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Papageorge v. Banks

Court of Appeals of Columbia District

December 19, 2013

George C. PAPAGEORGE, Appellant,
Matt BANKS, et al., Appellees.

Argued Nov. 20, 2013.

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[Copyrighted Material Omitted]

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Kenneth C. Crickman, Washington, DC, with whom Robert C. Cooper was on the brief, for appellant.

Jonathan Zucker filed a brief for appellees.

Before THOMPSON and EASTERLY, Associate Judges, and FARRELL, Senior Judge.

THOMPSON, Associate Judge:

In February 2012, appellant George Papageorge filed a one-paragraph complaint against appellees Matt and Diane Banks, alleging that they had " absconded with settlement monies and cashed a check knowing that most of the funds were liened and intended to go to the plaintiff." Thereafter, Papageorge sought and obtained a prejudgment writ of attachment against the Bankses, having advised the court that the Bankses had been paid funds from a settlement agreement with Eastern Savings Bank (" ESB" ), and that Papageorge was entitled to those funds under a separate agreement (the " December 9, 2010 Agreement" or the " Agreement" ) with Matt Banks, under which Papageorge had " agreed to finance Mr. Banks' efforts to protect his rights as a tenant of certain real property." The Bankses filed a motion to dismiss the complaint or alternatively for summary judgment, arguing that the Agreement was " void as champertous." [1] Considering materials outside the complaint, the trial court treated the motion as one for summary judgment and entered judgment in favor of the Bankses, agreeing that the Agreement was champertous and therefore void in its entirety. Papageorge appeals from the trial court's grant of summary judgment in favor of appellees and from the court's denial of his motion for reconsideration of that ruling. We reverse and remand.

I. Background

This appeal is the latest development in a spate of litigation that erupted after deed-of-trust holder ESB purchased the property at 2507 33rd Street, S.E. (the " property" ), at an April 2001 foreclosure sale.[2] The factual background set out below is largely drawn from Papageorge's opposition to the Bankses' motion to dismiss or for summary judgment.

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Matt Banks was a tenant at the property prior to the April 2001 foreclosure, and he continued in occupancy for several years after the foreclosure pursuant to his purported Valentine rights.[3] In October 2001, Matt Banks entered into an agreement with Papageorge, the full text of which provided as follows:

For valuable consideration I, Matt W. Banks, hereby assign[ ] my tenant rights to purchase under D.C. Law in the lease of 2507 33rd Street S.E. [,] Washington, D.C. 20020 to George C. Papageorge.
Subsequently, on December 9, 2010, Banks and Papageorge executed a " Memorandum Regarding Banks Lease" that affirmed this agreement, providing that " [i]t is understood and agreed that[,] with regard to the lease of 2507 33rd Street S.E.[,] Matt Banks assigned his TOPA rights ... to George C. Papageorge under an earlier agreement which shall remain in full force and effect." As that memorandum reflects, the reference to " tenant rights to purchase under D.C. Law" in the October 2001 agreement was a reference to the opportunity to purchase the property that the parties expected that Matt Banks qua tenant would have under the Tenant Opportunity to Purchase Act (" TOPA" ), D.C.Code §§ 42-3404.02 et seq. (2012 Repl.), before ESB would have been able lawfully to sell the property to a third party. See id. at § 42-3404.02(a).[4]

Eventually, ESB sued Matt Banks for possession of his rental unit, asserting that he had violated a term of his pre-foreclosure lease. The Superior Court granted ESB a judgment of possession, but, upon Banks's appeal, this court, in a December 2, 2010, opinion, reversed the judgment, holding that, because a new at-will tenancy commenced by operation of law at the time of the April 2001 foreclosure and Banks's pre-existing lease was " effectively extinguished at that juncture," Banks's putative violation of the pre-foreclosure lease could not form the basis for a judgment of possession. Banks v. ESB, 8 A.3d at 1243.

A week after this court issued that opinion, Matt Banks, Earl Mitchell (another former tenant and a holdover occupant of one of the property's rental units [5]), and Papageorge entered into the December 9, 2010, Agreement that is in issue in this appeal. That Agreement, a copy of which Papageorge attached to his opposition to the motion to dismiss or for summary judgment, provided in pertinent part as follows:

Whereas, Papageorge has financed extensive litigation to enforce, maintain and protect [Banks's and Mitchell's] Valentine rights since 2001.
Whereas, ESB ... conducted a wrongful eviction on February 9, 2009 removing Banks [and] Mitchell....

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Whereas, the parties would like to file a wrongful eviction action against ESB.
Now therefore, the parties agree as follows: Any and all monies obtained from a suit for wrongful eviction and/or the relinquishment of tenant rights and/or any ...

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