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Falbo v. Falbo

United States District Court, S.D. West Virginia, Charleston

July 17, 2018

JOHN M. FALBO, Plaintiff,
v.
ALBERT THOMAS FALBO; MARY GUIFFRI; UNITED STATES OF AMERICA; and DALE W. STEAGER, Commissioner of the West Virginia Tax Division of the Department of Revenue, Defendants.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. United States District Judge.

         Pending are two motions for summary judgment and one motion for partial summary judgment. Plaintiff John M. Falbo and defendant Dale W. Steager, Commissioner, acting on behalf of the State of West Virginia, each filed a motion for summary judgment on January 10, 2018. Defendant United States of America filed a motion for partial summary judgment on January 17, 2018.

         John Falbo's complaint seeks partition by sale of a number of real properties jointly owned by himself, defendant Mary Guiffri, and defendant Albert Thomas Falbo. He also seeks to have Albert Falbo's share of the proceeds applied to the discharge of tax liens held by the United States and Steager.

         Also pending is John Falbo's motion to dismiss Albert Falbo's counterclaim and to strike matter from Albert Falbo's answer, filed September 27, 2017. The counterclaim and answer are contained within the same document, and they more closely resemble a request for information than a typical counterclaim and answer. (See ECF #2.) At a scheduling conference held December 1, 2017, Albert Falbo advised the court that he had since spoken to counsel for John Falbo, that his issues had been resolved, and that he wanted to sell the real properties. Thus, John Falbo's motion to dismiss the counterclaim and to strike matter from the answer is granted.

         In addition, pending is the United States' motion for a more definite statement, filed October 30, 2017. The United States asserted that the complaint failed to include three items required by 28 U.S.C. § 2410(b): “1. The address of the taxpayer whose liability created the lien; 2. [t]he identity of the internal revenue office which filed the notice; and 3. [t]he date and place such notice of lien was filed.” (U.S. Mot. for More Definite Statement 1.) On November 7, 2017, John Falbo filed a response to the United States' motion, to which he attached documents containing the requested information. The United States did not reply. Accordingly, the United States' motion is denied as moot.

         I. Background

         The facts underlying this matter are not in dispute. John Falbo and Albert Falbo each own a one-half undivided fee interest in the following real properties, all located in Fayette County, West Virginia, except that the property in paragraph D below is held by them as joint tenants with right of survivorship and except further that the property in paragraph B below is owned by them along with defendant Mary Giuffri in equal one-third undivided fee interests:

A. Address: 120 4th Avenue, Montgomery, WV Account No. 06336841 Map and Parcel: 07-2C-0057 2017 Taxes: $719.37/half Deed Book 431, at Page 427 Ownership: John M. Falbo and Albert T. Falbo
B. Address: 325 4th Avenue, Montgomery, WV Account No. 06336315 Map and Parcel: 07-1D-0247 Pt. Lot Hotel Blk 35 2017 Taxes: $1, 161.62/half Deed Book 352, at Page 641 Ownership: John M. Falbo, Albert Falbo and Mary Guiffri
C. Address: 106 Lee Street, Montgomery, WV Account No. 06338643 Map and Parcel: 07-3B-0022 Lots Pt. 11-12-13 Coal Valley Inc. 2017 Taxes: $742.22/half Deed Book 388, at Page 0115 Ownership: John Falbo and Albert Thomas Falbo
D. Address: 202 Third Avenue, Montgomery, WV
a. Account No. 6338661 Map and Parcel: 07-1D-0228 Lot R R Ave 2017 Taxes: $1, 463.58/half
b. Account No. 6337403 Map and Parcel: 07-1D-0270 Lot 15 Blk 11 3rd Ave Burger Chef 2017 Taxes: $55.64/half
c. Account No. 6338670 Map and Parcel: 07-1D-0231 Pt. Lot 1, Blk 36 Montg 30 ft 3rd Ave. Deed Book 331, at Page 291 Ownership: John Falbo and Albert Thomas Falbo
E. Address: Lee Street and Fourth Avenue, Montgomery, WV
Account No. 06336173
Map and Parcel: 07-1D-0225
Pt. Lot 36
2017 Taxes: $25.84/half
Deed Book 490, at Page 651
Ownership: John M. Falbo and Albert Thomas Falbo
F. Address: 4th Avenue, Montgomery, WV
Account No. 6338411
Map and Parcel: 07-1D-0227
Lot 22 x 64 Blk 36 4th Avenue
2017 Taxes: $20.87/half
Deed Book 490, at Page 0649
Ownership: John M. Falbo and Albert Thomas Falbo
G. Address: Third Avenue, Montgomery, WV
Account No. 6336208
Map and Parcel: 07-1D-0226
Pt. Lot 2 Blk ...

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