EPCON COMMUNITIES CAROLINAS, LLC et al v. TILLEY, et al

Filing 96

ORDER signed by JUDGE N. C. TILLEY, JR on 7/29/2015 adopting the Magistrate Judge's Recommendation 94 ; that the United States' Motion for Judgment that Epcon Farm Trust is Nominee of Iris and Thomas Tilley (Doc # 60 ) is DENIED wit hout prejudice to refiling during the subsequent proceedings to resolve the competing claims; that the Epcon Plaintiffs' Motion for Judgment on the Pleadings and for Summary Judgment (Doc. # 87 ) is DENIED as moot; that the Epcon Plaintif fs' Motion for Relief in the Nature of Interpleader (Doc. # 83 ) and Consent Motion for Interpleader Order Pursuant to Settlement Agreements (Doc. # 93 ) are GRANTED as set out herein. Further that the Epcon Plaintiffs' Motion for Rule 54(b) Certification (Doc. # 89 ) is GRANTED and the Court specifically certifies that, given that all claims by and against the Epcon Plaintiffs have been resolved and the Epcon Plaintiffs have no further interest in this action, there is no just reason for delay. A final judgment as to the Epcon Plaintiffs will be entered contemporaneously with this Order. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EPCON COMMUNITIES CAROLINAS,
LLC, and EPCON FARRIGTON, LLC,
Plaintiffs,
v.
IRIS M. TILLEY, THOMAS E. TILLEY,
MELBA GEORGE, BARBARA
WRIGHT, and UNITED STATES OF
AMERICA,
Defendants,
UNITED STATES OF AMERICA,
Counter-Claimant,
v.
EPCON COMMUNITIES CAROLINAS,
LLC, and EPCON FARRINGTON, LLC,
Counter-Defendants,
BARBARA WRIGHT,
Cross-Claimant,
v.
UNITED STATES OF AMERCIA,
Cross-Defendant.

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11CV643

ORDER
On July 2, 2015, the United States Magistrate Judge’s Order and
Recommendation (“Recommendation”) as to the United States’ Motion for
Judgment that Epcon Farm Trust is Nominee of Iris and Thomas Tilley (Doc.
#60), Epcon Communities Carolinas, LLC’s and Epcon Farrington, LLC’s (the
“Epcon Plaintiffs”) Motion for Relief in the Nature of Interpleader (Doc. #83),
the Epcon Plaintiffs’ Motion for Judgment on the Pleadings and for Summary
Judgment (Doc. #87), the Epcon Plaintiffs’ Motion for Rule 54(b)
Certification (Doc. #89), and the Epcon Plaintiffs’ Consent Motion for
Interpleader Order Pursuant to Settlement Agreements (Doc. #93) was filed
and notice was served on the parties pursuant to 28 U.S.C. § 636. (Docs. #
94, 95.) No objections were filed within the time limits prescribed by
Section 636; therefore, the Court need not make a de novo review of the
Recommendation. The Recommendation (Doc. #94) is hereby adopted.
For the reasons stated in the Recommendation, it is ordered that the
United States’ Motion for Judgment that Epcon Farm Trust is Nominee of
Iris and Thomas Tilley (Doc #60) is DENIED without prejudice to refiling
during the subsequent proceedings to resolve the competing claims; that the
Epcon Plaintiffs’ Motion for Judgment on the Pleadings and for Summary

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Judgment (Doc. #87) is DENIED as moot; that the Epcon Plaintiffs’ Motion
for Relief in the Nature of Interpleader (Doc. #83) and Consent Motion for
Interpleader Order Pursuant to Settlement Agreements (Doc. #93) are
GRANTED in that:
1. The Epcon Plaintiffs shall deposit the aggregate amount of
$2,025,000 (the “Interpleaded Funds”) with the Clerk of Court within
10 days after the Order becomes final due to expiration of the deadline
for appeal. The Interpleaded Funds shall be accepted by the Clerk and
deposited in an interest-bearing account, and shall be held by the
Court subject to the ultimate disposition of the competing claims for
such funds between the United States, Thomas Tilley, Iris Tilley,
Melba George, and Barbara Wright;
2. The Phase 2 property shall be discharged from the Federal Tax Liens,
effective upon the Epcon Plaintiffs’ deposit of the Interpleaded Funds,
pursuant to the settlement agreement with the United States. The
United States shall provide appropriate certificates of discharge under
26 U.S.C. § 6325(f)(1)(B) to evidence such discharge on the public
record of Durham County;
3. The Promissory Note shall be deemed to be paid and satisfied in full
and the Deed of Trust cancelled, both effective upon deposit of the
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Interpleaded Funds by the Epcon Plaintiffs. Melba George, Barbara
Wright, Thomas Tilley and Iris Tilley, and the Trustee under the Deed
of Trust (or any substitute Trustee thereunder) shall execute all
documents reasonably necessary to evidence the cancellation on the
Durham County public record and provide the Epcon Plaintiffs with
good and marketable title to the Phase 2 property free of the lien of
the Deed of Trust under applicable North Carolina law and procedure.
The Epcon Plaintiffs shall cause a copy of this Order to be served on
the Trustee under the Deed of Trust and any substitute Trustee under
that Deed of Trust so that they will be aware of their obligations under
this Order.
4. All claims and counterclaims between the Epcon Plaintiffs, on the one
hand, and the United States, Thomas and Iris Tilley, and Melba George
and Barbara Wright, on the other hand, shall be dismissed with
prejudice. Thus, all claims by and against the Epcon Plaintiffs will be
dismissed, but all claims among the remaining parties, including any
claims as to the Interpleaded Funds, will remain for further
adjudication.
5. All parties shall bear their own fees, costs and litigation expenses with
respect to the claims by and against the Epcon Plaintiffs.
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6. The following limitations are specifically noted:
a. This Order does not constitute a waiver or discharge of any
federal tax liens with respect to any property owned by Thomas
and Iris Tilley, except the Phase 2 property, nor shall it prohibit
the United States from issuing new notices of levy to the Clerk
of Court with respect to the Interpleaded Funds.
b. This Order does not constitute a finding that any of the funds to
be deposited with the Court are subject to valid federal tax liens
or notices of levy.
c. This Order does not address or resolve any claims or contentions
among the remaining parties regarding the nominee or alter-ego
status of any trusts associated in this action or whether their
trustees are bona fide trustees of those trusts.
7. The Court retains all jurisdiction over any enforcement of this Order.
It is further ordered that the Epcon Plaintiffs’ Motion for Rule 54(b)
Certification (Doc. #89) is GRANTED and the Court specifically certifies that,
given that all claims by and against the Epcon Plaintiffs have been resolved
and the Epcon Plaintiffs have no further interest in this action, there is no
just reason for delay. A final judgment as to the Epcon Plaintiffs will be

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entered contemporaneously with this Order.
This the 29th day of July, 2015.

/s/ N. Carlton Tilley, Jr.
Senior United States District Judge

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