Free Motion for Summary Judgment - 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. ______________________________________________________________________________ MOTION FOR SUMMARY JUDGMENT AGAINST JOSEPH IERACITANO AND BLUE PAPER INC. ______________________________________________________________________________ COME NOW the Plaintiffs, by and through their attorneys, Dill Dill Carr Stonbraker & Hutchings, P.C., and pursuant to Fed. R. Civ. P. 56 move this Court for entry of Summary Judgment in favor of Plaintiffs and against Defendants Joseph Ieracitano and Blue Paper Inc. and in support thereof state as follows: 1. Pursuant to the First Supplement to the Second Amended Complaint (Docket

Entry #266) on May 23, 2002 Plaintiff's asserted claims against Joseph Ieracitano ("Ieracitano") and Blue Paper Inc. ("Blue Paper") (Ieracitano and Blue Paper are hereinafter collectively referred to as the "Ieracitano Defendants"). The claims against the Ieracitano Defendants include claims for violation of 18 U.S.C. §1962(a),(b),(c) and (d) and seek relief pursuant to 18 U.S.C. §1964(c); for violations of §772.102 (1),(2),(3) and (4) Fla. Stat. and seek relief under §772.104 Fla. Stat., for fraud and deceit, negligent misrepresentation, breach of contract, constructive trust

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and equitable lien, accounting and injunctive relief. The Ieracitano Defendants appeared in the Paoloni Litigation on June 11, 2002. (Docket Entry #279). 2. On January 10, 2003 Viatical Administrators, Inc. ("VAI") on behalf of and with

authority of the Plaintiffs, the Ieracitano Defendants, Joseph F. Ieracitano as former Trustee of the Iglesias Family Trust and Greenspoon, Marder, Hirschfeld, Rafkin, Ross and Berger PA as Closing Agent entered into a Settlement Agreement. (the "Settlement Agreement"). (Exhibit A1). On January 14, 2003 the Settlement Agreement 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 #440). (hereinafter referred to as the "Order Approving Settlement Agreement"). (Exhibit A-2). The Order Approving Settlement Agreement contained the following Orders of this Court: "IT IS FURTHER ORDERED that the Settlement Agreement (and all of its attached exhibits), which is attached hereto as exhibit A and incorporated herein by reference as if each and every section, paragraph and exhibit thereof were set forth herein, is approved and made an Order of this Court. IT IS FURTHER ORDERED that the Settlement Agreement (and all of its attached exhibits) and each and every term thereof shall be enforceable as an Order of this Court." The Order Approving Settlement Agreement contained the following findings by this Court: "1. Among other things, the Settlement Agreement entered into between the Plaintiffs and the Ieracitano Defendants ("Settlement Agreement") obligates and requires the Ieracitano Defendants to pay to Plaintiffs proceeds in the amount 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 (interest shall be deemed to have commenced on March 1, 1999 and will continue until the entire amount owed Plaintiffs is paid in full), from the sale of certain townhouse units ("Townhouse Units") to be constructed on property owed by Blue Paper Inc. ("Proceeds"). 2. The Settlement Agreement further provides for recovery of certain Contingent Amounts to the extent the Ieracitano Defendants can not establish that such amounts have already been repaid to Richard Doggett or a third party as directed by Richard Doggett. In the event Plaintiffs and the Ieracitano Defendants are unable to agree upon whether evidence provided by the Ieracitano Defendants 2

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sufficiently demonstrates repayment of all or any portion of the Contingent Amounts, this Court shall decide whether such evidence is sufficient and, in turn, what, if any, amount of the Contingent Amounts are due Plaintiffs. The Contingent Amounts will incur interest in the amount of eight percent (8%) per annum, compounded annually (interest shall be deemed to have commenced March 1, 1999 and will continue until the entire amount owed Plaintiffs is paid in full) and shall be paid from the Proceeds. 3. The Court has determined that the Ieracitano Defendants owe Plaintiffs, and not Richard Doggett for the Settlement Amount and any Contingent Amounts under the theories of constructive trust and equitable lien". 3. In late February and early March of 2007, Plaintiffs discovered the Ieracitano

Defendants had committed material breaches of the Settlement Agreement. For such material breaches, the Plaintiffs sought relief from this Court pursuant to; (A) a Motion for Order to Show Cause why the Ieracitano Defendants should not be held in contempt of Court (Docket Entry #898), (B) a Motion for Preliminary Injunction Against Joseph Ieracitano and Blue Paper Inc. (Docket Entry #901), and (C) a Motion to Modify Settlement Agreement (Docket Entry #902). (Also see Supplement to Amend Motion for Order to Show Cause, Motion to Reinstate Preliminary Injunction and Motion to Modify Settlement Agreement (Docket Entry #904)). 4. On April 11, 2007 a hearing was held before this Court, participated in by

Ieracitano upon Plaintiffs various motions for relief as a result of material breaches of the Settlement Agreement by the Ieracitano Defendants. On April 11, 2007 this Court reinstated the preliminary injunction against the Ieracitano Defendants ( Docket Entry # 927). This Court found the Ieracitano Defendants to be in violation of the Settlement Agreement and in contempt of Court. (Docket Entry #930) This Court granted the Motion to Modify the Settlement

Agreement and on April 18, 2007 entered its Order Modifying Settlement Agreement and Related Orders (Docket Entry #933). 5. The Order Modifying Settlement Agreement and Related Orders modified certain

provisions of the Settlement Agreement and ordered that Plaintiffs have and possess an equitable 3

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purchase money mortgage lien in the amount 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 from March 1, 1999 until paid, such lien arising March 1, 1999 and further determined that Plaintiffs possess an equitable lien in the amount of the Contingent Amounts together with interest at the rate of eight percent (8%) per annum, compounded annually from March 1, 1999 until fully paid, such lien arising March 1, 1999. 6. Effective October 12, 2007, each of the Plaintiffs assigned to VAI their equitable

liens as determined by this Court in the Order Modifying Settlement Agreement and Related Orders. On October 24, 2007, VAI filed in the United States District Court for the Southern District of Florida its Complaint for Foreclosure of Lien and Other Relief, pursuant to which VAI sought foreclosure of the equitable liens upon property owned by Blue Paper (the "Blue Paper Property") and a determination that its equitable liens were first priority liens upon the Blue Paper Property. (Exhibit A-3). The case filed by Viatical Administrators Inc. is known as Viatical Administrators Inc. v. Blue Paper Inc. et al. case number 07-CV-61517HUCK/SIMONTON, United States District Court for the Southern District of Florida (herein after referred to as the "Florida Litigation") 7. The Ieracitano Defendants were Defendants in the Florida Litigation. The

Ieracitano Defendants failed to appear in the Florida Litigation and defaults were entered against them. (Florida Litigation, Docket Entry #38). Also named as a Defendant in the Florida

Litigation was BankUnited FSB, a bank which, subsequent to the Order Approving Settlement Agreement made a construction loan to Blue Paper and in exchange received a construction loan mortgage from Blue Paper upon the Blue Paper Property. In the Florida Litigation, BankUnited FSB counterclaimed for foreclosure of its construction loan mortgage and a determination that its

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construction loan mortgage was superior to VAI's equitable liens. (Florida Litigation, Docket Entry #47). 8. Trial of the Florida Litigation occurred on February 21, 2008. At the conclusion

of the trial, the United States District Court for the Southern District of Florida (the "Florida District Court") determined that both VAI and BankUnited FSB possessed valid liens and/or mortgages upon the Blue Paper Property and determined the amount of each lien and mortgage. Further, the Florida District Court determined that the construction loan mortgage of BankUnited FSB was a first priority lien and that the equitable liens of VAI were of second priority. Pursuant to these determinations, on March 3, 2008, the Florida District Court entered the Corrected Final Judgment of Foreclosure (Florida Litigation, Docket Entry #78). (Exhibit A-5) Pursuant to the Corrected Final Judgment of Foreclosure, the Florida District Court determined the following: a. The amount of the equitable liens of VAI in accordance with the provisions

of the January 10, 2003 Settlement Agreement is seven hundred nineteen thousand three hundred thirteen dollars and sixty eight cents ($719,313.68) together with interest in the amount of four hundred thirty one thousand seven hundred forty three dollars and eighteen cents ($431,743.18) and attorney fees in the amount of two hundred eighty one thousand six hundred eighty four dollars and forty eight cents ($281,684.48) for a total of one million four hundred thirty two thousand seven hundred forty one dollars and twenty four cents ($1,432,741.24). b. The construction loan mortgage of BankUnited is superior to the equitable

liens of VAI.

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c.

The equitable liens of VAI are inferior to the construction loan mortgage of

BankUnited but superior to all other interests in the Blue Paper Property. d. The equitable liens VAI and the mortgage of BankUnited shall both be

foreclosed. 9. On April 22, 2008, in accordance with the Corrected Final Judgment of

Foreclosure, the Blue Paper Property was sold at a public sale pursuant to a credit bid of BankUnited FSB in the amount of $100,000. (Exhibit A-6, Florida Litigation, Docket Entry #92) As a result of the April 22, 2008 foreclosure sale, the equitable lien of VAI has been extinguished and VAI has not and will not receive any monies from foreclosure of its equitable liens. 10. Although Plaintiffs will receive nothing from foreclosure of their equitable liens,

in accordance with the Order Approving Settlement Agreement, and the Settlement Agreement, this Court has previously determined that the Ieracitano Defendants owe the Plaintiffs the sum 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 from March 1, 1999 until paid, as well as the "Contingent Amounts" as set forth in the Settlement Agreement, together with interest thereon at the rate of eight percent (8%) per annum, compounded annually from March 1, 1999 until fully paid. Further, Plaintiffs are entitled to attorney fees and cost incurred in enforcement of the Settlement Agreement. (Exhibit A-1, ¶ 21.A) 11. In the Florida Litigation, the Florida District Court determined the amounts owed In

by the Ieracitano Defendants. (Exhibit A-5, Corrected Final Judgment of Foreclosure).

accordance with this Court's Order Modifying Settlement Agreement and Related Orders, the Order Approving Settlement Agreement and the Settlement Agreement, the Florida District

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Court determined the amount owed by the Ieracitano Defendants to be one million four hundred thirty two thousand seven hundred forty one dollars and twenty four cents ($1,432,741.24). 12. 13. There is no genuine issue as to any of the above set forth material facts. In accordance with the above set forth facts, the Plaintiffs are entitled to judgment

as a matter of law against the Ieracitano Defendants in the amount of one million four hundred thirty two thousand seven hundred forty one dollars and twenty four cents ($1,432,741.24) pursuant to the Order Approving Settlement Agreement, the Order Modifying Settlement Agreement and Related Orders of this Court and the Corrected Final Judgment of Foreclosure of the Florida District Court. 14. In support of this Motion for Summary Judgment, Plaintiffs have filed: a. b. c. d. Statement of Undisputed Facts; Affidavit of Rocky K. Smith; Exhibits in Support of Motion for Summary Judgment, and Memorandum in Support of Motion for Summary Judgment.

WHEREFORE, the Plaintiffs respectfully request that this Court enter summary judgment in their favor and against Joseph Ieracitano and Blue Paper Inc. in the amount of one million four hundred thirty two thousand seven hundred forty one dollars and twenty four cents ($1,432,741.24) together with interest at the rate of 6% per annum from March 3, 2008 until paid.

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DATED this 16th day of June, 2008

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] ATTORNEY FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that on June 16th, 2008 I electronically filed the foregoing MOTION FOR SUMMARY JUDGMENT AGAINST JOSEPH IERACITANO AND BLUE PAPER INC. 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 MOTION FOR SUMMARY JUDGMENT AGAINST JOSEPH IERACITANO AND BLUE PAPER to the following non-CM/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 8