Opinion
14-P-952
07-03-2015
BARBARA LOMBARD & others' v. BAHIG F. BISHAY & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants (Bishays) in this receivership action appeal from a judgment of a Superior Court judge confirming the final report of a receiver and the distribution of assets to the plaintiffs, and from an order that permanently enjoins the defendants from filing any action in any Massachusetts State court without prior approval of a Regional Administrative judge or the judge's designee. The defendants assert that the court did not have jurisdiction over Bahig F. Bishay (Bishay) personally in the receivership action because his company, U.S. Auto Exchange Group, LTD. (USAX), filed for bankruptcy in the United States Bankruptcy Court for the District of Massachusetts. We affirm.
The only plaintiffs to submit briefs to the court are interveners Barbara Lombard, doing business as Revere Storage, and Ally Financial, Inc.
The only plaintiffs to submit briefs to the court are interveners Barbara Lombard, doing business as Revere Storage, and Ally Financial, Inc.
Background. Defendant Bishay owned and operated multiple businesses as sole proprietorships in Massachusetts all of which, including USAX, encountered financial difficulties starting around the year 2000. The companies and Bishay's personal estate were initially placed into receivership until Bishay caused three companies to file for bankruptcy protection. Bishay did not file for personal bankruptcy protection, so the receivership action continued against him personally. After years of litigation both in Federal and State court, including multiple appeals, a judge of the Superior Court approved the final report of the receiver distributing assets to various creditors, including proceeds from the sale of various motor vehicles owned by Bishay's companies. The Bishays assert that the Superior Court lacked jurisdiction to approve the receiver's report because of the pending bankruptcy action concerning USAX.
The defendants also argue that certain plaintiffs violated 18 U.S.C. § 152. For the reasons stated in the appellee's brief at pages thirty-three to thirty-four, this argument has no merit, because the criminal statute cited by the defendants contains no private right of action.
Discussion. Jurisdiction in the Superior Court. The record demonstrates that the bankruptcy proceedings were filed on behalf of USAX and not Bishay personally, and provides no evidence that Bishay has ever filed for personal bankruptcy protection. Bishay was not a party to the bankruptcy proceedings and therefore the automatic stay provisions of the bankruptcy code did not apply. See In re San Juan Plaza Hotel Fire Litigation, 994 F.2d 956, 969 (1st Cir. 1993). In any event, the plaintiffs in the bankruptcy proceedings were granted relief from the automatic stay of the receivership proceedings with respect to the motor vehicles at issue, here owned by USAX, as required by 11 U.S.C. § 362 by stipulation of the parties.
Permanent injunction. We review the grant of a permanent injunction for abuse of discretion. See LightLab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014). The judge made detailed factual findings regarding Bishay's misuse of both the State and Federal court systems throughout this litigation spanning almost fourteen years. There was no abuse of discretion.
Plaintiffs Barbara Lombard, doing business as Revere Storage, and Ally Financial may submit petitions for appellate attorney's fees and costs to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the issuance of this memorandum and order. The defendants may file a responsive pleading within twenty days thereafter.
Judgment affirmed.
Order dated April 28, 2014, affirmed.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 3, 2015.