United States District Court, District of Columbia
D. BATES United States District Judge
Konstantin Shvartser and his adult daughter, defendant
Evelina Lekser, jointly own real property in Washington, D.C.
They are embroiled in an acrimonious dispute, and they
contest nearly all of the details about how they came to
acquire the property, which party has breached their
obligations with respect to the property, and who has
defrauded whom. However, there is no real dispute that they
own the property as joint tenants. Now before the Court is
Shvartser's motion for partial summary judgment on his
claim for partition. Because under D.C. law, any co-tenant
has an absolutely right to request a partition, the Court
will grant Shvartser's motion. And because the property
is a single-family home, it cannot be partitioned-in-kind and
therefore the Court will order partition by sale.
and Lekser purchased a single-family home at 2150 Florida
Avenue, Northwest (“the property”), on October
24, 2008. Pl.'s Statement of Undisputed Facts [ECF No.
47-3] ¶ 1. From that point, their accounts dramatically
diverge. On a motion for summary judgment, the Court accepts
as true the facts presented by the non-movant. Here, however,
the Court will also briefly recount the narrative as told by
the moving party so as to explain the proceedings so far.
Shvartser's account, he and Lekser engaged in a joint
venture to purchase and then resell the property for a
profit, but he has been swindled by Lekser at every turn. His
version is as follows. The two parties purchased the property
in 2008 with the intent to renovate it and then resell it.
Id. The property cost approximately $800, 000, and
they took out a mortgage in both of their names from Bank of
America for $417, 000. Id. ¶ 3. Lekser was
responsible for managing the property and overseeing
renovations because she resides in the United States, while
Shvartser resides in Russia. See Am. Compl. [ECF No.
44] ¶ 13. But eventually Shvartser became displeased
with the pace of renovations, and as a result, on March 12,
2013, they entered into a written contract specifying that
Shvartser would manage the remaining renovations and sell the
property. See id. ¶¶ 16, 19; Pl.'s
Statement of Undisputed Facts ¶ 4. Then, in 2015, Lekser
began a scheme to defraud Shvartser of the value of his share
of the property. First, Lekser executed a fraudulent power of
attorney in Shvartser's name. Am. Compl. ¶¶
22-26. Then, Lekser used this fraudulent power of attorney to
refinance the Bank of America mortgage with a new loan worth
$800, 000 from an entity known as SP Funding 452 LLC.
Id. ¶¶ 28, 30. Lekser used approximately
half of this new loan to pay off the remaining portion of the
Bank of America loan, then pocketed the remaining half.
Id. ¶¶ 32-33. In the meantime, Lekser
failed to make the required payments on the SP Funding loan,
and as a result, that loan is now in default. See
Pl.'s Statement of Undisputed Facts ¶¶ 13-16.
paints a very different picture, which the Court accepts as
true at this stage of the proceeding. She describes all of
Shvartser's actions as part of a long-running attempt to
manipulate Lekser so as to take advantage of her U.S.
citizenship to obtain property and assets in this country.
See Answer [ECF No. 53] ¶ 125. She describes
the property as a gift from Shvartser to her for attending
George Washington University. Id. ¶ 127.
Shvartser and Lekser executed “multiple power of
attorneys [sic] to have Lekser take charge of renovating and
rehabilitating the house.” Id. ¶ 128.
Shvartser then embarked on a fraudulent scheme “in a
concerted effort to force Lekser to surrender” her
claim to the property to Shvartser. Id. ¶ 129.
Lekser believes that Shvartser hired a third party to harass
her, which resulted in court proceedings between Shvartser,
Lekser, and that third party in D.C. Superior Court, as well
as a restraining order against the third party. Id.
¶¶ 131-32. At the same time, Shvartser failed to
pay the costs of renovations that he had agreed were his
responsibility. Id. ¶¶ 133, 136. Indeed,
Lekser claims that this pattern of manipulation is so severe
that Shvartser is liable for her emotional harm. Id.
¶¶ 144-46. However, although Lekser generally
denies any malfeasance, she does not deny (or address at all)
that a power of attorney was executed in 2015 and that she
obtained a loan from SP Funding for $800, 000 in 2015. In
2016, Shvartser filed a complaint in this Court. See
Compl. [ECF No. 1]. Since that time, multiple disputes have
arisen between the parties about all aspects of this
litigation, some of which the court has ruled on, but which
are not relevant to this motion for partial summary judgment.
In March 2017, Shvartser filed an amended complaint that
included a count for partition of the property by sale. Am.
Compl. ¶¶ 81-92. He has now filed for partial
summary judgment on that claim. See Pl.'s Mot.
for Partial Summ. J. [ECF No. 47-3]. He asserts that as a
cotenant he has an absolute right to partition under D.C.
Code § 16-2901, that the partition must be by sale, that
he (or his agent) must be permitted to access the property
for the purpose of completing renovations and effectuating
the sale, and that the proceeds should be deposited with the
Court until the final resolution of the parties' various
claims, which would determine the portion of the proceeds to
which each party is entitled. Shvartser argues that the Court
should grant partition before resolving the other claims
because the house can sell for a higher price the sooner it
is sold, and allowing the house to languish unused for the
duration of this proceeding would result in waste. Lekser,
pro se in these proceedings, opposes the motion for
partition and contests that partition by sale is more
appropriate than partition in kind.
judgment is appropriate when the pleadings and the evidence
demonstrate that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The party seeking
summary judgment bears the initial responsibility of
demonstrating the absence of a genuine dispute of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The moving party may successfully support its
motion by identifying those portions of “the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of motion only),
admissions, interrogatory answers, or other materials,
” which it believes demonstrate the absence of a
genuine issue of material fact. Fed.R.Civ.P. 56(c)(1)(A);
see also Celotex, 477 U.S. at 323.
determining whether there exists a genuine dispute of
material fact sufficient to preclude summary judgment, the
Court must regard the non-movant's statements as true and
accept all evidence and make all inferences in the
non-movant's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A non-moving party,
however, must establish more than the “mere existence
of a scintilla of evidence” in support of its position.
Id. at 252. Moreover, “[i]f the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Id. at 249-50
(internal citations omitted). Summary judgment, then, is
appropriate if the non-movant fails to offer “evidence
on which the jury could reasonably find for the
[non-movant].” Id. at 252.
A. The Partition
claims that under D.C. Code § 16-2901 he has an absolute
right to partition. He is essentially correct. That provision
states: “The Superior Court of the District of Columbia
may decree a partition of lands . . . on the complaint of a
tenant in common . . . or of a joint tenant; or when it
appears that the property can not be divided without loss or
injury to the parties interested, the court may decree a sale
thereof and a division of the money arising from the sale
among the parties, according to their respective
rights.” D.C. Code § 16-2901(a) (2012). The D.C.
Court of Appeals has labeled it a “right” and
explained that “[a] cotenant's unilateral right of
partition is an integral element of the form of property
ownership inherited from English law.” Carter v.
Carter, 516 A.2d 917, 919 (D.C. 1986). This right allows
“any dissatisfied cotenant to, in effect, withdraw from
and dissolve the quasi-partnership that cotenancy
entails.” Id. As early as 1892, the Supreme
Court recognized this right in D.C. law. See Willard v.
Willard, 145 U.S. 116 (1982). The D.C. Courts have
confirmed that this right still exists, in substantially the
same form, as enacted through the modern D.C. Code. See
Carter, 516 A.2d at 920 (discussing Willard);
Ballard v. Dornic, 140 A.3d 1147, 1150-51 (D.C.
D.C. courts have recognized some limitation on this right.
For example, the right can be limited by a prior agreement
between the parties. See Ballard, 140 A.3d at 1150
(“a cotenant's unilateral ‘right to partition
. . . is like most property rights subject to possible
limitation by voluntary acts of the parties'”
(quoting Carter, 516 A.2d at 921)). And, for
example, the right does not extend to property held by
spouses in a tenancy by the entirety. See D.C. Code
§ 16-2901 (specifying right to partition by tenants in
common and joint tenants); Arthur v. District of
Columbia, 857 A.2d 473, 487 (D.C. 2004). Because the
parties here are not spouses, a tenancy by the entirety is
Shvartser is entitled to summary judgment on his claim for
partition if there are no genuine issues of material fact as
to whether Shvartser and Lekser own the property as cotenants
(whether as tenants in common or as joint tenants), and there
is no prior agreement to limit their rights to ...