United States v. Shuch

139 B.R. 57, 1992 U.S. Dist. LEXIS 2816, 1992 WL 83862
CourtDistrict Court, D. Connecticut
DecidedFebruary 28, 1992
DocketCiv. No. H-90-840 (JAC)
StatusPublished
Cited by1 cases

This text of 139 B.R. 57 (United States v. Shuch) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shuch, 139 B.R. 57, 1992 U.S. Dist. LEXIS 2816, 1992 WL 83862 (D. Conn. 1992).

Opinion

RULING ON MOTION FOR SANCTIONS1

JOSÉ A. CABRANES, District Judge:

The question of whether to impose sanctions on attorneys and their clients is almost always a difficult one for a judge. As in this 'case, the issues presented are often complicated, and the decision is close. Three pleadings by a creditors’ committee, seeking to modify orders of this court in proceedings in which the committee had no obvious right or basis to intervene, are the subject of this significant and altogether plausible motion for sanctions. However, following extensive briefing, oral argument held on September 9, 1991, and an eviden-tiary hearing held on January 27, 1992, I conclude that in the circumstances presented here sanctions are neither required nor appropriate.

Background

This case was initiated by the United States by filing a Verified Complaint for Injunctive Relief on October 5, 1990 pursuant to 18 U.S.C. § 1345 (“section 1345”).2 On that date, the court granted an ex parte restraining order at the government’s request, and the parties subsequently agreed to the entry of a preliminary injunction. See Preliminary Injunction and Order (filed Oct. 11, 1990) (“October 11, 1990 Order”). The effect of the October 11, 1990 Order was to freeze certain assets of defendants pending disposition of federal criminal charges against Frank Shuch, who was later arrested and indicted on forty counts of bank fraud, mail fraud and conspiracy. United States v. Frank Shuch, Criminal No. N-90-76 (JAC) (D.Conn.) (the “criminal case”). At his arraignment on those charges on December 19, 1990, the court entered a Second Amended Order Setting Conditions of Release (filed Dec. 20, 1990) (“December 20, 1990 Order”).

In the motion now pending before the court, defendants seek an award of sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure (“Rule 11”), 28 [59]*59U.S.C. § 1927, and/or the inherent power of the court against the Official Committee of Unsecured Creditors of Colonial Realty Company (“Creditors’ Committee”) and/or their attorneys, members of the law firm of Anderson Kill Olick & Oshinsky, P.C. (“Anderson Kill”),3 for their attempt to modify the October 11, 1990 Order in this case and the December 20, 1990 Order in the criminal case. Specifically, defendants object to two sets of papers filed in this court and one set of papers filed in the United States Bankruptcy Court for the District of Connecticut (Krechevsky, C.J.) (“Bankruptcy Court”).

The first set of objectionable papers, an application for “Order to Show Cause and Temporary Restraining Order,” was filed in this court on March 7, 1991 (“March 7, 1991 Application”) on behalf of the Creditors’ Committee by Attorney Frank S. Oc-chipinti, a “member” of Anderson Kill.4 I did not enter either the proposed order to show cause or the proposed temporary restraining order. Rather, on March 8, 1991 I entered an order directing counsel to the Creditors’ Committee to serve its “Order to Show Cause and Temporary Restraining Order together with the Affidavit of Frank S. Occhipinti” on all counsel of record in both this case and the related criminal case by no later than March 11, 1991. After defendants submitted briefs responding to the papers on March 14 and March 15, 1991, Attorney Occhipinti withdrew the March 7, 1991 Application pursuant to a letter to this court dated April 1, 1991 and filed April 4, 1991.

Meanwhile, on March 28, 1991 Attorney Occhipinti filed the second set of objectionable papers on behalf of the Creditors’ Committee and the debtor, Colonial, in the Bankruptcy Court in connection with an adversary proceeding — specifically, he filed an Application for a Temporary Restraining Order and Motion for Preliminary Injunction (“March 28, 1991 Application”), seeking relief similar to that requested in this court in the March 7, 1991 Application. Like the March 7, 1991 Application, the March 28, 1991 Application sought to prevent Nancy Shuch from utilizing any of her assets pending the outcome of proceedings in Bankruptcy Court. However, virtually all of defendants’ assets were already subject to the supervision of this court pursuant to the October 11, 1990 Order in this action and the December 20, 1990 Order in the criminal case. The two applications filed by the Creditors’ Committee, therefore, sought to alter or modify orders of this court.

The Bankruptcy Court denied the March 28, 1991 Application and scheduled a hearing on the motion for a preliminary injunction on April 3, 1991. However, at the request of counsel for Colonial on April 2, 1991, the Bankruptcy Court postponed the hearing on the motion for a preliminary injunction indefinitely. At a hearing in the Bankruptcy Court held on April 23, 1991, Chief Judge Krechevsky indicated that he would not entertain the motion for a preliminary injunction until after he had ruled [60]*60on the outstanding motion for stay and expressed some hesitancy over hearing the motion for a preliminary injunction at all. In response, Attorney Arthur Olick of Anderson Kill, as counsel for the Creditors’ Committee, withdrew the motion for a preliminary injunction and indicated at the hearing that it would be re-filed in this court.

On April 30, 1991, defendants filed the pending motion for sanctions in this court seeking sanctions against attorneys of Anderson Kill and/or the Creditors’ Committee for filing the March 7, 1991 Application in this court and the March 28, 1991 Application in the Bankruptcy Court. Before responses were filed or a hearing could be had on the motion for sanctions in this court, on May 3, 1991 Attorney Oechi-pinti returned to this court on behalf of the Creditors’ Committee and filed the third set of objectionable papers (the second in this case), a motion for preliminary injunction and pre-judgment order of attachment (“May 3, 1991 Motion”). The May 3, 1991 Motion sought to alter orders of this court in the same manner as the earlier applications; it elicited the Response of the United States of America to Motion for Preliminary Injunction and Pre-Judgment Order of Attachment (filed May 15, 1991) and defendants’ joint Memorandum in Opposition to Motion for Preliminary Injunction and Prejudgment Order of Attachment (filed May 15, 1991).

While efforts were made to schedule a hearing on the pending motions in this case, including the May 3, 1991 Motion, there were significant developments in the Bankruptcy Court proceedings. Specifically, on May 24, 1991 Colonial’s Chapter 11 bankruptcy case was converted to a case under Chapter 7 pursuant to section 1112(a) of the Bankruptcy Code. As a result, the Creditors’ Committee, which had been established pursuant to Chapter 11, was dissolved, and Attorney Hal M. Hirsch was appointed interim trustee of Colonial (the “Trustee”).5

After several adjournments requested by Attorney Occhipinti, a hearing on his May 3, 1991 Motion and on the motion for sanctions was finally scheduled for September 9, 1991.6

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Related

In Re 72nd Street Realty Associates
185 B.R. 460 (S.D. New York, 1995)

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Bluebook (online)
139 B.R. 57, 1992 U.S. Dist. LEXIS 2816, 1992 WL 83862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shuch-ctd-1992.