filed that notice incorrectly name the tax payer although in their moving papers they clearly say the tax payer is the apostrophe s they also say the elimination of the apostrophe is a minor variation that is not the case here that elimination based on the indexing done by clark county recorder's office is actually quite significant because what it did was it created not a small gap but a sixty six thousand nine hundred ninety three document gap between where as my client research to see if there was anything any recorded notices where the lien would have been had it been properly noticed and where it ended up without the apostrophe just as easy as the  furthermore the fact of the matter is the question of whether the search was adequate is a matter of credibility and evidence for a trier of fact not a summary judgment standard what we have here is we have we provide proof provided evidence and testimony from my client in the form of a deposition and an expert who laid out the exact scheme of how the indexing of the the notices work and as you're on it or where the would be valid only to the point that a reasonable search would have discovered it in this case the government says well they should have looked because there were  notices that said c s but that's not how the they're searching was done the search was done where my client would look at the parcel number he would find the title donor and he would search in this case the title was e apostrophe s mistakes in the notices are immaterial when the titled owner by the way it research furthermore can finesse what does what is the significance then of the fact that in some of the documents in the public record including a lien for delinquent assessments the corporation is listed as capital z capital s but that was not your honor and i understand that but the reality here is the actual title owner of the mistake by the way and how they said the the link what party was is not what my client researched he said that he wasn't he actually knew that he made he name a researcher but i understood from the record and then that no because when he searched the parcel number the total dollar was e apostrophe s he had no reason to at that point but it's the same the notice of delinquent assessment went to that particular parcel didn't write but when you look at see if you find it please the court paul de lis on behalf of the united states of america starting from the most recent discussion and working backwards here on ars i think that it is entirely relevant and important that in this case the documents that were in the land record identified the taxpayer the owner of the properties in question as z s or z s a corporation without an apostrophe and i think that this court's prior decisions including in the cable versus united states case indicate that armed with that knowledge that the any reasonable searcher would go forward and search those other names when they find those documents in the record when there are land documents in the land record that maybe identify the the owner of the property in a different way the searcher is now charged with the duty to go and research that further and find out are these other names used are these other spellings that are used with respect to the owner of that property so that they can then go and see are there other liens that are political here and i think it's undisputed on this record that ha they done so they would have located the notice of federal tax liens that had been filed even says if you had done that you would come up with the wrong address and therefore it would have been in effect useless to have done the alternative searches i'm not certain about that your honor whether that's correct but i think even if there had been a different address identified on those documents it still put the it still puts the search are on notice that these liens exist and on further inquiry notice to to research and find out what is the existence of these of the liens i think that there's a duty to inquire further and not simply stop and i think what happened here is that they stopped frankly at the at the index level they didn't really go any farther they simply said well z apostrophe s doesn't locate anything and for that reason we don't have to go any further and that's not a reasonable search and i think and then how would you determine if it's reasonable as a matter when he says i had a title search  company himself testified two things first he testified that a proper search should have been done for both z apostrophe s and z s and that testimony is in the record at page two forty six of the original excerpts of record but then he also testified that there were two groups of title reports here there was a preliminary total report and then a later total report he testified that the preliminary total reports did indicate the existence of some federal lien interest in the property and that is at the excerpts of record at page two hundred forty seven so the preliminary title report showed the lien it did not specifically show the these exactly means meaning the dates of the filings all of that complete information that was there was a right of the united states to read a property and it did not specifically identify the tax liens but it did identify that right and his testimony in the deposition was that that that that that notation in the poem in a report showed the right of the i r s showing the tax lien it doesn't show the actual tax lien that seems to be the reason the amendments were done to add that tax lien and so i think that on this record there really is no dispute a fact at all and as a matter of law the district court was completely within the bounds of appropriate summary judgment to determine that as a matter of law a reasonable search would have identified these tax liens now going back to the earlier discussion that the court was asking about with respect to the coate ness of the liens i think that there's an important point to be made here with respect to even even if the h away liens here have been superior to the federal tax liens which they were not i think which we demonstrate in our brief for numerous reasons not the least of which is the coordinates problem and the inability to identify the amount of the lien and when that amount of that lien was fixed but even more fundamentally i think the reason why the appellant's here want to argue about the primacy of the h away liens is because they are they want to forward their argument that under section seventy four twenty five of the internal revenue code the federal tax lien was stripped through the h away sale and that is not correct not only because the a lien was not superior to the federal tax lien which it must be in order to have any stripping effect under section seventy four twenty five but also because the record is completely devoid of the requirement under section seventy four twenty five that specific notice be given to the internal revenue service before that statue will have the effect stripping any lien and that notice requirement is extremely specific it's not any kind of generalized notice about a potential sale of a property it's specific about the timing it's to figure out the manner it must be a written notice it must be by registered a certified mail and it must be sent to a very specific individual within the i r s and that person is identified in a publication by the i r s and all of that is written out in the regulations under section seventy four twenty five of federal regulations its title twenty six section three a one point seven four to five and the notice to the i r s must contain very detailed information about the liens that may be stripped through the sale including the location of the property the amount of the lien that's being foreclosed and it must identify the specific federal tax liens that can be affected by the sale of your point that you would need to figure wheelings were superior now in this case they weren't superior for a number of reasons and i think the the one reason that the court was getting to earlier is the problem with coate in this and in this case there is a question the test is not whether under state law that earlier states lien has been perfected the question is whether it satisfies the setter the federal test for meaning that the identity of the lien or the identity of the property the mesa do we have the identity of the lien are well your honor there's no indication in the record that any of those elements were established prior to the federal tax lien attaching to the property in september of two thousand and nine number money plus after that correct and what it says is that as of january eighteenth two thousand and ten there was an amount due that's also a day after january fifth now there are many things that could be assessed against that property other then ongoing monthly assessments there could be fines there could be penalties there could have been a special assessment from this record it is not possible to say that there was an amount owing prior to fifth two thousand and ten i think even if the court were to do the extrapolation that appellant's or inviting it to do that still would not suffice because for federal coate and us purposes the amount needs to be fixed and in this case under nevada law the amount is not fixed at that time even at the time that it's assessed despite the fact that the law states that the lien attaches at the time that an assessment is made the amount due really does not come become certain for many months after the assessment is due and under the nevada revised statute which council cited earlier section one one six point three one one six two a number of a number of steps must take place before the lien can not only be foreclosed but before even the amount of the lien can be finally determined and that's because under that statute once an assessment is made the homeowners association is required to send a notice before it can proceed to to foreclose the lean it must send a notice to the homeowner or the landowner of the assessment that is due and that there are three things that are required in that notice it must mail a schedule of fees it must mail a proposed repayment plan and it must mail a notice of the right of the property owner to contest the obligation of the board hearing before the  these are both part and parcel they're the same statute these are different sections of the same statute part of that statute says alina rise in effect you and not well as a matter of state law that is what it says that the lien arises automatically that does not answer the federal coate next question which is which contains all of these elements and i think and what i'm trying to get to is that in particular the amount of the lien even under that nevada law is not set until a much later date and again because the homeowners association must allow the property owner an opportunity to contest the after that the homeowners association may mail a notice of delinquency and then if you say that your monthly fees are four hundred so becomes an automatic lien you don't if you had your honor and as you pointed out earlier in the argument those those documents are not in the record at all there so there's no way to consult those to find out how these assessments arise what fines what penalties what other things may may come into play here where would this notice a lien where would one go to look to see whether or not this in fact was a proper lean or say a wild deed for example well your honor i i don't know the answer to that i think that's a that's a very good question and i think  you know one of the concerns that plays out in these lean cases you know congress has created a scheme whereby the federal tax lien under under most circumstances takes precedent even without even without notice and part of the reason for that is that the federal government is incapable of deciding whether or not to become a creditor of a taxpayer right like the the taxes are due from a tax payer and whether they're paid or not is not something that that the that the government has control over and so it's very important for purposes of the treasury to protect the federal interest in having the taxes paid timely and that's what the internal revenue code automatically prime's federal tax liabilities that are due ten years later simply can't be the case and it can't be squared with the scheme that congress has put in place if the court has no further questions i see that my time thank you thank you thank you used up all your time but i would like to give you a minute for  so very much a couple of really important comments first off the c c and r s are not going to direct you to what the with the monthly assessments are the c c and r s direct the board to do a budget and calculate the assessments but they would if they were recorded in the first place if they were recorded so that parties would be able to see it and find it on the record it would then give you or lead you to the fact that the notice of assessment was being filed by someone who had record title or record interest in the property right you're on the c c and r s are recorded and they're always recorded this is it once sixteen is a common interest ownership statute you only get to one sixteen if you're if you are a homeowner what is going to happen is this this under the s f our case our situation is one hundred percent as if we were foreclosing a deed of trust one sixteen provides for to be foreclosed as a deed of trust you cannot supplant a deed of trust with a judgment creditor like the i r s that's the problem you have its efforts right but if you foreclose it like a deed of trust then you says the recitals in the deed provided everybody received notice his argument i noticed was never presented in his brief but the notice requirements there's a recital that gets conclusive presumption that it was done is that all notices were properly provided to all parties ok so from that perspective that's what one sixteenth says you have a statutory scheme that sets up the eight to a lien to be equivalent to that of a mortgage a deed of trust analogy between the deed of trust a deed of trust references a note the note has an amount that in fact a deed of trust will state the amount right so it seems to me those two are not comparable i'll give you an analogous argument ok the analogous argument is you can show me a deed of trust and spend time with the monthly notice it's not going to tell me what the whether they did impounds it's not going to tell me whether or not they paid taxes for you it's not going to tell me whether or not you have attorney's fees those are all ancillary adds the statutes and the case law is very simple you don't have to have a specific number you have to have something that you can ascertain and you have to be able to calculate it in a get to the number you have to simply have noticed that it exists it is a number and it was  united states