Perkins v. N. Park Realty Mgmt. (In re Sakhe)

• Decision Date: 16 March 2023
• Docket Number: 15-32238-RG,Adv. Pro. 16-01576- RG
• Parties: In re: AHMED FAROOQ SAKHE, Debtor. v. NORTH PARK REALTY MANAGEMENT, LLC, MICHAEL KHAKSHOOR, YOUSEF KHAKSHOOR, SION NOBEL, and MEHRAN KOHANSIEH a/k/a MIKE KOHANSIEH a/k/a MIKE KOHEN, Defendants. ERIC R. PERKINS, in his capacity as Chapter 7 Trustee for the bankruptcy estate of Ahmed Farooq Sakhe, Plaintiff,
• Court: U.S. Bankruptcy Court — District of New Jersey

1

In re: AHMED FAROOQ SAKHE, Debtor.

ERIC R. PERKINS, in his capacity as Chapter 7 Trustee for the bankruptcy estate of Ahmed Farooq Sakhe, Plaintiff,
v.
NORTH PARK REALTY MANAGEMENT, LLC, MICHAEL KHAKSHOOR, YOUSEF KHAKSHOOR, SION NOBEL, and MEHRAN KOHANSIEH a/k/a MIKE KOHANSIEH a/k/a MIKE KOHEN, Defendants.

No. 15-32238-RG

Adv. Pro. No. 16-01576- RG

United States Bankruptcy Court, D. New Jersey

March 16, 2023

Chapter 7

APPEARANCES:

ROBERT D. TOWEY, ESQ. J. ALEX KRESS, ESQ. Becker LLC Counsel for Plaintiff, Chapter 7 Trustee, Eric R. Perkins RICHARD GERACE, ESQ. ^[1] Gerace Law Office Counsel for Plaintiff, Chapter 7 Trustee, Eric R. Perkins ERIC R. PERKINS, ESQ. Chapter 7 Trustee Becker, LLC

JOSEPH C. LANE, ESQ. Counsel to Defendants, North Park Realty Management, LLC, Yousef Khakshoor, Michael Khakshoor, Sion Nobel, and Mehran Kohansieh a/ka/ Mike Kohansieh a/k/a Mike Kohen THOMAS A. FARINELLA, ESQ.^[2] Law Office of Thomas A. Farinella Supreet K. Parmar Law Offices of Gus Michael Farinella, PC Counsel to Defendants, North Park Realty Management, LLC, Yousef Khakshoor, Michael Khakshoor, Sion Nobel, and Mehran Kohansieh a/k/a Mike Kohansieh a/k/a Mike Kohen

OPINION

2

ROSEMARY GAMBARDELLA UNITED STATES BANKRUPTCY JUDGE

Matter Before the Court

Before the Court is the Plaintiff's Calculation of Damages (ECF No. 115) and Amended Calculation of Damages (ECF No. 117); Defendants' Response to Calculation of Damages (ECF No. 118); and Plaintiff's Reply to Defendant's Response to Plaintiff's Calculation of Damages (ECF No. 119). Plaintiff also filed Plaintiff's Memorandum re: Pre and Post Judgment Interest Applicable to Defendants' Breach of Contract (ECF No. 120). Defendants' Response to Calculation of Damages (ECF No. 121), Defendants' Memorandum in Opposition to Plaintiff's Supplemental Memorandum in Support of Pre

3

and Post Petition Judgment Interest as to the Defendants' Breach of Contract (ECF No. 122) and Plaintiff's Reply to Defendants' Opposition to Plaintiff's Memorandum Re: Pre and Post Petition Interest and Fees and Costs Applicable to Defendants' Breach of Contract (ECF No. 123). The Court heard oral argument on July 21, 2022 at which time the Court reserved its decision. The following constitutes this Court's findings of fact and conclusions of law.

PROCEDURAL HISTORY

This Court incorporates the facts set forth in the legal opinion, Perkins v. N. Park Realty Mgmt., LLC (In re Sakhe), 2021 WL 5999195 (Bankr. D.N.J. Dec. 17, 2021). The Court presumes familiarity with the procedural and factual history set forth therein.

SUMMARY OF FILINGS

Plaintiff's Calculation of Damages (ECF No. 115) and Amended Calculation of Damages (ECF No. 117)

On January 20, 2022, through counsel, Plaintiff filed Plaintiff's Calculation of Damages Letter ("Damages Letter"), (ECF No. 115), and then on February 7, 2022, Plaintiff filed an Amended Calculation of Damages, (ECF No. 117). For the purposes of clarity, and due to the similarity between these filings, both of these documents are summarized together.

Counts One and Four

With respect to Counts One and Four, the Court found Section 4.3 of the North Park Agreement was breached by failing to tender the $7,000 special monthly distribution payments to the Debtor. Accordingly, the Court granted judgment in favor of the Trustee and against North Park for all amounts past due and owing to the Debtor plus penalty

4

interest at a rate of 8% percent per annum for all amounts past due and reasonable attorneys' fees and costs.

The Plaintiff requests the Court apply the judgment to January 20, 2022. See Pl.'s Am. Calculation of Damages 9, (ECF No. 117). Plaintiff provided a calculation of damages and applied an interest rate of 8% for the periods of February 1, 2009 to December 2013, which is approximately 58 months and for the period of February 1, 2009 to January 2022 which is about 155 months. The period from February 2009 to December 2013 yields damages totaling $495,600, whereas the period from February 1, 2009 through January 20, 2022 yields a total of $1,663,320. A summary of these calculations is set forth here:

Time Period	Months	Monthly Amount	Total Amount (Months x Monthly Amount)	Interest Rate	Total Interest (Total Amount x Interest Rate)	Total Damages (Total Amount + Total Interest)
February 1, 2009 to December 2013	59	$7,000	$413,000	8%	$82,600	$495,600
February 1, 2009 to January 20, 2022	155	$7,000	$1,092,000	8%	$571,320	$1,663,320[3]

Calculation of Damages: February 1, 2009 to December 2013

For the time period of February 1, 2009 to December 2013, the outstanding balance

5

is $413,000.00. Pl.'s Am. Calculation of Damages 9, (ECF No. 118). For this same period, Plaintiff asserts the interest rate is 8% per annum which equals $82,600.00. Id. Therefore, under this time period, Plaintiff asserts the total judgment should be $495,600.00. Id.

Calculation of Damages: February 1, 2009 to January 20, 2022

Plaintiff also provides that if the time period is extended from February 1, 2009 to January 20, 2022, the total principal that is due and owing is $1,092,000.00. Id. Thus, applying 8% interest per annum to this adds interest of $571,320.00. Id. Therefore, under this time period, Plaintiff asserts the total judgment should be $1,663,320.00. Id.

Count Two

As to Count Two, the Court granted judgment in favor of the Trustee and against Mehran Kohansieh on his personal guarantee of payment of the $1,000 monthly special distribution payments under Section 9(c) of the River City Agreement including appropriate interest. The Court found that attorneys' fees and costs were not guaranteed in Section 9(c) of the River City Agreement, so these are not awarded. Plaintiff avers that the River City Agreement is governed by Iowa law and cites to Iowa Code § 535.2 in support of their position that an interest rate of 5% should be charged. Plaintiff asserts that this interest should be applied through January 20, 2022. Plaintiff also provides two calculations:

Time Period Months Monthly Amount Total Amount (Months x Monthly Amount) Interest Rate Total Interest (Total Amount x Interest Rate) Total Damages (Total Amount + Total Interest)

6

February 1, 2009, to December 2013	59	$1,000	$59,000	5%	$7,129.16	$66,129.16
February 1, 2009 to January 20, 2022	155	$1,000	$155,000	5%	$50,375	$205,375[4]

Plaintiff's Calculation of Damages: February 1, 2009 to December 2013

Plaintiff asserts that for the time period from February 1, 2009 to December 2013, a total of $1,000 per month was due and owing for 59 months which totals $59,000. Pl.'s Am. Calculation of Damages 10, (ECF No. 117). Plaintiff applies a 5% interest rate which totals $7,129.16. Id. This interest plus $59,000 equals $66,129.16. Id.

Plaintiff's Calculation of Damages: February 1, 2009 to January 20, 2022

Plaintiff asserts that for the time period of February 1, 2009, to January 20, 2022, that a total of $1,000 per month was due and owing for 155 months which totals $155,000. Id. Plaintiff applies a 5% interest rate which totals $50,375. Id. This interest plus $155,000 equals $205,375. Id.

Count Three

With respect to Count Three, the Court entered judgment in favor of the Trustee and against Mehran Kohansieh and Michael Khakshoor for breach of Section 2 of the River City Agreement and held Mehran and Michael jointly and severally liable to the Trustee for the sum of $100,000 plus costs and expenses of collection, including reasonable attorneys' fees. The Court found that the Defendants breached the River City Agreement on or about

7

April/May 2008. See In re Sakhe, 2021 WL 5999195 at *36.

Plaintiff argues this Court should apply Iowa law to this matter because the River City Agreement is governed by Iowa law. Plaintiff cites to Iowa Code § 535.2 in support of their position that an interest rate of 5% should be charged with such interest being applied to January 20, 2022. Plaintiff provides two different calculations:

Time Period	Months	Total Amount	Interest Rate	Total Interest (Total Amount x Interest Rate)	Total Damages (Total Amount + Total Interest)
May 2008 to December 2013	67	$100,000	5%	$27,918.90	$127,918.90
May 2008 to January 20, 2022	164	$100,000	5%	$68,333.33	$168,333.33[5]

Calculation of Damages: May 2008 to December 2013

The Court granted Count Three of the Amended Adversary Complaint to the extent that judgment was entered. In re Sakhe, 2021 WL 5999195, at *46. Therefore, Defendants argue joint and several liability is governed by the single statutory scheme set forth in N.J. Stat. Ann. §§ 2A:15-5.1-5.3. Defs.' Resp. 4, (ECF No. 121). Defendants contend that under this statute and Erny v. Estate of Merola, 171 N.J. 86 (2002), this Court has discretion to apportion liability and should apportion liability with Mehran and Michael each liable for fifty percent.

Previously this Court entered judgment "in favor of the Trustee and against Mehran and Michael jointly and severally on their personal guarantee for return of $100,000." In re

8

Sakhe, 2021 WL 5999195, at *46.

As iterated in this prior opinion, the judgment of $100,000 arises out of Section 2 of the River City Agreement. Id. at *45-46. This Court relied on the plain language of Section 2 of the River City Agreement in finding Mehran and...