Free Notice (Other) - District Court of Colorado - Colorado

Case 1:01-cv-00275-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane

Civil Action No. 01-K-0275 DOMINICK PAOLONI, et al., Plaintiffs, vs. DONALD I. GOLDSTEIN, et al, Defendants, and NBSA, LLC, et al., Relief Defendants.

NOTICE OF SUPPLEMENTAL EXHIBIT TO PARTIAL RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR CONTINUANCE PURSUANT TO RULE 56(f) Defendant Jamie Goldstein submits this Notice of Supplemental Exhibit to Partial Response to Motion for Summary Judgment and Request for Continuance Pursuant to Rule 56(f). Plaintiffs, other than John P. Barbee, Chapter 7 trustee for Mr. Goldstein's bankruptcy estate (the "Trustee"), moved for summary judgment against Mr. Goldstein on their 10th claim for relief (constructive trust/equitable lien). Plaintiffs brought the Motion after the United States Bankruptcy Court for the Southern District of Florida (the "Bankruptcy Court"), on July 8, 2005, granted their motion for relief from stay in Mr. Goldstein's bankruptcy case and permitted Plaintiffs to pursue a constructive trust/equitable lien claim against Mr. Goldstein in this Court. (See order attached as Exhibit D-1 to Mr. Goldstein's Partial Response to Motion for Summary Judgment and Request for Continuance Pursuant to Rule 56(f)) (the "Response" Docket #804)). Mr. Goldstein, as noted in the Response, appealed the Bankruptcy Court's order.

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On May 30, 2006, the United States District Court for the Southern District of Florida (the "Florida District Court") entered an order remanding the case to the Bankruptcy Court to make further factual findings and conclusions of law. (Order on Appeal of Bankruptcy Court's Order, Goldstein v. Viatical Administrators, Inc. (In re Reliance Fin. & Inv. Group, Inc.), Case No. 05-61518-CIV-Good/Turnoff) (the "Stay Appeal Order," a copy of which is attached to this Notice as Exhibit A-2)). In the Stay Appeal Order, the Florida District Court found the following with respect to Plaintiffs' motion for relief from stay and their constructive trust/equitable lien claim in this Court: I disagree with [the Bankruptcy Court]'s conclusion that [Plaintiffs] should present any constructive trust or equitable lien claims to the [Colorado] district court as affirmative defenses. I find that the bankruptcy court is better able to deal with these issues because of its expertise in all matters arising under the United States Bankruptcy Code. Thus, I conclude that the bankruptcy court, and not the Colorado district court, is uniquely poised to resolve these issues due to its familiarity with both the procedural posture of the case and the parties. (Stay Appeal Order at 6-7). As before this Court, the effect of settlement agreements to which Plaintiffs and the Trustee are parties was considered in the Stay Appeal Order. The Bankruptcy Court had rejected Mr. Goldstein's arguments that those settlements precluded Plaintiffs' present request for relief under the doctrine of res judicata. The District Court remanded: In concluding that res judicata did not apply, [the Bankruptcy Court] had to find that neither the Debtors-Trustee Settlement nor the Viatical Administrators Settlement ever addressed the issue of the excess tax refund and thus, the bankruptcy court's approval of the two settlement agreements did not amount to a waiver of any right [Plaintiffs] had to the excess tax refund. ... I am unable to conclude whether [the Bankruptcy Court] correctly decided that the doctrine of res judicata does not apply. Consequently, I remand this issue to [the

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Bankruptcy Court] to make specific findings as to each of the four elements to support his conclusion that the doctrine of res judicata is inapplicable in the instant case. (Id. at 13-14). Although [the Bankruptcy Court]'s decision that the excess tax refund is not property of the estate may have been premised upon the theory that the Trustee abandoned the excess amount refunded to Appellants under 11 U.S.C. § 554(a), [the Bankruptcy Court] does not specify Section § [sic] 554, or any other reason, for his conclusion that the excess refund is not property of the estate. As such, I am unable to determine why [the Bankruptcy Court] concluded that it was appropriate for the bankruptcy court to grant [Plaintiffs] relief from the automatic stay to pursue these funds. Accordingly, I conclude that it is appropriate for the Court to remand this matter to the bankruptcy court to specifically identify the reasons behind its conclusion that the excess tax refunds are not property of the estate. (Id. at 16). The Florida District Court also ordered the Bankruptcy Court to clarify which section of 11 U.S.C. § 362(d) justifies granting Plaintiffs relief from the automatic stay. (Id. at 12). Respectfully submitted this 6th day of June, 2006.

BROWNSTEIN HYATT & FARBER, P.C.

By:

s/ Daniel J. Garfield Michael J. Pankow, #21212 Daniel J. Garfield, #26054 410 Seventeenth Street, 22nd Floor Denver, CO 80202 Ph: 303.223.1100 Fax: 303.223.1111 Email: [email protected] [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of June, 2006, a true and correct copy of the foregoing NOTICE OF SUPPLEMENTAL EXHIBIT TO PARTIAL RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR CONTINUANCE PURSUANT TO RULE 56(f) was served via U.S. mail, upon the following: Robert A. Dill, Esq. (via facsimile 303-7773823 and mail) John A. Hutchings, Esq. Dill, Dill, Stonbraker & Hutchings, PC 455 Sherman Street #300 Denver, CO 80203 Dale R. Harris, Esq. Davis, Graham & Stubbs, LLP 1550 Seventeenth Street, Suite 500 Denver, CO 80202 Larry K. Griffis, Esq. Jaffe, Raitt, Heuer & Weiss, PC One Woodard Avenue #2400 Detroit, MI 48226 Edward H. Widmann, Esq. Mark W. Nelson, Esq. Hall & Evans, LLC 1125 17th Street, Suite 600 Denver, CO 80202 William Benson, Esq. Benson, Mucci & Associates, LLP 5561 University Drive, Suite 102 Coral Springs, FL 33067 Brent R. Cohen, Esq. Rothgerber, Johnson & Lyons One Tabor Center, Suite 3000 1200 Seventeenth Street Denver, Colorado 80202-5855 Richard G. Doggett 1500 North Ocean Blvd., #404 Pompano Beach, Florida 33062

Scott E. Simowitz, Esq. Moskowitz, Mandell, Salim & Simowitz, PA 800 Corporate Drive #610 Fort Lauderdale, FL 33334 Richard D. Greengard, Esq. Isaacson, Rosenbaum, Woods & Levy, PC 633 17th Street #2200 Denver, CO 80202 Bruce I. Kravitz, Esq. Bruce I. Kravitz, P.A. 1870 Forest Hill Blvd. #211 West Palm Beach, FL 33406-6061

John P. Barbee, Trustee 333 17th Street, Suite K Vero Beach, FL 32960

Robert S. Harrison, Esq. Matthew D. Klakulak, Esq. Robert Harrison & Associates, PLC 240 East Merrill Street Birmingham, MI 48009-6106

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Jonathan C. Oster, Esq. Oster & Martin, LLC 717 Seventeenth Street #1475 Denver, CO 80202 Charles P. Randall, Esq. 150 East Palmetto Park Road, #500 Boca Raton, FL 33432

Gary Hoskie Professional Consultants & Managers, Inc. 1706 Surfside Drive Hutchinson Island, FL 34949 C. Michael Montgomery, Esq. David C. Fawley, Esq. Montgomery, Kolodny, Amatuzio, Dusbabek & Parker, LLP 475 17th Street ­ 16th Floor Denver, CO 80202 Paul F. Hultin, Esq. Adam Goldstein, Esq. Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, CO 80202-2617 Barbara L. Green, Esq. Richard K. Rediger, Esq. Katherine Harvey, Esq. Overturf & McGath, P.C. 625 East 16th Avenue #100 Denver, CO 80203 Robert McAllister, Esq. 455 Sherman Street #310 Denver, CO 80203-4404

Keith H. Rutman, Esq. Xelan Law Firm, LLP 701 B Street #1000 San Diego, CA 92101-8109

Richard Stuckey, Esq. 2150 West 29th Avenue #500 Denver, CO 80211

Thomas B. Quinn, Esq. Suzanna Wasito, Esq. White & Steele, P.C. 950 17th Street ­21st Floor Denver, CO 80202 Michael T. Stehle, Esq. 737 W. 5th Avenue, Suite 206 Anchorage, Alaska 99501

s/ Kris Rees

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