DE GAETANO v. LAPINSKI et al

Filing 81

FINDINGS OF FACT AND ORDER REGARDING TURNOVER OF TRUSTEE ASSETS granting 80 Motion for turnover order. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RICHARD DE GAETANO,
Plaintiff,
v.
JOHN J. LAPINSKI and
LINDA S. LAPINSKI,
Defendants,
and
DIGGA DOWN EAST, LLC,
Trustee.

)
)
)
)
) 1:08-cv-00294-JAW
)
)
)
)
)
)
)
)
)
)
)

FINDINGS OF FACT AND ORDER
REGARDING TURNOVER OF TRUSTEE ASSETS1
John Lapinski, registered agent and sole member of Digga Down East, LLC appeared
before me for disclosure hearing. Lapinski’s appearance before the court was pursuant to a civil
order of arrest issued by me on May 4, 2011, and executed by the United States Marshall’s
deputy on today’s date. The civil order of arrest issued after Lapinski failed to appear for an
earlier disclosure hearing and the judgment creditor provided proof that he had received notice of
the time and place of the hearing. By order dated November 18, 2009, Chief Judge Woodcock of
this court entered judgment and execution against Trustee Digga Down East, LLC in accordance
with 14 M.R.S.A. § 2618 after Digga Down East, LLC had been previously defaulted in
accordance with 14 M.R.S.A. § 2614. (See Doc. No. 52.)

1

I can find no direct authority on the extent of magistrate judge authority in the context of a post-judgment
disclosure hearing, other than the general provision authorizing referral of “other matters” to the magistrate judge
found at 28 U.S.C. § 636 (b)(3). Certainly the recent practice in this District has been for the magistrate judge to
conduct post-judgment disclosure hearings and treat those hearings as non-dispositive matters. See, e.g. Doe v.
Manson, __ F.Supp. 2d __, 2011 WL 768054 (D. Me. 2011) (Mem. Dec. and Order, Rich, Mag. J.)

As a result of the disclosure hearing held before me I find that there was undisputed
evidence establishing that Digga Down East, LLC owns two parcels of real estate in Jonesport,
Maine, valued at $65,535.00 and $6,355.00. It was also established that Digga Down East owns
personal property valued at $5,000.00. Since judgment has already entered against Digga Down
East, the non-exempt property is available to the judgment creditor for partial satisfaction of the
outstanding judgment against it. The judgment creditor has requested a turn-over order for these
assets and I now grant his request. The judgment creditor’s judgment will be reduced by
$76,890.00 and the real and personal property will be turned over to the judgment creditor in
partial satisfaction of the $168,249.13 execution previously issued by the clerk. (Doc. No. 56.) I
have separately signed an order for the turn-over of the items described at the hearing by Mr.
Lapinski, acknowledging in that Order the representations made on the record that the judgment
creditor had previously collected $10,907.66 on this judgment and that interest of $779.80 had
accrued as of May 18, 2011, resulting in a remaining balance on the judgment of $158,121.27,
which will be reduced to $81,231.27 once these assets have been turned over to the judgment
creditor.

CERTIFICATE
Any objections to this Order shall be filed in accordance with Fed.R.Civ.P. 72.
So Ordered.
May 18, 2011

/s/ Margaret J. Kravchuk
U.S. Magistrate Judge

2