United States District Court, E.D. New York
Plaintiff: Karen Maria Berberich, Esq. Rosa M. Feeney, Esq.
Caroline Knoepffler Hock, Esq. Lewis Johs Avallone Aviles,
Defendants: Paul and Christine Collura Lloyd M. Eisenberg,
Esq. Donna Rosanne Ruggiero, Esq.
of New York Mellon: Sarah Joanne Greenberg, Esq.
States of America: Wallace D. Dennis, Esq.
Capital One Home Loans, LLC and Countrywide Home Loans, Inc.:
MEMORANDUM & ORDER
Allstate Indemnity Company (“Plaintiff” or
“Allstate”) commenced this interpleader action
against Paul and Christine Collura (the
“Colluras”), Bank of New York Mellon
(“BNY”), the United States of America (the
“United States” or the “Government”),
Capital One Home Loans, LLC (“Capital One”), Bank
of America (“Bank of America”) and Countrywide
Home Loans, Inc. (“Countrywide” and collectively,
“Defendants”) on August 28, 2015. (Compl., Docket
Entry 1.) Currently pending before the Court is Magistrate A.
Kathleen Tomlinson's Report and Recommendation dated
February 7, 2017 (the “R&R”, Docket Entry 83)
with respect to Plaintiff's motion to deposit proceeds
from a homeowner's insurance policy with the Court
(Docket Entry 56) and Plaintiff's motion for a default
judgment against Capital One and Countrywide (Docket Entry
59). Judge Tomlinson recommends that this Court grant
Plaintiff's motions. (R&R at 2.) Defendant BNY filed
objections to the R&R, (BNY Obj., Docket Entry 86), and
the United States responded to those objections (U.S. Reply,
Docket Entry 87). For the following reasons, BNY's
objections are OVERRULED, and the R&R is ADOPTED IN PART
and REJECTED IN PART. Plaintiff's motion to deposit funds
is GRANTED IN PART and DENIED IN PART, and Plaintiff's
motion for a default judgment is GRANTED.
issued a homeowners insurance policy (the
“Policy”) on a property owned by the Colluras
(the “Property”) in Southhampton, New York.
(Compl. ¶ 12.) On March 16, 2015, the Property sustained
damage, and the Colluras subsequently filed a claim. (Compl.
¶¶ 2-3, 15.) Plaintiff inspected the damage and
estimated the replacement cost value to be $75, 460.04.
(Estimate, Compl. Ex. B, at 85.) Plaintiff further estimated
that the actual cash value of the net claim was $65, 582.18,
after reductions for depreciation of $4, 013.86 and prior
payments of $5, 864.00. (Estimate at 85.) On August 11, 2015,
Plaintiff provided the estimate to the Colluras and advised
that it would settle the claim for $65, 582.18. (Settlement
Ltr., Compl. Ex. C, at 92.) Pursuant to the terms of the
Policy, if the insured does not repair the damage, payment
will be made on an actual cash value basis and depreciation
is not recoverable. (Policy, Compl. Ex. A, at 22-64, at 40,
¶ 5(b).) Conversely, the Policy provides that if the
insured repairs the damage within 180 days of receiving the
actual cash value payment, Plaintiff will “make
additional payment to reimburse [the insured] for cost in
excess of actual cash value” and depreciation is
recoverable. (Policy at 40, ¶ 5(c).)
forwarding the estimate to the Colluras, Plaintiff discovered
that there were multiple lienholders with potential claims to
the settlement proceeds, including: (1) Capital One, which
issued a mortgage and was on the deed for the Property; (2)
BNY, to which the mortgage was assigned by Capital One; (3)
Bank of America, the mortgage servicer; (4) the United
States, which had two federal tax liens on the Property of
$75, 690.80 and $80, 537.52; and (5) a third party who filed
a Notice of Pendency against the Colluras. (Compl. ¶
18.) Plaintiff alleges that it cannot determine which
lienholders, if any, are entitled to the proceeds and
commenced this action to resolve the competing claims.
stated, Plaintiff filed the Complaint on August 28, 2015. The
Government answered the Complaint on November 15, 2015 and
acknowledged the tax liens. (U.S. Answer, Docket Entry 21.)
Bank of America answered the Complaint on November 30, 2015
and disclaimed any right to the settlement proceeds. (Bank of
America Answer, Docket Entry 25.) BNY filed its answer on
November 30, 2015 and asserted cross-claims against each of
the Defendants. (BNY Answer, Docket Entry 24.) The same day,
the Colluras answered the Complaint and asserted a
counter-claim against Plaintiff and cross-claims against each
of the Defendants. (Collura Answer, Docket Entry 26.) On
April 6, 2016, Bank of America was dismissed from the case.
(Stip. & Order, Docket Entry 54.)
April 15, 2016, Plaintiff filed a motion to deposit the
proceeds with the Court and be released from this litigation.
(Mot. to Deposit, Docket Entry 56; Pl.'s Deposit Br.,
Docket Entry 58.) Specifically, Plaintiff seeks to deposit
$65, 582.18 immediately, and $4, 013.86 at a later date
should proof of repairs be submitted (the “Settlement
Amount”). (Pl.'s Deposit Br. at 2.) Finally,
Plaintiff seeks dismissal of the Colluras' counterclaim
against it. (Pl.'s Deposit Br. at 2.) BNY opposed the
motion and requested that the Court award the Settlement
Amount to BNY. (BNY Opp., Docket Entry 63, at 14-15.) The
Colluras filed a response on May 19, 2016, advising that
while they did not object to Plaintiff's motion, they
opposed disbursement of the Settlement Amount to BNY.
(Collura Reply, Docket Entry 70.) On June 14, 2016, the
Government also opposed BNY's request for affirmative
relief. (U.S. Reply, Docket Entry 74.) Plaintiff filed its
reply in further support of its motion on May 17, 2016.
(Pl.'s Reply, Docket Entry 69.)
April 18, 2016, Plaintiff filed a motion for a default
judgment against Capital One and Countrywide. (Default Mot.,
Docket Entry 59.) None of the parties opposed the motion.
October 24, 2016, the undersigned referred both motions to
Judge Tomlinson for an R&R on whether the motions should
be granted. (Referral Order, Docket Entry 82.) On February 7,
2017, Judge Tomlinson issued her R&R recommending that
Plaintiff's motions be granted. (R&R at 2.) BNY has
objected to Judge Tomlinson's recommendation that
Plaintiff be permitted to deposit the Settlement Amount with
the Court and be discharged from the case. (See, BNY
Obj.) The Government filed a response to BNY's
objections. (See, U.S. Reply.) None of ...