United States: Trying To Undo A Settlement: Bad Liens Don’t Make Bad Settlement Payments

Last Updated: April 16 2013
Article by Vicki R. Harding

Road & Highway Builders, LLC v. United States , 702 F.3d 1365 (Fed. Cir. 2012) –

A secured junior lender who purchased property at a senior lender's foreclosure sale paid $100,000 to the Internal Revenue Service to induce it to release a right of redemption in connection with its tax liens on the property.  After a bankruptcy court held that the junior lender had priority over the IRS but would not address the settlement payment, the junior lender sued the IRS in the U.S. Court of Federal Claims.  It sought return of its $100,000 settlement payment, arguing that the settlement was void for lack of consideration.

  • The debtor, originally named Crystal Cascades, LLC, changed its name to Crystal Cascades Civil, LLC in May 2001 after it acquired a taxpayer identification number from the IRS.
  • July 2004 a bank made loans to Crystal Cascades secured by deeds of trust on its property.
  • August 2004 and January 2005 the IRS filed notices of tax liens using the correct taxpayer identification number, but using the outdated name of "Crystal Cascades, LLC."
  • February 2005 deeds of trust were recorded against the property to secure loans made to Crystal Cascades by the junior lender, Road and Highway Builders, LLC (RHB).
  • After the bank initiated foreclosure proceedings in June 2005, Crystal Cascades filed a chapter 11 bankruptcy.

RHB filed an adversary proceeding in the bankruptcy against the IRS to establish that its liens had priority over the IRS tax liens.  Contemporaneously RHB purchased the property at the bank's foreclosure sale for $1.4 million.  Shortly after the foreclosure sale, RHB and the IRS negotiated a settlement in which RHB paid $100,000 for a release of the IRS right of redemption.

More than a year later, the bankruptcy court found that the IRS notices did not provide constructive notice since they contained an incorrect name.  Thus, RHB's liens had priority.  The bankruptcy court awarded surplus foreclosure sale proceeds to RHB, but declined to address the $100,000 settlement payment.

A year or so later RHB sued the IRS in the Court of Federal Claims.  It sought recovery of its $100,000 payment, asserting that the settlement agreement was void for lack of consideration based on an argument that the right of redemption was illusory because it was later held to be invalid.  After losing in the Court of Federal Claims, RHB appealed to the Federal Circuit Court.

Finding that the case turned on whether the IRS acted in bad faith, the Circuit Court cited the Restatement (Second) of Contracts for the proposition that:

Forbearance of a right can represent consideration to support an agreement, provided that the forbearing party believes in good faith that its claim or defense may be fairly determined to be valid.

The court combined this rule with a presumption that government officials act in good faith that can be overcome only by clear and convincing evidence.  Further, RHB was required to show a "specific intent to injure the plaintiff" as part of this showing.

RBH argued that the IRS could not have believed in good faith that is had a valid right of redemption because:

  • The IRS did not investigate whether the debtor was using any other names.
  • It had already decided it would not exercise its right of redemption before negotiating with RHB.
  • The IRS lost at trial and on appeal in the bankruptcy proceedings.
  • An IRS expert witness testified in the bankruptcy proceedings that a person searching for liens on the property would not have found the tax liens.

Not surprisingly, this was not sufficient to provide clear and convincing evidence that the IRS acted in bad faith with an intent to injure RHB:

  • Standard IRS practice is to limit verification efforts to confirming that the name on a lien matches the name in the agency's collections system.
  • It is also standard IRS practice "to 'realize value' from the release of a right of redemption in cases where actual redemption may not be feasible."  The court did not view this as an improper motive.
  • The bankruptcy ruling was subsequent to the settlement.  At the time of the negotiations, there was an open question about the standard for searching public records.
  • While the IRS expert's testimony that the "average reasonably diligent user" looking for liens would not have found the tax liens "could indicate that the IRS acted unreasonably," the court did not view this as suggesting bad faith.

Consequently the court agreed that RHB did not rebut the presumption of good faith by clear and convincing evidence.

On the one hand, it is difficult to envision any evidence that would have satisfied the test set by the court, and it seems vaguely troubling that there is no redress even if the IRS was acting unreasonably.  On the other hand, this was a settlement after all.  RHB bought the ability to remove the cloud of the IRS claims and move forward immediately with its plans for the property even though those claims were not finally resolved for another three years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Vicki R. Harding
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.