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Sekendur v. McCandliss

United States District Court, Seventh Circuit

September 23, 2013

ORAL F SEKENDUR, Plaintiff,
v.
GLENN A McCANDLISS; MORGAN STANLEY SMITH BARNEY; Defendants. GLENN A McCANDLISS, Counter-Claimant, Third-Party Plaintiff,
v.
NAFIZ SEKENDUR; MESRURE SEKENDUR; BATURSEKENDUR, Third-Party Defendants, ORAL F SEKENDUR, Counter-Defendant.

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge.

On December 7, 2011, plaintiff Oral Sekendur ("Oral") filed a complaint in the Circuit Court of Cook County alleging that defendant Glenn McCandliss is liable for civil conspiracy, harassment, defamation, and intentional infliction of emotional distress. (Dkt. No. 1, Ex. A.)[1] McCandliss removed the action to this court (Dkt. No. 1), and on January 2, 2012, filed counterclaims against Oral for civil conspiracy, fraudulent conveyances, and violation of the Uniform Fraudulent Transfer Act ("UFTA"). (Dkt. No. 6.) In addition, McCandliss filed third-party claims against Oral's brother, Batur Sekendur, and his parents, Nafiz and Mesrure Sekendur.[2] McCandliss alleges that Nafiz, Mesrure, and Batur are liable for civil conspiracy, fraudulent conveyances, and violation of the UFTA. (Dkt. No. 7.)

There are three summary judgment motions pending before the court. First, McCandliss has moved for summary judgment on all of Oral's claims against McCandliss. McCandliss in his motion also seeks summary judgment on his three claims against Oral, Batur, Nafiz, and Mesrure. (Dkt. No. 139.) In addition, Batur, Nafiz, and Merure have filed a cross-motion for summary judgment on McCandliss's claims against them. (Dkt. No. 158.) Separately, Oral has filed a cross-motion for summary judgment on McCandliss's claims against Oral, and also on Oral's claims against McCandliss.

For the reasons stated below, McCandliss's motion for summary judgment on all claims (Dkt. No. 139) is granted with respect to Oral's claims against him, and denied with respect to his claims against the Sekendurs. The summary judgment motion of Batur, Nafiz and Mesrure (Dkt. No. 158) is granted, and the summary judgment motion of Oral (Dkt. No. 184) is granted with respect to McCandliss's claims against Oral, and denied with respect to Oral's claims against McCandliss.

BACKGROUND

The following facts are taken from McCandliss's Rule 56.1 statement of material facts accompanying his motion for summary judgment (Dkt. No. 140 ("Def.'s SMF")), and for purposes of resolving these motions are undisputed.[3]

The claims at issue here stem from a 2003 qui tam action filed by McCandliss court captioned U.S. ex rel. Glenn McCandliss v. Batur and Oral Sekendur, No. 03 C 807 (N.D. Ill.) (the "2003 Action"), in which McCandliss as relator on behalf of the United States alleged that Batur and Oral Sekendur violated the False Claims Act and defrauded the U.S. Social Security Administration. ( See Def.'s SMF, Ex. 2.) Following a bench trial, this court on February 20, 2007, found that Batur and Oral were both liable under the False Claims Act. ( Id. ) The court subsequently entered a judgment "in favor of the United States and Relator Glenn McCandliss and against Batur and Oral Sekendur, jointly and severally, in the amount of $1, 524, 264.50." Dkt. No. 241, U.S. ex rel. McCandliss, No. 03 C 807 (N.D. Ill. Aug. 23, 2007).

A few weeks after the February 2007 bench trial, Batur transferred the title of his powerboat the "Whitecap" to his mother Mesrure for no consideration. (Def.'s SMF ¶ 16 & Ex. 13.) This court ruled that the transfer was fraudulent under the UTFA and that the boat was thus available to be attached by McCandliss in his attempts to collect on the judgment in the 2003 Action. (Def.'s SMF ¶ 17, Ex. 14.)

In November of 2009, Mesrure purchased a home in Seattle, Washington, with an address of "12010 Daniel Place" for $350, 000. (Def.'s SMF ¶¶ 21-16, Exs. 19-24.) Batur assisted Mesrure with the purchase by filling out some of the necessary documents. (Def.'s SMF ¶¶ 21-23.) On October 17, 2011, Batur stated that he had lived at 12010 Daniel Place for the previous two years. ( Id. ¶ 33.) Batur's parents both lived in Palm Coast, Florida, during that time period. ( Id. ¶ 34.)

On November 9, 2007, the United States issued a citation to discover assets to MSSB in an attempt to collect the judgment against Oral, leading MSSB to freeze Oral's access to his MSSB accounts. (Def.'s SMF, Ex. 4.) The citation subsequently expired, however, and Oral withdrew $48, 848.96 and $88, 235.15 from two of his MSSB accounts on August 14, 2008. (Def.'s SMF ¶ 18.)

McCandliss's statement of material facts also includes information about several accounts held in Batur's name. On June 12, 2009, Batur owned an AXA Equitable 300 Series Account with a balance of $199, 381.11. (Def.'s SMF ¶ 29.) On December 31, 2010, Batur had a Bank of America "retirement portfolio account" with a balance of $198, 432.64. ( Id. ¶ 30.) Batur withdrew $199, 432.62 from the Bank of America Account on August 8, 2011, and on October 17, 2011, Batur held a Viking Bank IRA account with a balance of $189, 050.00. ( Id. ¶¶ 31-32.)

LEGAL STANDARD

A grant of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on a motion for summary judgment, the court must consider the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in the nonmoving party's ...


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