MTC Financial Inc. v. United States of America et al

Filing 9

ORDER GRANTING STIPULATED MOTION FOR DISBURSEMENT OF FUNDS AND DISMISSAL. The Stipulated Motion for Disbursement of Funds and Dismissal ECF No. 8 is GRANTED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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IN RE THE TRUSTEE’S SALE OF
THE REAL PROPERTY OF

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Case No. 1:17-CV-3153-TOR
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WILLIAM E. KIVETT, JR. AND
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ORDER GRANTING
KAREN L. KIVETT
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STIPULATED MOTION FOR
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DISBURSEMENT OF FUNDS
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AND DISMISSAL
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The United States of America (“United States”) and MTC Financial Inc. dba

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Trustee Corps (“MTC” or “Trustee”), have jointly moved the Court for an order

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for disbursement of funds and dismissal. Based on the Stipulated Motion for

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Disbursement of Funds and Dismissal (“Motion”) (ECF No. 8) and for good cause

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shown, the Court hereby GRANTS the Motion and IT IS HEREBY ORDERED

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that:

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1.

The United States is the only party that has made an existing claim to

the surplus funds.
2.

The United States’ secured federal tax liens against William E. Kivett,

ORDER GRANTING STIPULATED MOTION TO DISBURSE FUNDS AND DISMISSAL - 1

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Jr. a.k.a. William Kivett and Karen L. Kivett for federal individual income tax

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liabilities (Form 1040), described in paragraphs 3, 6-7, 9 of the Motion (also

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described in paragraphs 9-11 and 16-18 of the United States’ Answer and Claim

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filed at ECF No. 5), have priority over the surplus funds (i.e., interpleader fund).

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The United States’ priority precludes MTC from recovering the fees and costs

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totaling $1,138.72 that are attributable to the interpleader action alleged in

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paragraph 4 of the Notice of Deposit of Surplus Funds From Trustee’s Sale

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Pursuant to RCW § 61.24.080 (ECF Nos. 1-2, 6-1 at 2-19), that were not deposited

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into the registry of the Superior Court of the State of Washington in and for

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Yakima County, because the award of fees and costs to the Trustee from an

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interpleader fund would deplete the fund prior to total satisfaction of the tax lien.

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See Abex Corp. v. Ski’s Enterprises, Inc., 748 F.2d 513, 516-517 (9th Cir. 1984);

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Bank of Am. Nat. Tr. & Sav. Ass'n v. Mamakos, 509 F.2d 1217, 1219 (9th Cir.

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1975).

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3.

The United States is entitled to the full amount of the surplus funds in

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the amount of $30,554.47, of which $29,415.75 was deposited into the registry of

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the Superior Court for the State of Washington in and for Yakima County and

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$1,138.72 was not deposited into the registry.

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4.

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attorney’s fees.

The United States and MTC shall bear their own respective costs and

ORDER GRANTING STIPULATED MOTION TO DISBURSE FUNDS AND DISMISSAL - 2

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5.

The Clerk of the Court for the Superior Court for the State of

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Washington in and for Yakima County, is hereby authorized and directed to draw a

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check on the funds previously deposited in the registry of the court (under Cause

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No. 17-2-02930-39) in the principal amount $29,415.75, payable to the

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“Department of Justice” and mail or deliver the check to the following address:

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Tax FLU, Office of Review
U.S. Dept. of Justice Tax Division
P.O. Box 310
Ben Franklin Station
Washington, D.C. 20044-0310

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The check shall bear a notation for CMN 2017102200.
6.

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MTC is hereby authorized and directed to draw a cashier’s check on

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the surplus funds that were not deposited into the court’s registry in the amount of

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$1,138.72, payable to “Department of Justice” and mail or deliver the check to the

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following address:

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Tax FLU, Office of Review
U.S. Dept. of Justice Tax Division
P.O. Box 310
Ben Franklin Station
Washington, D.C. 20044-0310

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The check shall bear a notation for CMN 2017102200.

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7.

This order resolves all claims in this case.

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8.

This Court maintains jurisdiction to effectuate this resolution.

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//

ORDER GRANTING STIPULATED MOTION TO DISBURSE FUNDS AND DISMISSAL - 3

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9. This case is otherwise dismissed with prejudice.

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The District Court Executive is directed to enter this order, and judgment

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accordingly, provide copies to the parties, and certified copies to the Clerk of Court

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for the Superior Court for the State of Washington in and for Yakima County, and

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then close the file.

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IT IS SO ORDERED.

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DATED December 14, 2017.

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THOMAS O. RICE
Chief United States District Judge

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ORDER GRANTING STIPULATED MOTION TO DISBURSE FUNDS AND DISMISSAL - 4