Id. (emphasis in original) (citations omitted).
Here, it is undisputed that there was no such instruction. Moreover, the deed remains in the possession of the third party, McFadden. Since there has not been legal delivery of the deed, title to the property has never passed to Michael Capobianco. Further, since Onofrio Capobianco is now deceased, there can be no instruction and no delivery.
While Michael seeks to focus the Court's attention on issues of fact with respect to donative intent, that aspect of whether there was an effective gift of the property from Onofrio to Michael is rendered irrelevant by the failure of delivery. Thus, Michael's assertion that the government failed to move for summary judgment on purely legal grounds is without merit.
In an ordinary case, our disposition of the delivery issue would end the matter. An additional issue, such as the validity of the government's tax liens on the disputed property, would not normally be addressed in that it is not necessary for a decision on the motion.
This case, however, has not been ordinary. The mere fact that the matter has been pending for more than six years attests to its unusual character. Although the claims of Onofrio Capobianco's estate have already been adjudicated, the Court would not find it surprising if the executors, heirs, devisees or beneficiaries were now to seek further delays in the foreclosure of the liens. There seems to be no shortage of Capobianco relatives to come forward, sequentially, claiming that someone's purported interest in the property has not been properly taken into account. Consequently, we find it necessary to address the issue of whether the government's tax liens were discharged by the sale of the property pursuant to Onofrio's execution on the mortgage foreclosure in 1981.
As with the "donative intent" issue discussed earlier, defendant, Michael Capobianco, here seeks to inject irrelevant concerns into the resolution of a fairly simple issue, evidently hoping to postpone judgment day once again. We see no reason to discuss these arguments which have no relevance to the straightforward issue before the Court.
The procedures available to discharge a junior tax lien of the United States in the foreclosure of a prior mortgage are set forth in two statutes: 28 U.S.C. § 2410(c) and 26 U.S.C. § 7425(b). It is undisputed that Onofrio Capobianco began foreclosure proceedings with respect to the Madison Street property in June, 1977. The United States was joined in the action pursuant to 28 U.S.C. § 2410(c) and filed an answer to the complaint in which it interposed no objection to the sale of the premises, provided that the sale be a judicial sale, as required by § 2410(c).
Certain characteristics have been held to distinguish a judicial sale from a non-judicial sale. These include an order by a court directing sale and confirmation by the court for validity. Yazoo & Mississippi R. Co. v. Clarksdale, 257 U.S. 10, 42 S. Ct. 27, 66 L. Ed. 104 (1921); A. H. and R. S. Coal Corp. v. United States, 461 F. Supp. 752 (W. D. Pa. 1978); Baton Coal Company Appeal, 365 Pa. 519, 76 A.2d 194 (1950). Execution of judgment pursuant to a mortgage foreclosure action in Pennsylvania is governed by Pa. R. Civ. P. 3180-3183. These rules incorporate, inter alia, Rules 3103(a) and (e) and 3135, governing enforcement of money judgments generally. Those rules establish the character of the execution sale as non-judicial. Rule 3103 provides for sale at the instigation of the plaintiff and Rule 3135 expressly provides that the sale does not require confirmation by the court for validity.
Contrary to defendant's alarmist contentions, however, adherence to the requirement of a judicial sale pursuant to § 2410(c) is not the only means by which the government's tax liens may be discharged. If a judicial sale is not to be held, local law pertaining to the discharge of junior liens may be invoked against the United States, provided that proper statutory notice of the sale has been given to the government. 26 U.S.C. § 7425(b). The requirements for proper notice, set forth in 26 U.S.C. § 7425(c)(1), are that the Secretary of the Treasury or his delegate receive written notice of the sale by registered or certified mail or personal service not less than twenty-five days prior to the sale.
The deposition of James Williams, the deputy sheriff then responsible for conducting sheriff's sales in Lehigh County, establishes that notice was sent by his office to the Attorney General of the United States and the United States Attorney for the Eastern District of Pennsylvania within twenty (20) days of the sale as required by state law notice provisions. (Williams deposition at 25-27). Moreover, Robert McFadden, Onofrio's attorney, did not send notice to anyone at any time. (McFadden deposition at 42). Thus, the record clearly establishes that the requirements of § 7425, pursuant to which the tax liens might have been discharged, were not fulfilled.
Although the United States was joined as a party to the mortgage foreclosure action as permitted by 28 U.S.C. § 2410(c), the plaintiff's failure to seek a judicial sale, required by that statute for discharge of the liens, made operative the provisions of 26 U.S.C § 7425(b) and (c). As noted, plaintiff also failed to fulfill the requirements for discharge of the liens set forth in that statute. Consequently, the liens remain undisturbed no matter who, now or in the future, may claim an interest in the Madison Street property.
Once again, the Court concludes that summary judgment in favor of the government is amply justified.
AND NOW, this 7th day of January, 1987, upon consideration of the plaintiff's motion for summary judgment and the defendant's response thereto, IT IS ORDERED that the motion is GRANTED and judgment is entered in favor of the plaintiff and against the defendant, Michael Capobianco.
IT IS FURTHER ORDERED that the tax liens of the United States of America are valid and subsisting liens against the Madison Street property and that those liens shall be foreclosed against said property.