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Usa Commercial Mortgage Co v. Usa Spe LLC

April 25, 2013

USA COMMERCIAL MORTGAGE CO., DEBTOR. 3685 SAN FERNANDO LENDERS, LLC ET AL., PLAINTIFFS,
v.
USA SPE LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert C. Jones United States District Judge

ORDER

This case arises out of the attempts of certain direct lenders to terminate a bankrupt entity and its assigns-one of whom is now itself bankrupt-as loan servicers. Pending before the three Proposed Final Judgments (ECF Nos. 2297, 2307, 2309).

FACTS AND PROCEDURAL HISTORY

USA Commercial Mortgage Co. ("USA Commercial") was a loan servicing company that went bankrupt. At an auction pursuant to those bankruptcy proceedings, Compass USA SPE, LLC ("Compass") purchased USA Commercial's interest in thousands of Loan Servicing Agreements ("LSA"). Those LSAs were contracts between USA Commercial and various financial institutions and individuals ("Direct Lenders") that had lent money for the purchase of commercial real estate. The LSAs gave USA Commercial the right to administer the loans on

of the Direct Lenders. Silar Advisors, LP and Silar Special Opportunities Fund, LP (collectively, "Silar") financed Compass's purchase of the LSAs, retaining a security interest in the LSAs. Silar later assigned the loan and corresponding security interest in the LSAs to Asset Resolution, LLC, an entity created and owned by Silar for this purpose. Asset Resolution foreclosed on the LSAs.

Certain Direct Lenders subsequently formed various companies ("the LLCs"), who along with the Jones Vargas Direct Lenders sued Compass in this Court to determine their rights and obligations under the LSAs and for various torts. Asset Resolution and Silar intervened, and soon thereafter they filed an Amended Answer to the Second Amended Complaint and Asset Resolution, LLC's Counterclaims. Those counterclaims, brought against approximately sixty-five Counterdefendants, were for declaratory judgment, breach of contract, breach of the covenant of good faith and fair dealing, permanent injunction, and quantum meruit.

Further complicating matters, on October 14, 2009, Asset Resolution and Silar filed a Commencement of Chapter 11 Bankruptcy Cases, indicating that Asset Resolution, but not Silar itself, had filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Southern District of New York. On November 24, 2009, the Bankruptcy Court for the Southern District of New York granted a motion for transfer of venue, transferring the bankruptcy action to the Bankruptcy Court for the District of Nevada. This Court withdrew the bankruptcy proceedings from the Bankruptcy Court and converted Asset Resolution's bankruptcy to Chapter 7, which rulings have been affirmed by the Court of Appeals.

A jury awarded approximately fifty Plaintiffs over $5 million in damages in December 2010. The Court ruled on several post-trial motions in August 2011. On September 6, 2012, the Court entered an Agreed Order Regarding Settlement and Related Relief (the "Agreed Order") in In re Asset Resolution Chapter 7 bankruptcy case. (See ECF No. 1915 in Case No. 09-bk-32824). Pursuant to that order, Plaintiffs have filed three proposed orders in the present case.

DISCUSSION

First, Plaintiffs asked the Court to enter final judgment against Silar, Asset Resolution, and Boris Piskun. (See ECF No. 2297). Some non-parties objected to the form of the proposed judgment, because it purported to extend the effect of certain language in the Agreed Order beyond the parties to the present case. Plaintiffs submitted a revised proposed judgment to which

has objected. (See ECF No. 2307). The Court will enter that proposed judgment. Second, Plaintiffs ask the Court to enter final judgment against Compass and David Blatt.

ECF No. 2309). Compass and Blatt have objected to the form of the proposed judgment because: (1) the proposed judgment contains recitals of prior pleadings in violation of Rule 54(a);

(2) footnote 1 indicates that although Compass and Blatt had defaulted, they were permitted to dispute damages at trial, and that the judgment is therefore "final" not "default"; (3) the proposed judgment purports to award damages to ten putative plaintiffs not listed in the Second Amended

(4) the proposed judgment fails to note that the dismissed former LLC Plaintiffs should take nothing; and (5) line 15 of page 25 is ...


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