United States District Court, D. Massachusetts
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES ARSI 2006-M3, Plaintiff,
RICHARD D. PUNKO, and UNITED STATES OF AMERICA, Defendants.
MEMORANDUM AND ORDER MOTION FOR A DEFAULT
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
initiated this interpleader action to determine the
appropriate disposition of surplus funds resulting from a
foreclosure sale of Defendant Richard D. Punko's property
in Cambridge, Massachusetts. Following the entry of a default
against Defendant Punko for failing to appear or otherwise
defend in the action [ECF No. 7], Plaintiff and the United
States jointly move for the entry of a default judgment
against Defendant Punko. [ECF No. 14]. For the reasons stated
herein, the motion is GRANTED.
motion for a default judgment, the Court considers “all
well-pleaded factual allegations as true . . . to determine
whether [the complaint] alleges a cause of action.”
Ramos-Falcon v. Autoridad de Energia Electrica, 301
F.3d 1, 2 (1st Cir. 2002). Plaintiff was the holder of a
first mortgage on the property of Defendant Punko. [ECF No. 6
at 6]. On or about August 25, 2017, Plaintiff foreclosed on
that property, and after crediting itself with the proper
charges, expenses, and payments of the balance due from
Defendant Punko, Plaintiff was left with $198, 720.39 of
surplus funds in which it has no legal interest. Id
at 6-7; [ECF No. 1-3 at 37-38]. On December 15, 2017,
Plaintiff initiated an interpleader action in the Middlesex
County Superior Court seeking to pay the surplus into that
court to be distributed to those entities that are entitled
to the funds. [ECF No. 6 at 7]. Plaintiff identified the only
potential claimants to be Defendant Punko, as the former
holder of the equity of redemption, and the United States, as
the holder of a federal income tax lien on the property.
Id The United States filed a notice of federal tax
lien with the Southern Middlesex County Registry of Deeds on
April 4, 2014 for the unpaid federal income tax liabilities
for tax years 2007, 2008, 2009, 2010, 2011, and 2012.
Id at 3; [ECF No. 14 at ¶ 8]; [ECF No. 1-3 at
40-41] (notice of federal tax lien).
February 20, 2018, Defendant Punko was properly served the
summons and complaint in accordance with the Federal and
Massachusetts Rules of Civil Procedure. [ECF No. 7-1 ¶
4]; [ECF No. 6 at 16-17]. On April 3, 2018, the United States
removed the action to this Court and sent Defendant Punko
notice of the removal by first class mail. [ECF No. 1]; [ECF
No. 7-1 ¶ 4]. As of this date, Defendant has not filed
any responsive pleading or otherwise appeared in this action.
[ECF No. 7-1 ¶¶ 4-6]. On May 15, 2018, upon
Plaintiffs request [ECF No. 7], the Clerk of the Court
entered a default against Defendant Punko. [ECF No. 9]. A
copy of the entry of default was mailed to Defendant Punko on
May 15, 2018. [ECF No. 11]. On May 22, 2018, Plaintiff and
the United States jointly moved for the entry of a default
judgment. [ECF No. 14]. Defendant Punko has not responded to
the default judgment motion.
facts of this case provide an appropriate basis for an
interpleader action. Plaintiff, the stakeholder, asserts no
entitlement to the stake, and the claims of Defendant Punko
as the former property owner, and the United States as a
lienholder claiming it is owed more than the total amount of
the surplus, are adverse to one another. See Hudson Sav.
Bank v. Austin, 479 F.3d 102, 107 (1st Cir. 2007)
(“classic interpleader action” where “(i)
the [bank], a pure stakeholder, has not asserted any
entitlement to the stake and is seeking nothing beyond a
discharge from further liability; (ii) no private party has
asserted any claim of entitlement to the stake (the only
non-governmental defendant . . . has manifested total
indifference to the outcome of the interpleader action); and
(iii) the sum of the [government's claim] exceeds the
dollar value of the stake”); Fed. Nat'l. Mortg.
Ass'n v. Ledgewood Hills Condo. Ass'n, No.
10-CV-412-LM, 2011 WL 676098, at *1 (D.N.H. Feb. 15, 2011)
(removal of interpleader action filed by mortgagee regarding
surplus funds following foreclosure sale where United States,
the former property owner, and private creditor were named as
United States also properly removed the interpleader action
from state court. “Under [28 U.S.C. § 2410], the
United States consents to be sued in a State's courts in
certain civil actions, including interpleader, on the
condition that, under [28 U.S.C. § 1444], it may remove
such an action to the federal district court. In other words,
the United States waives its immunity from suit in the state
court but retains the right, in a given case, to choose to
litigate the issue in the federal court instead.”
GMAC Mortg. Corp. v. Bayko, No. CIV.A. 04-12448-GAO,
2005 WL 677826, at *1 (D. Mass. Mar. 24, 2005); see S.
Adams Sav. Bank v. Martel, 540 F.Supp.2d 265, 268 (D.
Mass. 2008) (in action removed by the IRS, “Section
2410 . . . creates jurisdiction in the district court of the
subject matter ‘of interpleader or in the nature of
interpleader with respect to real or personal property on
which the United States has or claims a mortgage or other
lien'” (quoting 28 U.S.C. § 2410(a)(5)));
Fleet Nat'l Bank v. Kaplan, No. 02-cv-11175-RWZ,
2002 WL 31934187, at *1 (D. Mass. Oct. 11, 2002) (federal
government removed interpleader action over surplus funds
“as is the federal government's right under
[§§ 1444 and 2410]”). Here, the United States
and Defendant Punko are the only claimants and both were
named as defendants in the state court action. Therefore, the
removal of the action by the United States was appropriate.
support of the motion for a default judgment, the United
States submitted a declaration of its attorney to confirm
that Defendant Punko is not a minor or an incompetent person
and does not come within the purview of the Servicemembers
Civil Relief Act. [ECF No. 14-1]. Further, the United States
filed a declaration of an IRS advisor who reviewed the tax
records related to Defendant Punko to determine the balance
owed to the IRS. [ECF No. 14-2]. The affidavit shows the
assessments made against Defendant Punko for the tax years
2007, 2008, 2009, 2010, 2011, 2012, and 2015, as well as the
total balance due as to each assessment. Id. ¶
2. As of May 10, 2018, Defendant Punko is liable to the
United States in the amount of $365, 422.61, which exceeds
the total amount of the surplus funds. Id. ¶ 3.
Because Defendant Punko has failed to appear or defend in
this action, there is no basis to conclude he has any right
to the surplus funds in light of the properly noticed federal
income tax lien on the property.
foregoing reasons, Court hereby orders that Defendant Richard
D. Punko shall not be entitled to any part of the $198,
720.39 in surplus funds that Plaintiff is holding and that
resulted from the foreclosure sale of Defendant Punko's
property. The Court further orders that the $198, 720.39,
plus all accrued interest, shall be distributed to Defendant
United States of America, in partial satisfaction of
Defendant Punko's federal income tax liability.