United States v. Tolin
| Decision Date | 30 March 2015 |
| Docket Number | Case No. 4:13CV863 HEA |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOSH P. TOLIN, et al., Defendants |
| Court | U.S. District Court — Eastern District of Missouri |
This presents itself to the Court on Plaintiff's Motion for Summary Judgment, [Doc. No. 57], and Intervenor Defendant U.S. Bank National Association as Trustee under Pooling and Servicing Agreement dated as of September 1, 2006, MASTR Asset Backed Securities Trust 2006-NC2 Mortgage Pass Through Certificates Series 200's Motion for Summary Judgment, [Doc. No. 62]. Each party each opposes the motion of the other. For the reasons set forth below, Plaintiff's Motion is granted and Intervenor Defendant's Motion is denied.
The parties agree that there are no material facts in dispute.
On March 15, 2004, Josh and Kimberly Tolin purchased, as joint tenants, the subject property located at 16609 Clayton Road, Ballwin, Missouri. The Tolins financed the purchase of the subject property with a $277,000 loan from NewCentury Mortgage Corporation. The Tolins executed a Deed of Trust to secure the loan on March 15, 2004 and recorded it in St. Louis County on March 29, 2004.
On October 4, 2013, the Court entered an order dismissing Kimberly Tolin from this litigation after she agreed to disclaim any right to, title to, or interest in the proceeds from the sale of the subject property.
On October 3, 2013, the Court entered judgment that:
The United States' federal tax liens against Josh Tolin, described in the October 3rd judgment arose on the date of each assessment of tax under 26 U.S.C. §§ 6321 and 6322, and attached to the subject real property on those dates. The dates of assessment are as follows:
2001: 06/05/2006 in the amount of $415,618.79
2002: 05/15/2006 in the amount of $155,256.81
2004: 11/21/2005 in the amount of $166,288.71
2006: 11/05/2007 in the amount of $2,380.53
On March 30, 2006, the Internal Revenue Service ("IRS") recorded a notice of federal tax lien in St. Louis County that related to Josh Tolin's unpaid federal income tax liabilities for tax year 2004. On April 15, 2008, the IRS recorded a notice of federal tax lien in St. Louis County that related to Josh Tolin's unpaid federal income tax liabilities for tax year 2001, 2002, and 2006. On March 8, 2006 and again on March 17, 2006, the IRS recorded notices of federal tax lien in St. Louis County relating to Josh Tolin's federal tax liabilities for years 1998 and 2000 in the amount of $199,482.23, which are not at issue here.
On November 25, 2013, the United States and defendant, Missouri Department of Revenue (the "State") filed a joint stipulation concerning their interests in the subject property. According to the joint stipulation between the United States and the State, the State agreed that the United States' interest in the subject property derived from the federal tax lien relating to Josh Tolin's unpaid federal income taxes for tax year 2004 had priority over the States' interest in the subject property. Additionally, the United States and the State stipulated that the State's interest in the subject property derived from state tax liens filed with St. Louis County on May 12, 2006 has priority over the United States interest in thesubject property derived from the federal tax liens relating to Josh Tolin's unpaid federal income taxes for tax years 2001, 2002, and 2006 for which a notice of federal tax lien was filed with St. Louis County on April 15, 2008.
Ocwen is the loan servicer for U.S. Bank as holder of a note secured by the subject property. Ocwen has no interest in the subject real property.
On March 7, 2006, America's Home Mortgage LLC, a mortgage broker, prepared a good faith estimate for Josh Tolin and Kimberly Tolin relating to a potential new loan. Josh Tolin and Kimberly Tolin signed this good faith estimate as "applicants" on March 10, 2006. On March 17, 2006, New Century Mortgage Corporation prepared a good faith estimate, marked as a preliminary estimate, for Josh Tolin and Kimberly Tolin relating to the finance charges of the closing costs in connection with the origination of a potential new loan.
On March 24, 2006, Josh Tolin and Kimberly Tolin completed a uniform residential loan application. The Tolins' loan application indicates that the Tolins requested a loan in the amount of $366,350 in order to refinance. The purpose of the refinance was to "cash-out and consolidate debt."
The Tolins disclosed several liabilities on their loan application, but failed to disclose any unpaid federal tax liabilities.
On March 24, 2006, New Century Mortgage Corporation prepared another good faith estimate, marked as a final disclosure, for Josh Tolin and Kimberly Tolin. This estimate does not include a line item for a title search.
On March 24, 2006, Josh Tolin and Kimberly Tolin executed a Deed of Trust to secure a loan from New Century Mortgage Corporation in the amount of $366,350. The Deed of Trust was not recorded until July 11, 2006.
The H.U.D. Settlement Statement signed by Josh Tolin and Kimberly Tolin shows that the loan was settled on March 24, 2006 and that funds were disbursed on March 29, 2006. The Settlement Statement indicates that $274,409.93 would be used to pay off the Tolins' first mortgage serviced by HomeQ Servicing. An additional $83,005.09 was used for various other settlement charges. According to an earlier draft of the Settlement Statement, those other settlement charges included disbursements to MBNA America, Amex, the State of Missouri for a state tax lien, Sallie Mae, and Capital One Bank. There is no evidence that New Century Mortgage Corporation or the closing agent performed a title search on the subject property before closing on the new loan.
On May 2, 2006, HomeQ Servicing Corporation recorded a Deed of Release in St. Louis County, which was prepared on April 10, 2006, that released the $277,000 loan recorded on March 29, 2004 described in paragraph 2, above.
On July 11, 2006, the Deed of Trust securing the March 24, 2006 loan from New Century Mortgage to the Tolins was recorded in St. Louis County.
On December 8, 2009, New Century Mortgage Corporation recorded an Assignment of Deed of Trust in St. Louis County, which assigned the March 24, 2006 Deed of Trust to U.S. Bank.
On January 7, 2009, a modification agreement was entered into between the Tolins and HomEq Servicing. The agreement increases the unpaid principal balance due from $363,241.22 to $372,338.19. The agreement capitalized delinquent interest, late charges, a negative escrow balance, and corporate advances totaling $9,096.97.
The standard applicable to summary judgment motions is well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(c); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000); Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir. 1999). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Herring, 207 F.3d at 1029 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact, see Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004), and "must substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff's favor." Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005).
The parties do not dispute any of the relevant facts. Rather, the only issue in this case is the legal question of which security interest takes priority. The facts clearly establish, and there is no...
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