The Estate of Lois M. Larosa v. LaRosa

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

THE ESTATE OF LOIS M. LAROSA,

by JULIE GARVIN and

JOHN JOSEPH BELCASTRO, II,

Co-Executors,

Plaintiffs,

v. Civil Action No. 1:17CV121

(STAMP)

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

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

1West Virginia Code § 38-3-9 states: The lien of a judgment

may be enforced in a court of equity after an execution or fieri

§ 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

facias thereon has been duly returned to the office of the court or

to the justice from which it issued showing by the return thereon

that no property could be found from which such execution could be

made: Provided, That such lien may be enforced in equity without

such return when an execution or fieri facias has not issued within

two years from the date of the judgment. If it appear to such

court that the rents and profits of the real estate subject to the

lien will not satisfy the judgment in five years, the court may

decree such real estate, or any part thereof, to be sold and the

proceeds applied to the discharge of the judgment.

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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

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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

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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 of the Parties

Now before this Court are the fully briefed motion for summary

judgment filed by the plaintiffs (ECF No. 51) and the fully briefed

motion for partial summary judgment by defendant West Virginia

State Tax Department (ECF No. 53). In addition to the briefing,

this Court heard oral argument on the parties’ motions for summary

judgment and has considered both the arguments of the parties

presented in the briefing as well as in oral argument.

The motions are ripe for decision, and are discussed, in turn,

below.

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1. Motion for Summary Judgment by Plaintiffs, The Estate of Lois

M. LaRosa (ECF No. 51)

Plaintiffs, as the Co-Executors of the Estate of Lois M.

LaRosa, filed a motion for summary judgment (ECF No. 51) and

memorandum in support (ECF No. 52) and assert that the Complaint,

filed pursuant to West Virginia Code § 38-3-9, seeks to enforce the

unpaid decretal judgments under the final order in the LaRosa

divorce action that were carried forward and reduced to sum-certain

amounts in the February 27, 2004 and March 28, 2008 judgment

orders. ECF No. 51 at 3. First, the plaintiffs seek to enforce

the judgment entered by the Circuit Court of Harrison County on

February 27, 2004, in the amount of $821,965.84 with pre-judgment

and post-judgment interest. The plaintiffs assert that this lien

has a first priority on all real estate described in the Complaint.

Second, the plaintiffs seek to enforce the judgment entered by the

Circuit Court of Harrison County on March 28, 2008, for $823,503.27

with pre-judgment and post-judgment interest. Plaintiffs assert

that “the judgment liens of Lois M. LaRosa are first in priority on

all of the real estate properties that are the subject of this

action.” Id. at 4.

Plaintiffs assert that the designated properties are subject

to judicial sale and that the judgment liens of the Estate of Lois

M. Larosa are superior to the federal tax liens under the first in

time, first in right theory. Plaintiffs assert that, in the

present matter, Lois M. LaRosa obtained her first judgment against

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James D. LaRosa by order entered on February 27, 2004, and an

abstract of judgment was recorded in the Harrison County Clerk’s

office on March 31, 2004, and that Lois M. LaRosa obtained her

second judgment on March 28, 2008, and an abstract of judgment was

recorded in Harrison County on October 15, 2008. In comparison,

plaintiffs assert that the first notice of federal tax lien was

filed against James D. LaRosa on June 22, 2012, and the second one

was filed on May 7, 2013. Id. at 10. Further, plaintiffs assert

that the Lois M. LaRosa judgment liens are superior to the

Campbell/Kandzari judgment lien, and are also superior to the liens

of the remaining defendants. ECF No. 52 at 13, 17. Plaintiffs

argue that “[t]he undisputed evidence shows that the properties in

this creditor action are subject to the judgment liens held by the

Estate of Lois M. LaRosa” and that “[i]t is also clearly

established that the rents and profits from these properties in the

next five years would be insufficient to satisfy these liens.” Id.

at 19.

Plaintiffs represent that “the parties that have current

ownership interests do not dispute the fact that the rents and

profits of these properties will be insufficient to discharge the

liens within five years.” ECF No. 52 at 8. Plaintiffs argue they

are “entitled to a judicial determination that the judgment liens

held by the Estate of Lois M. LaRosa are first in priority, that

the real estate described in the Complaint is subject to those

liens, and that these properties must be sold and the proceeds

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applied to discharge the liens.” Id. Plaintiffs request the Court

grant summary judgment upon the claims and relief set forth in the

Complaint, and upon the matters set forth in the counterclaim of

defendants Pamela Campbell (“Campbell”) and David Kandzari

(“Kandzari”). Id.

Defendants Campbell and Kandzari filed a response in

opposition (ECF No. 58) and urge the Court to deny plaintiffs’

motion for summary judgment, asserting that: (1) the Campbell/

Kandzari judgment is prior in time and right to plaintiffs’

judgment and related claims; (2) the Campbell/Kandzari judgment is

not barred by West Virginia Code § 38-3-18 because Campbell/

Kandzari have undertaken multiple efforts in aid of execution of

their judgment and lien and been partially paid thereon within the

limitations period, and James D. LaRosa, under oath in a deposition

taken October 4, 2007, in aid of execution on the Campbell/Kandzari

judgment, misled Campbell/Kandzari about his assets, including

those at issue and his ability to pay their judgment, which tolls

the statute of limitations; and (3) even if the Court grants

decretal effect to any pre-November 8, 2002 divorce non-payments to

Mrs. LaRosa by James D. LaRosa, Exhibit 1 to plaintiffs’ motion for

contempt in the Circuit Court of Harrison County, West Virginia,

does not list any such non-payments which pre-date the Campbell/

Kandzari judgment order and lien of November 8, 2002. Thus,

defendants Campbell and Kandzari argue, “no such non-payments are

entitled to any decretal priority or displace the Campbell/Kandzari

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Judgment and Order from its first priority status.” Id. Instead,

defendants Campbell and Kandzari assert that the Court should enter

summary judgment for them and argue that as a matter of law, the

judgment lien of Campbell/Kandzari is valid, enforceable, and

entitled to first priority status as it is prior in right and time

to plaintiffs’ judgment liens. Defendants Campbell and Kandzari

maintain there is no genuine issue as to any material fact related

to lien priority, and Campbell/Kandzari are entitled to an order

which confirms the first-priority status of their judgment lien and

denies plaintiffs’ motion for summary judgment as it relates to

Campbell/Kandzari. ECF No. 58 at 11.

Defendant John T. Haskins (“Haskins”) filed a response in

opposition (ECF No. 59) and asserts that plaintiffs have failed to

identify the particular property interests previously owned by

James D. LaRosa that defendant Haskins now owns, and have not

established that the Estate is entitled to an award of costs and

attorneys’ fees or for the Commissioner to be paid from the sales

proceeds. ECF No. 59 at 2. Defendant Haskins asserts that there

is no dispute among the parties that plaintiffs have identified two

judgment orders against James D. LaRosa dated February 27, 2004,

and March 28, 2008, and also no dispute that, by Quitclaim Deed

dated March 27, 2009, James D. LaRosa and James J. LaRosa conveyed

both of their interests in eighteen real properties to defendant

Haskins. However, defendant argues, plaintiffs seek to force a

sale of twelve of the real properties conveyed in the Quitclaim

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Deed, but do not present any facts regarding the particular

interests owned by James D. LaRosa in any of the twelve properties

sought to be sold that he conveyed to defendant Haskins. Defendant

Haskins argues that plaintiffs have not submitted any title opinion

to prove ownership of the twelve properties and rely on tax

assessments in the name of defendant Haskins and the deed to

defendant Haskins from James D. LaRosa and James J. LaRosa to meet

their required burden of proof. Moreover, defendant Haskins argues

that, though plaintiffs broadly seek the ability to sell the

properties identified in the Complaint, there is no basis for

plaintiffs to seek the sale of the interests conveyed to defendant

Haskins by James J. LaRosa, and the only judgment liens on which

plaintiffs prosecute this action are against James D. LaRosa.

Further, defendant Haskins asserts that plaintiffs initiated this

action and should bear the costs and fees associated with the sale

of the property interest by a Commissioner and that expense should

not be deducted from monies that would otherwise be distributed to

the defendants, and accordingly, the Court should deny plaintiffs’

motion to the extent it seeks costs and attorneys’ fees or payment

of the Commissioner from the sales proceeds.

Defendant, the United States of America (“United States”),

filed a response in opposition (ECF No. 61) and asserts that while

the United States agrees that the judgment liens recorded by Lois

M. LaRosa are prior and superior to those of the United States,

plaintiffs have not shown that the federal tax liens of the United

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States do not attach to the subject real properties. The United

States asserts that plaintiffs have not proved that no genuine

issue of material fact remains. As a consequence, plaintiffs’

motion for summary judgment must be denied. The United States also

asserts that plaintiffs have no standing to challenge the validity

of the United States’ tax lien on the Haskins property because they

do not own the property to which the federal tax lien attaches, and

admit that defendant Haskins, who has not challenged the federal

tax liens on the property, is the owner.

The Estate of Lois M. LaRosa filed replies (ECF Nos. 62, 63,

64) to the responses in opposition to the motion for summary

judgment.

First, plaintiffs assert that defendant Haskins does not

dispute that the properties described were conveyed to him by James

D. LaRosa, and his contention that there has been no showing by

plaintiffs as to James D. LaRosa’s particular prior ownership

interest in any of the properties is clearly wrong. ECF No. 62.

As proven by the exhibits attached to the Complaint and the

exhibits further produced with their motion for summary judgment,

the plaintiffs assert that the former property interests of James

D. LaRosa that are subject to judicial sale in this action have

been clearly identified. Id. Plaintiffs assert that the deeds and

tax assessment records show there is no genuine issue of material

fact and that a judicial sale is appropriate relief, and argue that

defendant Haskins cannot merely raise a question to oppose summary

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judgment, rather, he must produce significant probative evidence

demonstrating a genuine issue for trial. Plaintiffs submit that a

judicial sale should be conducted through a Commissioner appointed

by the Court consistent with the applicable statutory procedures.

Next, in response to defendants Campbell and Kandzari,

plaintiffs reiterate the arguments asserted in the motion and

further argue that defendants Campbell and Kandzari agree that

there are no material facts in dispute as to their status as

judgment creditors of James D. LaRosa and raise no factual dispute

regarding the plaintiffs’ status as lien creditors under the

judgments obtained by Lois LaRosa. ECF No. 63. Rather, plaintiffs

state that these defendants challenge the legal interpretation as

to lien priority. In response to these defendants, plaintiffs

state that any lien priority of Campbell and Kandzari is determined

by the date of the amended judgment order entered January 25, 2013,

not by the date of the expired and superseded original judgment

order. Plaintiffs also assert that the amended judgment order is

not a renewal judgment, is no longer enforceable, and does not

relate back to the original judgment order. Id. at 2, 5.

Plaintiffs state that the judgment liens of Lois M. LaRosa are

superior to any lien held by defendants Campbell and Kandzari. Id.

at 8.

Lastly, plaintiffs put forth reasons why, in their opinion,

the Lois M. LaRosa judgment liens are superior in priority to the

federal tax liens of the defendant United States of America,

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asserting that Lois M. LaRosa was a qualifying creditor under the

applicable federal definition who perfected her judgment liens

before the defendant United States gave constructive notice of its

right to the delinquent taxpayer’s assets by filing its notices of

lien. Therefore, plaintiffs argue, under well-established “first

in time, first in right” principles, that the Lois M. LaRosa

judgment liens are prior and superior to the federal tax liens at

issue. Importantly, plaintiffs note, the defendant United States

does not dispute the facts and law on this central issue. ECF No.

64. Plaintiffs add that defendant United States now raises, for

the first time, the issue whether defendant Haskins took the

subject properties as a bona fide purchaser for value. The

plaintiffs acknowledge that this question as to whether defendant

Haskins holds the property as the “nominee” of the delinquent

taxpayer presents a potential issue of material fact and also

points out that defendant United States agrees that its liens are

behind the LaRosa liens. Plaintiffs assert:

The plaintiffs have established that the Lois LaRosa

liens, including unpaid principal and interest, now

exceed three million dollars. In the event, however

unlikely, that a judicial sale of the subject properties

nets an amount in excess of monies due superior

lienholders, only then would defendant Haskins’ status as

a “nominee” become a material issue of fact. Defendant

United States raises only a potential and remotely

possible factual issue. This alone should not dictate

the unnecessary and premature expenditure of judicial and

litigant resources. A Special Commissioner appointed to

conduct the sale could be directed, if and when a

judicial sale results in a recovery exceeding the amounts

due to superior lienholders, to report this result to the

Court. Only then would the issue raised by defendant

United States become material.

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Plaintiffs request summary judgment be granted upon their priority

claims and seek the judicial sale relief set forth in the

Complaint.

2. Motion for Partial Summary Judgment by Defendant, West

Virginia State Tax Department (ECF No. 53)

Defendant, the West Virginia State Tax Department, filed a

motion for partial summary judgment (ECF No. 53) and asserts that

the State Tax Department has eight tax liens recorded against James

D. LaRosa. ECF No. 53 at 2. This defendant asserts that it is

well settled that a statutory tax lien which has been properly

recorded in the county courthouse is a lien on all real and

personal property within that county owned by the taxpayer. See

W. Va. Code § 11-10-12; see also W. Va. Code § 38-10C-1. This

defendant argues there is no evidence before the Court to indicate

that the real property owned by defendant James D. LaRosa was sold

pursuant to a civil action in which the State Tax Commissioner was

a party, that the Tax Commissioner was given prior written notice

of the sale as required, or that the Tax Commissioner consented to

the sale by defendant James D. LaRosa. Therefore, this defendant

argues, transfers of the real property are subject to the state tax

liens and the eight West Virginia state tax liens remain

undisturbed by operation of law. Id. Specifically, the Tax

Department requests that this Court order the real property owned

by defendant James D. LaRosa be sold; that a Commissioner be

appointed to sell the real property located in Harrison County,

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West Virginia; that the Commissioner be ordered to pay the West

Virginia state tax liens in order of priority under the law; and

this Court grant such additional relief as it deems proper. Id.

at 7.

Plaintiffs, as Co-Executors of the Estate of Lois M. LaRosa,

filed a response in opposition to the West Virginia State Tax

Department’s motion for partial summary judgment (ECF No. 56), and

request that any partial summary judgment granted to the West

Virginia State Tax Department be limited to a determination that

the four tax liens arising prior to March 27, 2009 attach to the

properties that are the subject of this action; and that such tax

liens are inferior in priority to the Lois M. LaRosa judgment

liens. Plaintiffs agree with much of the defendant’s argument, and

simply point out that only the four liens of the State Tax

Department that were earlier recorded while James D. LaRosa owned

the subject properties could attach to his ownership interest

therein, in that liens arising later do not attach to property

James D. LaRosa no longer owned.

No reply was filed.

IV. Discussion

Following its review of the fully briefed motions, the

parties’ briefing, the arguments made by the parties at oral

argument, and the memoranda and exhibits submitted by the parties,

and for the reasons set forth below, this Court finds, as a matter

of law, that the Campbell/Kandzari Judgment Order and Lien of

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November 8, 2002 is valid, enforceable, and entitled to first

priority status as it is prior in right and time to plaintiffs’

judgment liens. There is no genuine issue as to any material fact

regarding this issue and this Court finds that the Amended Judgment

Order (ECF No. 52-1 at 54, Ex. W) relates back and is plainly and

on its face a renewal of the 2002 Judgment Order. Plaintiffs,

under the facts presented, are not unfairly prejudiced by the

Amended Judgment Order because the Amended Judgment Order reflects

a reduction of the amount owed and plaintiffs were not without

notice of the full extent of the Campbell/Kandzari Judgment Order

and Lien of November 8, 2002, because the Amended Judgment Order

relates back to and incorporates the original Judgment Order. See

Barber v. Barber, 195 W. Va. 38, 40, 464 S.E.2d 358, 360 (1995).

Next, this Court finds, as a matter of law, that the only

judgment liens on which plaintiffs prosecute this action are

against James D. LaRosa. Defendant Haskins argues that plaintiffs

have not submitted any title opinion to prove ownership of the

twelve properties and rely on tax assessments in the name of

defendant Haskins and the deed to defendant Haskins from James D.

LaRosa and James J. LaRosa to meet their required burden of proof.

This Court finds it is appropriate to defer its finding as it

relates to defendant Haskins until such time as the Commissioner to

be appointed identifies James D. LaRosa’s particular ownership

interests in the subject properties. This Court will consult the

Commissioner’s report as to the twelve properties sought to be sold

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which are implicated by the Quitclaim Deed by James D. LaRosa and

James J. LaRosa which conveyed interests in eighteen real

properties to defendant Haskins.

Next, this Court finds that defendant United States raises

only a potential and remotely possible factual issue, which would

only become material if and when a judicial sale results in a

recovery exceeding the amounts due to superior lienholders.

Additionally, this Court finds that defendants cannot merely raise

a question; to oppose summary judgment they must produce

significant probative evidence demonstrating a genuine issue for

trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

(1986).

Moreover, to the extent plaintiffs’ motion requests all relief

requested in the Complaint, which includes attorneys’ fees and

costs or payment of the Commissioner from the sale proceeds, the

motion is denied as plaintiffs concede they no longer seek these

measures of relief (ECF No. 62 at 4).

Further, this Court grants defendant West Virginia State Tax

Department’s motion for partial summary judgment (ECF No. 53) as

framed, and finds that the four tax liens arising prior to March

27, 2009 attach to the properties that are the subject of this

action; and that such tax liens are inferior in priority to the

Campbell/Kandzari and Lois M. LaRosa judgment liens.

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V. Conclusion

For the reasons set forth above, this Court finds that the

designated properties are subject to judicial sale pursuant to West

Virginia Code § 38-3-9, and that these properties must be sold and

the proceeds applied to discharge the liens. This Court finds that

the Campbell/Kandzari Judgment Order and Lien of November 8, 2002

(ECF No. 58) is prior in time to plaintiffs’ judgments and related

claim and first in right.

Accordingly, plaintiffs’ motion for summary judgment as the

Co-Executors of the Estate of Lois M. LaRosa (ECF No. 51) is

GRANTED IN PART and DENIED IN PART AS FRAMED. The motion for

partial summary judgment of defendant West Virginia State Tax

Department (ECF No. 53) is GRANTED AS FRAMED. Accordingly, the

relief requested in defendants Campbell and Kandzari’s counterclaim

(ECF No. 39-9), as it applies to priority of liens, is GRANTED. To

the extent defendants Campbell and Kandzari also assert a

crossclaim, which went unanswered in this action, this Court finds

that the crossclaim seeks the same measures of relief requested in

the counterclaim. Thus, the crossclaim is DENIED AS MOOT.

Pursuant to West Virginia Code § 38-3-12, this Court will, by

separate order, appoint a Commissioner in this civil action in

order to proceed to ascertain and report to this Court, all the

liens, on the real estate or any part thereof of the judgment

debtor, the holders of such liens, the amount due to each, and the

priorities thereof, and such other matters necessary for the

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resolution of this action consistent with the applicable statutory

procedures. See W. Va. Code § 38-3-11, et seq.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to counsel of record herein.

DATED: December 7, 2018

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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