Free Statement - District Court of Colorado - Colorado

Case 1:01-cv-00275-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-0275-JLK DOMINICK PAOLONI, et al., Plaintiffs, vs. DONALD I. GOLDSTEIN, et al., Defendants, and NBSA, LLC, et al., Relief Defendants. ______________________________________________________________________________ STATEMENT OF UNDISPUTED FACTS ______________________________________________________________________________ COME NOW the Plaintiffs, by and through their attorneys, Dill Dill Carr Stonbraker & Hutchings, P.C., and in support of their Motion for Summary Judgment Against Joseph Ieracitano and Blue Paper Inc. submit the following Statement of Undisputed Facts. The Motion for Summary Judgment Against Joseph Ieracitano ("Ieracitano") and Blue Paper Inc. ("Blue Paper") (Ieracitano and Blue Paper are collectively referred to as the "Ieracitano Defendants") is based upon proceedings in this matter and in the case of Viatical Administrators Inc. v. Blue Paper Inc. et al. case number 07-CV-61517-HUCK/SIMONTON United States District Court for the Southern District of Florida (the "Florida Litigation"). The determination of issues in this Court as well as by the United States District Court for the Southern District of Florida (hereinafter referred to as the "Florida District Court") are the "law

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of the case". Plaintiffs Motion for Summary Judgment seeks judgment against the Ieracitano Defendants based upon proceedings in this case and proceedings in the Florida Litigation. The following are undisputed facts: 1. On May 23, 2002 Plaintiffs filed their First Supplement to Second Amended Complaint pursuant to which they asserted claims against the Ieracitano Defendants. (Docket Entry #266). 2. On January 10, 2003 Viatical Administrators Inc., a Colorado Corporation (VAI) on behalf of and with authority of the Plaintiffs, entered into a Settlement Agreement with Ieracitano, Blue Paper, Joseph F. Ieracitano as former Trustee of the Iglesias Family Trust and Greenspoon, Marder, Hirschfeld, Rafkin, Ross and Berger PA as Closing Agent. (Exhibit A-1) (hereinafter the "Settlement Agreement"). 3. On January 14, 2003 the Settlement Agreement, and each and every provision thereof, was made an Order of this Court pursuant to the Order Approving Settlement Agreement, Entry of Order, and Order Vacating Preliminary Injunction as to the Ieracitano Defendants. (Docket Entry #44) (hereinafter referred to as the "Order Approving Settlement Agreement") (The Order Approving Settlement Agreement is Exhibit A-2). 4. This Court found, in the Order Approving Settlement Agreement, the Ieracitano Defendants owed to the Plaintiffs the sum of six hundred eighty two thousand five hundred dollars ($682,500.00), plus interest at the rate of eight percent (8%) per annum, compounded annually, such interest commencing March 1, 1999 and continuing until fully paid, and that the Ieracitano Defendants owed to the

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Plaintiffs what is referred to in the Settlement Agreement as the "Contingent Amounts" together with interest thereon at the rate of eight percent (8%) per annum, compounded annually, such interest having commenced March 1, 1999 and continuing until the Contingent Amounts are fully paid. Approving Settlement Agreement ¶1, 2, and 3; Exhibit A-2). 5. In late February and early March 2007 Plaintiffs discovered the Ieracitano Defendants had committed material breaches of the Settlement Agreement. As a result, Plaintiffs sought relief from this Court pursuant to the following motions; (a) Motion for Order to Show Cause (Docket Entry #898) filed March 7, 2007 pursuant to which Plaintiffs sought an order of civil contempt against the Ieracitano Defendants for their violation of the Order Approving Settlement Agreement; (b) Motion for Preliminary Injunction Against Joseph Ieracitano and Blue Paper Inc.(Docket Entry #901) filed March 8 2007; (c) Motion to Modify Settlement Agreement (Docket Entry #902) filed March 9, 2007 pursuant to which Plaintiffs sought certain modifications of the Settlement Agreement as the result of the Ieracitano Defendants' material breaches of the Settlement Agreement; and (d) Plaintiffs also filed a Supplement to Amended Motion for Order to Show Cause, Motion to Reinstate Preliminary Injunction and Motion to Modify Settlement Agreement (Docket Entry #904) on March 9, 2007. 6. On April 11, 2007 a hearing upon the foregoing motions was held by this Court. (Docket Entry #930). (See Order

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7.

Ieracitano appeared and participated telephonically at the April 11, 2007 hearing. (Docket Entry #926, Order granting Ieracitano permission to appear telephonically; Docket Entry #936, Transcript of Hearing, pg 2 ll. 7-8).

8.

On Aril 11, 2007 the court found the Ieracitano Defendants in contempt of court for violation of the Order Approving Settlement Agreement. (Docket Entry #936, Transcript of Hearing, pg. 62 ll.2-19).

9.

On April 11, 2007 this court entered a preliminary injunction against the Ieracitano Defendants (Docket Entry #927).

10.

On April 11, 2007 this Court granted Plaintiffs Motion to Modify Settlement Agreement. (Docket Entry #930).

11.

On April 18, 2007 this Court entered the written Order Modifying the Settlement Agreement and Related Orders (Docket Entry #933) pursuant to which this Court made certain modifications to the Settlement Agreement and in addition Ordered the following: (a) That Plaintiffs have and possess an equitable purchase money mortgage lien in the amount of six hundred eighty two thousand five hundred dollars ($682,500.00), together with interest thereon at the rate of eight percent (8%) per annum, compounded annually, such lien arising March 1, 1999 and such interest commencing on March 1, 1999 (Docket Entry #933, pg. 5-6); and (b) That Plaintiffs have and possess an equitable lien in the amount of the "Contingent Amounts" as defined in the Order Approving Settlement Agreement together with interest thereon at the rate of eight percent (8%) per annum,

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compounded annually, such lien arising March 1, 1999 and such interest commencing on March 1, 1999. (Docket Entry # 933, pg. 6). 12. For reasons set forth in the Affidavit of Rocky K. Smith filed in support of this Motion for Summary Judgment, effective October 12, 2007, each of the Plaintiffs assigned to VAI the equitable lien granted in their favor in the Order Modifying Settlement Agreement and Related Orders. (Affidavit of Rocky K. Smith, ¶10). 13. On October 24, 2007, VAI filed in the United States District Court for the Southern District of Florida a Complaint of Foreclosure of Lien and Other Relief initiating the Florida Litigation. (Florida Litigation, Docket Entry #1; Exhibit A3). 14. In the Florida Litigation, VAI sought foreclosure of its equitable liens upon property described in the Order Modifying Settlement Agreement and Related Orders owned by Blue Paper (the "Blue Paper Property") which is the same property described in the Complaint for Foreclosure of Lien and Other Relief filed by VAI in the Florida Litigation. In addition, VAI sought a determination that its equitable liens were first priority liens upon the Blue Paper Property. (Exhibit A3; Complaint for Foreclosure of Lien and Other Relief.). 15. Ieracitano and Blue Paper are both named as Defendants in the Florida Litigation, however did not appear or otherwise respond. As a result, defaults were entered against Ieracitano and Blue Paper in the Florida Litigation. (Florida Litigation, Docket Entry #38). 16. In the Florida Litigation, BankUnited FSB was also named as a Defendant due to its claimed interest in the Blue Paper Property pursuant to a construction loan

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mortgage which it had recorded against the Blue Paper Property on or about January 28, 2003. BankUnited FSB counterclaimed in the Florida Litigation for foreclosure of its construction loan mortgage and sought a determination that its construction loan mortgage was superior to the equitable liens of VAI in the Blue Paper Property. (Florida Litigation, Docket Entry #47). 17. Trial of the Florida Litigation occurred to the Court on February 21, 2008. (Florida Litigation, Docket Entry #65) (The trial transcript is attached as Exhibit A-4). 18. At conclusion of the trial on February 21, 2008, the Florida District Court entered it ruling from the bench determining that the construction loan mortgage of BankUnited FSB had priority over the equitable liens of VAI and that the equitable liens of VAI were of inferior to the construction loan mortgage of BankUnited FSB, but superior to the interest of all others in the subject property. (Exhibit A-4, trial transcript, pg 164 ll. 15 to pg 177 ll. 17). 19. On March 3, 2008, the Florida District Court entered its written Corrected Final Judgment of Foreclosure (Florida Litigation, Docket Entry #78; Exhibit A-5). The Corrected Final Judgment of Foreclosure found that BankUnited FSB is due the total sum of five million eight hundred thirty eight thousand two hundred fifty eight dollars and sixty eight cents ($5,838,258.68) and that BankUnited FSB holds a lien for such sum superior to any claim and lien of VAI and all others claiming an interest in the Blue Paper Property. (Exhibit A-5, Corrected Final Judgment of Foreclosure, ¶1 and 2).

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20.

The Corrected Final Judgment of Foreclosure further found that pursuant to the equitable liens determined by this Court in favor of Plaintiffs, VAI is owed the total of one million four hundred thirty two thousand seven hundred forty one dollars and twenty four cents ($1,432,741.24), consisting of the sum of seven hundred nineteen thousand three hundred thirteen dollars and sixty eight cents ($719,313.68) representing the amount of the equitable liens, interest in the amount of four hundred thirty one thousand seven hundred forty three dollars and eighteen cents ($431,743.18) and attorneys fees of two hundred eighty one thousand six hundred eighty four dollars and forty eight cents ($281,684.48). The total owed was determined to be one million four hundred thirty two thousand seven hundred forty one dollars and twenty four cents ($1,432,741.24) with such amount bearing interest at the rate of 6% per annum thereafter. Further, the Florida District Court determined that the equitable liens of VAI are subordinate and junior to the construction loan mortgage of BankUnited but superior to the claims of all others in the Blue Paper Property. (Exhibit A-5, Corrected Final Judgment of Foreclosure, ¶ 3).

21.

The Corrected Final Judgment of Foreclosure scheduled a public sale of the Blue Paper Property by the United States Marshall for April 22, 2008 between the hours of 11:00 a.m. and 2:00 p.m. at the Broward County Courthouse in Ft. Lauderdale, Florida. (Exhibit A-5, Corrected Final Judgment of Foreclosure, ¶ 5).

22.

The public sale of the Blue Paper Property took place at such date and time. BankUnited utilized $100,000 of its credit bid and acquired the Blue Paper Property. (Process Receipt and Returned; Exhibit A-6; Florida Litigation, Docket

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Entry #92). Pursuant to a United States Marshall's Deed, BankUnited's assignee is now the owner of the Blue Paper Property (Florida Litigation, Docket Entry #93). 23. VAI did not bid at the foreclosure sale based on its determination that the Blue Paper Property was not worth the amount determined to be due and owing to BankUnited FSB of five million eight hundred thirty eight thousand two hundred fifty eight dollars and sixty eight cents ($5,838,258.68) and not worth the amount equal to the amount determined to be owed to BankUnited and VAI pursuant to the Correct Final Judgment of Foreclosure. (Affidavit of Rocky K. Smith, ¶11). 24. Pursuant to the Settlement Agreement, as security for the obligations of the Ieracitano Defendants, VAI received a Third Mortgage and Security Agreement upon the residence of Ieracitano in the amount of five hundred thousand dollars ($500,000.00) (Exhibit A-1, Exhibit D to Settlement Agreement) . 25. In state court proceedings brought in Broward County, Florida, VIA has foreclosed the Third Mortgage and Security Agreement and anticipates receiving a Certificate of Title to Ieracitano's residence. (Affidavit of Rocky K. Smith, ¶ 13). 26. VAI will obtain possession from Ieracitano of the residence and will sell the residence as quickly as possible for the best possible price. (Affidavit of Rocky K. Smith, ¶13). Net proceeds derived from the sale of the Ieracitano residence will be applied in partial satisfaction of any judgment entered by this Court pursuant to the Motion of Summary Judgment. (Affidavit of Rocky K. Smith, ¶ 13).

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Respectfully submitted, DILL DILL CARR STONBRAKER & HUTCHINGS, P.C.

/s/ John A. Hutchings John A. Hutchings 455 Sherman Street, Suite 300 Denver, Colorado 80203 Telephone: (303) 777-3737 Facsimile: (303) 777-3823 E-mail: [email protected] ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that on June 16, 2008 I electronically filed the foregoing Statement of Undisputed Facts with the Clerk of Court using CM/ECF System, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected]

and I hereby certify that I have mailed the Statement of Undisputed Facts to the following nonCM/ECF participants by depositing same in the United States mail, postage prepaid, addressed to the following on the 16th day of June, 2008: Akerman Senterfitt 350 East Las Olas Blvd., #1600 Ft. Lauderdale, FL 33301 Gary Hoskie Professional Consultants & Managers, Inc. P.O. Box 644320 Vero Beach, FL 32954-4320 Mr. Isadore Cohen 1920 East Hallandale Blvd., #626 Hallandale, FL 33009 Mr. Joseph Ieracitano Blue Paper, Inc. 2608-10 North Ocean Boulevard Pompano Beach, FL 33062

/s/ Juliann Pettaway

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