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United States v. Penny Lane Partners

July 23, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PENNY LANE PARTNERS, L.P., DEFENDANT.



The opinion of the court was delivered by: Brown, Chief Judge

NOT FOR PUBLICATION

MEMORANDUM OPINION

This matter comes before the Court upon the motions of Abraham Herbst and Jackie Herbst ("the Herbst Parties") objecting to the Receiver's recommended disposition of their respective claims (Docket Nos. 89, 90). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. The Court, having considered the filed briefs and decided the matter without oral argument pursuant to Federal Rule of Civil Procedure 78, and for the reasons set forth below, will deny Abraham Herbst's motion in full and grant in part and deny in part Jackie Herbst's motion.

I. BACKGROUND

Penny Lane Partners, L.P. ("PLP") is a Delaware limited partnership that was licensed by the United States Small Business Administration ("SBA" or "Receiver") as a Small Business Investment Company ("SBIC") and as such, received funds from the SBA and was subject to certain regulations. On April 24, 2006, the SBA filed a Complaint against PLP alleging that PLP failed to comply with the limits on capital impairment set forth in 13 C.F.R. § 107.1830. The SBA subsequently moved to be appointed receiver for PLP, and by an order dated May 16, 2006 ("Receivership Order"), the Court granted the SBA's motion. Pursuant to the Receivership Order, all civil legal proceedings involving PLP were stayed, including a New York state court action filed by the Herbst Parties and Joseph Ratner against PLP and others in January 2003 ("the Herbst Litigation").*fn1

On November 9, 2007, the Receiver filed a motion for entry of an order approving the receiver's notice and determination of claims and establishing summary disposition procedures and priority of claims. In its November 9, 2007 filing, the Receiver recommended, in relevant part, as follows:

Claim #6: Multiple claimants - claim amount unspecified

Claimants are limited partners of PLP. This is a joint claim by Messrs. Jackie Herbst, Abraham Herbst and Joseph Ratner. This claim results from litigation stayed by the Receivership Court and referred to as the 'Herbst' Litigation. The claimants allege a variety of wrong doing by the management of PLP including but not limited to fraud, unjust enrichment, breach of fiduciary duty, insider trading etc.

Recommendation

As stated with respect to the recommendation for the claim by Mr. Rozenberg, (claim No. 5 above) the multiple claimants do not present a recognizable claim.

There was a litigation that was commenced by the multiple claimants against PLP, which remains stayed by the Receivership Court Order. The multiple claimants have not made application to this Court to lift the stay. The Receiver also believes that the multiple claimants do not have standing to pursue wrongdoing with respect to the management of PLP; such claim represents a derivative action that may only be asserted by the Receiver. The multiple claimants do not present a claim for a monetary amount. The Receiver recommends denial of this claim. (Receiver's Notice and Determination of Claims Received in Response to the Claims Bar Date (Docket No. 59) at 7-8.)*fn2

Subsequently, on December 17, 2007, Jackie Herbst filed a pro se motion to intervene and lift the stay. On the same date, Abraham Herbst filed a pro se motion to intervene. On February 1, 2008, Magistrate Judge Hughes denied the motions to intervene and denied Jackie Herbst's motion to lift the stay.

On February 28, 2008, the Court granted the Receiver's motion and approved the Receiver's recommendations ("February 28 Order"). In the February 28 Order, the Court provided, in relevant part, that "[a]ny claimant who opposes the Receiver's recommended disposition of its claim . . . is hereby ordered either to file a motion objecting to the Receiver's recommended disposition of its claim . . . within 30 days from the date of service of a copy of this Order by the Receiver on the claimant, or such claimant's claim shall be forever barred." (February 28 Order ¶ 10.)

On April 2, 2008, the Herbst Parties filed, pro se, the present nearly identical objections to the Receiver's recommended disposition of their claims.*fn3 On May 2, 2008, the Receiver filed ...


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