Silverman v. Tudor Insurance (In re Lenders Abstract & Settlement Service Inc.)

493 B.R. 385
CourtDistrict Court, E.D. New York
DecidedApril 12, 2013
DocketNo. 10-MC-699 (ADS)
StatusPublished
Cited by6 cases

This text of 493 B.R. 385 (Silverman v. Tudor Insurance (In re Lenders Abstract & Settlement Service Inc.)) 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
Silverman v. Tudor Insurance (In re Lenders Abstract & Settlement Service Inc.), 493 B.R. 385 (E.D.N.Y. 2013).

Opinion

SPATT, District Judge.

On July 8, 2009, the Debtor, Lenders Abstract and Settlement Service Inc. (“Lenders”), filed a voluntary petition for Chapter 7 bankruptcy in the United States Bankruptcy Court in the Eastern District of New York before the Honorable Dorothy T. Eisenberg. On July 28, 2010, the Plaintiff Kenneth P. Silverman, Esq., the Chapter 7 Trustee for Lenders (“the Trustee”), filed an adversary proceeding against the Defendant Tudor Insurance Company (“Tudor”), alleging breach of contract. On October 15, 2010, Tudor moved this Court to withdraw the adversary proceeding from the bankruptcy court to this Court. For the reasons below, Tudor’s motion is granted.

I. BACKGROUND

A. The Policy

Lenders was a corporation that provided settlement services for residential loan closings. As part of its ordinary business practices, Lenders obtained a Specialty Professional Liability Policy from Tudor (“The Policy”), which provided Lenders with insurance coverage with regard to its professional services. The Policy was effective from September 2, 2008 through September 2, 2009. However, by letter dated February 27, 2009, the underwriters at Tudor notified Lenders that the Policy was no longer in effect as of February 26, 2009. (Kandel Deck, Exh. B.)

Under the terms of the Policy, Tudor provided coverage for “all sums in excess of the deductible that the Insured shall become legally obligated to pay as damages because of claims first made against the Insured and reported to [Tudor] during the policy period.” (Kandel Deck, Exh. A.) The Policy “applie[d] to actual or alleged negligent acts, errors or omissions arising solely out of professional services [388]*388rendered for others as designated by Item 3 of the Declarations!.]” (Kandel Decl., Exh. A.) Lenders, the Trustee and Lenders’s principal, Scott Sisskind (“Sisskind”), were considered Insureds under the Policy. Item 3 of the Declarations, “Profession,” was amended by Endorsement # 6, “Escrow Agents Endorsement” (“Endorsement #6”), to include “Escrow Agent, Closing Agent, Notary Public, and/or Witness Closer.” (Kandel Deck, Exh. A.)

However, the Policy contained several exclusions. These exclusions included losses arising from (1) “[t]he liability of others assumed by the Insured under any contract or agreement whether written unless specifically endorsed to th[e] [PJolicy” (Exclusion C); (2) “[bjankruptcy or insolvency of the Insured” (Exclusion E); (3) “[t]he Insured’s Services and/or capacity as[ ] ... a partner, principal, officer, director or trustee of a business enterprise not named in the Declarations” (Exclusion N); (4) “[a]ny claim made by any Insured against any other Insured” (Exclusion S); and (5) “[c]laims arising out of expenses, warranties or guarantees by the Insured” (Exclusion T). (Kandel Deck, Exh. A.) These exclusions also included losses in connection with or arising from the following:

[a]ctions against the Insured arising out of or connected with the performance or failure to perform services for any person or entity:
1. which is owned by, controlled by or in which any Insured has any financial interest;
2. which owns, controls, or has any financial interest in any Insured covered by this policy;
3. which is affiliated with any Insured through any common ownership, control, or financial interest; or
4.in which any Insured is a director, officer, partner manager, or principal stockholder (Exclusion G).

(Kandel Deck, Exh. A.) In addition, Endorsement # 6, in relevant part, excluded coverage for loss in connection with or arising out of “[a]ny actual or alleged commingling of funds” (Exclusion 6) and “[a]ny persons or entity’s financial inability to pay, insolvency, receivership, bankruptcy, liquidation or dishonoring of any financial instrument” (Exclusion 11). (Kandel Deck, Exh. A.)

B. The Firstrust Action

Lenders conducted closings of residential mortgage loans for 1st Republic Mortgage Brokers (“1st Republic”), a business that originated, serviced, and sold mortgage loans to investors. (Kandel Deck, Exh. H.) Sisskind was 1st Republic’s President and sole shareholder. (Kandel Deck, Exh. H.)

On or about April 18, 2008, Firstrust Bank (“Firstrust”), a bank and trust company, entered into an agreement (“the Warehousing Agreement”) with 1st Republic. (Kandel Deck, Exh. H.) Pursuant to the Warehousing Agreement, Firstrust loaned $10,000,000 (“the Firstrust loan”) to 1st Republic to fund residential mortgage loans to individuals. (Kandel Deck, Exh. H.) 1st Republic agreed to pay Firstrust the lesser of $10,000,000 or the outstanding principal balance under a promissory note executed by Firstrust in connection with the Warehousing Agreement. (Kan-del Deck, Exh. H.) Also on or about April 18, 2008, Sisskind entered into a “Limited Guaranty and Suretyship Agreement” with Firstrust, in which Sisskind personally guaranteed the prompt payment and performance of all loans, advances, debts, liabilities, obligations, covenants and duties owed by 1st Republic to Firstrust. (Kan-del Deck, Exh. H.) Thereafter, on or about August 28, 2008, 1st Republic executed an [389]*389amended and restated promissory note, under which 1st Republic agreed to pay to the order of Firstrust the lesser of $12,500,000 or the outstanding principal balance pursuant to the terms of the Warehousing Agreement. (Kandel Decl., Exh. H.)

Under the terms of the Warehousing Agreement, as collateral for the Firstrust loan, 1st Republic agreed to deliver and assign to Firstrust the original mortgage notes that were subsequently funded by the Firstrust loan. (Kandel Decl., Exh. H.) Once the residential mortgage loans were closed, 1st Republic would sell them to permanent investors. (Kandel Decl., Exh. H.) The permanent investors would then pay Firstrust for amounts advanced with respect to residential mortgage loans. (Kandel Decl., Exh. H.)

Lenders conducted the closings of residential mortgage loans that had been originated, serviced or sold by 1st Republic and funded by the Firstrust loan. (Kandel Decl., Exh. H.) In accordance with 1st Republic's instructions, Firstrust wired money directly to Lenders for these closings. (Kandel Decl., Exh. H.)

However, as a result of alleged negligence on the part of Lenders and 1st Republic, proceeds from collateral pledged to Firstrust was incorrectly paid out to a third party. (Kandel Decl., Exh. H.) Consequently, Firstrust claimed a loss of more than $5,000,000. (Kandel Decl., Exh. H.) On January 14, 2009, Firstrust filed a praecipe seeking the entry of a money judgment by confession against 1st Republic for over $5,000,000 in the United States District Court for the Eastern District of Pennsylvania. (Kandel Deck, Exh. F.) On January 16, 2009, Firstrust filed an action against 1st Republic in the Eastern District of New York (“the Firstrust Action”). (See Dkt. No. 09-CV-177.) On January 20, 2009, a money judgment resulting from the January 14, 2009 praecipe was entered against 1st Republic for $5,495,977, plus interest, costs and attorneys’ fees. (Kan-del Deck, Exh. H.)

On February 20, 2009, Firstrust filed an amended complaint in the Firstrust Action, adding Lenders as a defendant.

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493 B.R. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silverman-v-tudor-insurance-in-re-lenders-abstract-settlement-service-nyed-2013.