Messer ex rel. FKF Trust v. GMR, LLC (In re FKF 3, LLC)

489 B.R. 24, 2013 WL 1003383, 2013 Bankr. LEXIS 979, 57 Bankr. Ct. Dec. (CRR) 194
CourtUnited States Bankruptcy Court, S.D. New York
DecidedMarch 13, 2013
DocketBankruptcy No. 10-37170 (CGM); Adversary No. 12-09072
StatusPublished
Cited by1 cases

This text of 489 B.R. 24 (Messer ex rel. FKF Trust v. GMR, LLC (In re FKF 3, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Messer ex rel. FKF Trust v. GMR, LLC (In re FKF 3, LLC), 489 B.R. 24, 2013 WL 1003383, 2013 Bankr. LEXIS 979, 57 Bankr. Ct. Dec. (CRR) 194 (N.Y. 2013).

Opinion

MEMORANDUM DECISION GRANTING DEFAULT JUDGMENTS

CECELIA G. MORRIS, Chief Judge.

Before the Court is the Trustee’s motion for an order directing entry of default judgments against seven defendants (referring to any number of them as the “Defendant(s)”). Defendants Gary M. Ric-ci; GMR, LLC; 383, LLC; Conrad Ron-cati; and Aristón Properties, L.L.C., failed to establish good cause sufficient to set aside the entries of default. Each objection is overruled for reasons stated herein, and the Trustee’s motion is granted.

Jurisdiction

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(a), 157(a), and the Amended Standing Order of Reference signed by Chief Judge Loretta A. Preska dated January 31, 2012.

Background

On July 19, 2010, three creditors filed an involuntary Chapter 11 petition against FKF 3, LLC (“Debtor”) in the United States Bankruptcy Court for the Southern District of New York. The Debtor consented to the order for relief, and the Court entered it on August 9, 2010. On April 18, 2011, the Court confirmed the Joint Plan of Liquidation of FKF 3, LLC, pursuant to which the FKF Trust (“Trust”) was created and Gregory Messer was appointed trustee (“Trustee”).

The Trustee commenced the instant adversary proceeding on July 18, 2012 by filing a complaint (“Complaint” or “Adversary Complaint”). Compl., ECF No. 1. The Complaint seeks to recover $3,193,750 from GMR, LLC (“GMR”), Gary M. Ricci (“Ricci”), and Conrad Roncati (“Roncati”), jointly and severally, for breach of contract and turnover of property of the estate. Compl. ¶ 43-64. The Complaint also seeks to recover $1,100,000 from Ariston, L.L.C. (“Ariston”), 333, LLC (“333”), One Development of Edgewater, L.L.C. (“One Development”), and One Degree, LLC (“One Degree”), jointly and severally, for certain alleged fraudulent transfers made by the Debtor to these entities. Compl. ¶ 65-142. At the center of both of these claims is an alleged loan made by the Debtor to GMR and its principal, Gary M. Ricci. Compl. ¶ 27-42.

The Trustee alleges that in April 2006, GMR presented the Debtor with an amended note (“Note”), promising to repay $1,500,000, together with interest, on the Note’s maturity date.1 Compl. ¶ 27. The Note replaced a previous promissory note (“Original Note”). Compl. ¶ 28. In total, the Trustee alleges that the Debtor [28]*28loaned various entities $1,100,000 in cash, with the remaining $400,000 in principal attributable to another transfer to Ricci. Compl. ¶29. Contemporaneous with the execution of the Note, Ricci and Roncati allegedly guaranteed the full, prompt, and unconditional repayment of the loan. Compl. ¶ 34 (citing Guaranty of Payment, Ex. B ¶ 2). In addition, Ricci and Roncati pledged their membership interests in Ariston and GMR, respectively, to the Debtor as additional security for GMR’s obligations under the Note. Compl. ¶ 35 (citing Pledge and Security Agreement, Ex. C).

The Trustee filed the Adversary Complaint on July 18, 2012 and served it upon all Defendants on July 24, 2012. Aff. Serv., ECF No. 3; Mot. Default J. ¶ 17, ECF No. 20. The deadline to file an answer, or otherwise reply expired on August 22, 2012 without a response from any of the Defendants. At the Trustee’s request, the Clerk of Court entered a default against all Defendants on September 6, 2012.

On September 5, 2012, the Trustee requested that another summons be issued. Letter to Clerk of Ct., ECF No. 8. The new summons (the “Second Summons”) was issued by the Clerk’s Office and GMR, Ricci, Ariston, and Roncati were re-served at different addresses on September 10, 2012. Compare Aff. Serv., ECF No. 3 with Cert. Serv., ECF No. 17; see also Mot. Default J. ¶ 17, ECF No. 20. The deadline to file an answer or otherwise reply to the Second Summons expired on October 9, 2012 without a response from any of these Defendants. Thereafter, the Trustee requested that a second default be entered against GMR, Ricci, Ariston, and Roncati. Aff. Req. Default, ECF No. 19. The Trustee states that the Clerk’s Office advised that the defaults previously entered were valid. See Aff. Req. Default, ECF No. 19; see also Resp. to Obj. ¶ 37, ECF No. 35.

On November 15, 2012, the Trustee filed a Motion for Default Judgment, which was served upon all Defendants at all addresses previously utilized by the Trustee for service. Cert. Serv., ECF No. 18. The deadline to file a response expired on December 10, 2012 without a response from any of the Defendants. On December 21, 2012, Ricci filed an objection on behalf of himself, GMR, and 333 (“Ricci Objection”). Ricci Obj., ECF No. 24. On December 26, 2012, Roncati filed an objection, through counsel, on behalf of himself and Aristón (“Roncati Objection”). Roncati Obj., ECF No. 26.

On January 4, 2013, the Trustee filed a response to the objections. Resp. to Obj., ECF No. 35. On January 18, 2012, Ricci filed a letter with the Court regarding his failure to appear at the January 8, 2013 hearing, in which he advised the Court that he was under the impression that he did not need to attend the hearing. See Letter from Ricci, ECF, No. 41.

Discussion

Rule 55(c) of the Federal Rules of Civil Procedure, applicable to adversary proceedings through Federal Rule of Bankruptcy Procedure 7055, states that “[t]he court may set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c); Fed. R. Bankr.P. 7055. Two of the seven Defendants — One Development and One Degree — have not opposed the Trustee’s motion and did not appear at the hearing held January 9, 2013. The Trustee’s motion for default judgments are granted as to these two Defendants.

The Roncati Objection requests that the Clerk’s entry of defaults against him and Aristón be vacated, and the Court will construe the Ricci Objection under the same standard. See Meehan v. Snow, 652 [29]*29F.2d 274, 276 (2d Cir.1981). “When the defaulted defendant opposes default judgment, courts treat the opposition as a motion to vacate entry of default and examine whether good cause exists to vacate the entry.” Capitol Records v. Defries, 2012 WL 3041583, at *5 (S.D.N.Y. July 20, 2012).

“Good cause” is not defined by Rule 55(c). The Second Circuit has established a three factor test to help determine whether good cause exists: (1) was the default willful; (2) will setting aside the default prejudice the adversary; and (3) was a meritorious defense presented. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir.1993). If good cause is not shown, a motion for default judgment may be granted. See New York v. Green, 420 F.3d 99, 110 (2d Cir.2005) (affirming district court’s refusal to vacate default judgment where good cause factors were not met).

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489 B.R. 24, 2013 WL 1003383, 2013 Bankr. LEXIS 979, 57 Bankr. Ct. Dec. (CRR) 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messer-ex-rel-fkf-trust-v-gmr-llc-in-re-fkf-3-llc-nysb-2013.