In re Gianasmidis

601 B.R. 558
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedApril 16, 2019
DocketCase No. 15-12119-JNF
StatusPublished
Cited by1 cases

This text of 601 B.R. 558 (In re Gianasmidis) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Gianasmidis, 601 B.R. 558 (Mass. 2019).

Opinion

Joan N. Feeney, United States Bankruptcy Judge *560I. INTRODUCTION

The matter before the Court is the "Motion for Payment of Outstanding Interest Pursuant to Judge Young's Order Dated August 3, 2018" (the "Motion for Pendency Interest") filed by Stephen J. Kuzma, Russo & Minchoff, and India L. Minchoff (the "Lawyer Creditors"). Through their motion, the Lawyer Creditors seek $ 155,749.54 in postpetition interest at the rate of 12 percent under Mass. Gen. Laws ch. 231 § 6C, the interest rate applicable to judgments in contract actions, on their claim from the commencement of the case to August 16, 2017 [sic], the date they state this Court confirmed the Third Amended Chapter 11 Plan of Reorganization filed by Savvas V. Gianasmidis, (the "Debtor" or "Gianasmidis").1 The Debtor filed an Opposition to the Motion for Pendency Interest in which he acknowledged the Lawyer Creditors' entitlement to pendency interest, but contested the amount and the rate of interest on the claim. He argues that the rate of pendency interest to be applied to the Lawyer Creditors' claim should be the federal judgment rate, not the state statutory rate of interest on judgments.

The issue presented is the rate and concomitant amount of interest the Lawyer Creditors should be paid in "pendency interest." In other words, this Court must determine the interest rate applicable to the Lawyer Creditors' allowed secured claim during this Chapter 11 case between the petition date and the effective date of the Debtor's plan of reorganization. The issue is complicated due to a number of circumstances, including 1) the vacatur by the Massachusetts Appeals Court of the Lawyer Creditors' judgment during the pendency of the Chapter 11 case, see Russo & Minchoff v. Gianasmidis, 89 Mass. App. Ct. 1130, 54 N.E.3d 606, 2016 WL 3524796 (Mass. App. Ct. 2016), review denied, 475 Mass. 1104, 60 N.E.3d 1173 (2016) ; 2) the delay in arbitrating the Lawyer Creditors' claim for legal fees owing to Gianasmidis's state court appeal of the Lawyer Creditors' prepetition judgment, and ensuing litigation over whether the fee dispute should be arbitrated; 3) the arbitration award which was issued during the pendency of this Chapter 11 case in which the arbitrators expressly denied the Lawyer Creditors' request for preaward interest; and 4) Judge Young's decision affirming in part and reversing in part this Court bench ruling, dated July 12, 2017, and remanding for determining the amount of pendency interest to which the Lawyer Creditors are entitled. See In re Gianasmidis, 318 F.Supp.3d 442 (D. Mass. 2018).

The Court held a hearing on the contested matter on February 5, 2019 and directed counsel to file post-hearing briefs. Neither party requested an evidentiary hearing and the facts necessary to decide this contested matter are not in material dispute. The Court now makes the following findings of fact and conclusions of law in accordance with Fed. R. Bankr. P. 7052.

II. PROCEDURAL BACKGROUND AND FACTS

A. Factual Background and State Court Proceedings

The following undisputed facts appear from the record of proceedings in this *561case, as well as from the findings of the Massachusetts Appeals Court in an appeal involving the Debtor and the Lawyer Creditors. See Russo & Minchoff v. Gianasmidis, 2016 WL 3524796 at *1-2. The Lawyer Creditors entered into two written contingency fee agreements, the first in 2009 and the second in 2011, for the provision of legal services to represent Gianasmidis in a lawsuit he commenced against Katini Palangas ("Palangas"), whom the Debtor alleged had received improper transfers of numerous real properties. The fee agreements provided for a contingency fee of 33 percent and 40 percent, respectively, based on the amount of recovery. Both fee agreements had dispute resolution clauses that provided that any dispute must be "resolved exclusively through arbitration." In addition, the parties waived a jury trial and agreed that the arbitrators' award would be "final, binding and conclusive" on the parties. Neither fee agreement contained any provision for the accrual or payment of interest on any unpaid fees.

The action in which the Lawyer Creditors represented Gianasmidis was tried and a judgment was entered in favor of Gianasmidis in the sum of $ 1,375,001.00. Gianasmidis also recovered two properties on Farqhuar Street in Roslindale, Massachusetts. Because Palangas could not pay the judgment, the parties entered into a settlement agreement which provided for the transfer of numerous real estate assets to Gianasmidis.

Following execution of the settlement agreement, a fee dispute arose over the amount of the contingency fees that was due. The Lawyer Creditors filed an action in Suffolk Superior Court against Gianasmidis for breach of the fee agreements, to collect fees, and for injunctive relief for the purpose of restraining Gianasmidis from transferring assets. The Lawyer Creditors also filed ex parte motions for real estate attachments on the Debtor's property. The state court authorized the attachments in the sum of $ 800,000.00 in 2014 and the Lawyer Creditors properly recorded the attachments in the registry of deeds. The Lawyer Creditors also recorded notices of their attorney's liens.

Gianasmidis failed to answer their complaint and the Lawyer Creditors moved for a default. Gianasmidis then filed a motion to set aside the default and to compel arbitration, as well as a petition for arbitration with the Massachusetts Bar Association. The Lawyer Creditors opposed both motions, although, according to the Appeals Court, the Lawyer Creditors initially agreed to arbitration with the Massachusetts Bar Association Legal Fee Arbitration Board ("LFAB"), which assigned an arbitrator. See 2016 WL 3524796 at *2 n.4. The Superior Court, after a hearing, denied the motion to compel arbitration. It also denied Gianasmidis's motion to remove the default and scheduled a hearing on an assessment of damages. The Lawyer Creditors requested that the arbitration proceeding be dismissed, but the arbitrator denied the request. The LFAB scheduled the arbitration and, in response, the Lawyer Creditors filed a motion to enjoin the arbitration, which motion the Superior Court granted.

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Kevin Lamar Gardner
D. South Carolina, 2022

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Bluebook (online)
601 B.R. 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gianasmidis-mab-2019.