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Shvartser v. Lekser

United States District Court, District of Columbia

July 5, 2017



          JOHN D. BATES United States District Judge

         Plaintiff 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.


         Shvartser 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.

         By 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.

         Lekser 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.


         Summary 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.

         In 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

         Shvartser 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. 2016).

         The 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 not relevant.

         Thus, 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 ...

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