Irving H. Picard v. Cohmad Securities Corporation et al
| Irving H. Picard |
| Robert Jaffe, Jonathan Greenberg, Rosalie Buccellato, Lilyan Kurzrok, Gloria Kurzrok, The Estate of Elena Jalon, Carole Delaire, Cohmad Securities Corporation, Milton Cooper, The Spring Family Trust, Janet Jaffin, Jeanne T. Spring Trust, S & J Partnership, Richard Spring, Maurice J. Cohn, Jane M. Delaire, Edward H. Kohlschreiber, Cyril Jalon, Edward H Kohlschreiber SR REV MGT Trust, Elizabeth M. Moody, M/A/S Capital Corporation, Richard Spring, The Spring Family Trust, and The Jeanne T. Spring Trust, Marilyn Cohn, Estate of Stanley Merwin Berman, The Joint Tenancy of Phyllis Guenzburger and Fabian Guenzburger, Linda Schoenheimer McCurdy, Joyce Berman, Marcia B. Cohn, Janet Jaffin Revocable Trust, The Joint Tenancy of Robert Pinchou and Fabian Guenzburger, Alvin J. Delaire, Jr. and Milton S. Cohn |
| Bernard L. Madoff Investment Securities LLC |
| 1:2012cv02368 |
| March 30, 2012 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Jed S Rakoff |
| Bankruptcy Withdrawal |
| 28 U.S.C. § 157 |
| None |
Docket Report
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Filing 16
OPINION AND ORDER: Accordingly, the Court concludes that, in a SIPA proceeding such as this, a defendant may succeed on a motion to dismiss by showing that the complaint does not plausibly allege that that defendant did not act in good faith. Because this determination must be made on the basis of the specific allegations in the Trustee's various complaints, the Court, having set out the general framework, hereby leaves it to the Bankruptcy Court to determine in any given instance whether the foregoing standards have been met. Accordingly, the Court directs that the following adversary proceedings be returned to the Bankruptcy Court for further proceedings consistent with this Opinion and Order: (1) those cases listed in Exhibit A of item number 197 on the docket of 12 Misc. 115; and (2) those cases listed in the schedule attached to item number 468 on the docket of 12 Misc. 115 that were designated as having been added to the "good faith" consolidated briefing. (Signed by Judge Jed S. Rakoff on 4/27/2014) (mro)
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Filing 15
OPINION AND ORDER: Accordingly, in its December 2012 Order, the Court denied the defendants' motions to dismiss to the extent they relied on the issues discussed herein. Except to the extent provided in other orders, the Court directs that the following adversary proceedings be returned to the Bankruptcy Court for further proceedings consistent with this Opinion and Order: (1) those cases listed in Exhibit A of item number 314 on the docket of 12 Misc 115; and (2) those cases listed in the schedule attached to item number 468 on the docket of 12 Misc. 115 that were designated as having been added to the "section 550(a)" consolidated briefing. (Signed by Judge Jed S. Rakoff on 10/28/2013) (js)
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Filing 11
OPINION AND ORDER: Except to the extent provided in other orders, the Court directs that what remains of the adversary proceedings listed in Exhibit A of item number 119 on the docket of 12 Misc. 115 be returned to the Bankruptcy Court for further proceedings consistent with this Opinion and Order. (Signed by Judge Jed S. Rakoff on 4/15/2013) (tro)
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Filing 13
OPINION & ORDER: #102762 In sum, the Court follows other courts in this District, as well as its own prior precedent, in concluding that, though Stern precludes the Bankruptcy Court from finally deciding avoidance actions (unless, possibly, the Trustee has sought to disallow a claim to the estate under 502(d)), the Bankruptcy Court nonetheless has the power to hear the matter in the first instance and recommend proposed findings of fact and conclusions of law. The Court further declines to withdraw the reference of these cases to the Bankruptcy Court "for cause shown" before the Bankruptcy Court has issued appropriate findings of fact and conclusions of law. Except to the extent provided in other orders, the Court directs that what remains of the adversary proceedings listed in Exhibits A and C of item number four on the docket of 12 Misc. 115 be returned to the Bankruptcy Court for further proceedings consistent with this Opinion and Order. SO ORDERED. (Signed by Judge Jed S. Rakoff on 1/4/2013) ***Docketed pursuant to entry docketed in 12mc115 on 6/7/2013.***(tro) Modified on 6/11/2013 (tro).
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| Filing 10 NOTICE OF APPEARANCE by Kenneth Walter Lipman on behalf of Richard Spring, The Spring Family Trust, and The Jeanne T. Spring Trust Filed In Associated Cases: 1:12-cv-02347-JSR, 1:12-cv-02368-JSR, 1:12-cv-02369-JSR, 1:12-cv-02930-JSR(Lipman, Kenneth) |
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Filing 9
ORDER: BASED ON THE FOREGOING, IT IS HEREBY ORDERED AS FOLLOWS: The Prior Administrative Order is hereby amended and superseded by this Order and the Adversary Proceedings listed on Exhibit A are incorporated by reference herein: The motions to withdraw the reference in the Adversary Proceedings identified on Exhibit B hereto are governed by the Consolidated Briefing Orders and Permissive Withdrawal Orders and shall be resolved through the common briefing ordered therein; The motions to withdraw the reference in the Adversary Proceedings identified on Exhibit C hereto, which raised permissive withdrawal arguments that were previously deferred by prior orders of this Court, are governed by the Permissive Withdrawal Orders and, for the reasons stated therein, the Court regards the permissive withdrawal arguments made in such motions as subsumed by the consolidated briefing on the issues presented by the Stern Order; Accordingly, the Court will resolve the permissive withdrawal issues raised in the motions to withdraw the reference in the Adversary Proceedings identified on Exhibit C when the Court decides the motion described in the Stern Order; The prior consent orders entered by this Court with respect to the Adversary Proceedings identified on Exhibit C hereto are hereby vacated and superseded by this Order; The resolution of the issues covered by Consolidated Briefing Orders and Permissive Withdrawal Orders shall govern the motions to withdraw the reference pending in the Adversary Proceedings and no further action is required with respect to such motions; Any individual briefing schedules previously established with respect to motions to withdraw the reference pending in the Adversary Proceedings are hereby vacated. (Signed by Judge Jed S. Rakoff on 7/11/2012) (cd)
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Filing 8
ORDER: The reference of the Adversary Proceedings is withdrawn from the Bankruptcy Court to this Court solely with respect to the Section 546(e) Withdrawal Defendants, in part, for the limited purpose of hearing and determining issues relating to the application of Section 546(e) in the Adversary Proceedings, including, without limitation, as further set forth in this Order. On or before July 27, 2012, (i) the Financial Institution Defendants and (ii) all remaining Section 546(e) Withdrawal Defendants, including all Opt-Out Defendants, shall each file (x) a consolidated motion pursuant to Fed. R. Civ. P. 12 (made applicable to the Adversary Proceedings by Fed. R. Bankr. P. 7012) and (y) a consolidated supporting memorandum of law, not to exceed forty (40) pages each (the "Motion to Dismiss"). The Motion to Dismiss shall include a reference (by civil action number and docket number only) to one or more representative complaints filed by the Trustee against either (a) a Initial Transferee Defendant; and (b) a Financial Institution Defendant. Any further requirement that the Pleadings subject to the Motion to Dismiss be identified or filed is deemed waived and satisfied. The Trustee and SIPC may each file a memorandum of law in opposition to each Motion to Dismiss filed by the Financial Institution Defendants and the remaining Section 546(e) Withdrawal Defendants, with each opposition not to exceed forty (40) pages, on or before September 28, 2012. The Financial Institution Defendants and the remaining Section 546(e) Withdrawal Defendants may each file a consolidated reply brief, not to exceed twenty (20) pages each, on or before October 19, 2012 (the "Reply Brief"). In the event the Trustee files an amended complaint (the "Amended Complaint") in any of the Adversary Proceedings after the Motion to Dismiss is filed, the Reply Brief shall include a reference (by civil action number and docket number only) to a representative Amended Complaint filed by the Trustee against an Initial Transferee Defendant and a Financial Institution Defendant. Any further requirement that the Amended Complaints subject to the Motion to Dismiss be identified or filed is deemed waived and satisfied. In the event the Trustee files an Amended Complaint, he shall, at the time the Amended Complaint is filed, provide the Section 546(e) Withdrawal Defendants a blackline reflecting the changes made in the Amended Complaint from the then operative complaint. The Court will hold oral argument on the Motions to Dismiss on October 30, 2012 at 4:00 p.m. (the "Hearing Date"). On or before October 19, 2012, the Financial Institution Defendants and the remaining Section 546(e) Withdrawal Defendants shall each designate one lead counsel to advocate their position at oral argument on the Hearing Date, but any other attorney who wishes to be heard may appear and so request. The caption displayed on this Order shall be used as the caption for all pleadings, notices and briefs to be filed pursuant to this Order. and (b) a Financial Institution Defendant. Any further requirement that the Pleadings subject to the Motion to Dismiss be identified or filed is deemed waived and satisfied. (Oral Argument set for 10/30/2012 at 04:00 PM before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 5/15/2012) (djc) Modified on 6/20/2012 (djc).
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Filing 7
ORDER: The reference of the Adversary Proceedings listed in Exhibit A is withdrawn, in part, from the Bankruptcy Court to this Court solely with respect to the Antecedent Debt Defendants for the limited purpose of hearing and determining whether and to what extent (i) transfers made by Madoff Securities that the Trustee seeks to avoid were made in exchange for value, such as antecedent debts that Madoff Securities owed to the Antecedent Debt Defendants at the time of the transfers. The Trustee and SIPC are deemed to have raised, in response to all pending motions for withdrawal of the reference based on the Withdrawn Antecedent Debt Issue, all arguments previously raised by either or both of them in opposition to all such motions granted by the Prior Antecedent Debt Withdrawal Rulings, and such objections or arguments are deemed to be overruled, solely with respect to the Withdrawn Antecedent Debt Issue, for the reasons stated in the Prior Antecedent Debt Withdrawal Rulings. All objections that could be raised by the Trustee and/or SIPC to the pending motions to withdraw the reference in the Adversary Proceedings, and the defenses and responses thereto that may be raised by the affected defendants, are deemed preserved on all matters. On or before June 25, 2012, the Antecedent Debt Defendants shall file a single consolidated motion to dismiss pursuant to Fed. R. Civ. P. 12 (made applicable to the Adversary Proceeding by Fed. R. Bankr. P. 7012) and a single consolidated supporting memorandum of law, not to exceed fifty (50) pages (together, the "Antecedent Debt Motion to Dismiss"). The Trustee and SIPC shall each file a memorandum of law in opposition to the Antecedent Debt Motion to Dismiss, not to exceed fifty (50) pages each, addressing the Withdrawn Antecedent Debt Issue on or before July 25, 2012. The Antecedent Debt Defendants shall file one consolidated reply brief, not to exceed thirty (30) pages, on or before August 8, 2012. The Court will hold oral argument on the Antecedent Debt Motion to Dismiss on August 20, 2012 at 4:00 p.m. (the "Hearing Date"). On or before August 8, 2012, the Antecedent Debt Defendants shall designate one lead counsel to advocate their position at oral argument on the Hearing Date, but any other attorney who wishes to be heard may appear and so request. The caption displayed on this Order shall be used as the caption for all pleadings, notices and briefs to be filed pursuant to this Order. All communications and documents (including drafts) exchanged between and among any of the defendants in any of the adversary proceedings, and/or their respective attorneys, shall be deemed to be privileged communications and/or work product, as the case may be, subject to a joint interest privilege. This Order is without prejudice to any and all grounds for withdrawal of the reference (other than the Withdrawn Antecedent Debt Issue) raised in the Adversary Proceedings by the Antecedent Debt Defendants and any matter that cannot properly be raised or resolved on a Rule 12 motion, all of which are preserved. Nothing in this Order shall: (a) waive or resolve any issue not specifically raised in the Antecedent Debt Motion to Dismiss; (b) waive or resolve any issue raised or that could be raised by any party other than with respect to the Withdrawn Antecedent Debt Issue, including related issues that cannot be resolved on a motion under Fed. R. Civ. P. 12; or (c) notwithstanding Fed. R. Civ. P. 12(g)(2) or Fed. R. Bankr. P. 7012(g)(2), except as specifically raised in the Antecedent Debt Motion to Dismiss, limit, restrict or impair any defense or argument that has been raised or could be raised by any Antecedent Debt Defendant in a motion to dismiss under Fed. R. Civ. P. 12 or Fed. R. Bankr. P. 7012. Nothing in this Order shall constitute an agreement or consent by any Antecedent Debt Defendant to pay the fees and expenses of any attorney other than such defendant's own retained attorney. This paragraph shall not affect or compromise any rights of the Trustee or SIPC. This Order is without prejudice to and preserves all objections of the Trustee and SIPC to timely-filed motions for withdrawal of the reference currently pending before this Court (other than the withdrawal of the reference solely with respect to the Withdrawn Antecedent Debt Issue) with respect to the Adversary Proceedings, and the defenses and responses thereto that may be raised by the affected defendants, are deemed preserved on all matters. The procedures established by this Order, or by further Order of this Court, shall constitute the sole and exclusive procedures for determination of the Withdrawn Antecedent Debt Issue in the Adversary Proceedings (except for any appellate practice resulting from such determination), and this Court shall be the forum for such determination. To the extent that briefing or argument schedules were previously established with respect to the Withdrawn Antecedent Debt Issue in any of the Adversary Proceedings, this Order supersedes all such schedules solely with respect to the Withdrawn Antecedent Debt Issue. All other provisions as further set forth in this order.( Motions due by 6/25/2012., Responses due by 7/25/2012, Replies due by 8/8/2012., Oral Argument set for 8/20/2012 at 04:00 PM before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 5/12/2012) (mro)
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Filing 14
ORDER: The reference of the Adversary Proceedings listed in Exhibit A is withdrawn, in part, from the Bankruptcy Court to this Court solely with respect to the Antecedent Debt Defendants for the limited purpose of hearing and determining whether and to what extent (i) transfers made by Madoff Securities that the Trustee seeks to avoid were made in exchange for value, such as antecedent debts that Madoff Securities owed to the Antecedent Debt Defendants at the time of the transfers. The Trustee and SIPC are deemed to have raised, in response to all pending motions for withdrawal of the reference based on the Withdrawn Antecedent Debt Issue, all arguments previously raised by either or both of them in opposition to all such motions granted by the Prior Antecedent Debt Withdrawal Rulings, and such objections or arguments are deemed to be overruled, solely with respect to the Withdrawn Antecedent Debt Issue, for the reasons stated in the Prior Antecedent Debt Withdrawal Rulings. All objections that could be raised by the Trustee and/or SIPC to the pending motions to withdraw the reference in the Adversary Proceedings, and the defenses and responses thereto that may be raised by the affected defendants, are deemed preserved on all matters. On or before June 25, 2012, the Antecedent Debt Defendants shall file a single consolidated motion to dismiss pursuant to Fed. R. Civ. P. 12 (made applicable to the Adversary Proceeding by Fed. R. Bankr. P. 7012) and a single consolidated supporting memorandum of law, not to exceed fifty (50) pages (together, the "Antecedent Debt Motion to Dismiss"). The Trustee and SIPC shall each file a memorandum of law in opposition to the Antecedent Debt Motion to Dismiss, not to exceed fifty (50) pages each, addressing the Withdrawn Antecedent Debt Issue on or before July 25, 2012. The Antecedent Debt Defendants shall file one consolidated reply brief, not to exceed thirty (30) pages, on or before August 8, 2012. The Court will hold oral argument on the Antecedent Debt Motion to Dismiss on August 20, 2012 at 4:00 p.m. (the "Hearing Date"). On or before August 8, 2012, the Antecedent Debt Defendants shall designate one lead counsel to advocate their position at oral argument on the Hearing Date, but any other attorney who wishes to be heard may appear and so request. The caption displayed on this Order shall be used as the caption for all pleadings, notices and briefs to be filed pursuant to this Order. All communications and documents (including drafts) exchanged between and among any of the defendants in any of the adversary proceedings, and/or their respective attorneys, shall be deemed to be privileged communications and/or work product, as the case may be, subject to a joint interest privilege. This Order is without prejudice to any and all grounds for withdrawal of the reference (other than the Withdrawn Antecedent Debt Issue) raised in the Adversary Proceedings by the Antecedent Debt Defendants and any matter that cannot properly be raised or resolved on a Rule 12 motion, all of which are preserved. Nothing in this Order shall: (a) waive or resolve any issue not specifically raised in the Antecedent Debt Motion to Dismiss; (b) waive or resolve any issue raised or that could be raised by any party other than with respect to the Withdrawn Antecedent Debt Issue, including related issues that cannot be resolved on a motion under Fed. R. Civ. P. 12; or (c) notwithstanding Fed. R. Civ. P. 12(g)(2) or Fed. R. Bankr. P. 7012(g)(2), except as specifically raised in the Antecedent Debt Motion to Dismiss, limit, restrict or impair any defense or argument that has been raised or could be raised by any Antecedent Debt Defendant in a motion to dismiss under Fed. R. Civ. P. 12 or Fed. R. Bankr. P. 7012. Nothing in this Order shall constitute an agreement or consent by any Antecedent Debt Defendant to pay the fees and expenses of any attorney other than such defendant's own retained attorney. This paragraph shall not affect or compromise any rights of the Trustee or SIPC. This Order is without prejudice to and preserves all objections of the Trustee and SIPC to timely-filed motions for withdrawal of the reference currently pending before this Court (other than the withdrawal of the reference solely with respect to the Withdrawn Antecedent Debt Issue) with respect to the Adversary Proceedings, and the defenses and responses thereto that may be raised by the affected defendants, are deemed preserved on all matters.The procedures established by this Order, or by further Order of this Court, shall constitute the sole and exclusive procedures for determination of the Withdrawn Antecedent Debt Issue in the Adversary Proceedings (except for any appellate practice resulting from such determination), and this Court shall be the forum for such determination. To the extent that briefing or argument schedules were previously established with respect to the Withdrawn Antecedent Debt Issue in any of the Adversary Proceedings, this Order supersedes all such schedules solely with respect to the Withdrawn Antecedent Debt Issue. All other provisions as further set forth in this order (Signed by Judge Jed S. Rakoff on 5/16/2012) (js)
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| Filing 6 NOTICE OF CASE ASSIGNMENT to Judge Jed S. Rakoff. Judge Unassigned is no longer assigned to the case. (pgu) |
| CASE ACCEPTED AS SIMILAR. Create association to 1:11-cv-05223-JSR. Notice of Assignment to follow. (pgu) |
| Magistrate Judge Henry B. Pitman is so designated. (pgu) |
| Filing 5 NOTICE OF APPEARANCE by Nicholas J. Cremona on behalf of Irving H. Picard (Cremona, Nicholas) |
| Filing 4 NOTICE OF APPEARANCE by Oren J. Warshavsky on behalf of Irving H. Picard (Warshavsky, Oren) |
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Filing 12
ORDER: IT IS HEREBY ORDERED AS FOLLOWS: The reference of the Adversary Proceedings is withdrawn from the Bankruptcy Court, in part, to this Court for the limited purpose of deciding the following issues (the "Withdrawn Stem Issues") set forth within this Order. The Trustee and SIPC are deemed to have raised, in response to all pending motions for withdrawal of the reference based on the Withdrawn Stem Issues, all arguments previously raised by either or both of them in opposition to all such motions granted by the Prior Stem Withdrawal Rulings, and such objections or arguments are deemed to be overruled, solely with respect to the Withdrawn Stem Issues, for the reasons stated in the Prior Stem Withdrawal Rulings. All objections that could be raised by the Trustee and/or SIPC to the pending motions to withdraw the reference in the Adversary Proceedings, and the defenses and responses thereto that may be raised by the affected defendants, are deemed preserved on all matters. The Stem Withdrawal Defendants shall file one consolidated opening brief, not to exceed forty (40) pages, addressing the Withdrawn Stem Issues on or before May 3, 2012. The Trustee and SIPC shall each file an opposition brief, not to exceed forty (40) pages each, addressing the Withdrawn Stem Issues on or before May 25, 2012. The Stem Withdrawal Defendants shall file one consolidated reply brief, not to exceed twenty (20) pages, on or before June 11, 2012. The Court will hold oral argument concerning the Withdrawn Stem Issues on June 18, 2012, at 2:00 p.m. (the "Hearing Date"). On or before June 11, 2012, the Stem Withdrawal Defendants shall designate one lead counsel to advocate their position at oral argument on the Hearing Date, but any other attorney who wishes to be heard may appear and so request. The caption displayed on this Order shall be used as the caption for all pleadings, notices and briefs to be filed pursuant to this Order. All communications and documents (including drafts) exchanged between and among any of the defendants in the Adversary Proceedings listed on Exhibits A and/or C, and/or their respective attorneys, shall be deemed to be privileged communications and/or work product, as the case may be, subject to a joint interest privilege. This Order is without prejudice to any and all grounds for withdrawal of the reference (other than the Withdrawn Stem Issues) raised in the Adversary Proceedings by the Stem Withdrawal Defendants, all of which are preserved, as further set in this Order. (Signed by Judge Jed S. Rakoff on 4/13/2012) ***Docketed pursuant to Order docketed in case no. 12mc115 on 6/7/2013.***(tro)
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| Filing 3 NOTICE of Withdrawal. Document filed by Milton Cooper, Janet Jaffin. (Bentley, Philip) |
| Mailed notice re: Mail Letter of Notification to Bankruptcy Court, #2 Declaration in Support, Case Designated ECF, Case Referred as Possibly Related/Similar, #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1305A, 08-1789 (BRL). to the attorney(s) of record. (pgu) |
| Mailed letter to the United States Bankruptcy Court - Southern District of New York as notification of filing of Bankruptcy Motion to Withdraw Reference (Case Number: 09-1305A (BRL).) with the U.S.D.C. - S.D.N.Y. and the assignment of S.D.N.Y. Case Number: 12-cv-2368. (pgu) |
| Filing 2 DECLARATION of Jack S. Hoffinger in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1305A, 08-1789 (BRL).. Document filed by The Joint Tenancy of Phyllis Guenzburger and Fabian Guenzburger, The Joint Tenancy of Robert Pinchou and Fabian Guenzburger. (Attachments: #1 Exhibit 1)(bkar) |
| Filing 1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1305A, 08-1789 (BRL).Document filed by The Joint Tenancy of Phyllis Guenzburger and Fabian Guenzburger, The Joint Tenancy of Robert Pinchou and Fabian Guenzburger.(bkar) |
| Case Designated ECF. (bkar) |
| CASE REFERRED TO Judge Jed S. Rakoff as possibly related to 11-cv-5223. (bkar) |
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