ABN AMRO v. Miller, et al.

2004 DNH 146

• Court: District Court, D. New Hampshire
• Decided: October 12, 2004
• Docket: CV-04-163-SM
• Status: Published

Opinion

ABN AMRO v . Miller, et a l . CV-04-163-SM 10/12/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

ABN AMRO Mortgage Group, Inc., Successor by Merger to Atlantic Mortgage and Investment Corp., Plaintiff

v. Civil N o . 04-163-SM Opinion N o . 2004 DNH 146 Robert J. Miller; Elizabeth A . Miller; The Bank of New York as Co-Trustee under the Pooling and Servicing Agreement dated August 3 1 , 1997, Series 1997-CIV; New Hampshire Federal Credit Union; and The United States of America, Defendants

O R D E R

Plaintiff in this interpleader action, ABN AMRO Mortgage

Group, moves to withdraw from this proceeding and seeks an award

of costs and reasonable attorney’s fees for legal work related to

bringing this action. The United States, holder of a federal tax

lien, objects to the extent that any award of fees and costs

might diminish the amount of its distribution. The Bank of New

York also objects, asserting that a portion of the costs

plaintiff seeks to recover is not reasonable. Plaintiff’s motion to withdraw and for attorney’s fees and

costs (document n o . 12) is granted in part and denied in part.

It is granted to the extent plaintiff moves to withdraw from the

case. To the extent plaintiff seeks an award of attorney’s fees

and costs, however, the motion is denied without prejudice to

refiling, once a determination has been made regarding the

priorities of the various interests in this action. At that

point, plaintiff may be entitled to an award of fees and costs,

provided such an award does not reduce any distribution to the

United States to satisfy its federal tax lien. See, e.g., Spinks

v . Jones, 499 F.2d 339, 340 (5th Cir. 1974) (“The stakeholder of

an interpleaded fund is not entitled to attorney’s fees to the

extent that they are payable out of a part of the fund impressed

with a federal tax lien. . . . The judicial prerogative to award

stakeholders their attorney’s fees must give way to the supremacy

of the federal tax lien law whenever an award would invade the

amount subject to tax lien.”) (citations omitted). See also

Cable Atlanta, Inc. v . Project, Inc., 749 F.2d 626, 626-27 (11th

Cir. 1984) (“Normally a stakeholder who brings an interpleader

action to determine which of two claimants is entitled to a fund

which it holds, but does not claim, is entitled to have

2 attorney[’]s fees it incurs in bringing the action paid out of

the fund. No such fees can be paid from the fund, however, when

it goes to satisfy a federal tax lien. . . . The theory is that

the federal tax lien attached prior to the commencement of the

interpleader action and thus had priority over any inchoate and

uncertain claim for attorney’s fees accruing in that action.”) (citations omitted). 1

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 1 2 , 2004

cc: Jonathan MM.. Flagg, Esq. Wendy J. Kisch, Esq. Victor Manougian, Esq. Veronica C . Viveiros, Esq.

1 Counsel for plaintiff does not assert that he is entitled to the benefit of 26 U.S.C. § 6323(b)(8), which provides, in pertinent part, that the United States’ tax lien is not superior to an attorney’s lien, under local law, for reasonable compensation for obtaining a judgment or settlement. Here, it appears that counsel has been compensated for efforts devoted to obtaining the funds deposited with the court. At this point, then, counsel seeks only compensation for work associated with filing this action.