Bank of America, N.A. v. New York Merchants Protective Co., Inc. et al

Filing 63

ORDER re the Receiver's June 24, 2011 Report to the Court. See attached. Ordered by Senior Judge Denis R. Hurley on 7/8/2011. (Malley, Sean)

UNITED STATES OF AMERICA
EASTERN DISTRICT OF NEW YORK
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BANK OF AMERICA, N.A., individually
and as successor to LA SALLE BANK,
NATIONAL ASSOCIATION, A NATIONAL
BANKING ASSOCIATION,

MEMORANDUM AND ORDER
11-CV-0038 (DRH)(ARL)

Plaintiff,
-againstNEW YORK MERCHANTS PROTECTIVE CO.,
INC., NEW YORK MERCHANTS ALARM
RESPONSE INC., and NY MERCH PROT
CO., INC.,
Defendants.
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HURLEY, Senior District Judge
On June 20, 2011, I indicated orally during a status
conference that, on the first day of each month, the Receiver
should provide me with documentation concerning the amount of
compensation he has received for the preceding month, as well as
the monies received by his counsel and TRG as his on-site
consultant for that period.
By letter dated July 24, 2011, the Receiver sent me
"copies of statements [he] forwarded to Bank of America, N.A. on
June 13, 2011."

Receiver's July 24, 2001 Letter at 1.

Those

summary statements, however, lack the specificity needed by the
Court to appropriately monitor the receivership.
By way of supplementing my oral June 20th Order:
(1) With respect to the counsel fees incurred, the
Court directs the Receiver to submit a monthly statement from the

law firm indicating the name of the individual rendering the
service, the date and specifics of the service provided, the
hours or fractions thereof devoted to the task, along with the
corresponding hourly rate.

Moreover, as to the hourly rate

charged for each service provider, I will need sufficient
background information to assess the reasonableness of that rate,
such as e.g., whether the provider is an attorney or paralegal,
his or her educational background, experience, and fees charged
in other matters.
(2) With respect to TRG, again greater specificity
is required.

Thus, for each TRG officer, employee or independent

contractor, not only must the date, hours and rate of pay be
provided, but also the specific task or duties performed by that
individual.
(3) The Court recognizes that numerous and sundry
expenses almost surely are incurred on a repetitive basis by the
Receiver, TRG, and counsel with respect to New York Merchants
Protection Co., Inc.

Accordingly, specificity as to their

expenses is not required, except to the extent a given expense
exceeds $250.

For expenses in the later category, the date,

nature, and need for incurring the expense shall be provided with
particularity.

For other expenses i.e. those of $250 or less, a

recitation of simply the first two items will suffice.
(4) The Receiver is entitled to a commission under

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N.Y. CPLR § 8004(a) "not exceeding five percent upon the sums
received and disbursed."

For the May 1, to May 31, 2011 period,

the Receiver reported in his June 24, 2011 letter, that his
commission was $25,584.54.

That figure presumably was taken from

some sort of journal or other document maintained by the Receiver
listing his disbursements during the subject period.

That

underlying documentation shall be provided to the Court.
As to the date by which the Court expects the
Receiver's monthly reports to be as detailed above, I indicated
in the June 20th Order that the Receiver's reports "were due . .
. on the first day of each month."

June 20, 2011 Tr. at 44.

However, upon further reflection that timetable is adjusted so
that henceforth the report should be in my hands on or before the
15th of each month to cover the preceding calendar month.

By way

of example for the month of July, 2011, I anticipate receiving
the statement for that period on or before August 15, 2011.
This decision is not retroactive, meaning that its
specificity requirements are not applicable to the Receiver's
July 24, 2011 submission or the one due for July, given, inter
alia, the arguable imprecision of my earlier oral directive, and
the likely difficultly of reconstructing the records with the
required specificity after-the-fact.

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The above constitutes the decision and order of the
Court.
SO ORDERED.
Dated: July 8, 2011
Central Islip, New York

/s
DENIS R. HURLEY
United States District Judge

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