Case Law
Decision Date
28
Aug 2018
Name
IN RE: FLECHAS & ASSOCIATES, P.A. Stephen Smith, Chapter 7 Trustee for the Bankruptcy Estate of Flechas & Associates, P.A., and for the Bankruptcy Estate of Eduardo A. Flechas v. MCF Capital, LLC; MCS Capital, LLC; RMC/CMG Portfolio Holding, LLC; WAG, LLC; Danny E. Cupit; Bobby Moak; Dudley Guice; The United States of America for the Internal Revenue Service; and the State of Mississippi for the Mississippi Department of Revenue
Attorney(s)
Hon. Derek A. Henderson, derek@derekhendersonlaw.com, 1765-A Lelia Drive, Suite 103, Jackson, MS 39216, Attorney for Chapter 7 Trustee, Hon. Stephanie Rippee, srippee@watkinseager.com, P. O. Box 650, Jackson, MS 39201-0650, Attorney for MCF AF, LLC, Hon James E. Renfroe, jrenfroe@mslawfirm.biz, 648 Lakeland East, Suite A, Flowood, MS 39232, Attorney for WAG, LLC, Hon. Danny E. Cupit, decupit@aol.com, P. O. Box 22929, Jackson, MS 39225, Attorney for Danny E. Cupit & Bobby Moak, Hon. Sylvie D. Robinson, sylvie.robinson@dor.ms.gov, P. O. Box 22828, Jackson, MS 39225-2828, Attorney for Mississippi Department of Revenue, Mr. Dudley Guice, pro se, 375 Highway 28, Fayette, MS 39069, Judge Edward Ellington, United States Bankruptcy Judge THIS MATTER came before the Court on two separate motions for summary judgment, a joinder, and the respective responses:, (1) Motion of Bobby Moak and Danny E. Cupit for Summary Judgment (Adv. Dkt. # 161) and MCF AF LLC's Response in Opposition to Motion for Summary Judgment of Bobby Moak and Danny E. Cupit (Adv. Dkt. # 173);, (2) MCF AF LLC's Motion for Summary Judgment (Adv. Dkt. # 166) and Response of Robert W. "Bobby" Moak and Danny E. Cupit. [sic] to the Motion for Summary Judgment filed by MCF AF, LLC (Adv. Dkt. # 170); and, (3) WAG, LLC's Amended Combined Response to Motions for Summary Judgment filed by Defendants Bobby Moak and Danny Cupit, Dudley Guice, and MCF AF, LLC (Adv. Dkt. # 184)., Having considered same, the Court finds that the Motion of Bobby Moak and Danny E. Cupit for Summary Judgment (Adv. Dkt. # 161) should be denied; that the MCF AF LLC's Motion for Summary Judgment (Adv. Dkt. # 166) should be granted; and that the joinder contained in WAG, LLC's Amended Combined Response to Motions for Summary Judgment filed by Defendants Bobby Moak and Danny Cupit, Dudley Guice, and MCF AF, LLC (Adv. Dkt. # 184) is granted as MCF AF, LLC's priority, but denied as to WAG, LLC's claim of priority., The basic terms of the Cupit/Moak Contract are that Cupit/Moak would provide to Flechas up to $100,000.00 "to be used in the prosecution" of the Simon Litigation. In exchange for up to $100,000.00, Flechas agreed to "assign to Cupit and Moak each ... 7.5% of the total amount of attorney's fees collected" or stated another way, 15% of Flechas' 50% contingent fee., At the time that the Cupit/Moak Contract was entered into with Flechas, Cupit and Moak were attorneys licensed to practice law in Mississippi. Cupit and Moak were never in the same law firm as Flechas nor were they counsel of record for the plaintiffs in the Simon Litigation., MCF paid the Debtor $295,500.00 in exchange for the Debtor selling $600,000.00 of the Debtor's attorney's fees in the Simon Litigation to MCF. In order to perfect its security interest, MCF filed a UCC Financing Statement (Financing Statement) on April 12, 2011. At the time it entered into the MCF Contract, the Debtor did not disclose the Cupit/Moak Contract to MCF., On May 14, 2012, The Grace Partnership, LP entered into a Contingent Fees Purchase Agreement (WAG Contract). The first paragraph of the WAG Contract states: "[t]his Contingent Fees Purchase Agreement ("AGREEMENT") is dated May 14, 2012, and is between Eduardo Flechas, Esq. ("ATTORNEY"), individually, FLECHAS & ASSOCIATES, P.A. ("LAW FIRM") ... and THE GRACE PARTNERSHIP...." WAG paid the Debtor $66,000.00 in exchange for the Debtor selling $99,000.00 of the Debtor's attorney's fees in the Simon Litigation and other pending litigation of the Debtor. The Debtor did disclose to WAG, LLC (WAG) that it had previously assigned $200,000.00 of the attorney's fees from the Simon Litigation (and two other cases) to MCS Capital, LLC. The WAG Contract provides that WAG's "claims shall be limited to fees remaining AFTER MCS Capital LLC has been paid." The Debtor did not disclose the Cupit/Moak Contract or the MCF Contract to WAG., On or about August 11, 2010, a jury in the Simon Litigation returned a verdict in favor of the plaintiffs. The verdict was for $19,000,000.00, however, the court subsequently reduced the verdict to a final judgment of $16,829,372.00. The defendants appealed the final judgment to the Supreme Court of Mississippi., In September of 2013, the Simon Litigation plaintiffs entered into a settlement agreement with the defendants. In exchange for total releases of the defendants and dismissal with prejudice of the Simon Litigation, the plaintiffs agreed to accept $3,500,000.00 (Simon Litigation Settlement)., It was at this point that Cupit/Moak, MCF, and WAG learned not only of each other, but also learned of other lending entities with whom Flechas and/or the Debtor had entered into contracts. Flechas and/or the Debtor sold, assigned or pledged a portion of the fees from the Simon Litigation to these parties in exchange for cash., On September 30, 2016, this Court entered an Order Granting Motion for Release of Funds and Pay to Registry of the Court in both bankruptcy cases. This order authorized the Chancery Clerk of Jefferson County, Mississippi, to release the Simon Litigation Funds received from the Debtor and Flechas (as a result of the State Interpleader Motion) to the Chapter 7 Trustee, Stephen Smith (Trustee). Subsequently, the Trustee received the Simon Litigation Funds from the Chancery Clerk of Jefferson County, Mississippi., The Court entered the Order Granting Motion for Interpleader (Adv. Dkt. # 27) (Interpleader Order) on February 3, 2017. The Interpleader Order states that "[t]he fact that the payment of the funds is in the Flechas & Associates, PA bankruptcy case (Case No. 13-03549 EE) is a convenience for the procedure of the interpleader and is not an adjudication that the funds are property of the Flechas & Associates, PA bankruptcy case.", The two motions which are relative to this Opinion were filed by Cupit/Moak and MCF. On June 8, 2018, the Motion of Bobby Moak and Danny E. Cupit for Summary Judgment (Adv. Dkt. # 161) (Cupit/Moak Motion) and MCF AF LLC's Motion for Summary Judgment (Adv. Dkt. # 166) (MCF Motion) were filed. Responses, rebuttals, and briefs were filed by the parties.
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