The Estate of Lois M. Larosa v. LaRosa et al

Filing 90

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT WEST VIRGINIA STATE TAX DEPARTMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT: Plaintiffs' motion for summary judgment as the Co-Executors of the E state of Lois M. LaRosa (ECF No. 51 ) is GRANTED IN PART and DENIED IN PART AS FRAMED. The motion for partial summary judgment of defendant West Virginia State Tax Department (ECF No. 53 ) is GRANTED AS FRAMED. The relief requested in defendants Ca mpbell and Kandzari's counterclaim (ECF No. 39 -9), as it applies to priority of liens, is GRANTED. The Court finds that the crossclaim seeks the same measures of relief requested in the counterclaim. Thus, the crossclaim is DENIED AS MOOT. Signed by Senior Judge Frederick P. Stamp, Jr on 12/7/2018. (wrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THE ESTATE OF LOIS M. LAROSA,
by JULIE GARVIN and
JOHN JOSEPH BELCASTRO, II,
Co-Executors,
Plaintiffs,
v.

Civil Action No. 1:17CV121
(STAMP)

JAMES J. LAROSA,
JOHN T. HASKINS,
UNKNOWN HEIRS AND DEVISEES
OF JAMES D. LAROSA,
GC1, LLC, a West Virginia
limited liability company,
CITY OF CLARKSBURG,
WEST VIRGINIA STATE TAX DEPARTMENT,
UNITED STATES OF AMERICA,
MOUNTAIN RESERVES, INC.,
a West Virginia corporation,
DAVID R. REXROAD,
PAMELA A. CAMPBELL,
DAVID E. KANDZARI and
SHARON CHRISTENSON, as Executrix of
the ESTATE OF ELSIE LORNA HOWARD,
a/k/a LORNA HILL HOWARD, deceased,
Defendants.
MEMORANDUM OPINION AND ORDER
REGARDING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND DEFENDANT WEST VIRGINIA STATE TAX DEPARTMENT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
I.

Background

This is a property case and creditors’ action arising out of
the Estate of James D. LaRosa, which includes numerous parcels of
real estate located in Harrison County, West Virginia. This action
is brought under West Virginia Code § 38-3-9.1

1

West Virginia Code

West Virginia Code § 38-3-9 states: The lien of a judgment
may be enforced in a court of equity after an execution or fieri

§ 38-3-9 provides the direct authority for judicial sale of real
property that is subject to a judgment lien and application of the
sale proceeds to discharge the judgment.

The object of this

creditors’ action is satisfaction of debts secured by the various
lienholders by the sale of real properties subject to those liens.
The Complaint was originally filed in the Circuit Court of
Harrison County, West Virginia by the Estate of Lois M. LaRosa, by
and through plaintiffs, Julie Garvin and John Joseph Belcastro, II,
as co-executors.
judgments
underlying

Plaintiffs bring this action to enforce certain

entered
divorce

against
order

James
and

D.

to

LaRosa

foreclose

following
the

a

final

corresponding

judgment liens upon certain real property owned by James D. LaRosa
and/or his nominees and transferees.
By order dated September 28, 1998, Lois M. LaRosa was divorced
from James D. LaRosa and awarded a $1,500,000.00 “equalizing
payment.”

Lois M. LaRosa did not reduce the divorce order to a

judgment or seek to execute on the assets of James D. LaRosa until
February 24, 2004.

The Complaint alleges that although there is a

final order entered on September 28, 1998 in the divorce of James

facias thereon has been duly returned to the office of the court or
to the justice from which it issued showing by the return thereon
that no property could be found from which such execution could be
made: Provided, That such lien may be enforced in equity without
such return when an execution or fieri facias has not issued within
two years from the date of the judgment. If it appear to such
court that the rents and profits of the real estate subject to the
lien will not satisfy the judgment in five years, the court may
decree such real estate, or any part thereof, to be sold and the
proceeds applied to the discharge of the judgment.
2

D. LaRosa and Lois M. LaRosa (both now deceased), there has been no
administration of the Estate of James D. LaRosa. The Estate of Mr.
LaRosa

and/or

his

nominees

or

transferees

are

currently

the

owner(s) of numerous parcels of real estate in Harrison County,
West Virginia. Various entities, including the United States, have
recorded liens including judgment liens and state and federal tax
liens against certain properties enumerated in the Complaint.
This civil action was removed to the United States District
Court for the Northern District of West Virginia pursuant to 28
U.S.C. §§ 1442(a) and 1444 and 26 U.S.C. § 2410 on July 7, 2017.
This civil action was transferred by United States District Judge
Irene M. Keeley, pursuant to 28 U.S.C. § 455(a), to the undersigned
judge on September 8, 2017.
II.

ECF No. 22.
Applicable Law

Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears

the initial burden of showing the absence of any genuine issues of
material fact.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

“The burden then shifts to the nonmoving party to come

3

forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”
256.

“The

inquiry

performed

is

the

Anderson, 477 U.S. at
threshold

inquiry

of

determining whether there is the need for a trial—whether, in other
words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved

in

favor

of

either

party.”

Id.

at

250;

see

also

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)
(“Summary judgment ‘should be granted only in those cases where it
is perfectly clear that no issue of fact is involved and inquiry
into the facts is not desirable to clarify the application of the
law.’” (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394
(4th Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party

4

will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322.

In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
Moreover, the Court may enter summary judgment in favor of the
non-moving party when there is no genuine issue as to any material
fact and the non-moving party is entitled to judgment as a matter
of law.

See Command Cinema Corp. v. VCA Labs, Inc., 464 F. Supp.

2d 191 (S.D.N.Y. 2006); Sunderlin v. First Reliance Standard Life
Ins. Co., 235 F. Supp. 2d 222 (W.D.N.Y. 2002)(Summary judgment may
be rendered in favor of opposing party even though he has made no
formal cross-motion for summary judgment, if undisputed facts are
found which, when applied to the law, indicate that judgment
against the moving party is appropriate).
III.

Contentions of the Parties

Now before this Court are the fully briefed motion for summary
judgment filed by the plaintiffs (ECF No. 51) and the fully briefed
motion for partial summary judgment by defendant West Virginia
State Tax Department (ECF No. 53).

In addition to the briefing,

this Court heard oral argument on the parties’ motions for summary
judgment and has considered both the arguments of the parties
presented in the briefing as well as in oral argument.
The motions are ripe for decision, and are discussed, in turn,
below.

5

1.

Motion for Summary Judgment by Plaintiffs, The Estate of Lois

M. LaRosa (ECF No. 51)
Plaintiffs, as the Co-Executors of the Estate of Lois M.
LaRosa, filed a motion for summary judgment (ECF No. 51) and
memorandum in support (ECF No. 52) and assert that the Complaint,
filed pursuant to West Virginia Code § 38-3-9, seeks to enforce the
unpaid decretal judgments under the final order in the LaRosa
divorce action that were carried forward and reduced to sum-certain
amounts in the February 27, 2004 and March 28, 2008 judgment
orders.

ECF No. 51 at 3.

First, the plaintiffs seek to enforce

the judgment entered by the Circuit Court of Harrison County on
February 27, 2004, in the amount of $821,965.84 with pre-judgment
and post-judgment interest.

The plaintiffs assert that this lien

has a first priority on all real estate described in the Complaint.
Second, the plaintiffs seek to enforce the judgment entered by the
Circuit Court of Harrison County on March 28, 2008, for $823,503.27
with pre-judgment and post-judgment interest.

Plaintiffs assert

that “the judgment liens of Lois M. LaRosa are first in priority on
all of the real estate properties that are the subject of this
action.”

Id. at 4.

Plaintiffs assert that the designated properties are subject
to judicial sale and that the judgment liens of the Estate of Lois
M. Larosa are superior to the federal tax liens under the first in
time, first in right theory.

Plaintiffs assert that, in the

present matter, Lois M. LaRosa obtained her first judgment against

6

James D. LaRosa by order entered on February 27, 2004, and an
abstract of judgment was recorded in the Harrison County Clerk’s
office on March 31, 2004, and that Lois M. LaRosa obtained her
second judgment on March 28, 2008, and an abstract of judgment was
recorded in Harrison County on October 15, 2008.

In comparison,

plaintiffs assert that the first notice of federal tax lien was
filed against James D. LaRosa on June 22, 2012, and the second one
was filed on May 7, 2013.
that

the

Lois

M.

LaRosa

Id. at 10.
judgment

Further, plaintiffs assert
liens

are

superior

to

the

Campbell/Kandzari judgment lien, and are also superior to the liens
of the remaining defendants.

ECF No. 52 at 13, 17.

Plaintiffs

argue that “[t]he undisputed evidence shows that the properties in
this creditor action are subject to the judgment liens held by the
Estate

of

Lois

M.

LaRosa”

and

that

“[i]t

is

also

clearly

established that the rents and profits from these properties in the
next five years would be insufficient to satisfy these liens.” Id.
at 19.
Plaintiffs represent that “the parties that have current
ownership interests do not dispute the fact that the rents and
profits of these properties will be insufficient to discharge the
liens within five years.”

ECF No. 52 at 8.

Plaintiffs argue they

are “entitled to a judicial determination that the judgment liens
held by the Estate of Lois M. LaRosa are first in priority, that
the real estate described in the Complaint is subject to those
liens, and that these properties must be sold and the proceeds

7

applied to discharge the liens.” Id. Plaintiffs request the Court
grant summary judgment upon the claims and relief set forth in the
Complaint, and upon the matters set forth in the counterclaim of
defendants

Pamela

(“Kandzari”).

Campbell

(“Campbell”)

and

David

Kandzari

Id.

Defendants

Campbell

and

Kandzari

filed

a

response

in

opposition (ECF No. 58) and urge the Court to deny plaintiffs’
motion for summary judgment, asserting that: (1) the Campbell/
Kandzari judgment is prior in time and right to plaintiffs’
judgment and related claims; (2) the Campbell/Kandzari judgment is
not barred by West Virginia Code § 38-3-18 because Campbell/
Kandzari have undertaken multiple efforts in aid of execution of
their judgment and lien and been partially paid thereon within the
limitations period, and James D. LaRosa, under oath in a deposition
taken October 4, 2007, in aid of execution on the Campbell/Kandzari
judgment, misled Campbell/Kandzari about his assets, including
those at issue and his ability to pay their judgment, which tolls
the statute of limitations; and (3) even if the Court grants
decretal effect to any pre-November 8, 2002 divorce non-payments to
Mrs. LaRosa by James D. LaRosa, Exhibit 1 to plaintiffs’ motion for
contempt in the Circuit Court of Harrison County, West Virginia,
does not list any such non-payments which pre-date the Campbell/
Kandzari judgment order and lien of November 8, 2002.

Thus,

defendants Campbell and Kandzari argue, “no such non-payments are
entitled to any decretal priority or displace the Campbell/Kandzari

8

Judgment and Order from its first priority status.”

Id.

Instead,

defendants Campbell and Kandzari assert that the Court should enter
summary judgment for them and argue that as a matter of law, the
judgment lien of Campbell/Kandzari is valid, enforceable, and
entitled to first priority status as it is prior in right and time
to plaintiffs’ judgment liens.

Defendants Campbell and Kandzari

maintain there is no genuine issue as to any material fact related
to lien priority, and Campbell/Kandzari are entitled to an order
which confirms the first-priority status of their judgment lien and
denies plaintiffs’ motion for summary judgment as it relates to
Campbell/Kandzari.

ECF No. 58 at 11.

Defendant John T. Haskins (“Haskins”) filed a response in
opposition (ECF No. 59) and asserts that plaintiffs have failed to
identify the particular property interests previously owned by
James D. LaRosa that defendant Haskins now owns, and have not
established that the Estate is entitled to an award of costs and
attorneys’ fees or for the Commissioner to be paid from the sales
proceeds.

ECF No. 59 at 2.

Defendant Haskins asserts that there

is no dispute among the parties that plaintiffs have identified two
judgment orders against James D. LaRosa dated February 27, 2004,
and March 28, 2008, and also no dispute that, by Quitclaim Deed
dated March 27, 2009, James D. LaRosa and James J. LaRosa conveyed
both of their interests in eighteen real properties to defendant
Haskins.

However, defendant argues, plaintiffs seek to force a

sale of twelve of the real properties conveyed in the Quitclaim

9

Deed, but do not present any facts regarding the particular
interests owned by James D. LaRosa in any of the twelve properties
sought to be sold that he conveyed to defendant Haskins. Defendant
Haskins argues that plaintiffs have not submitted any title opinion
to prove ownership of the twelve properties and rely on tax
assessments in the name of defendant Haskins and the deed to
defendant Haskins from James D. LaRosa and James J. LaRosa to meet
their required burden of proof. Moreover, defendant Haskins argues
that, though plaintiffs broadly seek the ability to sell the
properties identified in the Complaint, there is no basis for
plaintiffs to seek the sale of the interests conveyed to defendant
Haskins by James J. LaRosa, and the only judgment liens on which
plaintiffs prosecute this action are against James D. LaRosa.
Further, defendant Haskins asserts that plaintiffs initiated this
action and should bear the costs and fees associated with the sale
of the property interest by a Commissioner and that expense should
not be deducted from monies that would otherwise be distributed to
the defendants, and accordingly, the Court should deny plaintiffs’
motion to the extent it seeks costs and attorneys’ fees or payment
of the Commissioner from the sales proceeds.
Defendant, the United States of America (“United States”),
filed a response in opposition (ECF No. 61) and asserts that while
the United States agrees that the judgment liens recorded by Lois
M. LaRosa are prior and superior to those of the United States,
plaintiffs have not shown that the federal tax liens of the United

10

States do not attach to the subject real properties.

The United

States asserts that plaintiffs have not proved that no genuine
issue of material fact remains.

As a consequence, plaintiffs’

motion for summary judgment must be denied. The United States also
asserts that plaintiffs have no standing to challenge the validity
of the United States’ tax lien on the Haskins property because they
do not own the property to which the federal tax lien attaches, and
admit that defendant Haskins, who has not challenged the federal
tax liens on the property, is the owner.
The Estate of Lois M. LaRosa filed replies (ECF Nos. 62, 63,
64) to the responses in opposition to the motion for summary
judgment.
First, plaintiffs assert that defendant Haskins does not
dispute that the properties described were conveyed to him by James
D. LaRosa, and his contention that there has been no showing by
plaintiffs as to James D. LaRosa’s particular prior ownership
interest in any of the properties is clearly wrong.

ECF No. 62.

As proven by the exhibits attached to the Complaint and the
exhibits further produced with their motion for summary judgment,
the plaintiffs assert that the former property interests of James
D. LaRosa that are subject to judicial sale in this action have
been clearly identified. Id. Plaintiffs assert that the deeds and
tax assessment records show there is no genuine issue of material
fact and that a judicial sale is appropriate relief, and argue that
defendant Haskins cannot merely raise a question to oppose summary

11

judgment, rather, he must produce significant probative evidence
demonstrating a genuine issue for trial.

Plaintiffs submit that a

judicial sale should be conducted through a Commissioner appointed
by the Court consistent with the applicable statutory procedures.
Next,

in

response

to

defendants

Campbell

and

Kandzari,

plaintiffs reiterate the arguments asserted in the motion and
further argue that defendants Campbell and Kandzari agree that
there are no material facts in dispute as to their status as
judgment creditors of James D. LaRosa and raise no factual dispute
regarding the plaintiffs’ status as lien creditors under the
judgments obtained by Lois LaRosa. ECF No. 63. Rather, plaintiffs
state that these defendants challenge the legal interpretation as
to lien priority.

In response to these defendants, plaintiffs

state that any lien priority of Campbell and Kandzari is determined
by the date of the amended judgment order entered January 25, 2013,
not by the date of the expired and superseded original judgment
order.

Plaintiffs also assert that the amended judgment order is

not a renewal judgment, is no longer enforceable, and does not
relate

back

to

the

original

judgment

order.

Id.

at

2,

5.

Plaintiffs state that the judgment liens of Lois M. LaRosa are
superior to any lien held by defendants Campbell and Kandzari. Id.
at 8.
Lastly, plaintiffs put forth reasons why, in their opinion,
the Lois M. LaRosa judgment liens are superior in priority to the
federal tax liens of the defendant United States of America,

12

asserting that Lois M. LaRosa was a qualifying creditor under the
applicable federal definition who perfected her judgment liens
before the defendant United States gave constructive notice of its
right to the delinquent taxpayer’s assets by filing its notices of
lien.

Therefore, plaintiffs argue, under well-established “first

in time, first in right” principles, that the Lois M. LaRosa
judgment liens are prior and superior to the federal tax liens at
issue.

Importantly, plaintiffs note, the defendant United States

does not dispute the facts and law on this central issue.
64.

ECF No.

Plaintiffs add that defendant United States now raises, for

the first time, the issue whether defendant Haskins took the
subject properties as a bona fide purchaser for value.

The

plaintiffs acknowledge that this question as to whether defendant
Haskins holds the property as the “nominee” of the delinquent
taxpayer presents a potential issue of material fact and also
points out that defendant United States agrees that its liens are
behind the LaRosa liens.

Plaintiffs assert:

The plaintiffs have established that the Lois LaRosa
liens, including unpaid principal and interest, now
exceed three million dollars.
In the event, however
unlikely, that a judicial sale of the subject properties
nets an amount in excess of monies due superior
lienholders, only then would defendant Haskins’ status as
a “nominee” become a material issue of fact. Defendant
United States raises only a potential and remotely
possible factual issue. This alone should not dictate
the unnecessary and premature expenditure of judicial and
litigant resources. A Special Commissioner appointed to
conduct the sale could be directed, if and when a
judicial sale results in a recovery exceeding the amounts
due to superior lienholders, to report this result to the
Court. Only then would the issue raised by defendant
United States become material.
13

Plaintiffs request summary judgment be granted upon their priority
claims

and

seek

the

judicial

sale

relief

set

forth

in

the

Complaint.
2.

Motion

for

Partial

Summary

Judgment

by

Defendant,

West

Virginia State Tax Department (ECF No. 53)
Defendant, the West Virginia State Tax Department, filed a
motion for partial summary judgment (ECF No. 53) and asserts that
the State Tax Department has eight tax liens recorded against James
D. LaRosa.

ECF No. 53 at 2.

This defendant asserts that it is

well settled that a statutory tax lien which has been properly
recorded in the county courthouse is a lien on all real and
personal property within that county owned by the taxpayer.
W. Va. Code § 11-10-12; see also W. Va. Code § 38-10C-1.

See
This

defendant argues there is no evidence before the Court to indicate
that the real property owned by defendant James D. LaRosa was sold
pursuant to a civil action in which the State Tax Commissioner was
a party, that the Tax Commissioner was given prior written notice
of the sale as required, or that the Tax Commissioner consented to
the sale by defendant James D. LaRosa.

Therefore, this defendant

argues, transfers of the real property are subject to the state tax
liens

and

the

eight

West

Virginia

undisturbed by operation of law.

Id.

state

tax

liens

remain

Specifically, the Tax

Department requests that this Court order the real property owned
by defendant James D. LaRosa be sold; that a Commissioner be
appointed to sell the real property located in Harrison County,
14

West Virginia; that the Commissioner be ordered to pay the West
Virginia state tax liens in order of priority under the law; and
this Court grant such additional relief as it deems proper.

Id.

at 7.
Plaintiffs, as Co-Executors of the Estate of Lois M. LaRosa,
filed a response in opposition to the West Virginia State Tax
Department’s motion for partial summary judgment (ECF No. 56), and
request that any partial summary judgment granted to the West
Virginia State Tax Department be limited to a determination that
the four tax liens arising prior to March 27, 2009 attach to the
properties that are the subject of this action; and that such tax
liens are inferior in priority to the Lois M. LaRosa judgment
liens. Plaintiffs agree with much of the defendant’s argument, and
simply point out that only the four liens of the State Tax
Department that were earlier recorded while James D. LaRosa owned
the subject properties could attach to his ownership interest
therein, in that liens arising later do not attach to property
James D. LaRosa no longer owned.
No reply was filed.
IV.
Following

its

review

Discussion
of

the

fully

briefed

motions,

the

parties’ briefing, the arguments made by the parties at oral
argument, and the memoranda and exhibits submitted by the parties,
and for the reasons set forth below, this Court finds, as a matter
of law, that the Campbell/Kandzari Judgment Order and Lien of

15

November 8, 2002 is valid, enforceable, and entitled to first
priority status as it is prior in right and time to plaintiffs’
judgment liens.

There is no genuine issue as to any material fact

regarding this issue and this Court finds that the Amended Judgment
Order (ECF No. 52-1 at 54, Ex. W) relates back and is plainly and
on its face a renewal of the 2002 Judgment Order.

Plaintiffs,

under the facts presented, are not unfairly prejudiced by the
Amended Judgment Order because the Amended Judgment Order reflects
a reduction of the amount owed and plaintiffs were not without
notice of the full extent of the Campbell/Kandzari Judgment Order
and Lien of November 8, 2002, because the Amended Judgment Order
relates back to and incorporates the original Judgment Order.

See

Barber v. Barber, 195 W. Va. 38, 40, 464 S.E.2d 358, 360 (1995).
Next, this Court finds, as a matter of law, that the only
judgment liens on which plaintiffs prosecute this action are
against James D. LaRosa.

Defendant Haskins argues that plaintiffs

have not submitted any title opinion to prove ownership of the
twelve properties and rely on tax assessments in the name of
defendant Haskins and the deed to defendant Haskins from James D.
LaRosa and James J. LaRosa to meet their required burden of proof.
This Court finds it is appropriate to defer its finding as it
relates to defendant Haskins until such time as the Commissioner to
be appointed identifies James D. LaRosa’s particular ownership
interests in the subject properties.

This Court will consult the

Commissioner’s report as to the twelve properties sought to be sold

16

which are implicated by the Quitclaim Deed by James D. LaRosa and
James

J.

LaRosa

which

conveyed

interests

in

eighteen

real

properties to defendant Haskins.
Next, this Court finds that defendant United States raises
only a potential and remotely possible factual issue, which would
only become material if and when a judicial sale results in a
recovery

exceeding

the

amounts

due

to

superior

lienholders.

Additionally, this Court finds that defendants cannot merely raise
a

question;

to

oppose

summary

judgment

they

must

produce

significant probative evidence demonstrating a genuine issue for
trial.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

(1986).
Moreover, to the extent plaintiffs’ motion requests all relief
requested in the Complaint, which includes attorneys’ fees and
costs or payment of the Commissioner from the sale proceeds, the
motion is denied as plaintiffs concede they no longer seek these
measures of relief (ECF No. 62 at 4).
Further, this Court grants defendant West Virginia State Tax
Department’s motion for partial summary judgment (ECF No. 53) as
framed, and finds that the four tax liens arising prior to March
27, 2009 attach to the properties that are the subject of this
action; and that such tax liens are inferior in priority to the
Campbell/Kandzari and Lois M. LaRosa judgment liens.

17

V.

Conclusion

For the reasons set forth above, this Court finds that the
designated properties are subject to judicial sale pursuant to West
Virginia Code § 38-3-9, and that these properties must be sold and
the proceeds applied to discharge the liens. This Court finds that
the Campbell/Kandzari Judgment Order and Lien of November 8, 2002
(ECF No. 58) is prior in time to plaintiffs’ judgments and related
claim and first in right.
Accordingly, plaintiffs’ motion for summary judgment as the
Co-Executors of the Estate of Lois M. LaRosa (ECF No. 51) is
GRANTED IN PART and DENIED IN PART AS FRAMED.

The motion for

partial summary judgment of defendant West Virginia State Tax
Department (ECF No. 53) is GRANTED AS FRAMED.

Accordingly, the

relief requested in defendants Campbell and Kandzari’s counterclaim
(ECF No. 39-9), as it applies to priority of liens, is GRANTED.
the

extent

defendants

Campbell

and

Kandzari

also

assert

To
a

crossclaim, which went unanswered in this action, this Court finds
that the crossclaim seeks the same measures of relief requested in
the counterclaim.

Thus, the crossclaim is DENIED AS MOOT.

Pursuant to West Virginia Code § 38-3-12, this Court will, by
separate order, appoint a Commissioner in this civil action in
order to proceed to ascertain and report to this Court, all the
liens, on the real estate or any part thereof of the judgment
debtor, the holders of such liens, the amount due to each, and the
priorities thereof, and such other matters necessary for the

18

resolution of this action consistent with the applicable statutory
procedures.

See W. Va. Code § 38-3-11, et seq.

IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

December 7, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

19