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The Estate of Larosa v. Larosa

United States District Court, N.D. West Virginia

December 7, 2018

THE ESTATE OF LOIS M. LAROSA, by JULIE GARVIN and JOHN JOSEPH BELCASTRO, II, Co-Executors, Plaintiffs,
v.
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

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         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] West Virginia Code § 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. Plaintiffs bring this action to enforce certain judgments entered against James D. LaRosa following a final underlying divorce order and to foreclose the 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 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. ECF No. 22.

         II. 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden then shifts to the nonmoving party to come 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.” Anderson, 477 U.S. at 256. “The inquiry performed is the 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 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 ...


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