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Case 09-39032-SLM

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Case 09-39032-SLM

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Case 09-39032-SLM

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UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW JERSEY
KOPELMAN & KOPELMAN LLP
55 Main Street
Hackensack, NJ 07601
Tel: 201 489-5500
Fax: 201489-7755
Michael S, Kopelman, Esq. (MSK 6104)
Attorneys for John W. Sywilok, Chapter 7 Trustee
In Re:

CHAPTER 7

GIUSEPPE GIUDICE and

TERESA GIUDICE

CASE NO.: 09-39032

JUDGE: Stacey L. Meisel
Debtors.
Hearing Date: 9/13/16 @ 10:00 AM

CERTIFICATION OF JOHN W. SYWILOK IN SUPPORT OF

MOTION TO APPROVE SETTLEMENT

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I, John W. Sywilok of full age hereby certify and say as follows:
1.

I am Trustee to Debtor Teresa Giudice (Giudice) in the recently reopened

Chapter 7 case of Giuseppe Giudice and Teresa Giudice.

2.

I am fully familiar with all of the facts and circumstances of said Chapter 7 case.

3.

On July 28, 2015 Giudice commenced a legal malpractice action Teresa Giudice

against James A Kridel, Jr. (Kridel Action) in the New Jersey Superior Court, Morris County,
Docket No.: MRS-L-1861 and in connection therewith filed a certification that the Trustee did
not need to be named a party. Moreover, the fact that a State Court action was instituted was
hidden from the Trustee.
4.

When the Trustee discovered that the cause of action against Kridel had been

instituted he immediately moved to reopen the bankruptcy case to administer an undisclosed

asset.

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5.

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Giudice essentially claims that Kridel never should have filed bankruptcy at all

and in doing so he committed malpractice.

6.

The issue of whether or not the Kridel law suit was property of the Giudice

bankruptcy estate was fully briefed and argued before Honorable Stacey L. Meisel on April 22,
2016. The Court did not rule on whether it was or was not an asset of estate but reopened the
Giudice bankruptcy case.
7.

On June 3, 2016 a meeting at the offices Kopelman & Kopelman LLP was held.

In attendance were Carlos J. Cuevas, Esq., (Cuevas), Anthony M. Rainone, Esq. (Rainone)
Michael S. Kopelman, Esq., John W. Sywilok, Trustee and James J. Leonard, Jr. Esq. by
telephone. After said meeting Cuevas and Rainone alleged that an agreement had been reached
and filed a motion accordingly. Judge Meisel then ordered the matter to mediation.
8.

On October 5, 2016 mediation was held with a former District Court Judge,

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Honorable Joel A. Pisano presiding. A settlement was reached at that time which includes the
following points:
1) Giudice shall file motions to expunge or modify pre-petition claims, motion to
be filed within 30 days of the entry of a retention order by the Bankruptcy Court.
Trustee shall move for appointment of Brach Eichlers, LLC and Carlos Cuevas
as special counsel for this motion practice, with provision for payment of fees.
2) Giudice shall acknowledge and agree to honor any outstanding pre-petition
claims, regardless of bankruptcy court disposition, still outstanding after the
adjudication of the motion filed pursuant to paragraph 1 above.
3) Giudice shall receive 55% of the net proceeds of the Kridel claim, meaning
the gross recovery through settlement or trial less the administrative costs set forth
below. The gross amount recovered through settlement or trial shall be paid
100% to the Trustee. The administrative costs of the Bankruptcy case shall be
paid as set forth below.

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(a) The costs of administration shall include:

(i) Trustee Commissions measured on the gross amount recovered
through settlement or trial
(ii) Legal fees of Kopelman & Kopelman.
(iii) Legal fees of Brach Eichlers LLC
(iv) Legal fees of Carlos Cuevas, Esq.
(v) Giudice 503 (b) claim for mediation and expert witness fees
(b) The Trustees 45% share shall be distributed pursuant to the
Bankruptcy code.
(c) With respect to the Trustees Commissions pursuant to paragraph 3
(a)(i) above and Kopelman a& Kopelmans application for reasonable
attorneys fees pursuant to paragraph 3 (a)(ii) above, although subject to
bankruptcy court approval, Giudice agrees to take no position on those
applications.
4) If Trustees share net of all expenses of the action and payment of fees and

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payment of creditor claims results in a surplus, then Giudice shall receive it.
5) Trustee and Giudice must approve any settlement of the Kridel suit, and must
obtain Bankruptcy Court approval of any settlement.

6) Trustee and his counsel shall be kept advised of all significant developments
and status of the case.
7) Rainone and Cuevas to be appointed Special Counsel to prosecute the Kridel
suit such motion to be made by Trustee. This application was filed on October
20, 2016.
8) No application for sanctions will be filed. All parties agree not to disparage
each other.
9.

The Trustee hereby moves that the settlement be approved by the Court, as set

forth in term sheet, a copy of which is attached hereto as Exhibit A.

10.

In determining whether to approve a settlement a court must assess the following

four factors: (1) the probability of success in litigation; (2) the likely difficulties in collection;

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(3) the complexity of the litigation involved, and the expense, inconvenience and delay
necessarily attending it; and (4) the paramount interest of the creditors. In re Congoleum Corp.,
2010 WL 1133458 *3 (D.N.J. 2010).
A. The Probability of Success Factor Favors the Trustee
1. The Trustee is confident that the Court would rule that the Kridel law suit is
property of the estate and that no settlement was reached on June 3, 2016. This factor favors the
Trustee.
B. The likelihood of difficulties in collection. This factor favors Giudice who has
indicated she will not cooperate with Siegel & Siegel if they were to represent her instead of
Cuevas and Rainone.
C. Complexity of the litigation etc. This factor favors Giudice because Cuevas
and Rainone have shown a propensity to harass and run up Trustees expenses until they get their
way.

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D. The paramount interest of creditors. This factor favors Giudice because the
chances of a favorable recovery are enhanced if Giudice is able to work with counsel of her
choice.
11.

If settlement is approved the Trustee also seeks to vacate the automatic stay so

that the Kridel action can proceed.

12.

The Trustee also seeks to substitute his name as a party Plaintiff in the Kridel

13.

On August 1, 2016 Siegel & Siegel PC were authorized to be retained by the

action.

Chapter 7 trustee in this matter.

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14.

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Siegel & Siegel have performed services to the Trustee and Michael D. Siegel,

Esq. of that firm was instrumental in bringing about a resolution of issues central to this case at
the mediation session which took place before Honorable Joel A. Pisano on October 5, 2016.
15.

The basis of Siegel & Siegels retention was on a contingency basis. Michael D.

Siegels hourly rate for matters for this sort is $350.

16.

As part of the substitution of Cuevas and Rainone, Esq. of Siegel & Siegel the

Trustee seeks an order of the Court to allow Siegel & Siegel to file a fee application based upon
quantum meruit at the rate of $350 per hour within 30 days of entry of order authorizing the
retention of substituted counsel Cuevas and Rainone.

I hereby certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements is willfully false, I am subject to punishment.

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Dated: October 31, 2016

BY:

/s/ John W. Sywilok

John W. Sywilok

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UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW JERSEY
KOPELMAN & KOPELMAN LLP
55 Main Street
Hackensack, NJ 07601
Tel: 201 489-5500
Fax: 201489-7755
Michael S, Kopelman, Esq. (MSK 6104)
Attorneys for John W. Sywilok, Chapter 7 Trustee
In Re:

CHAPTER 7

GIUSEPPE GIUDICE and

TERESA GIUDICE

CASE NO. 09-39032

JUDGE: Stacey L. Meisel
Debtors.
Hearing Date: 12/6//16 @ 10:00 AM

ORDER

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The relief set forth in the following page two (2) through two (2) is hereby ORDERED.

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Debtor:
Case No.:
Caption of Order:

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Giuseppe Giudice and Teresa Giudice

09-39032
Order

THIS MATTER being opened to the Court by Kopelman & Kopelman LLP (Michael S.
Kopelman, Esq. appearing) attorneys for Chapter 7 Trustee, John W. Sywilok, and due notice to
all parties in interest having been given and the Court having considered Trustees motion for
sanctions pursuant to Bankruptcy Rule 9011 and the Court having considered the moving papers,
the opposition thereto, if any, and the arguments of counsel; and good cause appearing for the
entry of this Order,
IT IS HEREBY ORDERED AS FOLLOWS:
1.

The settlement terms agreed on October 5, 2016 at the mediation is approved as

outlined in the Term Sheet.

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2.

John W. Sywilok, Trustee shall be named as a party Plaintiff in the Kridel action

and the automatic stay is hereby vacated to permit the Kridel action to proceed.
3.

Siegel & Siegel be and hereby are authorized to file a fee application based upon

quantum meruit at the rate of $350 per hour within 30 days of the entry of this order.
4.

The Clerk shall serve notice of the entry of this order upon the Debtor, the

Debtors attorneys, the United States Trustee and any other party who entered an appearance in
this matter.

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