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Williams v. Martinez

United States District Court, District of Columbia

August 22, 2016

BETTY WILLIAMS, Plaintiff/Judgment Creditor
v.
MEL MARTINEZ, et al., Defendant/Judgment Debtor .

          MEMORANDUM OPINION

          ALAN KAY UNITED STATES MAGISTRATE JUDGE

         Pending before this Court is a Motion by Judgment Creditor Betty Williams (“Williams”) for Examination of Judgment Debtor Parkside Townhomes Condominium Association (“Parkside”), in Aid of Execution (“Motion”) [55], Parkside’s Opposition to the Motion and Cross Motion to Quash Subpoenas (collectively referred to as “Cross-Motion”) [58], Plaintiff’s Opposition to the Cross-Motion and Reply to the Motion (collectively, “Williams’ Opposition”) [59/60], and Parkside’s Reply to Williams’ Opposition (“Parkside’s Reply”) [62]. Judgment Creditor Betty Williams moves this Court to order the current President, Secretary and Treasurer of Judgment Debtor Parkside Townhomes Condominium Association and its property manager, Benjamin Colbert (“Colbert”), to appear for examination pursuant to D.C. Super. Ct. Civ. R. 69-I and Fed.R.Civ.P. 64(a). Parkside moves to quash the subpoenas issued to the Parkside officers and Colbert. For the reasons set forth herein, this Court declines to quash the subpoenas and orders that the examination be permitted.

         BACKGROUND[1]

         On May 21, 2001, Plaintiff Betty Williams filed a pro se Complaint [1] against Defendant Parkside, alleging that there were “numerous structural problems, including the roof, [and problems with the] exterior insulation and finish, and the appliances” in her unit within the Parkside’s condominium association, where such units were constructed with funds from the United States Department of Housing and Urban Development (“HUD”). (Complaint [1] ¶¶2, 9.)[2] Plaintiff asserted that she had tried to get “the structural defects in her house . . . corrected” but that no action had been taken. (Complaint [1] ¶15.)[3] On September 18, 2001, Williams filed a Return of Service/Affidavit, which was allegedly executed on September 15, 2001 upon Kenneth Postell, an agent of Parkside. (Return of Service [2] at 4.)

         Because Parkside never filed an answer or otherwise responded to Williams’ Complaint, the Clerk’s Office entered a Default [22] against Parkside on June 7, 2002.[4] On May 12, 2003, Williams filed a Motion for Default Judgment [24] against Parkside. On August 26, 2003, Williams, through counsel, [5] participated in an evidentiary hearing regarding her Motion for Default Judgment and the Court ordered that Williams submit a memorandum on the relief sought and supplement her repair estimates within 30 days. See 8/26/03 Docket Entry.[6] On September 25, 2003, Williams filed an affidavit and attachment in response to the Court’s Order. (Notice of Filing [27].)[7] The Court issued a Memorandum Order [28] on November 14, 2003, granting in part and denying in part Williams’ request for a default judgment against Parkside, directing that Williams was entitled to a judgment totaling $65, 910.00 and costs of $222.00. (Memorandum Order [28] at 6.)

         Under District of Columbia law, “every final judgment . . . for the payment of money rendered in the [ ] United States District Court for the District of Columbia. . . is enforceable, by execution issued thereon, for a period of twelve years . . . .” D.C. Code Ann. §15-101 (West 2001).In this case, it was not until October 19, 2015, after Williams retained new counsel, when she began applying to the Court for writs of execution and attachment on her judgment.[8] According to Williams:

Plaintiff’s Writ as to Defendant Parkside was issued on October 19, 2015. Doc. No. 30. The October 19 Writ was returned executed on October 21, 2015. Doc. No. 31. Other writs were issued by this Court on October 28, 2015, November 6, 2015 and November 9, 2015. Doc. Nos. 32 and 36. Writs issued to M&T Bank and SunTrust Bank were returned executed on November 10, 2015 [Doc. No. 37.] A Writ dated November 6, 2015 issued to Defendant Parkside via its agent Metropolis Condominium Management was returned executed on November 10, 2015 as well. Doc. No. 39, p.4. (Plaintiff’s Opposition to Cross-Motion at 2.)

         Williams’ October 19, 2015 Writ was personally served on Anthony Champ, Esq., on October 21, 2015, at the law office of Kass, Mitek & Kass, PLLC, at 1050 17th Street, N.W., Washington, D.C. See Process Receipt and Return [31]. According to testimony by Benny Kass during the evidentiary hearing on Parkside’s motion to set aside the default judgment, the firm of Kass, Mitek & Kass has been representing Parkside for a number of years and Parkside’s registered agent, Benny Kass, is one of the firm’s attorneys.[9] Williams also arranged for service of writs on representatives of SunTrust Bank and M&T Bank and on Metropolis, the management agent for Parkside. See Process Receipt and Return [37]. Metropolis, through Benjamin Colbert, filed a response to the Writ of Attachment indicating that the management agent “help[s] manage the Association’s funds[;] [h]owever the funds are within the name of Parkside Townhomes, and per our agreement with the Board, we may not authorize any movement or holding of money over $1, 000.” (Metropolis Response [39] at 1.)

         On November 6, 2015, Parkside filed a Motion to Set Aside the Default Judgment and Quash Writ of Execution [34], asserting that:

On June 7, 2002, the Clerk of this Court filed an entry of default as to Parkside. On November 14, 2003, this Court entered default judgment against Parkside in the amount of $65, 910.00, plus full costs [ ]. Plaintiff then waited almost twelve years to take any action on the judgment. It was not until Plaintiff’s counsel issued a writ of execution in October of 2015 [the writ that was served on Anthony Champ, Esq.] that Parkside became aware of these proceedings. Contrary to the representations in the Returns of Service, Parkside was never served [with notice of the underlying lawsuit], via Kenneth Postell. . . . Consequently, Parkside was not afforded an opportunity to respond to and defend against the claims asserted in this lawsuit.

(Motion to Set Aside Default and Quash Writ of Execution [34] at 4.) Parkside accordingly alleged that the default judgment should be set aside because Mr. Kenneth Postell was not served with the Summons and Complaint and further, he was not an Officer/Director of Parkside at the time of such alleged service. See Affidavit of Kenneth Postell (“Postell”) [34-1]. This Court held an evidentiary hearing with regard to Parkside’s Motion [34], commencing on November 23, 2015, continuing on December 14, 2015 and January 12, 2016, and terminating on March 10, 2016.[10]During that lengthy evidentiary hearing, the following witnesses with information relevant to this case testified: Kenneth Postell (former member of the Board of Directors of Parkside); Benny Kass, Esq. (attorney and registered agent for Parkside); Wanda Taylor (Secretary of the Board of Directors of Parkside); Benjamin Colbert (Metropolis representative); Brian Kass, Esq. (attorney and custodian of records of the law firm representing Parkside); Victor Booth (former member of the Board of Directors for Parkside); and Betty Williams (Plaintiff). Williams and Parkside both submitted exhibits which were entered into evidence. On April 27, 2016, the Court convened a telephone status conference to inquire if the parties wanted to raise any additional issues but neither party requested the opportunity to do so.

         On June 14, 2016, this Court issued a Memorandum Opinion [53] and Order [54] denying Parkside’s Motion to Set Aside the Default Judgment, concluding that Williams’ testimony regarding service, which was bolstered by the process server’s affidavit, was more credible than Postell’s recollection of events, and further, the uncontradicted documentary evidence (produced by Williams) indicated that Postell was either an officer/director at the time of service or held himself out as such. See June 14, 2016 Memorandum Opinion and Order.[11]

         Parkside did not appeal from this Court’s Memorandum Opinion and Order. On July 12, 2016, Williams filed the instant Motion for Examination of Judgment Debtor in Aid of Enforcement, requesting that Parkside produce information about its bank accounts and real and personal property, and that certain officers of Parkside (along with Mr. Colbert) appear for examination pursuant to D.C. Super. Ct. Civ. R. 69-I and Fed.R.Civ.P. 64(a). On July 26, 2016, Parkside filed its Opposition to the Motion and moved to quash the subpoenas issued to Parkside officers and Colbert.[12]

         LEGAL ...


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