In re Neil's Mazel, Inc.

492 B.R. 620, 2013 WL 2019375, 2013 Bankr. LEXIS 1974
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMay 14, 2013
DocketNo. 00-22010-dte
StatusPublished
Cited by4 cases

This text of 492 B.R. 620 (In re Neil's Mazel, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy 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
In re Neil's Mazel, Inc., 492 B.R. 620, 2013 WL 2019375, 2013 Bankr. LEXIS 1974 (N.Y. 2013).

Opinion

MEMORANDUM DECISION AND ORDER

DOROTHY T. EISENBERG, Bankruptcy Judge.

Introduction

Western Mohegan Tribe and Nation of New York (‘Western”) seeks an order reopening this closed bankruptcy case, for the purpose of holding certain parties in contempt and obtaining various other forms of relief. Western has already made one prior motion to reopen this case, which this Court denied by order entered on December 4, 2012. Undeterred, Western has filed the motion which is currently before the Court, asking that this Court, among other things, vacate that order and reopen the case so that Western may obtain the relief it seeks. For the reasons set forth below, the motion before the Court is DENIED in all respects.

Background

Western is a group of individuals purporting to be an Indian tribe, and the Court has no knowledge of any facts to deny that they may be an Indian tribe. Nevertheless, Western has not attained formal, federal acknowledgment as an Indian tribe by the Bureau of Indian Affairs (“BIA”) or by any federal court, despite having sought such recognition in multiple courts (including this Court) and from the BIA. Such recognition would confer substantial tax and other benefits. See BGA, LLC et al. v. Ulster County, 2010 WL 3338958 at *8, 2010 U.S. Dist. LEXIS 86875 at *25 (N.D.N.Y., Aug. 24, 2010). Ronald “Golden Eagle” Roberts (“Chief Roberts”) is the Chief and “Attorney General” for Western, though he is not admitted to practice law. Posr A. Posr is “Assistant Attorney General” for Western, and has been acting in effect as Western’s attorney-at-law before this Court — even though he also is not a lawyer.

At the heart of this controversy is certain real property, located at or near 10 Tamarack Road, Greenfield Park, N.Y. (the “Property”). In the year 2000, the Debtor and the County of Ulster of the State of New York (“Ulster County”) were engaged in adversarial litigation over the Property, and Ulster County decided to [623]*623sell their respective interests in the Property to Western, which sought to purchase the Property as both a home and place of business for its members.

On November 13, 2000, the Debtor filed a petition for relief under Chapter 11 of the U.S. Bankruptcy Code, for the primary purpose of facilitating a sale of clean title in the Property from Ulster County and the Debtor to Western. The Debtor’s bankruptcy counsel was the law firm of Kera & Graubard (“Kera”). An individual named Ofer Bachar was President of the Debtor. The late Chief Judge Conrad B. Duberstein initially presided over this case.

Between December 12, 2000 and January 5, 2001, the Debtor and Ulster County each executed respective agreements with Western, whose combined import was that Western was to purchase the Property from Ulster County and the Debtor for a total of $1.85 million, $950,000 of which was to go to the Debtor, and $900,000 of which was to go to Ulster County.

On March 6, 2001, Judge Duberstein entered an Order (the “First Sale Approval Order”) which, among other things, approved the foregoing sale of the Property to Western. The First Sale Approval Order contained the following decretal paragraph:

[It is] ORDERED, that the closing and consummation of the [agreements between Western, the Debtor, and Ulster County] ... shall have the effect of settling any and all claims that Ulster County and [the Debtor] have against each other ... all of which enable Ulster County and the [D]ebtor to transfer the [Property] to Western ... free and clear of all title defects, liens, charges, and encumbrances....
(Emphasis added).

In late June of 2001, Western retained the law firm of Todtman, Nachamie, Spizz, & Johns, P.C., now known as Nachamie, Spizz, Cohen & Serchuk, P.C. (the “Nacha-mie Firm”). Barton Nachamie, Esq., a partner at the Nachamie Firm, was lead counsel. Around the same time, Western entered into a development agreement with an entity called BGA, LLC (“BGA”), which called for BGA to advance up to $3.3 million in order to assist Western with acquiring and developing the Property: BGA was thus Western’s financier for the purchase of the Property from the Debtor. The Nachamie Firm represented BGA and Western as joint defendants and/or plaintiffs in connection with certain litigation which is pertinent to the proceedings currently before the Court, as explained more fully below.

As the closing date drew on, it became apparent that Western simply did not have $950,000 to pay the Debtor by the designated closing date. Therefore, on June 28, 2001, Western and the Debtor entered into an amendment to their prior agreement (the “Amended Agreement”), which Judge Duberstein later approved by Order dated July 3, 2001 (the “Second Sale Approval Order”). The Amended Agreement provided that the $950,000 owed from Western to the Debtor would be paid in installments: (1) an initial installment of $300,000, which was paid on July 10, 2001; (2) the balance of $650,000, to be paid on or before 90 days after the payment of the first installment (the “Second Installment”).

Furthermore, the Amended Agreement required a deed-in-lieu-of-foreclosure (“DILF”), to be held in escrow in anticipation of a possible default by Western of its obligation to pay the Second Installment. The DILF could be assigned either to (A) any entity that Western directed, or (B) to [624]*624any entity making a payment towards the Second Installment “in writing.”

The Amended Agreement also provided that the Debtor’s obligation to pay the Second Installment balance of $650,000 must be collateralized by a confession of judgment, executed by both Western and the entity that ultimately took title to the Property as trustee for the benefit of Western.1 Chief Roberts (on behalf of Western) executed a promissory note (the “Note”) and a confession of judgment (the “Confession of Judgment”), both in favor of the Debtor. It was apparently the parties’ intent that the Confession of Judgment would give the Debtor a lien on the Property, as security for Western’s obligation to pay the Second Installment. The Note was guaranteed by Bernard Hujda, a member of BGA. (Mr. Hujda and the WMTN Trust also executed similar confessions of judgment in favor of the Debtor).

The Second Installment was to be paid by October 16, 2001. Before that date, Mr. Nachamie was advised that Mr. Hujda would be the one furnishing most of the money needed in order to pay the Second Installment. As security for this payment, the Debtor assigned the Confession of Judgment to Mr. Hujda. On October 16, 2001, the Second Installment was paid, and title to the Property was transferred to the WMTN Trust for the benefit of Western.

On July 3, 2002, the Debtor commenced an adversary proceeding against Western, BGA, and Ulster County over tax-related matters. Western filed a cross-claim against Ulster County, seeking Judge Du-berstein to confer upon Western formal, federal recognition as an Indian tribe. Judge Duberstein declined to grant this relief for want of subject-matter jurisdiction under 28 U.S.C. § 1334. BGA and Western unsuccessfully appealed.2 Moreover, in 2006, and again in 2008, Western and BGA sued Ulster County in the U.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

St. Thomas Cargo & Ship Services, Inc. v. Bonnie Braga
Superior Court of The Virgin Islands, 2025
In Re: Humberto Lopez
Second Circuit, 2023
Group Management Corp.
N.D. Georgia, 2022
Navillus Tile, Inc.
S.D. New York, 2021

Cite This Page — Counsel Stack

Bluebook (online)
492 B.R. 620, 2013 WL 2019375, 2013 Bankr. LEXIS 1974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-neils-mazel-inc-nyeb-2013.