The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
The defendant Herbert E. Meyer and his wife, Marjory Meyer, owe the United States government over $280,000 in taxes and interest. They concede this indebtedness. They have owed taxes for many years, some liens going back to as early as 1957. Indeed, in 1966 a judgment was rendered against them for over $132,000 of this indebtedness. Despite the fact that they own a cooperative apartment on Park Avenue and an interest in a joint venture in seven other apartments in the same building, the government has been ineffectually attempting to obtain payment of the taxes for a number of years.
The major stumbling block in the way of the tax collector is defendant Louis V. Keeler ("Keeler"), who claims a paramount lien against the Meyers' property as security for some $25,000 he lent them over a dozen years ago. Keeler is apparently not interested in obtaining repayment of the loan and has allegedly even allowed cash disbursements, in the amount of $9,000, to be made to the Meyers from the joint venture investment. He apparently asserts his secured interest only when the government attempts to foreclose on the Meyers' property.
The government now moves for summary judgment seeking to: (1) foreclose on the Meyers' property; (2) foreclose on a sum of money being held by the Clerk of the court; (3) obtain a determination concerning the priority of its liens; and (4) obtain a judgment on that portion of its tax liens which have not been previously reduced to judgment
(there does not appear to be any opposition to this portion of the motion).
The facts may be summarized as follows:
Prior to July 1959 (when Keeler first entered on the scene), the government had filed several tax liens against the Meyers. The total of these liens is listed variously in the government's papers, as follows:
On July 23, 1959, it is alleged that Keeler loaned the Meyers $12,500. A demand promissory note, dated a day earlier (July 22, 1959), signed only by Herbert E. Meyer, is made payable to the order of "Southmont Corp." The papers on the motion do not identify Southmont Corp., but, presumably, it is an enterprise in which Keeler had an interest. On January 18, 1960, Keeler loaned the Meyers an additional $12,500. Between the time these two loans were made, the government had filed an additional lien in the amount of $1,169.89.
On February 1, 1960, the Meyers acquired their interest in the cooperative apartment and a lease thereunder. This was evidenced by a stock certificate covering 540 shares in the 993 Park Avenue Corporation, which took title to the building. There is a blank, unwitnessed assignment of the stock certificate to Keeler dated June 7, 1960. It is not clear exactly when this assignment was made.
A written agreement between the Meyers and Keeler, dated October 25, 1961, is the first formal written document evidencing the overall relationships between the parties, namely, that $15,000 had been loaned for the purchase of the cooperative apartment and $10,000 for the purchase of the interest in a joint venture to sell the undisposed apartments in the building. The agreement does not make reference to the date of the loans or explain the discrepancy between the amounts actually loaned ($12,500 twice) and the amounts attributed for each purpose. It merely describes the stock certificate as being delivered to Keeler, "endorsed in blank," subject to the repayment to Keeler of $15,000 "as evidenced by a certain demand promissory note for that amount."
The promissory note, bearing merely the date "1961," was signed by both of the Meyers.
Between the earliest possible date of the assignment (June 7, 1960) and the date of the agreement (October 25, 1961), several more tax liens were filed. No notice of this assignment was given to the 993 Park Avenue Corporation until June 12, 1962, when a letter was sent by Keeler. The lease in question requires the approval of the corporation before an assignment of interest can be made. The stock certificate states clearly ...