Federal National Mortgage Ass'n v. Olympia Mortgage Corp.

954 F. Supp. 2d 165, 2013 WL 3168586
CourtDistrict Court, E.D. New York
DecidedJune 21, 2013
DocketNo. 04-CV-4971 (NG)(MDG)
StatusPublished
Cited by1 cases

This text of 954 F. Supp. 2d 165 (Federal National Mortgage Ass'n v. Olympia Mortgage Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal National Mortgage Ass'n v. Olympia Mortgage Corp., 954 F. Supp. 2d 165, 2013 WL 3168586 (E.D.N.Y. 2013).

Opinion

ORDER

GERSHON, District Judge:

Plaintiff Federal National Mortgage Association (“Fannie Mae”) and Karen Kincaid Balmer, Receiver for Defendant Olympia Mortgage Corporation (“Olympia”), submit a Joint Proposed Order and Final Judgment. Fannie Mae and Ms. Balmer (the “Receiver”) seek, pursuant to Fed.R.Civ.P. 42(b), to sever the cross-claims asserted by the Receiver against defendants Barry Goldstein (“Goldstein”) and Avruhum Donner (“Donner”), both of whom have filed for bankruptcy protection. Fannie Mae and the Receiver also request the entry of final judgment, pursuant to Fed.R.Civ.P. 54, with respect to all other claims and all other defendants/cross-claim defendants in this long-simmering action.

Defendants/cross-claim defendants Samuel Pinter (“Sam Pinter”), his wife and children, as well as several business entities related to Sam Pinter (collectively, “Fagie Pinter and Children”), oppose this application. They object to severance of the claims against Goldstein and Donner, arguing that it is prevented by the Automatic Stay imposed by § 362(a)(1) of the Bankruptcy Code, and they object to the entry of judgment against them on the grounds that it will give rise to piecemeal appeals to the Court of Appeals for the Second Circuit, and that Fannie Mae and the Receiver will suffer no prejudice if judgment is not entered.

Background

Familiarity with the factual and procedural history of this matter is presumed. For the purposes of this application, how[167]*167ever, it is worth noting that this action, which was commenced in 2004, has resulted in findings of liability as to most of the defendants and cross-claim defendants, as well as millions of dollars worth of damages owed to Fannie Mae and Olympia.1 The only judgment which has been entered thus far is the consent judgment, entered into between Fannie Mae and Olympia relating to Fannie Mae’s breach of contract claims against Olympia. (See Consent Judgment against Olympia Mortgage Corporation on Counts One and Two of the Amended Complaint, August 27, 2007, ECF Document # 394). Subsequently, Fannie Mae dismissed without prejudice its remaining claims against Olympia. (See Stipulation of Dismissal of Third, Fourth, Fifth, Sixth, Seventh and Ninth Causes of Action against Defendant Olympia Mortgage Corporation, May 11, 2011, ECF Document # 613.)

In May 2011, Fannie Mae moved for the entry of partial judgment against Sam Pinter, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. By Order dated July 25, 2011, this court denied that motion, concluding that, at that time, “entering a partial judgment against Samuel Pinter would result in piecemeal appeals to the Second Circuit, and that Fannie Mae has not shown that it will be prejudiced by a delay in entry of judgment.” Order, July 25, 2011, ECF Document # 644.

The landscape of this litigation has changed dramatically since that time. Fannie Mae and the Receiver have now resolved, by way of motion, default or settlement, all of their outstanding claims, with the exception of those asserted by the Receiver against Goldstein and Donner, and they are waiting to collect on awards of damages from no fewer than 24 separate parties.2 The Receiver’s claims against Goldstein and Donner were en route to resolution by trial when, within days of the deadline for filing their responses to Fannie Mae and the Receiver’s Proposed Pretrial Order, both Goldstein and Donner filed for protection under Chapter 7 and Chapter 13 (respectively) of the United States Bankruptcy Code. Consequently, prosecution of the claims against Goldstein and Donner — which are all that remain of this action — was stayed pursuant to § 362(a)(1) of the Bankruptcy Code. See 11 U.S.C. § 362(a)(1).3

[168]*168Discussion

Rule 42(b) of the Federal Rules of Civil Procedure provides that, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Under Fed.R.Civ.P. Rule 54(b), the court is empowered to “direct entry of final judgment as to one or more, but fewer than all, claims or parties only if [it] expressly determines that there is no just reason for delay.” Whether or not to sever a claim is within the broad discretion of the district court. See Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988). In deciding whether severance of claims for separate trials is appropriate, the court considers the similarity or difference between the issues sought to be tried separately, the necessity of different witness testimony or other evidence, and prejudice both to the party requesting severance if it is not granted, and to the party opposed to the severance if it is. See Cashman v. Montefiore Medical Center, 191 B.R. 558, 560-61 (S.D.N.Y.1996).

Given that the claims against all parties except for Goldstein and Donner have been resolved by motion, settlement or default, there is no danger of duplicative trials or witness testimony. Therefore, in this case, the propriety both of severance and of the entry of final judgment appears to turn on the balance of prejudice that will (or will not) be suffered by either side. In light of the posture of this litigation and that Fannie Mae and the Receiver have been waiting up to three years for the entry of judgments relating to damages that began accruing, in some cases, as early as 2000, it is clear that failure to enter final judgment now would cause Fannie Mae and the Receiver to suffer unfair prejudice. In contrast, the opposing parties have made no showing that they will suffer any prejudice if judgment-based on determinations of liability made and damages awarded over the last three years — is finally entered against them. Moreover, there is no way to know when the bankruptcy stay against Donner and Goldstein will be lifted, and refusal to enter final judgment against the non-bankrupt parties “would have the effect of preventing plaintiff for an indefinite period from recovering against [other defendants] clearly liable to plaintiff merely because another defendant is in bankruptcy.” B and B Associates v. Fonner, 700 F.Supp. 7, 9-10 (S.D.N.Y.1988). There is thus no just reason for further delay in the entry of judgment.

I recognize that this decision raises the possibility that the parties will file separate appeals to the Second Circuit and that this possibility formed the basis for my earlier order denying Fannie Mae’s request to enter partial judgment against [169]*169Sam Pinter.4 However, Fannie Mae and the Receiver posit that the claims against Goldstein and Donner will be resolved through the Bankruptcy proceeding. (See

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954 F. Supp. 2d 165, 2013 WL 3168586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-national-mortgage-assn-v-olympia-mortgage-corp-nyed-2013.