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Curcie v. Avraham

December 23, 2009

HELEN CURCIE, PETITIONER,
v.
OVADIA AVRAHAM; AND TRANS WORLD SECURITIES, LLC, RESPONDENTS.
OVADIA AVRAHAM; AND TRANS WORLD SECURITIES, LLC, PETITIONERS,
v.
HELEN CURCIE, RESPONDENT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM DECISION and ORDER

Currently before the Court are the following three motions: (1) a motion by Helen Curcie ("Curcie"), pursuant to Section 9 of the Federal Arbitration Act (the "FAA"), 9 U.S.C. § 1 et seq., to confirm an arbitration award (the "Award") rendered by an arbitration panel of the Financial Industry Regulatory Authority (hereinafter "FINRA") on June 26, 2009, in her favor against Ovadia Avraham ("Avraham") and Trans World Securities, LLC ("Trans World"); (2) a motion by Curcie for attorney's fees pursuant to the terms of the Promissory Note (the "Note") giving rise to the current dispute; and (3) a cross-motion by Avraham to vacate the Award.*fn1 For the reasons that follow; Curcie's motion to confirm the Award is granted; the Award is confirmed; Curcie's motion for attorney's fees is granted; and Avraham's cross-motion to vacate the Award is denied.

I. RELEVANT BACKGROUND

A. Relevant Factual History

On November 7, 2002, Avraham borrowed $222,000.00 from Curcie. In conjunction with that loan, Avraham executed (1) the Note, and (2) an instrument that guaranteed the repayment of the loan with a mortgage on a certain piece of property. The Note indicates that Avraham entered into an agreement requiring him to, inter alia, pay Curcie, each month for seventy-two (72) months, seven percent (7%) interest on the $222,000.00, followed by a final principal payment, to be paid in January 2009, resulting in an interest-only monthly payment of $1,295.00.

During the course of the repayment of the loan, certain disputes arose concerning late payments and the ultimate default of the loan by Avraham. On August 21, 2007, Avraham was sent a Notice of Default letter, in which payment of the loan in full was demanded.

On or about April 25, 2008, Curcie filed a Statement of Claim with the Financial Industry Regulatory Authority ("FINRA") concerning, inter alia, the money owed to Curcie under the terms of the Note.*fn2 On May 7, 2008, Curcie signed a Uniform Submission Agreement (the "Agreement"), in which she agreed, inter alia, (1) to arbitrate "the present matter in controversy, as set forth in the attached statement of claim, answers, cross claims, and all related counterclaims, and/or third-party claims which may be asserted," (2) to be bound by the FINRA By-Laws, Rules and the FINRA Code of Arbitration Procedure, (3) "to abide by and perform any award(s) rendered pursuant to th[e] . . . Agreement," and (4) that "a judgment and any interest due thereon, may be entered upon such award(s) and, for these purposes, the undersigned parties hereby voluntarily consent to submit to the jurisdiction of any court of competent jurisdiction which may properly enter such judgment." On July 7, 2008, Avraham signed the Agreement.

On or about September 16, 2008, Curcie filed an Amended Statement of Claim with FINRA. On or about February 25, 2009, while awaiting an arbitration hearing, Curcie filed a motion for summary judgment as to the Note. On or about March 10, 2009, Avraham replied to Curcie's motion. The parties submitted affidavits in support of their respective positions. On March 20, 2009, the arbitration panel rendered a summary judgment award, as to the Note, in Curcie's favor. More specifically, the decision ordered Avraham and/or Trans World*fn3 to pay Curcie $138,500.00, plus five percent (5%) interest as set forth in the Note, from the date of filing of the Statement of Claim, plus nine percent (9%) statutory interest from the date of filing, without prejudice to Curcie seeking further damages on the Note at the hearing.

On or about May 19, 2009, the matter proceeded to a hearing before the arbitration panel.*fn4 During the hearing, both parties presented documentary evidence and witness testimony. Curcie submitted an affidavit of attorneys' fees to the panel on or about May 22, 2009.

On June 26, 2009, the arbitration panel rendered a unanimous award in favor of Curcie. In addition to reiterating Curcie's entitlement to the summary judgment award amount, the Award ordered Avraham and/or Trans World*fn5 to pay Curcie compensatory damages in the amount of $79,910.00 for the balance of the Note, plus five percent (5%) interest as set forth in the Note, from the date of filing of the Statement of Claim until payment of the Award, plus nine percent (9%) interest from the date of filing of the Statement of Claim until payment of the Award. Avraham and Trans World were further ordered to pay Curcie's attorneys' fees in the amount of $25,000.00 pursuant to the terms of the Note. Avraham and Trans World's request for expungement was denied.

In total, Curcie was awarded $218,410.00, plus five percent (5%) interest pursuant to the terms of the Note, from the date of filing of the Statement of Claim until paid, plus nine percent (9%) statutory interest from the date of filing of the Statement of Claim until paid, plus attorneys' fees in the amount of $25,000.00, pursuant to the terms of the Note. Avraham and Trans World have failed to satisfy the Award.

B. Curcie's Arguments

Generally, in Case Number 09-CV-0947, Curcie argues that the Award should be confirmed because (1) the parties expressly agreed to arbitrate their dispute, and (2) there is, at a minimum, a ...


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