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Steward v. Moskowitz

October 7, 2010


Appeals from the Superior Court of the District of Columbia, (CAR7953-07) (Hon. Odessa F. Vincent, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued January 12, 2010

Before REID, BLACKBURNE-RIGBSY, and THOMPSON, Associate Judges.

In a prior lawsuit appellee, Marc S. Moskowitz, sued appellant, Benjamin F. Steward, for failure to pay outstanding legal fees. The trial court entered a monetary judgment in favor of Mr. Moskowitz. When Mr. Steward failed to pay the judgment, Mr. Moskowitz sought to enforce it by moving against Mr. Steward's real property located at 1536 T Street, in the Northwest quadrant of the District of Columbia ("the Property").

In the instant case, Mr. Steward sued appellees, Mr. Moskowitz and1536 T Street Associates, L.L.C. ("T Street Associates"), to quiet title to the Property and to prevent unjust enrichment. The trial court granted Mr. Moskowitz's and T Street Associates's summary judgment motions, and denied Mr. Steward's motion for summary judgment as well as his motion to file a second amended complaint.*fn1 The court also ordered the release of lis pendens.*fn2 For the reasons discussed below, we are constrained to reverse the trial court's grant of summary judgment in favor of Mr. Moskowitz and T Street Associates and we remand this case to the trial court with instructions to set aside the execution sale of the Property.*fn3


The record reveals the following.*fn4 In 1989, Mr. Steward acquired the Property.

Sometime thereafter he retained Mr. Moskowitz, an attorney, to represent him in other matters. Mr. Moskowitz eventually sued Mr. Steward for failure to pay incurred legal fees. On June 12, 2007, Mr. Moskowitz secured a money judgment of approximately $8,160.00, plus interest.*fn5 Mr. Steward did not appeal. Mr. Moskowitz sent Mr. Steward an e-mail on June 15, 2007, indicating that he expected payment of the judgment, prejudgment interest and costs "by certified funds only, within ten days." Mr. Moskowitz recorded his judgment in the District's land records on June 25, 2007. He sent another e-mail to Mr. Steward that same day, declaring that if he did not receive payment by June 28, he would "proceed to move forward to execute on the judgment without further delay."

On July 26, 2007, after Mr. Steward failed to pay the judgment, Mr. Moskowitz obtained a writ of fieri facias from the Superior Court of the District of Columbia. This writ commanded the United States Marshal to seize and sell the Property to the highest bidder at public auction, after publication of notice. On July 27, 2007, the Marshal posted to the Property a Public Notice of Attachment. This notice incorrectly stated that "the District Court of the United States for the Washington D.C. District of Columbia" issued the writ. But, the notice correctly referenced the Superior Court of the District of Columbia in its caption. Mr. Moskowitz sent another e-mail to Mr. Steward on August 13, 2007, stating that he would not "continue to allow [him] to avoid [his] obligation to pay the judgment entered against [him,]" and that he would "be contacting the US Marshal soon to commence advertising attendant to the sale of the real property . . . and unless the sum stated is paid . . . [he would] run the risk of having the property sold."

The Marshal subsequently advertised the public auction in the Washington Times - on October 24, October 31, and November 7, 2007. The advertisement read:

By Virtue of Writ of Fieri Facias issued by the Superior Court for the District of Columbia, and to me directed, I will sell by public auction, to the highest bidder for CASH, in front of the United States Marshal Service, 500 Indiana Avenue, N.W., on Thursday, November 8, 2007 at 10:00 a.m., all of the right, title, claim[,] interest and estate at law and equity of Benjamin Steward, Case No. 06CA8271, in and to the following described real estate, in the District of Columbia to wit: Lot number 0098, in Square 0191, among the records of the Office of the Surveyor for the District of Columbia, known as 1536 T Street, N.W., Washington, D.C.

TERMS OF SALE: A 10% deposit is required in cash or certified check payable to the U.S. Marshal's Service at time of sale, except that the judgment creditor shall not be required to have a deposit. Balance due in cash or certified check payable to the U.S. Marshal Service by 4:00 p.m., Tuesday, November 13, 2007.

A contact telephone number was listed "For Further Information." According to an affidavit signed by Geraldine Davis, an employee of the Office of the U.S. Marshal for the District of Columbia, The normal practice and procedure of [the] Office prior to a U.S. Marshal's sale under a writ of fieri facias is to obtain two appraisals of the property involved, to post a Notice of Attachment on the property involved and then to advertise the sale for once a week for three weeks in a newspaper of general circulation in the District of Columbia.

Ms. Davis asserted that her office "obtained two appraisals of the Property" and advertised the sale in the Washington Times "for once a week for three weeks in advance of the sale, which was consistent with [the Marshal's] standard practice for such sales."

The Marshal's auction occurred on November 8, 2007, as scheduled. There were three bidders at the auction. Mr. Moskowitz appeared as a representative of T Street Associates, and was the highest bidder at $90,000.00.*fn6 On the date required for full payment, a grantor for the Lorge Trust - the sole member of T Street Associates - tendered a cashier's check for $90,000.00, payable to the United States Marshal.*fn7 The Marshal executed the Property's deed from the Superior Court to T Street Associates. Mr. Steward then moved to stay the proceedings to enforce the judgment. After a hearing, the court denied his motion.*fn8

Mr. Steward commenced the instant action on December 6, 2007, and he filed his first amended complaint about one week later. Since November 7, 2007, Mr. Moskowitz had represented the Lorge Trust in its efforts to create a limited liability company to purchase the Property. In his complaint, Mr. Steward acknowledged that Mr. Moskowitz represented T Street Associates when he successfully bid on the Property, but he alleged that the Public Notice of Attachment regarding the auction of the Property erroneously listed the court from which the writ of fieri facias was issued. He claimed that Mr. Moskowitz executed and filed T Street Associates' Articles of Organization, and that T Street Associates "was not in existence until . . . 5 days after the [a]uction." Mr. Steward asserted that the Notice of Public Auction chilled potential bidders because it demanded that bidders settle within a much shorter time-frame than normal. He averred that D.C. Code § 15-314 requires freehold estates to be sold "'after notice has been made in the manner provided by section 2002 of Title 28, United States Code,'" but that "the Notices of Public Auction [were] published only three . . . times over a span of . . . fifteen . . . days . . . - not for . . . over a span of four weeks as . . . required under 28 U.S.C. § 2002." And, Mr. Steward declared that if the sale remained in effect, T Street Associates would gain: "a windfall of approximately $450,000.00";*fn9 "the benefit of [his] paying the current District of Columbia real property taxes and Property insurance through the first deed of trust"; and the rents collected from the Property's tenants.

Mr. Moskowitz and T Street Associates filed their motions for summary judgment on January 15, 2008; Mr. Steward opposed the motions on February 25, 2008. Mr. Steward lodged his cross-motion for summary judgment on March 27, 2008, and Mr. Moskowitz and T Street Associates respectively opposed the motion on April 8, and May 13, 2008.

On May 12, 2008, Mr. Steward lodged a motion for leave to file his Second Amended Complaint. This complaint added a number of factual allegations, for example: "The Public Notice of Attachment did not mention an execution sale of the Subject Property nor did it mention a date, time, or location of a sale of the Subject Property." In addition, he (1) modified the title of Count I from "Quiet Title" to "Quiet Title and To Set Aside Execution Sale" but left Count II titled as "Unjust Enrichment"; and (2) added a Count III - "Wrongful Execution," claiming that Mr. Moskowitz failed to follow the requirements of D.C. Code § 15-323 and § 16-555*fn10 because he "did not exhaust all ...

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