The CIT Group/Equipment Financing, Inc. v. Asterbadi
MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 3/2/2017. (bus, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WELLS FARGO EQUIPMENT
Case No.: PWG-15-1371
NABIL J. ASTERBADI,
More than two decades after the United States District Court for the Eastern District of
Virginia entered a judgment (“Judgment”) against Nabil J. Asterbadi, he seeks a permanent
injunction to prohibit its enforcement, or alternatively an accounting to determine the current
amount of the Judgment, as well as discovery to determine whether the Judgment was assigned
to Plaintiff Wells Fargo Equipment Finance, Inc. (“Wells Fargo”) and, if so, how much is due
under the Judgment.
ECF No. 58.
Wells Fargo opposes Dr. Asterbadi’s motion and the
discovery he seeks.1 Dr. Asterbadi has not shown that he has suffered injury, and therefore he is
not entitled to a permanent injunction. Additionally, this Court and the Fourth Circuit already
determined that the Judgment was assigned to Wells Fargo. Yet, considering Dr. Asterbadi’s
request for an accounting and, in the interest of justice, construing Dr. Asterbadi’s motion as a
Rule 60(b)(5) motion for relief from a judgment that has been, at least in part, satisfied, I will
The parties fully briefed the motion, ECF Nos. 58, 61, 63, and also briefed the discovery
dispute, ECF Nos. 65, 69, 70. A hearing is not necessary. See Loc. R. 105.6.
grant the motion insofar as Dr. Asterbadi seeks discovery to determine the amount currently due
on the Judgment before Wells Fargo executes on it.
The United States District Court for the Eastern District of Virginia entered a judgment
(“Judgment”) in favor of CIT Group/Equipment Finance Inc. (“CIT”) and against Nabil J. Dr.
Asterbadi (the resident agent for and a stockholder of Zachair Ltd.) on October 4, 1993. See
Wells Fargo Equip. Fin., Inc. v. Asterbadi (“Wells Fargo I”), No. PWG-15-1371, 2015 WL
5521797, at *1 & n.1 (D. Md. Sept. 16, 2015). CIT, formerly the plaintiff in this action, filed a
Certification of Judgment for Registration in Another District, ECF No. 1, in this Court on
August 27, 2003.2
CIT also moved for a permanent injunction (i) to prevent Defendant
Asterbadi from transferring his corporate stock certificates in Zachair Ltd. and (ii) to require Dr.
Asterbadi to turn over these certificates to CIT in partial satisfaction of the Judgment. CIT’s
Mot., ECF No. 3. Dr. Asterbadi consented to the portion of the motion enjoining him from
transferring the certificates but contested the portion of the motion requiring him to turn over the
certificates to CIT. Def.’s Opp’n to CIT’s Mot., ECF No. 4. The Court did not resolve the motion
at that time.
Over a year later, on November 23 and December 3, 2004, CIT filed two Notices of
Partial Satisfaction of the Judgment. The first noted a credit of $1,699,327.96 from “sale of
collateral” in 1993;3 a voluntary $259,740.20 reduction of attorneys’ fees; and $81,500 in
Originally, the case proceeded as miscellaneous matter 03-mc-412.
The “collateral” was an airplane that Washington Capital Aviation & Leasing, Inc., with
Asterbadi as its sole stockholder, purchased using a loan from CIT; CIT held a security interest
in the airplane. Def.’s Mot. 2. Washington Capital Aviation & Leasing, Inc. defaulted on the
loan, leading to the debt that is the subject of this Judgment. Id.
“credits against accrued interest,” leaving a “principal due of $586,682.01 and attorneys’ fees
due of $88,002.30.” ECF No. 6. The second noted the same amounts due, in addition to
“accrued but unpaid interest of $1,175,009.98 as of December 3, 2004, for a total due as of
December 3, 2004, of $1,849,694.20,” with interest continuing to accrue “at the rate of $289.32
per day.” ECF No. 8.
And there things stood (in this Court) for more than a decade. Then, on April 7, 2015,
Counsel for CIT filed a notice with this Court that CIT had assigned its interest in the Judgment
to Plaintiff Wells Fargo Equipment Finance, Inc. (“Wells Fargo”) and that Counsel would be
representing Wells Fargo in this case. Notice of Assignment of Judgment, ECF No. 9. Wells
Fargo then attempted to collect on the Judgment, and Dr. Asterbadi sought a protective order,
asking the Court to “prohibit the taking of a post judgment deposition of Zachair, Ltd., by
Wells Fargo Equipment Finance, Inc.” and to “declar[e] the judgment of the United States
District Court for the Eastern District of Virginia . . . unenforceable and [to] permanently
enjoin enforcement of the judgment in Maryland.” See Def.’s Mot. for Protective Order 1,
ECF No. 11. On August 26, 2015, Wells Fargo filed a Request and Notice for Renewal of
Judgment, ECF No. 25, asking “the Clerk [to] note the Court’s records to reflect that the
Judgment is renewed as of the date this Request was filed.”
This Court’s Previous Orders
In a September 16, 2015 Memorandum Opinion and Order, ECF No. 26, I found that
“CIT . . . assigned its interest in the 1993 Judgment to Plaintiff Wells Fargo”; the assignment was
filed in this Court, albeit by Dr. Asterbadi, not by the judgment creditor; Wells Fargo, now
Plaintiff in this action, has standing to enforce the Judgment;4 and the Judgment is enforceable
because the time during which it can be enforced started to run on the date the Judgment was
certified in this Court, i.e., August 27, 2003. Wells Fargo I, 2015 WL 5521797, at *1–2 (citing
Assignment Agr.). Yet I also found that Plaintiff had failed to meet the burden necessary to
grant its decade-old motion for permanent injunctive relief on the contested portion of the
motion. Id. As a result, I granted in part and denied in part Plaintiff’s Motion for Permanent
Injunction, without ruling on Defendant’s Motion for Protective Order. Id. at *4.
Dr. Asterbadi appealed, and I denied his Motion for Protective Order without prejudice
pending the appeal. ECF Nos. 27, 30. I approved the parties’ Stipulation and Consent Order for
Preservation of Assets, Interim Stay of Discovery and Execution on Judgment, Tolling of
Limitations and for Other Relief, ECF No. 43, which restrained Dr. Asterbadi from “selling,
removing, dissipating, alienating, transferring, assigning, pledging[,] encumbering, [or] granting
any interest [in] or similarly dealing with any [of his] Assets” or asking or helping anyone else to
do so. ECF No. 44. It also stayed discovery in aid of execution and execution upon the
Judgment, and it stayed any limitations periods “that may be applicable to claims setting aside or
avoiding voidable transactions or transfers by Defendants for Purposes of Plaintiff’s collection
on the underlying judgment.” Id. I also issued a Memorandum Opinion and Order on May 26,
2016, granting Dr. Asterbadi’s motion to stay and extending the stipulated agreement to protect
Wells Fargo’s interests until the Fourth Circuit ruled on the appeal. ECF No. 47.
Dr. Asterbadi focuses on my ruling that Wells Fargo had standing to respond to my show cause
order regarding the enforceability of the 1993 Judgment. See Def.’s Mot. 15, 17; Def.’s Reply
13. While I did so rule, I also found that Wells Fargo had standing to enforce the Judgment. See
Wells Fargo I, 2015 WL 5521797, at *1–2; see also Wells Fargo Equip. Fin., Inc. v. Asterbadi
(“Wells Fargo II”), 841 F.3d 237, 239–40 (4th Cir. 2016) ([T]he district court rejected
Asterbadi’s argument that Wells Fargo lacked standing to enforce the judgment . . . .”) (on
docket as ECF No. 49).
The Fourth Circuit’s Ruling
The Fourth Circuit affirmed the September 16, 2015 Memorandum Opinion and Order
regarding standing. Wells Fargo Equip. Fin., Inc. v. Asterbadi (“Wells Fargo II”), 841 F.3d 237,
239–40 (4th Cir. 2016) (on docket as ECF No. 49). Noting that Md. Rule 2-624 (applicable
under Fed. R. Civ. P. 69(a)(1)) “provides that the assignee of a judgment may enforce the
judgment in its own name when it files ‘the assignment . . . in the court where the judgment was
entered,’” the Fourth Circuit concluded that Wells Fargo had standing to enforce the Judgment in
this Court, despite having filed only a notice of assignment rather than the actual assignment,
because “Asterbadi filed the actual assignment, . . . so that the district court had before it both the
notice of assignment and the assignment itself.” Id. at 243 (quoting Md. Rule 2-624) (emphasis
in Wells Fargo II). It also agreed with me that the registration was not, as Dr. Asterbadi argued,
“merely a ‘ministerial act.’” Id. at 245.
In reaching its conclusion, it construed 28 U.S.C.
§ 1963, governing registration of judgments in other districts,
to elevate a registered money judgment such that it functions in every way as a
new judgment. It follows that with the registered judgment functioning as a new
judgment, the limitations period for enforcement runs from the date of
registration. This is the conclusion that every court of appeals that has construed
§ 1963 has reached.
Id. at 245–46. The Fourth Circuit observed that, under Maryland law, “a money judgment
expires 12 years from the date of entry or from the date of renewal, if it is renewed before its
expiration.” Id. at 243 (citing Md. Rule 2-625). Thus, given that CIT registered it on August 27,
2003 and “Wells Fargo renewed the judgment for another 12 years on August 26, 2015, the
registered judgment remains enforceable in Maryland to August 26, 2027.” Id. at 245. The
Fourth Circuit held:
[T]he registration of the Virginia district court judgment in the District of
Maryland at a time when the judgment was not time-barred by Virginia law
functions as a new judgment in the District of Maryland, and Maryland’s 12-year
limitations period for enforcement on the judgment begins running from the date
Id. at 246. Thus, its holding was limited to the time bar issue.
See id. But, significantly, in
reaching its holding, the Fourth Circuit observed that “[e]ffective June 29, 2007, CIT sold and
assigned its judgment against Asterbadi to Wells Fargo as part of an asset purchase agreement.”
Id. at 240–41.
Enforcement of the Judgment, and Post-Judgment Discovery
Dr. Asterbadi filed a pre-motion conference request letter, ECF No. 53, and I held a
conference call on December 15, 2016. I permitted Dr. Asterbadi to file a motion regarding the
enforceability of the Judgment and other issues raised in his letter. ECF No. 57. Dr. Asterbadi
filed a Motion to Permanently Enjoin Enforcement of Judgment or in the Alternative for
Accounting to Determine Unpaid Balance on the Federal Judgment and Accrued Interest (“Perm.
Inj. Mot.”). ECF No. 58. The Permanent Injunction Motion now is ripe. ECF Nos. 61, 63.
During the December 15, 2016 call, I also lifted the stay on discovery. I did not lift the
Consent Order as it pertained to preservation of assets, prohibiting Dr. Asterbadi from “selling,
removing, dissipating, alienating, assigning, pledging[,] encumbering, granting any interest or
similarly dealing with any assets of the Defendant” or asking or helping anyone else to do so.
Jan. 21, 2016 Consent Order, ECF No. 44. I directed the parties to file a proposed discovery
plan and schedule by January 16, 2017 and to read Rule 26(g) and certify to me that they have
done so by January 16, 2017. They have done neither.
Instead, Dr. Asterbadi filed a letter stating that the parties do not agree on the scope of
discovery, ECF No. 65 (and Wells Fargo filed a response, ECF No. 69, and Dr. Asterbadi filed a
reply, ECF No. 70, both in violation of the Case Management Order ¶ B(3), ECF No. 17).5 Dr.
Asterbadi argues in his letter that enforcement of the Judgment should be barred because CIT
and Wells Fargo took no action for a decade, and he wants discovery to find out why. Dr.
Asterbadi also seeks discovery to determine what CIT assigned to Wells Fargo, and specifically
whether it intended to assign the Judgment to Wells Fargo. Additionally, he wants to determine
what payments CIT received toward the Judgment and how it treated the payments it received.
And, he raises the question of whether the amount due is governed by the Judgment or the
Forbearance Agreement that the parties later signed.
Wells Fargo responded to say that it questions whether Dr. Asterbadi is entitled to any
post-judgment discovery beyond what Wells Fargo already agreed to produce. Wells Fargo
notes that the discovery rules provide for the judgment creditor, not the judgment debtor, to
engage in post-judgment discovery.
Wells Fargo contends that Dr. Asterbadi is indirectly
challenging the order already entered against him (and affirmed by the Fourth Circuit) and no
discovery is necessary, relevant, or allowed.
These discovery disputes raise the same issues addressed in the Permanent Injunction
Motion briefing. Therefore, I will resolve the Permanent Injunction Motion and then define the
scope of discovery in this case.
Permanent Injunction Motion
To obtain a permanent injunction, “a plaintiff must show (1) irreparable injury, (2)
remedies at law are inadequate to compensate for that injury, (3) the balance of hardships
Thus, to date, counsel for both parties have overlooked, forgotten, or ignored my Case
Management Order and my order to certify that they have read Rule 26(g). Having conferred
with them during a telephone conference on February 23, 2017, about the consequences of
continuing to disregard the Court’s case management orders, I am satisfied that they will no
longer do so.
between the plaintiff and defendant warrants a remedy, and (4) an injunction would not disserve
the public interest.” Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (quoting Monsanto Co.
v. Geerston Seed Farms, 561 U.S. 139, 156-57 (2010)). “An injunction is a matter of equitable
discretion; it does not follow from success on the merits as a matter of course.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 32 (2008). Curiously, neither party addresses the standard in
Insofar as it is, indeed, injunctive relief that Dr. Asterbadi seeks, he cannot, as the
judgment debtor (not the plaintiff), show irreparable injury at this juncture. The Judgment is
based on the judgment creditor’s injury. And, while Dr. Asterbadi argues that Wells Fargo is not
entitled to his assets, he has failed to provide sufficient evidence in support of this argument.7
Indeed, he seeks discovery to obtain that evidence, should it exist. Certainly, Wells Fargo could
locate Dr. Asterbadi’s assets, execute on the Judgment, obtain more than Dr. Asterbadi contends
it is entitled to, and entangle what (according to Dr. Asterbadi) is rightfully Dr. Asterbadi’s in a
Gordian knot. But, even if that were likely—which I cannot determine on the record before
me—, this is not a motion for a preliminary injunction, where Dr. Asterbadi only would need to
show a likelihood of success on the merits. See Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). And, that possible injury is not injury that Dr. Asterbadi “has suffered.” See
When, previously, Plaintiff moved for a permanent injunction (ECF No. 3), Plaintiff similarly
failed to “address these factors for why Defendant should be required to turn over the stock
certificates other than arguing (on October 31, 2003) that ‘[t]ime is of the essence because Dr.
Asterbadi is alerted to CIT’s attempt to seize the Certificates and therefore is likely to hide the
Certificates, if they exist, or transfer his ownership interest in Zachair.” Wells Fargo I, 2015 WL
5521797, at *4.
The evidence he has attached suggests that CIT did collect on the Judgment by seizing some of
his real and personal property, but it is unclear whether the judgment creditor disputes the
acquisition or value of these assets, and there is no evidence about how any amounts obtained
were applied to Dr. Asterbadi’s debt.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (“A plaintiff [seeking a permanent
injunction] must demonstrate: (1) that it has suffered an irreparable injury . . . .” (emphasis
added)); see Dominion Transmission, Inc. v. Town of Myersville Town Council, 982 F. Supp. 2d
570, 580 (D. Md. 2013) (same). Thus, Dr. Asterbadi is not entitled to a permanent injunction.
See eBay, 547 U.S. at 391.
But, Dr. Asterbadi also seeks an accounting, and it appears that what he wants to do is
challenge both Wells Fargo’s ability to enforce the Judgment against him and the scope of the
unpaid balance of that Judgment, if enforceable by Wells Fargo. In the interest of justice, I will
construe his motion as one for relief from the Judgment under Fed. R. Civ. P. 60(b)(5) or (6).
See Fed. R. Civ. P. 1. Rule 60(b) provides that, “within a reasonable time,” a judgment debtor
may file a motion asking for relief from a judgment on the grounds that “the judgment has been
satisfied,” or for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(5)–(6).
Whether CIT Assigned the Judgment to Wells Fargo
Dr. Asterbadi continues to insist that Wells Fargo cannot enforce the Judgment because
“the assignment and assumption agreement [between CIT and Wells Fargo] was ineffective to
assign the federal judgment against Asterbadi.” Def.’s Perm. Inj. Mot. 14. If this were the case,
it would be a “reason that justifies relief” from the Judgment under Fed. R. Civ. P. 60(b)(6).
Wells Fargo counters that the law of the case, the mandate rule, and the Rooker–Feldman
doctrine bar consideration of this issue. Pl.’s Opp’n 3, 14.
Wells Fargo argues that Rooker–Feldman bars this Court’s consideration of whether the
Judgment was properly assigned to Wells Fargo. Pl.’s Opp’n 14. But Rooker–Feldman, a
jurisdictional doctrine, see Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 196 (4th Cir. 2002), is
inapplicable. The Rooker–Feldman doctrine “holds that ‘lower federal courts are precluded from
exercising appellate jurisdiction over final state-court judgments.’” Thana v. Bd. of License
Comm'rs for Charles Cnty., Md., 827 F.3d 314, 319 (4th Cir. 2016) (quoting Lance v. Dennis,
546 U.S. 459, 463 (2006) (per curiam)). Thus, by invoking the doctrine, Wells Fargo essentially
is asking this Court to find that it does not have jurisdiction over the very suit that Wells Fargo
brought. See id. The doctrine “assesses only whether the process for appealing a state court
judgment to the Supreme Court under 28 U.S.C. § 1257(a) has been sidetracked by an action
filed in a district court specifically to review that state court judgment.” Id. at 320. It is “confined
to . . . cases brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and inviting district court
review and rejection of those judgments.” Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005)) (emphasis in Thana). To emphasize the narrow scope of the
doctrine, “the Supreme Court has noted repeatedly that, since the decisions in Rooker and
Feldman, it has never applied the doctrine to deprive a district court of subject matter
jurisdiction,” and, “since Exxon, [the Fourth Circuit has] never, in a published opinion, held that
a district court lacked subject matter jurisdiction under the Rooker–Feldman doctrine.” Id.
Here, the judgment creditor, which prevailed under the “state-court judgment rendered
before the district court proceedings commenced,” brought this litigation, not Dr. Asterbadi, the
“state-court loser” at the time CIT filed this case. Id. Moreover, the Rooker–Feldman doctrine
does not apply because of the procedural posture of the state court litigation, in which the
Maryland Court of Special Appeals recently reversed the orders of the state trial courts and
remanded the cases in an unreported opinion, Asterbadi v. Wells Fargo (“Asterbadi”), Nos. 1590
and 2174, slip op. at 1 (Md. Ct. Spec. App. Feb. 21, 2017). See Thana, 827 F.3d 314 at 321. Dr.
Asterbadi is not asking this Court “to exercise appellate jurisdiction over a final judgment from
‘the highest court of a State in which a decision could be had’”; he did not file this suit or remove
it to this Court. Id. (quoting 28 U.S.C. § 1257(a) (emphasis added)). And, given that the state
court litigation is still “on track for potential review by the U.S. Supreme Court,” and this suit
would not “bypass the Supreme Court’s appellate jurisdiction under 28 U.S.C. § 1257(a) over
any relevant state court judgment,” the suit in this Court does not implicate the purpose behind
the Rooker–Feldman doctrine—to prevent litigants from frustrating the Supreme Court’s
jurisdiction. Id. at 322. Therefore, “this federal action is a concurrent, independent action
supported by original jurisdiction conferred by Congress on federal district courts,” and the
Rooker–Feldman doctrine does not apply. See id. at 321.
2. Law of the Case and Mandate Rule
“The law of the case doctrine provides that, ‘when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.’”
Chaplick v. Mao, No. TDC-13-2070, 2016 WL 4516061, at *3 (D. Md. Aug. 25, 2016) (quoting
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona v.
California, 460 U.S. 605, 618 (1983))). “Courts may decline to follow the law of the case (1)
when a trial has resulted in substantially different evidence [or] (2) there has been a change in
controlling legal authority that has made a contrary decision of law applicable to the issue.” Id.
(citing United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)). Additionally, a court need
not follow the law of the case if “the prior decision was clearly erroneous or would result in
manifest injustice.” Id. (citing Aramony, 166 F.3d at 661). This Court “has significantly more
discretion” under the law of the case doctrine than with regard to an appellate court ruling, and is
“not bound by its own prior rulings to the same extent it would be bound to the prior ruling of a
higher court.” See Washington Gas Light Co. v. Prince George’s Cnty. Council Sitting as Dist.
Council, 784 F. Supp. 2d 565, 571 (D. Md. 2011).
The mandate rule “is merely a specific application of the law of the case
doctrine.” United States v. Pileggi, 703 F.3d 675, 679 (4th Cir.2013) (citation
omitted). It “prohibits lower courts, with limited exceptions, from considering
questions that the mandate of a higher court has laid to rest.” Moore v. Bennette,
517 F.3d 717, 727 (4th Cir. 2008) (citation omitted).
CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 983 (4th Cir. 2015). “[T]he mandate rule
‘forecloses relitigation of issues expressly or impliedly decided by the appellate court.’” Brown
v. Nucor Corp., 785 F.3d 895, 921 (4th Cir. 2015) (quoting United States v. Pileggi, 703 F.3d
675, 679 (4th Cir. 2013) (quoting United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993))). But, “the
mandate rule and the broader law of the case doctrine ‘cannot apply when the issue in question
was outside the scope of the prior appeal,’” such as when “the parties had not yet argued it and
the district court had not yet addressed it.” Id. at 927 (quoting Transamerica Leasing, Inc. v.
Instit. of London Underwriters, 430 F.3d 1326, 1332 (11th Cir. 2005)).
To the extent that Dr. Asterbadi raises the issue of Wells Fargo’s standing, that issue
already has been decided in this Court and on appeal. Both held that Wells Fargo has standing to
enforce the Judgment, and I am not going to revisit that issue. See Wells Fargo I, 2015 WL
5521797, at *1; Wells Fargo II, 841 F.3d at 243.
As for whether CIT assigned the Judgment against Dr. Asterbadi to Wells Fargo, Dr.
Asterbadi insists that neither court addressed the discrete question he now raises: “what chose in
action [i.e., right to recover debt] was assigned by CIT to Wells Fargo”? Def.’s Perm. Inj. Mot.
15. He argues that the Judgment simply was not part of what was assigned in the Assignment
Agreement, despite the “self-serving affidavit from Wells Fargo as the assignee that the
judgment was included in the file that was transferred as part of the 2007 transaction.” Id. (citing
Rachel C. Owens Aff. ¶ 8, Def.’s Perm. Inj. Mot. Ex. 10, ECF No. 58-2, at 29.
I noted in my previous opinion that Dr. Asterbadi “provided me with a copy of the
assignment and assumption agreement [‘Assignment Agreement’] that Wells Fargo filed with the
Circuit Court for Montgomery County,” Wells Fargo I, 2015 WL 5521797, at *2 (citing
Assignment Agr., Def.’s Supp. Ex. 1, ECF No. 23-1, at 5–8). The Assignment Agreement stated
that it “provide[d] for assignment of certain Contracts,” Assignment Agr. ¶ A, and that CIT,
through the Assignment Agreement, “cause[d] to be transferred and delivered unto Purchaser, its
successors and assigns, all of Seller’s and any applicable CIT Holder’s obligations, rights, titles
and interests in and to the Assumed Contracts,” id. ¶ 1. Attached to the Assignment Agreement
was a one-line schedule with regard to CIT customer Washington Capital Aviation, listing a
“Close-out Date” of July 21, 1994, and indicating that the account was in “Salvage/Recovery.”
Dr. Asterbadi also filed an Affidavit in Support of Supplemental Notice of Assignment of
Judgment, Def.’s Supp. Ex. 1, ECF No. 23-1, at 10–12, the same affidavit he now calls “selfserving.” In the affidavit, Rachel Owens, Loan Adjuster IIII at Wells Fargo, stated that “Wells
Fargo’s records establish that, pursuant to the Assignment, CIT assigned to Wells Fargo its
interest in an asset described as Washington Capital Aviation (the ‘WCA File’), including all
judgments related thereto”; that the Judgment “was originally obtained by CIT and is included in
the WCA File”; and that “[a]ccordingly, CIT assigned the judgment to Wells Fargo in
connection with the Assignment.” Owens Aff. ¶¶ 7–8. Based on that evidence—provided to me
by Dr. Asterbadi—I found that “CIT . . . assigned its interest in the 1993 Judgment to Plaintiff
Wells Fargo.” Wells Fargo I, 2015 WL 5521797, at *2 (citing Assignment Agr.). Similarly, the
Fourth Circuit stated: “Effective June 29, 2007, CIT sold and assigned its judgment against
Asterbadi to Wells Fargo as part of an asset purchase agreement.” Wells Fargo II, 841 F.3d at
240–41; see id. at 243 (noting that “the actual assignment” was a part of the record before the
Although these are findings of fact, not rules of law, these findings were critical to the
legal determination that Wells Fargo had standing, as it could not have had standing if the
Judgment had not been assigned to it.
Therefore, the law of the case doctrine bars
reconsideration of these underlying factual determinations.
See U.S. ex rel. Oberg v.
Pennsylvania Higher Educ. Assistance Agency, 804 F.3d 646, 665–66 (4th Cir. 2015), cert.
denied, No. 15-1045, 2017 WL 69177 (U.S. Jan. 9, 2017) (concluding that “the extend of [the
defendant’s] corporate wealth and its ability to fund a judgment through its own resources . . .
were the critical facts on which [the previous Fourth Circuit] functional-liability decision was
grounded” and therefore that decision “established that [the defendant’s] access to its substantial
corporate wealth was relevant to the functional-liability question, and that determination [was] a
legal ruling that remain[ed] applicable in th[e] [second] appeal”). Further, Dr. Asterbadi has not
shown that any of the exceptions apply. See Chaplick, 2016 WL 4516061, at *3.
Perhaps Dr. Asterbadi now is attempting to argue (without explicitly stating) that the
Assignment Agreement was ambiguous and is challenging the affidavit resolving its ambiguity
(the affidavit that he filed with the Court). Yet, he already presented his argument that Wells
Fargo “is not the lawful assignee of record of the Judgment” on page 3 of his Reply to Plaintiff’s
Memorandum of Law in Response to Order to Show Cause, ECF No. 20, which I considered in
making my September 2015 ruling. See Wells Fargo I, 2015 WL 5521797, at *1. In finding that
CIT did assign the Judgment to Wells Fargo and concluding that Wells Fargo had standing, I
resolved this issue, and the Fourth Circuit affirmed my ruling. I will not revisit it. See Chaplick,
2016 WL 4516061, at *3; see also Aramony, 166 F.3d at 661; Washington Gas Light Co., 784 F.
Supp. 2d at 571.
Dr. Asterbadi’s other Rule 60(b)(6) argument is that, under principles of equitable
estoppel, even if Wells Fargo is now the judgment creditor, the Court should not enforce the
Judgment against him, because the creditor failed to act promptly in collecting on the Judgment.
Def.’s Perm. Inj. Mot. 6.
“Equitable estoppel is the effect of the voluntary conduct of a party
whereby he is absolutely precluded both at law and in equity, from
assenting rights which might perhaps have otherwise existed ... as
against another person, who has in good faith relied upon such
conduct, and has been led thereby to change his position for the
worse and who on his part acquires some corresponding right,
either of property, of contract, or of remedy.”
Knill v. Knill, 306 Md. 527, 534, 510 A.2d 546 (1986) (citation omitted); see
Leonard v. Sav-A-Stop Services, 289 Md. 204, 211, 424 A.2d 336 (1981);
Bayshore Industries, Inc. v. Ziats, 232 Md. 167, 175, 192 A.2d 487 (1963).
Three essential and related elements are generally necessary to establish
equitable estoppel: 1) voluntary conduct or representation; 2) reliance; and 3)
detriment. Markov v. Markov, 360 Md. 296, 307, 758 A.2d 75 (2000). “Clearly ...
equitable estoppel requires that the voluntary conduct or representation constitute
the source of the estopping party’s detriment.” Knill, 306 Md. at 535, 510 A.2d
546. Ultimately, “whether or not an estoppel exists is a question of fact to be
determined in each case.” Travelers, supra, 244 Md. at 414, 224 A.2d 285; see
Markov, 360 Md. at 307, 758 A.2d 75; Gould v. Transamerican Assoc., 224 Md.
285, 297, 167 A.2d 905 (1961); Liberty Mutual Ins. Co. v. American Auto. Ins.
Co., 220 Md. 497, 501, 154 A.2d 826 (1959); Zimmerman v. Summers, 24
Md.App. 100, 120, 330 A.2d 722 (1975).
Gregg Neck Yacht Club, Inc. v. Cnty. Comm’rs of Kent Cnty., 769 A.2d 982, 1005–06 (Md. Ct.
Spec. App. 2001).8
The parties agree that this Maryland case law applies. See Def.’s Mot. 6; Pl.’s Opp’n 9.
Beyond identifying the elements, Dr. Asterbadi does not cite any law in support of his
position that Wells Fargo is equitably estopped from enforcing the Judgment or explain how the
judgment creditors’ slow collection efforts constitute a representation that it would never collect
on its Judgment or how his failure to make payments he was legally obligated to make under the
Judgment constituted a reliance on that purported representation. As for detriment in the form of
interest accrued, Dr. Asterbadi has not shown why, when he was aware of the Judgment against
him, he could not have made payments on the Judgment voluntarily to avoid the accrual of
interest. He concedes that he did not act in response to CIT’s initial suit against him, in which it
obtained a default judgment on October 4, 1993, until January 13, 2004, when he retained
counsel and paid CIT $28,000 in an attempt to settle the case.9 Perm. Inj. Mot. 8. When
settlement efforts failed, Dr. Asterbadi, through counsel, attempted to argue that CIT committed
fraud on the court when it did not reveal the “collateral [that] had been sold and that CIT had
actually received $1,699,327.96 of sales proceeds which reduced the claim.”10 Id. at 9. The
Eastern District of Virginia, and the Fourth Circuit on appeal, rejected the fraud argument. Id.
Thus, Dr. Asterbadi has not shown that, but for the judgment creditors’ delay, he would have
paid the Judgment. Rather, he has exacerbated the delay in the resolution in this matter and has
not shown that principles of equitable estoppel apply. See Gregg Neck Yacht Club, 769 A.2d at
State Court Ruling
I held a conference call on February 23, 2017 with counsel regarding the pending motion
and discovery dispute. In advance of the call, Defense counsel provided me with a copy of the
This $28,000 payment is part of the $81,500 noted as partial satisfaction of the Judgment.
This amount also appears on a notice of partial satisfaction of the Judgment.
unreported opinion that the Maryland Court of Special Appeals issued on February 21, 2017
(Asterbadi, ECF No. 71), which he argues should be dispositive of the issue of Wells Fargo’s
ability to enforce the Judgment in this Court, because, in his opinion, this Court and the Fourth
Circuit only addressed Wells Fargo’s standing to respond to my show cause order. I disagree.
In Asterbadi, CIT had recorded a notice of the 1993 judgment against Dr. Asterbadi in
the Maryland Circuit Courts for Montgomery and Prince George’s Counties on May 28, 2003.
Slip op. at 1–2. Then, on April 1, 2015, in both courts, CIT filed a notice of assignment of that
judgment to Wells Fargo, but, significantly, “CIT did not file a copy of the actual assignment of
the judgment with either court at that time.” Id. at 2.
Nor is there is any indication on either
state court docket that Wells Fargo or Dr. Asterbadi filed a copy of the actual assignment at the
time that the notice of assignment was filed. See Docket in CIT Grp. v. Asterbadi, Civ. No.
242822V (Cir. Ct. Montgomery Cnty., Md.), http://casesearch.courts.state.md.us/casesearch/
inquiryDetail.jis?caseId=242822V&loc=68&detailLoc=MCCI; CIT Grp. v. Asterbadi, Civ. No.
CAL 03-10985 (Cir. Ct. Prince George’s Cnty., Md.), http://casesearch.courts.state.md.us/
assignment was not filed until June 23, 2015, after the judgment had expired, when Wells Fargo
filed in both courts a “supplemental notice [that] included a copy of the 2007 assignment
agreement.” Asterbadi, slip op. at 3; see id. at 6 & n.6 (noting that “the judgment expired, at the
latest, on May 28, 2015”).
Prior to that filing, on May 28, 2015, Wells Fargo had filed a notice of renewal of the
Judgment in both courts. Id. at 2–3. Dr. Asterbadi moved to strike those notices, and the circuit
courts denied his motions. Id. at 3. When he appealed, the Maryland appellate court concluded
that Wells Fargo did not have standing to renew the judgment in either court, and therefore the
circuit courts should have granted his motions. Id. at 1. It reasoned:
[T]he notice of assignment filed by CIT in April 2015 did not satisfy the
requirements of Rule 2-624 because CIT did not file the original or a copy of the
actual assignment. Therefore, the notice of assignment did not transfer to Wells
Fargo the right to enforce the judgment against Asterbadi. If Wells Fargo did not
have the right to enforce the judgments on May 28th––and it didn’t––then its
attempt to renew the judgments on that day was ineffective because a judgment
can be renewed only by the judgment holder. Md. Rule 2-625. Wells Fargo’s
belated filing of the assignment from CIT on June 23, 2015 did not breathe life
back into the expired judgment because a judgment cannot be renewed after it
Id. at 6.
Despite dealing with the same Judgment, the facts of Asterbadi are inapposite. Here, the
actual assignment was filed (albeit by Dr. Asterbadi, not the judgment creditor) on July 17, 2015.
ECF No. 23-1. Thus, when Wells Fargo filed its Request and Notice for Renewal of Judgment in
this Court on August 26, 2015, before the Judgment had expired, the Assignment already was on
the docket, unlike in Asterbadi. ECF No. 25. The Asterbadi Court did not consider whether,
under circumstances like those before me, a judgment creditor would have standing to renew a
judgment when the assignment had been filed, but by someone other than the judgment creditor.
There, it was an issue of timing; here, it was an issue of identity of the filer. Moreover, as noted
in footnote 4 of this Memorandum Opinion, this Court’s opinion and the Fourth Circuit’s opinion
both addressed standing to enforce the Judgment, not simply standing to respond to the show
cause order. And, the Fourth Circuit’s opinion is binding on this Court, whereas the unreported
opinion of the Court of Special Appeals is not. See Md. R. 1-104(a) (“An unreported opinion of
the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare
decisis nor persuasive authority.”).
Moreover, although an unreported opinion of the Maryland Court of Special Appeals
may be cited in federal court for purposes of res judicata or collateral estoppel, see Md. R. 1104(b), neither doctrine applies. When a federal court litigant asserts that a state court judgment
has preclusive effect, “[the] federal court must give to [the] state court judgment the same
preclusive effect as would be given that judgment under the law of the State in which the
judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).
Under Maryland law, for collateral estoppel to bar relitigation of an issue, the defendant must
demonstrate, inter alia, that “the issue decided in the prior adjudication [was] identical with the
one presented in the action in question”; and “the party against whom the plea is asserted [was]
given a fair opportunity to be heard on the issue.” Garrity v. Md. State Bd. of Plumbing, 135
A.3d 452, 459 (Md. 2016) (quoting Colandrea v. Wilde Lake Cmty. Assoc., 761 A.2d 899 (Md.
2000)). Here, the issue is not identical because Wells Fargo seeks to collect on a judgment for
which the assignment was noted on the docket before it expired, whereas in state court, Wells
Fargo sought to renew the judgment after it had expired.
Wells Fargo did not have the
opportunity to be heard in state court on whether it could have renewed the judgment if Dr.
Asterbadi had filed it on the state court docket prior to its expiration.
Under Maryland law, res judicata, or claim preclusion, provides grounds for dismissal if
a defendant establishes that “(1) the present parties are the same or in privity with the parties to
the earlier dispute, (2) the claim presented is identical to the one determined in the prior
adjudication, and (3) there has been a final judgment on the merits.” Capel v. Countrywide Home
Loans, Inc., No. WDQ-09-2374, 2010 WL 457534, at *3 (D. Md. Feb. 3, 2010) (citing Anne
Arundel County Bd. of Educ. v. Norville, 887 A.2d 1029, 1037 (Md. 2005)). Here, while the
parties are the same, there are no “claim[s] presented,” as these are cases in which the judgment
creditor seeks to enforce an already-final judgment entered in another jurisdiction. Thus, res
judicata simply is not applicable.
Amount Due on Judgment
What remains is Dr. Asterbadi’s Rule 60(b)(5) argument that the Judgment has been, at
least in part, satisfied.
According to Dr. Asterbadi, CIT and Wells Fargo have not been
forthright with regard to payments he has made and the amount he currently owes, if anything.
In particular, Dr. Asterbadi asserts that he entered into a Forbearance Agreement with CIT, under
which he agreed to pay CIT $250,000 in principal, plus a set amount of interest each month, by
July 8, 1996, in exchange for which CIT would release him from his obligation to pay the
amount due under the judgment.
Def.’s Perm. Inj. Mot. 3.
He paid $81,500 under the
Forbearance Agreement but then defaulted in July 1995. Id. at 7–8, 10. He acknowledges that
this amount is reflected on the Notices of Partial Satisfaction that CIT filed. Id. at 3 n.3. In
addition, he contends that the Judgment was enrolled in New Jersey state court in 2003, and New
Jersey real property that he jointly held with his wife was sold through a sheriff’s sale on May 8,
2005, “with proceeds of $551,000 paid to CIT as judgment creditor,” but CIT never filed any
notice with the courts where it had registered the Judgment. Id. at 5, 10; see Sept. 8, 2005 Order
from Cape May Cnty. Ct., N.J., Perm. Inj. Mot. Ex. 13, ECF No. 58-2, at 38 (noting that the
amount recovered from the sale of the property, $551,000, was less than the unsatisfied portion
of the principal, $586,682.01). And, he asserts that the U.S. Marshal “seized and sold his
personal motor vehicle” for $14,397.00 on February 24, 2005. Def.’s Perm. Inj. Mot. 5.
As Dr. Asterbadi sees it, he has satisfied the $586,682.01 Judgment because his vehicle
sold for $14,397.00; he “paid $81,500 toward the forbearance agreement amount”; and “as the
result of the sale of his interest in the Stone Harbor [NJ] property, CIT had received another
$551,000.” Id. at 5, 10 n.4, 11. By his calculations, the seized real and personal property sales
proceeds, “coupled with the forbearance payments of $81,500 exceeded the judgment principal
amount and was more than twice what CIT have [sic] agreed to accept under the Forbearance
Agreement.” Id. at 11. He also argues that, if interest is due, it should be at the statutory post
judgment rates, as provided for in the Forbearance Agreement, not at the (higher) 1.5% rate
provided for in the Judgment. Id. at 19–20.
1. Effects of Forbearance Agreement
Insofar as Dr. Asterbadi may be arguing that he only owes the amount due under the
Forbearance Agreement or that the terms of the Forbearance Agreement otherwise controls, he is
wrong. Under Virginia Law, which governs the Forbearance Agreement, see Forbearance Agr.
§ 12, ECF No. 58-2, at 40–47, “it is the duty of the court to construe a written contract when it is
clear and unambiguous on its face . . . .” Online Res. Corp. v. Lawlor, 736 S.E.2d 886, 894 (Va.
2013). The Forbearance Agreement provided in clear and unambiguous language that, if Dr.
Asterbadi defaulted, which he concedes that he did, then the entire principal amount under the
Judgment, plus interest, minus anything paid, would become due.
Forbearance Agr. § 6.
Therefore, the amount he owes is not limited to the amount due under the Forbearance
Further, the Forbearance Agreement, as its name implies, provided that “CIT
agree[d] to forbear from executing upon the Judgment, provided that Dr. Asterbadi fully and
timely perform[ed]” under the Forbearance Agreement, but that “upon default, Asterbadi
agree[d] that CIT shall be entitled to take all appropriate steps to enroll or file the Judgment in
any jurisdictions CIT deems appropriate.” Id. §§ 14, 15. Thus, once Dr. Asterbadi defaulted, the
terms of the Judgment, including those pertaining to interest, governed.11 See id.
2. Effects of Payments Made
With regard to his argument that he now owes less than appears on the December 2004
Notice of Partial Satisfaction of Judgment, that may be true, based on the sale of the New Jersey
real property and his vehicle. As Wells Fargo notes, the proper approach for challenging the
amount of the Judgment is a Rule 60(b)(5) motion. Rule 60(b)(5) provides that, “within a
reasonable time,” a judgment debtor may file a motion asking for relief from a judgment on the
grounds that “the judgment has been satisfied.” Fed. R. Civ. P. 60(b)(5). The vehicle and the
Wells Fargo argues that “Asterbadi is collaterally estopped from challenging the calculation of
post-judgment interest” because he already “challeng[ed] the issue of the applicable postjudgment interest rate in the United States District Court for the Eastern District of Virginia.”
Pl.’s Opp’n 11. Wells Fargo attaches the relevant 2004 Memorandum Opinion and Order from
the Eastern District of Virginia. See June 15, 2004 E.D. Va. Mem. Op. & Order, Pl.’s Opp’n Ex.
3, ECF No. 61-3. Notably, “[t]o apply collateral estoppel or issue preclusion to an issue or fact,
the proponent must demonstrate [five elements, one of which is] that . . . the issue or fact was
critical and necessary to the judgment in the prior proceeding.” In re Microsoft Corp. Antitrust
Litig., 355 F.3d 322, 326 (4th Cir. 2004) (citing Sedlack v. Braswell Servs. Group, Inc., 134 F.3d
219, 224 (4th Cir.1998)). This is one of the elements that Dr. Asterbadi challenges. See Def.’s
Dr. Asterbadi filed a Rule 60(b)(5) and (6) Motion for Relief from Judgment in the
United States District Court for the Eastern District of Virginia in 2004. See June 15, 2004 E.D.
Va. Mem. Op. & Order 1. The court identified two issues before it: “(1) whether CIT’s
representative had authority to sign the release; and (2) whether the release was the product of a
unilateral mistake of fact.” Id. Yet, its Findings of Fact included the fact that the Judgment “was
entered in the amount of $2,286,009.97, plus interest from May 31, 1993 on the sum of
$2,184.950 at the rate of 1.5% per month.” Id. at 3. It also found that the parties entered into the
Forbearance Agreement, which provided that “[i]f Asterbadi failed to pay the agreed amount, the
agreement would be breached, and instead the unsatisfied amount of the judgment would be
due,” id., and that Dr. Asterbadi breached the Forbearance Agreement, id. at 3–4. Thus, while
not ruling specifically on the amount of interest due after breach, the Eastern District of Virginia
already determined that, if Dr. Asterbadi breached the Forbearance Agreement, the Judgment’s
terms (which included interest at 1.5%) would govern. See id. But, Wells Fargo has not shown
that this fact was “critical and necessary to the judgment in the prior proceeding.” See In re
Microsoft Corp. Antitrust Litig., 355 F.3d at 326. Therefore, collateral estoppel does not apply.
New Jersey real property were sold in 2005, and Wells Fargo renewed its efforts in this Court on
May 12, 2015; Dr. Asterbadi did not mention the proceeds until filing his request to file his
Permanent Injunction Motion on December 8, 2016. ECF No. 53. At first glance, that certainly
does not seem like a reasonable time. But, Dr. Asterbadi acted promptly once he realized Wells
Fargo was pursuing collection and this case was moving forward. Thus, insofar as his Permanent
Injunction Motion is construed as a Rule 60(b)(5) motion, he filed it within a reasonable time.
Wells Fargo does not argue that CIT did not receive $551,000 (and it does not address the
vehicle sale). Rather, it argues that the “collection activity in New Jersey [has] no bearing on the
Judgment registered in this Court,” because, when Asterbadi defaulted on the terms of the
Forbearance Agreement, CIT regained the right to “execute upon the ‘Judgment,’” which was
the “‘Judgment,’ as defined in the Forbearance Agreement,” that is, “the Original Judgment . . .
the same Judgment registered in this Court,” unreduced by that earlier collection effort. Pl.’s
Opp’n 5–6 (citing Forbearance Agr. ¶¶ R.1, 6.1, 8.1).12 Thus, the parties dispute the application
of the money received from the real property and vehicle, as well as the $81,500 paid under the
Forbearance Agreement, and the effects of these credits on interest accrued. The $81,500
appears on the Notice as “credits against accrued interest,” but Dr. Asterbadi argues that it could
have “been applied to the principal balance of the judgment.” Id. at 11–12. Pursuant to
Forbearance Agreement § 2.4, payments were to be applied
2.4.1 first, toward any amounts CIT has spent to satisfy claims under § 5.1
[regarding Dr. Asterbadi’s life insurance policy];
2.4.1 second, toward interest incurred to date of payment;
2.4.3 third, toward reduction in principal.
Given the timing of events, with Dr. Asterbadi’s default under the Forbearance Agreement
occurring in 1995 and the collection efforts in New Jersey occurring between 2003 and 2005, it
is unclear to me how these later collection efforts would not diminish the Judgment.
It is unclear whether CIT had to make any payments under § 5.1 (which provided that CIT would
make payments on Dr. Asterbadi’s life insurance policy for which it was beneficiary if he failed
to make the payments himself) and how much interest accrued during the time Dr. Asterbadi was
If the judgment creditor received $551,000 from the real property and
$14,397 from the vehicle and if these payments should have been applied to the principal, by the
time Wells Fargo acquired the Judgment, Dr. Asterbadi only owed another $21,285.01 on the
$586,682.01 principal plus $88,002.30 in attorneys’ fees. It appears that, if the proceeds from the
property sales and $21,285.01 of the $81,500 were applied toward the principal, then that amount
could have satisfied the principal and stopped the accrual of interest in 2005. And, if some
amount less than the full amount of the principal were applied, that could have reduced the
accrual of interest. Discovery and/or an accounting may enable Dr. Asterbadi to show that the
Judgment was satisfied in part. Therefore discovery and perhaps an accounting are necessary to
determine how much is due and how much Wells Fargo seeks to collect.
While, in the mine run case, a judgment debtor is not entitled to discovery, this case
presents unusual circumstances with underlying issues to resolve, given the intervening
collection efforts since the Judgment issued more than two decades ago. Discovery is necessary
to resolve those issues. And, although procedural rules provide for a judgment creditor to pursue
discovery in aid of execution, see Fed. R. Civ. P. 69; Md. R. 2-633, discovery can be ordered in
this Court’s discretion, and district courts have “wide latitude in controlling discovery,” Rowland
v. Am. Gen. Fin., Inc., 340 F.3d 187, 195 (4th Cir. 2003). Thus, insofar as Dr. Asterbadi seeks
discovery to determine the amount still due on the Judgment, I will grant his motion as described
in the discovery plan below. His request for an accounting is denied without prejudice to
renewal should discovery show that an accounting is necessary. His motion otherwise is denied.
Dr. Asterbadi seeks discovery with regard to why CIT and Wells Fargo took no
enforcement action for more than a decade. Because this discovery pertains to his equitable
estoppel argument, which he did not support, I will not permit it. Dr. Asterbadi also seeks
discovery to determine what CIT assigned to Wells Fargo, and specifically whether it intended to
assign the Judgment to Wells Fargo.
Because this Court and the Fourth Circuit already
determined that CIT assigned the Judgment to Wells Fargo, I will not permit this discovery.
Additionally, Dr. Asterbadi seeks discovery to determine what payments CIT received
toward the Judgment and how CIT treated payments it received. And, Wells Fargo seeks
discovery in aid of execution on the Judgment. I will permit these two tracks of discovery to
proceed at the same time as follows, with the following subjects of discovery the only ones
permitted at this time:
Wells Fargo may pursue discovery to identify assets of Dr. Asterbadi, and any
assets identified may be preserved so that once the outstanding balance that Dr. Asterbadi owes
under the Judgment has been determined, then at that time (but not before), the assets may be
transferred to Wells Fargo or disposed of in a manner that otherwise satisfies the Judgment; and
It is clear that CIT undertook collection efforts, beginning with selling the
airplane in 1993. CIT filed notices of partial satisfaction of the Judgment, but these notices have
not been updated in more than a decade. Accordingly, Dr. Asterbadi may move forward with
discovery to determine the amount of the Judgment that remains unpaid. Specifically, he may
pursue discovery from Wells Fargo, as well as CIT and other appropriate third parties, regarding
(a) payments made by or assets seized from Asterbadi, or others on behalf of Asterbadi,
that were credited toward the Judgment;
(b) how any such payments or assets were applied to the Judgment; and
(c) what Wells Fargo contends still is due on the Judgment.
I note that, if Dr. Asterbadi begins with Wells Fargo’s belief regarding the balance due, the
parties may be able to come to an agreement rather than having to pursue this discovery.
In sum, Dr. Asterbadi’s Motion for a Permanent Injunction, ECF No. 58, IS GRANTED
IN PART AND DENIED IN PART. Specifically, construed as a Rule 60(b)(5) motion for relief
from a judgment that has been, at least in part, satisfied, the motion IS GRANTED as follows:
i. Wells Fargo may pursue discovery to identify (and preserve) assets of Dr.
Asterbadi, so that once the outstanding balance that Dr. Asterbadi owes under the
Judgment has been determined, then at that time (but not before), the assets may
be transferred to Wells Fargo or disposed of in a manner that otherwise satisfies
the Judgment; and
ii. Dr. Asterbadi may move forward with discovery to determine the amount of the
Judgment that remains unpaid. Specifically, he may pursue discovery from Wells
Fargo, as well as CIT and other third parties, regarding
(a) payments made by or assets seized from Dr. Asterbadi, or others on behalf of
Dr. Asterbadi, that were credited toward the Judgment;
(b) how any such payments or assets were applied to the Judgment; and
(c) what Wells Fargo contends still is due on the Judgment;
Dr. Asterbadi’s request for an accounting IS DENIED without prejudice to renewal should
discovery show that an accounting is necessary; and his motion otherwise IS DENIED.
A separate order will issue.
Date: March 2, 2017
Paul W. Grimm
United States District Judge
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