USA v. Simpson Borough Place Corp., (2nd Cir. 2009)
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07-4349-cv
USA v. Simpson Borough Place Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN
W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL
APPENDIX OR BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)." A PARTY CITING
A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE
ORDER W AS ENTERED.
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 31st day of March, two thousand and nine.
PRESENT:
HON. GUIDO CALABRESI,
HON. RICHARD C. WESLEY,
Circuit Judges,
HON. CHRISTOPHER F. DRONEY, District Judge.* ANGELO HOLDING CORP., Intervenor-Appellant, -v.- 07-4349-cv UNITED STATES OF AMERICA, Plaintiff-Appellee, SIMPSON BOROUGH PLACE CORP., BRACH B. SIMPSON, NEW YORK CITY DEPARTMENT OF FINANCE, STATE OF NEW YORK DEPARTMENT OF TAXATION AND FINANCE, Defendants-Appellees, JOHN DOE #1 THROUGH JOHN DOE #10, INCLUSIVE, SUCH NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF, THE PERSONS OR PARTIES INTENDED BEING TENANTS, OCCUPANTS, PERSONS, CORPORATIONS, OR OTHER LEGAL ENTITIES, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE CLUB CASINO CORP., Defendants.
For Intervenor-Appellant: Stephen D. Hans, Stephen D. Hans & Associates, P.C., Long Island City, N.Y.
For Defendants-Appellees: Donald F. Schneider, Schneider, Goldstein & Bloomfield, LLP, New York, N.Y.
UPON DUE CONSIDERATION of this appeal from a judgment of the U.S. District Court for the Eastern District of New York (Irizarry, J.) it is ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED.
Angelo Holding Corp ("AHC") appeals from an order of the U.S. District Court for the Eastern District of New York (Irizarry, J.) denying AHC's motion to intervene in a post-foreclosure surplus action, either as of right or permissively pursuant to Rule 24(a) and (b) of the Federal Rules of Civil Procedure. AHC sought to intervene in order to claim the return of a $110,000 down payment paid and forfeited by its predecessor-in-interest during a failed foreclosure sale. Since a later foreclosure sale on the same piece of property (involving a different buyer) was not only successful, but actually resulted in a surplus of nearly $600,000, AHC claims that principles of equity dictate that the $110,000 be returned. The District Court disagreed, and held that AHC had no claim to the money and in any event was not entitled to intervene fifteen months after AHC became aware of its interest. On appeal, AHC argues that the District Court abused its discretion by denying intervention.
Federal Rule of Civil Procedure 24 governs intervention. In Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171 (2d Cir. 2001), we identified the four criteria established by the Rule: "[T]he applicant must (1) file a timely motion; (2) claim an interest relating to the property or transaction that is the subject of the action; (3) be so situated that without intervention the disposition of the action may impair that interest; and (4) show that the interest is not already adequately represented by existing parties." Id. at 176. We review the denial of a motion to intervene for abuse of discretion. Id. Our review is "particularly deferential" when a District Court denies permissive intervention. AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561 (2d Cir.
2005) (quotation marks omitted); see also United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 990 n.19 (2d Cir. 1984) ("[A] denial of permissive intervention has virtually never been reversed.").
Here we need only reach the first two factors identified in Butler. The first is the timeliness of a motion to intervene. Here, AHC filed its motion to intervene in January 2007, fifteen months after the second (successful) foreclosure sale, and eleven months after that sale was formally closed in February 2006. The District Court found that this untimeliness was "the most important [factor] and the most damaging to Angelo." We find no error in this determination.
The second factor identified by Rule 24 and Butler is that the would-be intervenor must "claim an interest relating to the property or transaction that is the subject of the action." Butler, 250 F.3d at 176. In order for an interest to be cognizable under Rule 24, it must be "direct, substantial, and legally protectable." Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990). Here, AHC has no such interest, because AHC's predecessor in interest forfeited its right to the down payment by failing to close the sale. Johnson v. Werner, 63 A.D.2d 422, 424 (1st Dep't 1978) ("In the event of a default by the purchaser or a repudiation of the contract of purchase, upon which a down-payment has been made, the law is clear that the purchaser may not recover his down-payment. This is the rule even in instances where the premises are sold for a sum equal to or great than the contract price.") The fact that the second foreclosure sale resulted in a surplus does not create a cognizable interest--equitable or otherwise--in the forfeited down payment.
We have considered all of Appellant's claims, and find them to be meritless.
Accordingly, we AFFIRM the decision of the District Court.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court By:
* The Honorable Christopher F. Droney, United States District Court for the District of Connecticut, sitting by designation.
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