U.S. v. Coppola

• Decision Date: 18 November 1996
• Docket Number: No. 96-6122,96-6122
• Citation: 104 F.3d 354
• Court: U.S. Court of Appeals — Second Circuit
• Parties: -7251 NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. UNITED STATES of America, Plaintiff-Appellee, v. James M. COPPOLA, Jr., Barbara Coppola, Individually and as Trustees of Coppola Trust, Amandy Realty Corp., Cobra Construction, Corp., Cobra Pile Driving, Coppola Construction, Corp., Coppola Realty Corp., James Coppola Trucking Inc., G.I.J. Equipment, Corp., G.I.J. Realty Corp., J.A.J. Equipment, a/k/a J.A.J. Equipment Inc., Corp., J.J.'s Landing Co., Inc., J.M. Coppola Corp., (New York), J.M. Coppola Corp., (New Jersey), J.M. Coppola Trucking Inc., J.M. Trucking Co., Inc., JMC Carz Inc., Jiggy Construction, Corp., Jiggy Pile Driving Corp., Mill Harbour Development Corp., Mill Construction Corp., Mill Harbour Yacht Club & Marina, Ltd., Apple Bank; Barclays Business Credit, Inc., Greenpoint Savings Bank Corp., General Motors Acceptance Corporation, State of New York, City of New York, County of Suffolk, Weyant Oil Services and American Piles Inc., Defendants,

Page 354

104 F.3d 354

78 A.F.T.R.2d 96-7251

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

UNITED STATES of America, Plaintiff-Appellee, v. James M. COPPOLA, Jr., Barbara Coppola, Individually and as

Trustees of Coppola Trust, Amandy Realty Corp., Cobra

Construction, Corp., Cobra Pile Driving, Coppola

Construction, Corp., Coppola Realty Corp., James Coppola

Trucking Inc., G.I.J. Equipment, Corp., G.I.J. Realty Corp.,

J.A.J. Equipment, a/k/a J.A.J. Equipment Inc., Corp., J.J.'s

Landing Co., Inc., J.M. Coppola Corp., (New York), J.M.

Coppola Corp., (New Jersey), J.M. Coppola Trucking Inc.,

J.M. Trucking Co., Inc., JMC Carz Inc., Jiggy Construction,

Corp., Jiggy Pile Driving Corp., Mill Harbour Development

Corp., Mill Construction Corp., Mill Harbour Yacht Club &

Marina, Ltd., Apple Bank; Barclays Business Credit, Inc.,

Greenpoint Savings Bank Corp., General Motors Acceptance

Corporation, State of New York, City of New York, County of

Suffolk, Weyant Oil Services and American Piles Inc., Defendants,

No. 96-6122.

United States Court of Appeals, Second Circuit.

Nov. 18, 1996.

APPEARING FOR APPELLANT: Michael Majewski, Mineola, NY

APPEARING FOR APPELLEE: Randolph L. Hutter, U.S. Department of Justice, Tax Division, Washington, D.C.

This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was argued.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED.

On July 8, 1992, the government filed suit to foreclose on federal tax liens on property owned by James M. Coppola ("taxpayer") and his corporations. The complaint named as defendants the taxpayer, corporations owned by the taxpayer, and other corporations with competing security interests in the taxpayer's property, including Barclays Business Credit, Inc. ("Barclays"). On March 10, 1995, unknown to the government, Barclays assigned its security interest in one of its properties, located at 6097 Strickland Avenue in Brooklyn, New York, to 6097 Management Corporation ("6097"), the appellant.

On December 12, 1995, the government sent a letter to Barclays advising it that a trial on the foreclosure action had been scheduled for December 18, 1995. On December 14, 1995, Barclays responded to the government's letter, by facsimile transmission, informing the government for the first time that Barclays had assigned its interest in the taxpayer's property to a third party. On December 15, 1995, Barclays sent a second letter to the government indicating that it had assigned its interest in the taxpayer's property to 6097. In response, the government sent a letter to Barclays pointing out that it had not made a motion for substitution of parties under Fed.R.Civ.P. 25(c) and that the government would ask the court on December 18, 1995 for an order declaring its federal tax lien superior to Barclays' security interest. A copy of this letter was also sent to 6097 via Federal Express and received by 6097 on Saturday, December 16, 1995.

On Monday, December 18, 1995, when the case was called for trial, counsel for Barclays was not present; however, Mr. Robert Levy, president of 6097, who was present, advised the district court that 6097 was the assignee of Barclays' interest. Levy asked the district court to postpone the trial to allow 6097 to prepare to defend its interest in the taxpayer's property. Levy pointed out that he had been informed of the trial only two days earlier and had retained counsel, but asked for a delay in the trial because his attorney's father had died. The court refused to delay the proceedings and entered a default judgment declaring the federal tax lien superior to the Barclays' security interest.

On January 22, 1996, 6097 sent a letter to the district court which the court construed as a motion pursuant to Fed.R.Civ.P. 60(b) for relief from judgment and pursuant to Fed.R.Civ.P. 25(c) to be substituted as defendant. On February 9, 1996, Levy filed an affidavit which stated, inter alia, that on March 10, 1995, 6097 had given Barclays $50,000 in exchange for Barclays' interest in the taxpayer's property, valued at $2 million. Levy explained that his delay in making an appearance in the case was due to his reliance on Barclays to continue to pursue...