Stoecklin v. U.S. 858 F.Supp. 167; 73 A.F.T.R.2d
94-2083 M.D.Fla.,1994. April 22, 1994. [*167]
Kenneth A. Stoecklin, pro se. Ralph Lee, U.S. Atty., Jacksonville, FL, Robert
J. Higgins, U.S. Dept. of Justice, Tax Div., Washington, DC, for defendant U.S.
K. Wayne Stoecklin, pro se. Helen R. Stoecklin, pro se. ORDER JOHN H.
MOORE, II, Chief Judge. This
cause is before the Court on Counter-defendant Kenneth A. Stoecklins
Motion to Dismiss filed March 8, 1994 (Doc. # 168) and Amended Motion to Dismiss
filed March 11, 1994 (Doc. # 170). The United States filed Responses and
Opposition thereto on March 21 and March 22, 1994. By Order of this Court dated
February 18, 1994, the Court permitted the United States to amend its Answer to
join K. Wayne Stoecklin and Helen Stoecklin in this action and to assert a
Counterclaim to set aside a fraudulent conveyance, to foreclose on federal tax
liens, and for judgment on unpaid federal income taxes. The United States
contends in its Counterclaim that Kenneth Stoecklin fraudulently transferred an
interest in real property subject to Internal Revenue Service tax liens [FN1]
to Helen Stoecklin and K. Wayne Stoecklin in violation of §§
726.101 et seq., Florida Statutes, Floridas codification of the
Uniform Fraudulent Transfer Act (UFTA). FN1. See Stoecklin v. Commissioner, 865 F.2d 1221 (11th Cir.1989). Kenneth
Stoecklin now moves the Court to dismiss the United States
Counterclaim on what the United States characterizes as spurious
and meritless grounds (Resp. and Oppn to Mot. to Dismiss ¶
3). The Court agrees. The only meritorious ground Stoecklin can assert for
dismissal is the running of the applicable statute of limitations based upon United
States v. Vellalos,
780 F.Supp. 705 (D.Haw.1992), affd, 990 F.2d 1265 (9th Cir.1993)
(United States action to [*168]
foreclose on properties pursuant to Hawaiis codification of the
Uniform Fraudulent Transfer Act is subject to state statute of limitations
period provided in the Act) (distinguishing United States v. Summerlin, 310 U.S. 414, 60 S.Ct.
1019, 84 L.Ed. 1283 (1940) (United States is not bound by state statutes of
limitation)); But see United States v. Fernon, 640 F.2d 609 (5th Cir.1981).
[FN2] In holding that Hawaiis codification of UFTA is subject to a
state statute of limitation, the Vellalos court reasoned that [T]here
is an important distinction between cases involving the governments
common law right to collect on a debt and cases involving a carefully
delineated state statutory right. 780 F.Supp. at 707. Accordingly,
Vellalos found that a state statutory cause of action that expresses a clear
intent to extinguish the cause of action after a certain time period is not
bound by the Supreme Courts holding in Summerlin that a common law debt collection
action by the United States is not subject to a state statute of limitations.
Id. at 707-08. FN2. Decisions of the Fifth Circuit prior to October 1,
1981, are controlling authority in the Eleventh Circuit. Bonner v. City of
Prichard, 661
F.2d 1206, 1209 (11th Cir.1981). In
reaching its decision, the Vellalos court criticized the Fifth Circuits
holding in United States v. Fernon, 640 F.2d 609 (5th Cir.1981), as an overly
mechanical application of the dicta in Summerlin without serious consideration
of the significant implications such a rule has for state sovereignty.
780 F.Supp. at 708 n. 3. In an action under Floridas fraudulent
conveyance statute prior to the codification of the UFTA, the Fernon court held
that the United States is not bound by state statutes of limitation whether it
brings suit in its own courts or in a state court. 640 F.2d
at 612 (citing United States v. Summerlin, 310 U.S. 414, 60 S.Ct.
1019, 84 L.Ed. 1283 (1940)). Fernon adopted the Supreme Courts
reasoning in Summerlin that the United States cannot be deemed to have abdicated
its governmental authority so as to become subject to a state statute putting a
time limit upon enforcement of a claim that it has the right to
assert. 640 F.2d at 612 (citation omitted). Accordingly, unlike Vellalos,
Fernon does not distinguish between a statutory and a common law right when
interpreting Summerlin. Eleventh
Circuit decisions since Fernon have similarly declined to distinguish between
the application of Summerlin to common law actions and actions under the UFTA.
See United States v. Moore, 968 F.2d 1099, 1100 (11th Cir.1992) (Small Business
Administrations action to set aside fraudulent conveyance subject to
federal not state statute of limitations); United States v. Romano, 757 F.Supp. 1331, 1339 n. 5
(M.D.Fla.1989), affd, 918 F.2d 182 (11th Cir.1990) (governments
action to foreclose pursuant to UFTA in Florida is subject to federal time
constraints and not state statutes of limitation). Accordingly, the Court finds
that Vellalos is not dispositive of this action because the applicable law in
this circuit provides that the federal governments right to bring an
action to set aside a fraudulent conveyance is subject to federal rather than
state statutes of limitation. Accordingly, the Court finds that the motions to
dismiss should be denied. Accordingly, it is ORDERED AND ADJUDGED: 1. That
Counter-defendant Kenneth A. Stoecklins Motion to Dismiss filed March
8, 1994 (Doc. # 168) and Amended Motion to Dismiss filed March 11, 1994 (Doc. #
170) are hereby DENIED. 2. That
Counter-defendants Request for Hearing filed March 21, 1994 (Doc. #
173) is hereby DENIED AS MOOT. DONE AND
ORDERED. |