We conclude that 15%, absent any evidence of the extent or value of the services of counsel, would be unconscionable under the facts and circumstances of this case. In our view 5% is the maximum to which the plaintiff is equitably entitled as reasonable compensation for attorneys fees.
MOTION OF MERIT, LIBERAL, FINCO AND RESKOB
Our Conclusion of Law No. 7 held, inter alia, that Merit, Liberal, Finco, and Reskob, were entitled to judgment against the plaintiff.
We are constrained, therefore, to grant the motion of these four corporate defendants to enlarge paragraph 4 of our Order to dissolve the fraudulent debtor's attachment against them.
MOTION OF LEWIS BOKSER TO SET ASIDE SERVICE OF LEVY OR WRIT OF ATTACHMENT EXECUTION
Finally, Lewis Bokser has moved to set aside service or levy of the plaintiff's writ of attachment execution, which was served on the Industrial Valley Bank and Trust Company on March 16, 1966, following our order of March 4, 1966.
The bank was in possession of 8 life insurance policies, naming Lewis Bokser as the insured and his wife as beneficiary, when the writ was served on March 16, 1966. Our colleague, Judge Joseph S. Lord, III, in an opinion filed on November 16, 1965, 248 F. Supp. 158, held these policies to be exempt from attachment under the fraudulent debtor's attachment.
In the course of his opinion, Judge Lord also ruled that, upon the record then before him, the proceeds of a bond and mortgage, then in the possession of the bank, was owned by Lewis and Sara Bokser as tenants by the entireties. In a supplemental opinion, filed on December 29, 1965,
after the parties submitted a stipulation of facts and briefs, Judge Lord held that, because of the marshalling of assets doctrine, the proceeds of the bond and mortgage were to remain subject to the writ of fraudulent debtor's attachment.
Following the filing of our Opinion and Order of March 4, 1966, which dissolved the fraudulent debtor's attachment against Lewis and Sara Bokser, the garnishee bank applied the entire proceeds of the bond and mortgage to the Boksers' indebtedness to the bank.
Consumers resists Lewis Bokser's motion to set aside service of its writ of attachment execution, claiming that the bank should have first applied the cash surrender value of the 8 life insurance policies to the satisfaction of the Boksers' debt before having recourse to any of the proceeds of the bond and mortgage, so that any balance of the mortgage proceeds might be available to Consumers in application of the doctrine of marshalling of assets.
Lewis Bokser, in answer, contends that the mortgage proceeds belonged or belong to him and his wife as tenants by the entireties and are, therefore, unavailable to Consumers, which has judgment only against him. In reply, Consumers asserts that the mortgage proceeds were and are partnership property of Bokser and his wife and not entireties property, and, that Consumers is entitled so to prove.
It is true that Judge Lord held, pp. 161, 162: "Plaintiff has alleged that the property was actually owned by the Boksers, not as tenants by the entireties, but as partners. Plaintiff has adduced no facts to support this conclusory allegation, and in the absence of facts to rebut the presumption, we are obliged to treat the bond and mortgage as entireties property." However, the present motion relates to a different writ, attachment execution, and to a different time.
In these circumstances we believe the plaintiff is entitled to join issue with the garnishee in the writ of attachment execution to afford the parties adequate opportunity to develop, by evidence upon trial, whatever may be the operative facts to which the applicable law must then be applied. We think that the problems posed by Lewis Bokser's motion to set aside service of the writ of attachment execution are wholly different from and should not be commingled with those relating to requested modification of our earlier findings and conclusions on the merits of the basic controversy.
Now, this 6th day of Sept., 1966, it is ordered that:
(1). The defendants' motions to amend our Findings of Fact, Conclusions of Law and Order are denied, except for the insertion of the word "serious" between the words "without" and "objection", as set forth in the last line of our Finding of Fact No. 6.
(2). The motion of Lewis Bokser for judgment notwithstanding the verdict is denied.
(3). The motions of Merit Metalcraft Corporation, Liberal Sales Credit Co., a corporation, Sales Finco, a corporation, and Reskob, Inc., to dissolve the fraudulent debtor's attachment against them are granted and paragraph No. 4 of our Order of March 4, 1966, is hereby amended to include these defendants within its scope.
(4). The plaintiff's motion to amend and eliminate certain of our Findings of Fact, Conclusions of Law and paragraphs of our Order is denied, except for Conclusion of Law No. 5 wherein we held: "No claim for counsel fees to plaintiff has been proven."
In lieu thereof, the following Conclusion of Law shall be, and it is, hereby substituted:
5. The plaintiff is entitled to a reasonable counsel fee of 5% of the sum of $196,099.60, to wit, $9,804.98
(5). Conclusion of Law No. 6 be, and it is, amended to state the increased amount of $205,904.58, conformably to our award of counsel fees in the sum of $9,804.98.
(6). Paragraph 1 of our Order of March 4, 1966, be, and it is, amended to increase the amount of the judgment entered in favor of the plaintiff therein against the defendants named therein from $196,099.60 to $205,904.58.
(7). Except as hereinbefore modified or amended our earlier Findings of Fact, Conclusions of Law and Order shall remain unchanged.
(8). Decision is reserved on the defendant's motion to set aside the plaintiff's service or levy of writ of attachment execution, wherein Industrial Valley Bank and Trust Co. is garnishee, pending trial of issues therein, which the parties or their counsel shall suitably frame and submit within 30 days.