EAST MARK INTERNATIONAL, LTD.
ADAR, LLC, d/b/a THE LINCOLN ON LOCUST, L.P.
Harvey Bartle III, J.
Before the court is the emergency motion of intervenors Benzion "Sam" Faibish ("Faibish") and Yehuda Olewski ("Olewski") "to enforce Stipulated Order and mandatory injunctive relief."
On March 3, 2013 plaintiff East Mark International, LTD. ("East Mark") filed a complaint for confession of judgment against defendant ADAR, LLC d/b/a The Lincoln on Locust, L.P. ("ADAR"). East Mark is corporation organized under the laws of the Marshall Islands with its principal place of business in Hong Kong. Gershon Engel is the sole owner of East Mark. In the complaint, East Mark alleged that it held a valid first mortgage in the amount of $3, 600, 000 on a property located at 1222-1226 Locust Street, Philadelphia, Pennsylvania ("the property"), which consists of a building containing approximately 41, 216 square feet. The property is owned by defendant Lincoln on Locust, LP ("Lincoln on Locust"). ADAR, whose sole member is Jacob Ungar ("Ungar"), is the general partner of Lincoln on Locust. East Mark further averred that Lincoln on Locust defaulted on the mortgage which resulted in the full amount of the mortgage becoming due.
On March 4, 2013, the Clerk of the Court entered judgment in favor of East Mark in the amount of $3, 780, 000, which amount included interest due. On March 18, 2013, East Mark filed a praecipe for writ of execution. The Clerk thereupon issued the writ and forwarded it to the United States Marshal. The Marshal scheduled the sale of the property for June 24, 2013.
On June 6, 2013, Faibish and Olewski filed in this court an "emergency motion for temporary restraining order." They also moved orally to intervene as defendants. In the emergency motion, intervenors claimed that they had a 42.5% ownership interest in Lincoln on Locust and the property at issue. They further asserted that the mortgage held by East Mark was a fraud intended to deprive them of their ownership interest in the property. Faibish and Olewski were also concerned that any money obtained as a result of the Confession of Judgment would swiftly be transferred out of the United States since East Mark is an offshore entity.
We granted the motion of Faibish and Olewski to intervene as well as a temporary restraining order on June 21, 2013. The temporary restraining order canceled the Marshal's Sale of the property which was to take place on June 24, 2013. On July 2, 2013, we extended the temporary restraining order through July 17, 2013. We scheduled a preliminary injunction hearing for August 14, 2013.
On August 13, 2013, a day before the hearing was to occur, Faibish, Olewski, East Mark, and Lincoln on Locust filed a stipulation for court approval. We approved the stipulation the same day, and the hearing was cancelled. The Stipulated Order, which is the subject of the pending motion, states:
It is hereby stipulated agreed [sic] by and between East Mark International, Ltd. ("East Mark"), plaintiff herein, and Adar, LLC d/b/a The Lincoln on Locust, L.P. (collectively "Adar"), defendants herein, and Benzion ("Sam") Faibish and Yehuda Olewski (collectively "Intervenors"), as follows:
1. Intervenors' Petition to Strike/Open Confessed Judgment shall be deemed and marked as withdrawn.
2. The Subpoena sent by Intervenors, through their counsel, addressed to The Hong Kong and Shanghai Banking Corporation Limited, a/k/a and/or d/b/a HSBC Bank USA, N.A. ("HSBC") shall be deemed and marked as withdrawn.
3. East Mark's Motion to Quash the HSBC Subpoena shall be deemed and marked as withdrawn as moot.
4. Defendants and intervenors have agreed that the dispute between the parties relating to the property located at and known as 1222-1226 Locust Street, Philadelphia, Pennsylvania 19107 (the "Property"), shall be resolved through an agreed upon Rabbinical Court, in a Bet Din proceeding (the "Bet Din proceeding").
5. East Mark shall not take any further action on the judgment by confession obtained in this case on or about March 6, 2013, except as specifically ...