In re Cotillion Investments, Inc.

343 B.R. 344, 19 Fla. L. Weekly Fed. B 249, 2006 Bankr. LEXIS 974, 46 Bankr. Ct. Dec. (CRR) 176
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedMay 25, 2006
DocketNo. 04-41606BKC-RAM
StatusPublished

This text of 343 B.R. 344 (In re Cotillion Investments, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cotillion Investments, Inc., 343 B.R. 344, 19 Fla. L. Weekly Fed. B 249, 2006 Bankr. LEXIS 974, 46 Bankr. Ct. Dec. (CRR) 176 (Fla. 2006).

Opinion

ORDER GRANTING MOTIONS TO COMPEL IN PART AND DENYING IN PART AND GRANTING SANCTIONS

ROBERT A. MARK, Chief Judge.

The issue raised by three pending motions to compel is the scope of the Fifth Amendment privilege available to the debtor’s principal who has previously elected not to assert the privilege in sworn testimony given in this case. The issue is framed by the following motions: First United Bank’s (“First United”) Motion to Compel and for Sanctions (CP # 327); Trustee Joel Tabas’ Motion (1) for Determination of the Applicability and Scope of Fifth Amendment Privilege, (2) to Compel Testimony and (3) for Sanctions Against Debtor’s Principal (CP # 350) and Petitioning Creditors’ Motion to Compel Testimony and for Sanctions (CP # 352) (collectively, the “Motions to Compel”). The Motions to Compel arise from the events surrounding a 2004 examination of Jason Madow (“Madow”), principal of the Debt- or, conducted on November 22, 2005 (“the November deposition”). At the November deposition, Madow selectively invoked his Fifth Amendment privilege when examined by counsel for First United, the Trustee and the Petitioning Creditors.

Factual and Procedural Background

On December 14, 2004, an involuntary petition was filed against Cotillion Investments, Inc. (“Debtor” or “Cotillion”) by the Petitioning Creditors. The Petitioning Creditors consist of several individuals who loaned approximately nine million dollars to the Debtor and failed to receive repayment on these loans. The Debtor contested the involuntary petition. Finding it necessary to prevent further loss to the estate, the Court, by Order dated February 15, 2005, granted the Petitioning Creditors’ motion to appoint an interim [348]*348trustee (CP #37), and Joel Tabas was appointed.

During the so-called “gap period,” discovery was sought from the Debtor. It was during this initial discovery that Ma-dow asserted his Fifth Amendment privilege. Specifically, when he appeared as Cotillion’s representative at a Rule 30(b)(6) deposition conducted on February 8, 2005 (“the February deposition”), Madow asserted the privilege to nearly all questions posed to him by Petitioning Creditors’ counsel. As discovery continued, Madow shifted his position and chose not to assert the privilege when he appeared for further depositions on June 30, July 1 and July 5, 2005 (“the June/July depositions”). At the June/July depositions, Madow stated on the record that he would not assert the privilege and he proceeded to answer questions posed to him by Petitioning Creditors’ counsel covering a broad range of topics relevant to the Debtor’s financial affairs. In addition, at subsequent Court hearings, Madow and his personal attorney, Barry G. Roderman (“Roderman”), informed the Court that Madow would no longer assert the privilege.

On September 23, 2005, an Order for Relief was granted on the involuntary petition (CP #249). Cotillion filed its bankruptcy schedules on October 11, 2005 (CP # 270). Madow aided Cotillion’s bankruptcy counsel in assembling the schedules and signed the schedules under oath as Cotillion’s president.

Because the June/July depositions concentrated primarily on issues related to whether Cotillion was generally paying its debts as they came due, the Petitioning Creditors, Trustee and First United sought further discovery from Madow concerning the Debtor’s assets and operations. Pursuant to a hearing held on November 8, 2005, this Court entered its Order Requiring Jason Madow to Appear for 2004 Examination (CP # 302) (“Order Requiring 2004 Examination”). The Order Requiring 2004 Examination stated in relevant part that Madow would sit for examination beginning on November 22, 2005 and that First United, the Trustee and the Petitioning Creditors would have an opportunity to examine Madow. On November 18, 2005, Debtor’s counsel filed his Motion for Protective Order which raised a litany of issues that the Debtor and Madow had concerning the Order Requiring 2004 Examination. One of these issues concerned Madow’s reluctance to sit for examination on November 22, 2005, because Roderman would be unable to attend. The Motion for Protective Order did not state that Madow was intending to assert the privilege. The Court rejected this request for extension, entering its Order denying Motion for Protective Order (CP #321) on November 21, 2005. The court faxed each party a copy of this Order at or around 2:30 p.m. on November 21, 2005. The next day, when Madow appeared for the November deposition, he again changed his position and reasserted the privilege.

Due to the seriousness and complexity of issues concerning privilege, along with the fact that the Trustee has been hampered in administering this estate, resulting in large part from Madow’s refusal to cooperate, the Court, after reviewing the Motions to Compel, entered its Order Resetting Hearing and Setting Briefing Schedule (CP # 376). The purpose of this Order was to allow the movants an opportunity to set forth the particular subject areas in which they asserted Madow had waived privilege and to allow Madow’s new personal counsel an opportunity to present argument on why no such waiver resulted. In response, First United filed its Supplemental Memorandum of Law on Motion to Compel (#383) and the Trustee and the Petitioning Creditors jointly filed their [349]*349Joint Supplement to Motions to Compel Testimony (CP # 387). Madow in turn, filed his Memorandum of Law in Support of Fifth Amendment Privilege (CP # 396). The Trustee and the Petitioning Creditors then filed their Reply in Support of Motions to Compel Testimony (CP # 393). Following submission of the memoranda, the Court conducted a hearing on the Motions to Compel on February 1, 2006.

Following this hearing, the issue of Ma-dow’s potential criminal exposure took on a new twist when the Court was alerted to a criminal indictment brought by the United States Attorney’s Office against Madow in the Middle District of Florida, Orlando division. As part of a plea agreement, Madow pled guilty to one count of conspiracy to commit wire fraud. The facts in the plea agreement center on Madov/s active participation in a conspiracy to defraud various lending institutions. Madow, partly in his capacity as president of the Debt- or, submitted false documentation and information concerning various real estate investments to these lending institutions. Acting on this false information, the lending institutions loaned excessive funds to his co-conspirator, Terry Mughar. Mug-har in turn, kicked back some of these proceeds to Madow. Once alerted to this criminal indictment and subsequent plea agreement, the Court entered its Order Requesting Further Briefing (CP #419). The Order requested the parties to brief whether the plea agreement affected the Fifth Amendment issues raised before this Court. Petitioning Creditors and the Trustee along with Madow filed their respective Responses (CP # 429, 436).

Neither the Petitioning Creditors nor the Trustee believe the Orlando indictment and subsequent plea agreement affect this Court’s analysis of the privilege issues raised in the Motions to Compel. By contrast, Madow asserts a direct impact, claiming that the testimony he gives in this case could be used to violate the terms of the plea agreement “and subject Madow to an increased sentence, prosecution for perjury or the resurrection of charges dismissed by entry of the plea.” Madow Response, p. 2.

The Court finds that the Orlando indictment and plea agreement do not affect the issues pending before this Court.

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Bluebook (online)
343 B.R. 344, 19 Fla. L. Weekly Fed. B 249, 2006 Bankr. LEXIS 974, 46 Bankr. Ct. Dec. (CRR) 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cotillion-investments-inc-flsb-2006.