Malouf v. United States

GEORGE A O'TOOLE

[consolidated with]
JUDGMENT

Consistent with the Court's Opinion and Order of September 28, 2012 (Docket No. 37), granting the United States of America's Motion for Partial Dismissal and Summary Judgment (Docket No. 29) in the above-captioned consolidated cases, and the United States of America, John R. Malouf, and JPMorgan Chase Bank, N.A., having agreed to the form of this judgment (without prejudice to any party's right to appeal),

IT IS ORDERED, ADJUDGED, AND DECREED as follows:

1. John R. Malouf s claims against the United States in Case No. 1:10-cv-11596-GAO are DISMISSED.

2. The United States obtained a judgment against John R. Malouf on May 13, 2002, in the matter entitled United States of America v. John R. Malouf, USDC (MA), bearing Case No. 1:99-cv-12001-EFH ("the Judgment"). The Judgment is "in the amount of $337,682.57, plus statutory additions and interest from June 17, 2001, pursuant to 28 U.S.C. § 1961(c)(1), incorporating the rate provided under 26 U.S.C. § 6621, for taxes, penalties and interest in regard to Mr. Malouf s 1983 through 1988 federal income tax years and a 1992 trust fund recovery penalty" and "in the amount of $44,781.71 for attorneys' fees and costs, plus interest as provided for in 28 U.S.C. § 1961(a) and (b)."

3. The United States established a judgment lien, pursuant to 28 U.S.C. § 3201, against all real property of John R. Malouf by filing an Abstract of Judgment based on the Judgment with the Norfolk County Registry of Deeds on November 21, 2002.

4. The United States' judgment lien attached to the real property located at 170 Sumner Street, Norwood, MA ("the Sumner Property"), no later than November 21, 2005.

5. The United States' judgment lien has priority over the mortgage on the Sumner Property dated September 25, 2006, and granted to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for the American Mortgage Network, Inc. ("AMN"), which Mortgage was filed with the Norfolk Registry District of the Land Court ("Registry") on September 29, 2006 as Document No. 1,112,762 and is now held by JPMorgan Chase Bank, N.A., as servicing agent to Federal National Mortgage Association ("Fannie Mae"), the successor-in-interest to defendant AMN.

6. The United States' judgment lien SHALL BE ENFORCED against the Sumner Property, which shall be sold free and clear of all titles, liens, claims, interests, or other rights (including any right of redemption) of the parties, with the net proceeds of the sale to be distributed as follows:

FIRST, to pay the costs and the expenses of the sale incurred by any judicial officer or court-appointed receiver and any local real estate taxes due and owing as of the date of the sale;

SECOND, to the United States for application toward the Judgment; and,

THIRD, to JPMorgan Chase Bank, N.A., as servicing agent to the successor-in-interest to defendant AMN, in the amount of its mortgage lien against the Sumner Property.

7. In the event that any proceeds of the sale of the Sumner Property remain after the claims identified in 6 are fully satisfied, the surplus proceeds shall be deposited with the Court for further proceedings.

8. The counterclaims filed by JPMorgan Chase Bank, N.A., as servicing agent to the successor-in-interest to defendant AMN, in Case No. 1:10-cv-12006 are DISMISSED to the extent that they requested any other or further relief that is not specifically granted in, or that is inconsistent with, the foregoing paragraphs.

9. The United States shall, within 90 days of the entry of this judgment, file a motion proposing the sale procedures for the Sumner Property (e.g., appointment of receiver, sale by United States Marshal, or sale by other court -appointed officer).

[Signature page follows]

AGREED: UNITED STATES OF AMERICA

JPMORGAN CHASE BANK, N.A., as servicing

as servicing agent to the successor-in-interest to

AMERICAN MORTGAGE NETWORK, INC.

By:_________________ EDWARD J. MURPHY
U.S. Department of Justice, Tax Division

By: _________________

JASON A. MANEKAS

Bernkopf Goodman LLP

JOHN R. MALOUF, pro se

John R. Malouf (telephone consent 10/15/12)

JOHN R. MALOUF
IT IS SO ORDERED, ADJUDGED, AND DECREED.

_________________

GEORGE A O'TOOLE

UNITED STATES DISTRICT JUDGE
I hereby certify that a true copy of the above document was served upon all counsel of record via the ECF system or U.S. mail on October 15, 2012. Edward J. Murphy